Indian Wells Municipal Code Ch. 1.28 Nuisance Abatement Cost Recovery

The purpose of this Section is to establish a procedure for recovery of costs as authorized by Government Code Sections 38773.1 and 38773.5 and to afford due process of law to any person who is directly affected by this process. It is the policy of the City to ensure that all applicable laws are followed by the City in performance of this Chapter, including respect for constitutional protections, due process, and equal protection.

(Ord. 758, 9/5/2024)

For the purposes of this Chapter, unless otherwise apparent from the context, certain words or phrases used in this Chapter are defined as follows:

"Abatement costs"

means all costs, fees, and expenses, incidental or otherwise, including attorney fees and City staff time charges, incurred by the City in investigating and abating a public nuisance.

"Hearing officer"

means any person authorized by this Chapter to hear and review appeals under this Chapter.

"Person"

means any natural person or legal entity, including any firm, partnership, association, corporation, trustee, trust, organization, or entity of any kind, or such person's authorized representative.

"Responsible party"

means any of the following:

(1)

A person who causes a code violation to occur;

(2)

A person who maintains or allows a code violation to continue, by his or her action or failure to act; or

(3)

A person who is the owner of, or who has a recorded interest in, real property where a property-related code violation occurs or exists.

(Ord. 758, 9/5/2024)

Whenever the City incurs abatement costs in abating a public nuisance or seeking to abate a code violation or public nuisance, the City is entitled to recover the abatement costs related to those code enforcement efforts in accordance with the procedure set forth in this Chapter. The City may commence cost-recovery proceedings at any time.

(Ord. 758, 9/5/2024)

Recoverable abatement costs include all costs, fees, and expenses, incidental or otherwise, including attorney fees, incurred by the City in investigating and abating a public nuisance.

(Ord. 758, 9/5/2024)

(a) Except where this Chapter prescribes another procedure or the parties otherwise agree to an alternate means, any notice or document required to be served under this Chapter must be served by personal service or first-class mail.

(b) Service is deemed effective on the date it is personally delivered or deposited in the mail.

(c) Failure of any person to receive a document properly served under this Chapter does not affect the validity of the notice or document, service, or any action or proceeding under this Chapter.

(Ord. 758, 9/5/2024)

(a) Report of Abatement Costs. To initiate the process for recovery of abatement costs, the City must serve an itemized report of abatement costs on the responsible party identifying all abatement costs and demanding payment. The report must provide notice that any unpaid amounts may become a lien and special assessment against the property unless the City receives full and timely payment.

(b) Service of Report of Abatement Costs. The report of abatement costs must be served in accordance with Section 1.28.050. If the code violation or public nuisance relates to real property, then the report of abatement costs must be served on each person with a recorded interest in the subject property.

(c) Payment. Timely, full payment of the abatement costs must be remitted to the City within 45 calendar days following the date of service of the report of abatement costs.

(d) Right to Appeal. Any person issued a report of abatement costs has a right to appeal the report of abatement costs in accordance with this subsection. An appeal must be filed within 15 calendar days following the date of service of the report of abatement costs. The right to appeal and procedures must be specified in the report. A written notice of appeal must contain the following information: (1) the name and contact information of the appellant; and (2) the grounds for appeal in sufficient detail to enable the hearing officer and City to understand the nature of the controversy. The failure of any person who has been served with proper notice to timely file an appeal is a failure to exhaust administrative remedies.

(Ord. 758, 9/5/2024)

(a) Selection of Hearing Officer. The City Manager may select the hearing officer. The hearing officer must be selected in a manner that avoids the potential for pecuniary or other bias.

(b) Scheduling and Noticing of the Hearing. If a timely and proper appeal is filed, the City Clerk must schedule the hearing no sooner than 15 days and no later than 60 days from receipt of the notice of appeal, unless the parties waive such time limits. The failure to hold the hearing within this time period does not invalidate any action of the hearing officer. The City Clerk must notify the appellant in writing of the date, time, and location of the hearing at least 10 days before the date of the scheduled hearing. The notice of hearing must be served in accordance with Section 1.28.050.

(c) Issue on Appeal. The scope of the appeal is limited to the appropriateness of the amount of the abatement costs, and the hearing officer's decision may confirm, discharge, or modify the amount of costs.

(d) Evidence, Witnesses, and Recording. The appeal hearing is a hearing de novo on the issue specified in subsection (c) above. All parties have the right to present evidence and witnesses. The formal rules of evidence and discovery do not apply. The rules of privilege are effective to the same extent that they are now or may hereafter be recognized in civil actions. Irrelevant or unduly repetitious evidence may be excluded. Oral evidence may be taken only on oath or affirmation. The appellant and respondent may represent themselves or be represented by anyone of their choice. No party has the right to cross-examine any other party or witness except for good cause shown to the satisfaction of the hearing officer. The appellant may bring an interpreter to the hearing at the appellant's sole expense. The City may, at its discretion, record the hearing by stenographer, court reporter, audio recording, or video recording.

(e) Decision of the Hearing Officer. The hearing officer's decision must be in writing, set forth the hearing officer's findings of fact and conclusions of law, and demand payment of any confirmed abatement costs within 30 calendar days following the date of service of the hearing officer's decision. The hearing officer must render a decision within 15 days following the conclusion of the hearing. Failure of the hearing officer to render a decision within this time period does not invalidate any action of the hearing officer or automatically grant the appeal. The hearing officer's decision must be served in accordance with Section 1.28.050. The hearing officer's decision is the final administrative decision of the City regarding the abatement costs. The hearing officer's decision is effective on the date of service of the decision. The decision must contain the following statement: "The decision of the hearing officer is final and binding. Judicial review of this decision is subject to the provisions and time limits set forth in California Code of Civil Procedure Section 1094.6 et seq."

(f) Payment of Confirmed Costs. Any confirmed abatement costs must be tendered to the City within 30 calendar days following the date of service of the hearing officer's decision.

(Ord. 758, 9/5/2024)

Upon expiration of 45 days after the report of abatement costs, or 30 days after the hearing officer's decision in the event of an appeal, if the full amount of the final abatement costs has not been paid, any unpaid costs may be collected by the City in accordance with Sections 1.28.090 through 1.28.110.

(Ord. 758, 9/5/2024)

(a) In accordance with Government Code Section 38773.1, abatement costs may be levied by the City as a lien against the property on which the nuisance was abated. If the abatement costs are not been paid in full within the time required by this Chapter, the City may record a lien against the nuisance property for any unpaid amount. Before recording a lien, the City must serve each person with a recorded interest in the subject property with notice of the lien. In addition, any owner of record must be served in accordance with Government Code Section 38773.1.

(b) The nuisance abatement lien must be recorded in the office of the County Recorder of Riverside County, California; and from the date of recording, the nuisance abatement lien will have the force, effect, and priority of a judgment lien, and will continue in effect until discharged by the City.

(c) The lien must specify the City as the agency for whose benefit the lien is established, the amount of the lien, the date of any abatement order, the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

(d) The nuisance abatement lien may be foreclosed by an action brought by the City for a money judgment. All costs and expenses relating to the processing, recording and enforcement of the abatement lien, including recording fees, noticing costs and attorney fees may be added to the amount of the lien and will be secured thereby.

(e) Upon payment or other satisfaction of the abatement lien, a notice of release of lien must be prepared and recorded by the City forthwith.

(Ord. 758, 9/5/2024)

(a) In accordance with Government Code Section 38773.1, abatement costs may be levied by the City as a nuisance abatement lien against the property on which the nuisance was abated. If the abatement costs have not been paid in full within the time required by this Chapter, the City may levy a special assessment against the real property on which the violation occurred. The City must serve each person with a recorded interest in the subject property with notice of the imposition of the special assessment. In addition, any owner of record must be served in accordance with Government Code Section 38773.5. The notice must specify that the property may be sold after three years by the Tax Collector for unpaid delinquent assessments.

(b) The notice of special assessment is entitled to recordation with the Riverside County Recorder's Office. A copy of the notice of special assessment must be transmitted to the County Tax Assessor and Tax Collector, whereupon the Tax Assessor and Tax Collector must add the amount of the special assessment on the next regular bill for real estate taxes levied against the property identified in the notice of special assessment. Thereafter, the special assessment will be collected at the same time and in the same manner as ordinary municipal taxes are collected, and will be subject to the same penalties and the same procedure and sale in the case of delinquency as provided by law for ordinary municipal taxes. After recordation, the special assessment may be foreclosed on as a lien in the manner and means provided by law.

(Ord. 758, 9/5/2024)

The remedies and procedures provided by this Chapter are cumulative to each other and to any other available under City, State, or Federal law. In addition to any other remedies set forth in this Code or otherwise provided by law, the City Attorney is authorized to bring a civil action, at the City Attorney's discretion, to recover the City's abatement costs.

(Ord. 758, 9/5/2024)

Recovery Authorized. Any violation of this municipal code is hereby determined to constitute a public nuisance. The prevailing party in any judicial action, administrative proceeding, or special proceeding to abate a nuisance may recover its incurred attorney fees, provided that the City elected, at the initiation of such individual action or proceeding, to recover its own attorney fees. In no judicial action or administrative proceeding may an award of attorney fees to a prevailing party exceed the amount of reasonable attorney fees incurred by the City in the judicial action or administrative proceeding. A judicial action includes, but is not limited to, any civil action, inspection or abatement warrant, administrative proceeding, or appeal from an administrative proceeding. Any recovery of attorney fees for abatement of a nuisance must be in accordance with this Section.

(Ord. 758, 9/5/2024)

The decision of the hearing officer is not subject to appeal to the City Council or any other board or commission of the City. Once the hearing officer's decision is final, the appellant may bring a judicial action to contest such a decision in accordance with the Code of Civil Procedure Section 1094.6. Failure to do so means all objections to the hearing officer's decision are waived.

(Ord. 758, 9/5/2024)