Los Gatos Municipal Code Art. IV Administrative Orders

Footnotes:

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Editor's note— Ord. No.2127, § III, supplied provisions to be added to the Code as Article II, Administrative Orders. In order to preserve the style of the Code, and at the editor's discretion, these provisions have been set out as Article IV, Administrative Orders, to read as herein set out.

Sections 1.40.010 through section 1.40.105 herein provide for administrative orders which are in addition to all other civil legal remedies and which are an alternative to any criminal legal remedies, which may be pursued by the Town to address any violation of this Code except for violations of chapter 15 (Motor Vehicles and Traffic).

(Ord. No. 2127, § III, 3-1-04)

For purpose of this article, the following definitions shall apply:

Enforcement Officer shall mean any Town employee or agent of the Town with the authority to enforce any provision of this Code, including, but not limited to, the Town Manager, Town Attorney, Director of Community Development, Director of Parks and Public Works and any Police Officer and Code Enforcement officer,

Hearing Officer shall mean any person designated by the Town Manager to hear appeals of administrative citations and to hear administrative compliance hearings. The Hearing Officer shall not be the investigating Enforcement Officer. The employment, performance evaluation, compensation and benefits of the Hearing Officer shall not be directly or indirectly conditioned upon the amount of administrative penalties upheld by the Hearing Officer.

(Ord. No. 2127, § III, 3-1-04)

(a) Whenever the Town Manager or designee determines that a violation of any provision of this Code is occurring or exists on a continuing basis, a written compliance order may be issued to any person responsible for the violation and/or the property owner.

(b) A compliance order issued pursuant to this article shall contain the following information:

(1) The date and location of the violation;

(2) The section of this Code violated and a description of the violation;

(3) The actions required to correct the violation;

(4) The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;

(5) Either a copy of this article or an explanation of the consequences of noncompliance with this article and a description of the hearing procedure and appeal process.

(Ord. No. 2127, § III, 3-1-04)

(a) All notices required herein shall be served as provided in section 1.40.030 of this article unless otherwise specified.

(b) Where real property is involved, written notice shall be mailed to the property owner at the address as shown on the last equalized county assessment roll.

(c) Where personal service or service by mail upon the property owner cannot be made despite a diligent effort, a copy of the order shall be conspicuously posted at the property that is the subject of the order.

(d) The failure of any person to receive any notice required under this article shall not affect the validity of any proceedings taken under this article.

(Ord. No. 2127, § III, 3-1-04)

Whenever a notice is required to be given under this article, unless different provisions are otherwise specifically made, such notice may be given either by personal delivery to the person to be notified or by deposit in the United States mail, in a sealed envelope, postage prepaid, addressed to such person to be notified at the last-known business or residence address as the same appears in the last equalized county assessment roll or to the records pertaining to the matter to which such notice is directed. Service by mail shall be deemed completed at the time of deposit in the United States mail receptacle is made.

(Ord. No. 2127, § III, 3-1-04)

(a) If the Town Manager determines that all violations have been corrected within the time specified in the compliance order, no further action shall be taken.

(b) If full or partial compliance is not achieved within any of the times specified in the compliance order for full or partial compliance, the Town Manager shall set a hearing before the Hearing Officer.

(c) The Town Manager shall cause a written notice of hearing to be served on the violator and, where real property is involved, a notice of hearing shall be served on the property owner at the address as it appears on the last equalized county assessment roll available on the date the notice is prepared.

(d) All hearings shall be open and public.

(Ord. No. 2127, § III, 3-1-04)

(a) Every notice of hearing on a compliance order shall contain the date, time and place at which the hearing shall be conducted by the Hearing Officer.

(b) Each hearing shall be set for a date not less than fifteen (15) days nor more than sixty (60) days from the date of the notice of hearing unless the Town Manager determines that the matter is urgent or that good cause exists for an extension of time.

(c) The hearing serves to provide the full opportunity of a person subject to a compliance order to object to the determination that a violation has occurred and/or that the violation has continued to exist. The failure of any person subject to a compliance order, pursuant to this article, to appear at the hearing shall constitute a failure to exhaust administrative remedies.

(Ord. No. 2127, § III, 3-1-04)

(a) At the place and time set forth in the notice of hearing, the Hearing Officer shall conduct a hearing on the compliance order issued pursuant to section 1.40.020.

(b) The Hearing Officer shall consider any written or oral evidence consistent with its rules and procedures regarding the violation and compliance by the violator and/or by the real property owner, including but not limited to:

(1) The report of the Enforcement Officer;

(2) Objections or protests of property owners or other responsible or interested persons who may be held liable for the amounts owed or whose property may be assessed or liened for the amounts owed;

(3) Evidence on whether the person before the Hearing Officer is responsible for the amounts owed to the Town;

(4) Evidence on whether the person responsible for the amounts owed to the Town has taken the required corrective action within the required time period; and

(5) Such other and further evidence as justice may require.

(c) Within a reasonable time following the conclusion of the hearing, the Hearing Officer shall make findings and issue its determination regarding;

(1) The existence of the violation; and

(2) The failure of the violator or owner to take required corrective action within the required time period.

(d) The Hearing Officer shall issue written findings on each violation. The findings shall be supported by evidence received at the hearing.

(e) If the Hearing Officer finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the compliance order, the Hearing Officer shall issue an administrative order pursuant to section 1.40.050.

(f) If the Hearing Officer finds that no violation has occurred or that the violation was corrected within the time period specified in the compliance order, the Hearing Officer shall issue a finding of those facts.

(Ord. No. 2127, § III, 3-1-04)

(a) If the Hearing Officer determines that a violation occurred which was not corrected within the time period specified in the compliance order, the Hearing Officer shall issue an administrative order that imposes any or all of the following:

(1) An order to correct, including a schedule for correction where appropriate;

(2) Administrative penalties as provided in section 1.40.055;

(3) Administrative costs as provided in section 1.40.060; and

(4) Interest as provided in section 1.40.065.

(b) The administrative order shall state that failure to comply with its provisions may, pursuant to section 1.10.100, result in the Town abating the nuisance and charging the cost of said abatement plus all administrative costs to the property owner, and may further result in the Town collecting the monies due as a personal obligation of the responsible party or by recordation of a lien or filing of a special assessment against the subject real property.

(Ord. No. 2127, § II, 3-1-04)

(a) The Hearing Officer may impose daily administrative penalties for the violation of any provision of this Code except for violation of Chapter 15 (Motor Vehicles and Traffic) in the amount set forth in the schedule of penalties established by resolution by the Town Council. The Hearing Officer may suspend administrative penalties for any period of time during which the violator has filed for necessary permits and such permit applications are actively pending before the Town, state or other appropriate public agency.

(b) In determining the amount of the administrative penalty, the Hearing Officer may take any or all of the following factors into consideration:

(1) The duration of the violation;

(2) The frequency, recurrence and number of violations, related or unrelated, by the same violator;

(3) The seriousness of the violation;

(4) The good faith efforts of the violator to come into compliance;

(5) The economic impact of the penalty on the violator;

(6) The impact of the violation on the community; and

(7) Such other factors as justice may require.

(c) Administrative penalties imposed by the Hearing Officer shall accrue from the date specified in the compliance order and shall cease to accrue on the date the violation is corrected as determined by the Town Manager or the Hearing Officer.

(d) Administrative penalties assessed by the Hearing Officer shall be due by the date specified in the administrative order.

(e) If the violation is not corrected as specified in the Hearing Officer's order to correct, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in subsection (a) above.

(f) If the violator gives written notice to the Town Manager that the violation has been corrected and if the Town Manager finds that compliance has been achieved, the Town Manager shall deem the date the written notice was postmarked or personally delivered to the Town Manager or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. If no written notice is provided to the Town Manager, the violation will be deemed corrected on the date of the final inspection.

(Ord. No. 2127, § III, 3-1-04)

(a) The Hearing Officer shall assess administrative costs against the violator when it finds that a violation has occurred and that compliance has not been achieved within the time specified in the compliance order.

(b) The administrative costs may include any and all costs incurred by the Town in connection with the matter before the Hearing Officer including, but not limited to, costs of investigation of the violation, staffing costs incurred in preparation for the hearing and for the hearing itself, and costs for all subsequent inspections necessary to enforce the compliance order.

(Ord. No. 2127, § III, 3-1-04)

The Hearing Officer may also assess interest on the amount of administrative penalties, abatement costs and administrative costs imposed at the legal rate from the date of the administrative order.

(Ord. No. 2127, § III, 3-1-04)

(a) The administrative order of the Hearing Officer is final at the time it is made; however, the Hearing Officer shall maintain continuing jurisdiction and shall have the power to modify the administrative order, after providing the person subject to the administrative order with notice and an opportunity to be heard, until full compliance is achieved.

(b) The administrative order of the Hearing Officer, once recorded, shall have the same force and effect and priority as a judgment lien governed by the provisions of section 697.340 of the California Code of Civil Procedure and may be extended as provided in sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

(c) The administrative order shall have the same force and effect as a resolution of the Town Council for the purpose of filing a lien, special assessment, or special collection with the County of Santa Clara or Tax Collector's office pursuant to this code and for the purpose of pursuing any other collection or enforcement action to obtain payment of the amounts owed to the Town.

(Ord. No. 2127, § II, 3-1-04)

(a) If unpaid as of the date specified in the administrative order, the administrative penalties, administrative costs and interest assessed by the Hearing Officer shall be collected by the Town by use of all available legal means, and my be enforced as:

(1) A personal obligation of the violator; and/or

(2) If the violation is in connection with real property, a lien or special assessment upon the real property. The lien or special assessment shall remain in effect until all of the administrative penalties, interest and administrative costs are paid in full.

(b) In addition to any other remedies provided by law, failure to pay administrative penalties, administrative costs and interest in the amounts specified in the Hearing Officer's decision on or before the date specified in that decision shall constitute a violation of this Code punishable as a misdemeanor.

(Ord. No. 2127, § III, 3-1-04)

The decision of the Hearing Officer shall be final. Any person aggrieved by an administrative order of the Hearing Officer may obtain review of the administrative order in the Superior Court of Santa Clara County by filing with the court a notice of appeal pursuant to Government Code section 53069.4.

(Ord. No. 2127, § III, 3-1-04)

If the Town Manager determines that compliance has been achieved after a compliance order has been sustained by the Hearing Officer, the Town Manager shall prepare a report indicating that compliance has been achieved. A copy of the compliance report shall be served on the violator.

(Ord. No. 2127, § III, 3-1-04)

Whenever the amount of any administrative penalty and/or administrative cost imposed by the Hearing Officer pursuant to this article in connection with real property has not been satisfied in full within ninety (90) days and/or has not been successfully challenged by a timely appeal pursuant to Government Code section 53069.4, this obligation may constitute a lien or, in the alternative, a special assessment against the real property on which the violation occurred.

(Ord. No. 2127, § III, 3-1-04)

(a) There is hereby established the following procedure for collection of administrative penalties and costs imposed by the Hearing Officer pursuant to this article or other abatement and related administrative costs by recordation of a lien.

(b) Upon determination by the Town Manager that the administrative penalty, administrative costs and interest imposed by the Hearing Officer has not been satisfied in full within ninety (90) days and/or not been successfully challenged by a timely appeal, the Town Manager shall prepare and file with the Town Council a report stating the amounts due and owing, the date of the administrative order, the street address, legal description and assessor's parcel number of the subject property, and the name and address of the recorded owner of the property.

(c) Prior to recordation of the lien, the Town Manager shall serve a copy of the report provided under subsection (b) above on the property owner, along with notice to the property owner that a lien in the amounts stated in the report will be filed against the subject property in the County Recorder's Office.

(d) The notice set forth in subsection (c) above shall be served in the same manner as summons in a civil action in accordance with Code of Civil Procedure section 415.10 et seq. if the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in Santa Clara County.

(e) Following proper notice to the owner of record as provided in subsection (d) above, the Town Manager's report and a copy of the administrative or abatement order shall be recorded as a lien with the County Recorder. Once recorded, the administrative order shall have the force and effect and priority of a judgment lien governed by the provision of section 697.340 of the Code of Civil Procedure and may be extended as provided in sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

(f) Interest at the legal rate per year shall accrue on the principal amount of the lien until satisfied pursuant to law.

(g) A lien pursuant to this section may be foreclosed by an action brought by the Town for a money judgment.

(Ord. No. 2127, § III, 3-1-04)

(a) As an alternative to the procedure authorized by section 1.40.085, there is hereby established a procedure for making the administrative penalties and costs imposed by the Hearing Officer pursuant to this article or abatement and related administrative costs a special assessment against the subject real property.

(b) Upon determination by the Town Manager or the Hearing Officer that the administrative penalty, administrative cost and/or interest imposed by the Hearing Officer has not been satisfied in full within ninety (90) days and/or not been successfully challenged by a timely appeal, the Town Manager shall prepare and file with the Town Council a report stating the amounts due and owing, the date of the administrative order or abatement order, the street address, legal description and assessor's parcel number of the subject property, and the name and address of the recorded owner of the property.

(c) Prior to the imposing of the special assessment, the Town Manager shall serve a copy of the report provided under subsection (b) above on the property owner, along with notice that the property may be sold after three years by the County of Santa Clara tax collector for unpaid delinquent assessments. Such notice shall be served by certified mail to the property owner. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in Santa Clara County. The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice.

(d) The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the assessment relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the assessment shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.

(e) Interest shall accrue on the principal amount of the assessment until satisfied pursuant to law.

(f) The Town may, subject to the requirements applicable to the sale of property pursuant to section 3691 of the Revenue and Taxation Code, conduct a sale of vacant residential developed property for which the payment of the assessment is delinquent.

(g) Notices or instruments relating to the administrative order, abatement order or special assessment shall be entitled to recordation.

(Ord. No. 2127, § III, 3-1-04)

Once payment in full is received by the Town for outstanding penalties and costs, the Director of Finance shall:

(1) With respect to a lien, either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so they may record this notice with the Office of the County Recorder. Such notice of satisfaction shall cancel the Town's lien; or

(2) With respect to a special assessment, provide written notice to the County of Santa Clara tax collector that the special assessment amount has been paid in full and should no longer be imposed against the subject property. Such written notice shall cancel the Town's special assessment.

(Ord. No. 2127, § III, 3-1-04)