Chapter 17.76 — ENFORCEMENT

This chapter establishes provisions which are intended to ensure compliance with the requirements of this development code and any conditions of land use permit or subdivision approval, to promote the city's planning efforts, and for the protection of the public health, safety, and welfare of the city.

(Ord. No. 1869, § 2, 2-20-2013)

All departments, officials, and public employees of the city who are assigned the authority or duty to issue permits or licenses shall comply with the provisions of this development code.

A.

Permits in Conflict with Development Code. Permits for uses or structures that would be in conflict with the provisions of this development code shall not be issued.

B.

Permits Deemed Void. Any permit issued in conflict with the provisions of this development code shall be deemed void.

C.

Actions Deemed Void. Any action taken by an official or public employee of the city in conflict with the provisions of this development code shall be deemed void.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Designated City Officials. The city manager and director may:

Exercise the authority provided in Section 836.5 of the Penal Code; and

Issue citations for any violations of this development code pertaining to the use of any land and the addition, alteration, construction, conversion, erection, moving, reconstruction, or use of any structure.

B.

Other City Officials. All officials of the city charged by the law with the general duty of enforcing city ordinances shall also enforce the provisions of this development code.

(Ord. No. 1869, § 2, 2-20-2013)

Any structure constructed or maintained contrary to the provisions of this development code and any use of land or structure operated or maintained contrary to the provisions of this development code are hereby declared to be a public nuisance.

A.

Public Nuisance. Any structure or use which is altered, constructed, converted, enlarged, erected, established, maintained, moved, or operated, contrary to the provisions of this development code or any applicable condition of approval imposed on a permit, is hereby declared to be unlawful and a public nuisance, and shall be subject to the remedies and penalties identified in this chapter and Chapter 1.08 of the municipal code.

B.

Infractions. Except where otherwise provided by this development code, it is an infraction for any person to do any act forbidden or fail to perform any act required by this development code. Penalties for infractions shall be in compliance with state law (Government Code Section 36900) and Chapter 1.08 of the municipal code.

C.

Stop Work Order.

Any construction in violation of this development code or any conditions imposed on a permit shall be subject to the issuance of a "stop work order."

Any violation of a stop work order shall constitute an infraction, subject to the penalties described in Chapter 1.08 of the municipal code.

(Ord. No. 1869, § 2, 2-20-2013)

A.

New and Separate Offense. Each day any violation of this development code continues is a new and separate offense.

B.

Cumulative, Not Exclusive. All remedies contained in this development code for the handling of violations or enforcement of the provisions of this development code shall be cumulative and not exclusive of any other applicable provisions of city, county, state, or federal law.

C.

Other Remedies. Should a person be found guilty and convicted of an infraction for the violation of any provision of this development code, the conviction shall not prevent the city from pursuing any other available remedy to correct the violations.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Preapproval Inspections. Every applicant seeking a permit or any other action in compliance with this development code shall allow the city officials handling the application access to any premises or property which is the subject of the application.

B.

Post Approval Inspections. If the permit or other action in compliance with this development code is approved, the owner or applicant shall allow appropriate city officials access to the premises in order to determine continued compliance with the approved permit and/or any conditions of approval imposed on the permit.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Procedures. This section provides procedures for securing punitive revocation or modification of previously approved land use permits or entitlements.

B.

Revocations. The city's action to revoke an entitlement shall have the effect of terminating the entitlement and denying the privileges granted by the original approval.

C.

Modifications.

The city's action to modify rather than revoke an entitlement shall have the effect of changing the operational aspects of the entitlement.

The changes may include the operational aspects related to buffers, duration of the entitlement, hours of operation, landscaping and maintenance, lighting, parking, performance guarantees, property maintenance, signs, surfacing, traffic circulation, etc.

D.

Hearings and Notice.

The appropriate review authority shall hold a public hearing to revoke or modify an application, entitlement, or permit granted in compliance with the provisions of [this] development code.

Ten days before the public hearing, notice shall be delivered in writing to the applicant and/or owner of the property for which the permit was granted.

Notice shall be deemed delivered two days after being mailed, certified and first class, through the United States Postal Service, postage paid, to the owner as shown on the county's current equalized assessment roll and to the project applicant, if not the owner of the subject property.

E.

Review Authority Action.

Permits. A land use entitlement or permit may be revoked or modified by the review authority (e.g., director, SPARC, commission, or council) which originally approved the entitlement or permit, or the equivalent city review authority, for entitlements or permits originally approved under the county's authority, if any one of the following findings of fact can be made in a positive manner:

a.

Circumstances under which the entitlement or permit was granted have been changed by the applicant to a degree that one or more of the findings contained in the original permit can no longer be made in a positive manner and the public health, safety, and welfare require the revocation;

b.

The entitlement or permit was issued, in whole or in part, on the basis of a misrepresentation or omission of a material statement in the application, or in the applicant's testimony presented during the public hearing, for the entitlement or permit;

c.

One or more of the conditions of the permit have not been substantially fulfilled or have been violated;

d.

The use or structure for which the permit was granted has ceased to exist or has been suspended for at least one hundred eighty days, as defined in Section 17.68.020(A)(3) (Loss of Nonconforming Status);

e.

The improvement authorized in compliance with the permit is in violation of any code, law, ordinance, regulation, or statute; or

f.

The improvement/use allowed by the permit has become detrimental to the public health, safety, or welfare, or the manner of operation constitutes or is creating a public nuisance.

Variances. A variance (major or minor) may be revoked or modified by the review authority which originally approved the entitlement, or the equivalent city review authority, for entitlements originally approved under the county's authority, if any one of the following findings of fact can be made in a positive manner, in addition to those outlined in subsection (B)(1), above:

a.

Circumstances under which the entitlement or permit was granted have been changed by the applicant to a degree that one or more of the findings contained in the original permit can no longer be made in a positive manner, and the grantee has not substantially exercised the rights granted by the variance; or

b.

One or more of the conditions of the variance have not been met, or have been violated, and the grantee has not substantially exercised the rights granted by the variance.

(Ord. No. 1869, § 2, 2-20-2013)

This section describes the procedures for initiating enforcement action in cases where the director has determined that real property within the city is being used, maintained, or allowed to exist in violation of the provisions of this development code. It is the objective of these provisions to encourage the voluntary cooperation of responsible parties in the prompt correction of violations, so that the other enforcement measures provided by this chapter may be avoided.

A.

Notice to Responsible Parties. The director shall provide the record owner of the subject site and any person in possession or control of the site with a written notice of violation, which shall include the following information:

A description of the violation, and citations of applicable development code provisions being violated;

A time limit for correcting the violation in compliance with subsection B, below;

A statement that the city intends to charge the property owner for all administrative costs associated with the abatement of the violations in compliance with Section 17.76.100 (Recovery of Costs), and/or initiate legal action as described in Section 17.76.090 (Legal Remedies);

A statement that the property owner may request and be provided a meeting with the director to discuss possible methods and time limits for the correction of the violations.

B.

Time Limit for Correction.

The notice of violation shall state that the violations shall be corrected within thirty days from the date of the notice to avoid further enforcement action by the city, unless the responsible party contacts the director within that time to arrange for a longer period for correction.

The thirty-day time limit may be extended by the director upon determining that the responsible party will likely correct the violations within a reasonable time.

The director may also require through the notice of violation that the correction occur within less than thirty days if the director determines that the violation constitutes a hazard to public health or safety.

C.

Use of Other Enforcement Procedures. The enforcement procedures of Section 17.76.090 (Legal Remedies) may be employed by the director after or instead of the provisions of this section where the director determines that this section would be ineffective in securing the correction of the violations within a reasonable time.

(Ord. No. 1869, § 2, 2-20-2013)

The city may choose to undertake any, or a combination, of the following legal actions to correct and/or abate any nuisance or violation of this development code.

A.

Civil Actions.

Injunction. The city attorney, upon order of the council, may apply to the Superior Court for injunctive relief to terminate a violation of this development code.

Abatement Proceedings. Where any person fails to abate a violation after being provided a notice of violation in compliance with Section 17.76.080(A) and the opportunity to correct or end the violation, the city attorney, upon order of the council, shall apply to the Superior Court for an order authorizing the city to undertake actions necessary to abate the violation and require the violator to pay for the cost of the actions.

Nuisance Abatement. The city may pursue nuisance abatement in compliance with the Lodi Municipal Code.

B.

Civil Remedies and Penalties.

Civil Penalties. Any person who willfully violates the provisions of this development code or any permit issued in compliance with this development code, shall be liable for a civil penalty in compliance with the council's fee resolution for each day that the violation continues to exist.

Costs and Damages. Any person violating any provisions of this development code or any permit issued in compliance with this development code, shall be liable to the city for the costs incurred and the damages suffered by the city, its agents, and agencies as a direct result of the violations.

Procedure. In determining the amount of the civil penalty to impose, the court should consider all relevant circumstances, including the extent of the harm caused by the conduct constituting a violation, the nature and persistence of the conduct, the length of time over which the conduct occurred, the assets, liabilities, and net worth of the defendant, whether corporate or individual, and any corrective action taken by defendant.

C.

Criminal Actions and Penalties. Any person, whether as agent, principal, or otherwise, violating or causing the violation of any of the provisions of this development code shall be guilty of an infraction and shall be subject to the penalties identified in the bail schedule adopted by the San Joaquin County Superior Court.

D.

No limit on City's Options. The penalties identified in this chapter do not limit the right of the city through its legal representative(s), as authorized by the council upon request of the enforcing officials, to institute any appropriate legal procedure(s) as prescribed by law to abate, correct, enjoin, or restrain any actual or threatened violation of this development code.

(Ord. No. 1869, § 2, 2-20-2013)

This section establishes procedures for the recovery of administrative costs, including staff and city attorney time expended on the enforcement of the provisions of this development code in cases where no permit is required in order to correct a violation. The intent of this section is to recover city administrative costs reasonably related to enforcement.

A.

Record of Costs.

The department shall maintain records of all administrative costs, incurred by responsible city departments, associated with the processing of violations and enforcement of this development code, and shall recover the costs from the property owner in compliance with this section.

Staff time shall be calculated at an hourly rate as established and revised from time to time by the council.

B.

Notice. Upon investigation and a determination that a violation of any of the provisions of this development code is found to exist, the director shall notify the record owner or any person having possession or control of the property by mail, of the existence of the violation, the department's intent to charge the property owner for all administrative costs associated with enforcement, and of the owner's right to a hearing on any objections they may have. The notice shall be in a form approved by the city attorney.

C.

Summary of Costs and Notice.

At the conclusion of the case, the director shall send a summary of costs associated with enforcement to the owner and/or person having possession or control of the property by certified and first class mail.

The summary shall include a notice in a form approved by the city attorney, advising the responsible party of their right to request a hearing on the charges for city cost recovery within ten days of the date of the notice, and that if no request for hearing is filed, the responsible party will be liable for the charges.

In the event that no request for hearing is timely filed or, after a hearing the director affirms the validity of the costs, the property owner or person in control shall be liable to the city in the amount stated in the

summary or any lesser amount as determined by the director.

The costs shall be recoverable by the city in any of the following manners:

a.

A civil action in the name of the city, in any court of competent jurisdiction; or

b.

By tax assessment; or

c.

By a lien on the subject property.

D.

Request for Hearing on Costs. Any property owner, or other person having possession and control of the subject property, who receives a summary of costs shall have the right to a hearing before the director on their objections to the proposed costs.

A request for hearing shall be filed with the department within ten days of the service by mail of the department's summary of costs, on a form provided by the department.

Within thirty days of the filing of the request, and on ten days written notice, the director shall hold a hearing on the objections, and determine their validity.

In determining the validity of the costs, the director shall consider whether the total costs are reasonable in the circumstances of the case. Factors to be considered include: whether the present owner created the violation; whether there is a present ability to correct the violation; whether the owner moved promptly to correct the violation; the degree of cooperation provided by the owner; and whether reasonable minds can differ as to whether a violation exists.

The director's decision shall be appealable directly to the council in compliance with Chapter 17.70 (Appeals).

(Ord. No. 1869, § 2, 2-20-2013)

Any person who alters, constructs, converts, enlarges, erects, establishes, maintains, moves, or operates any land use or structure without first obtaining any permit required by this development code, shall pay the additional permit processing fees established by the council's fee resolution for the correction of the violations, before being granted a permit for a use or structure on the site.

(Ord. No. 1869, § 2, 2-20-2013)

A.

Amount and Applicability of Reinspection Fee.

A reinspection fee shall be imposed on each person who receives a notice of violation, notice and order, or letter of correction of any provision of this development code, the municipal code, adopted building code, or state law.

a.

The fee amount shall be established by the council's fee resolution.

b.

The fee may be assessed for each inspection or reinspection conducted when the particular violation for which an inspection or reinspection is scheduled is not fully abated or corrected as directed by, and within the time and manner specified in, the notice or letter.

The fee shall not apply to the original inspection to document the violations and shall not apply to the first scheduled compliance inspection made after the issuance of a notice or letter, whether or not the correction has been made.

B.

Continuation of the Original Case.

If a notice or letter has been previously issued for the same violation and the property has been in compliance with the provisions of this development code or the municipal code for less than one hundred eighty days, the violation shall be deemed a continuation of the original case, and all inspections or reinspections, including the first inspection for the repeated offense, shall be charged a reinspection fee.

This fee is intended to compensate for administrative costs for unnecessary city inspections, and is not a penalty for violating this development code or the municipal code.

Any reinspection fees imposed shall be separate and apart from any fines or penalties imposed for violation of this development code or the municipal code, or costs incurred by the city for the abatement of a public nuisance.

(Ord. No. 1869, § 2, 2-20-2013)