Merced Municipal Code Ch. 8.50 Foreclosed and Vacant Homes

A. The city council finds that foreclosed and abandoned residential properties pose a risk to the public peace, health and safety of the citizens of the City of Merced. The detrimental effects from the lack of security and maintenance of foreclosed and abandoned residential properties include dangerous attractive nuisances, increased opportunities for crimes such as squatting, vandalism and burglaries, discouraging buyers from purchasing neighboring homes, lowering property values, and physical and economical blight.

B. The purpose of this chapter is to utilize the procedures set forth in California Civil Code Section 2929.3 to prevent the detrimental effects associated with foreclosed and abandoned residential properties.*

C. It is the purpose and intent of this chapter that the problem conditions identified in subsections A and B above and Civil Code Section 2929.3 be abated and compliance with the Municipal Code be accomplished rather than to have fines imposed. Every effort should be made to achieve compliance rather than to impose fines.

(Ord. No. 2337, § 1, 6-1-2009)

* California Civil Code § 2929.3 will be repealed on January 1, 2013, unless a later enacted statute, that is enacted before January 2013, deletes or extends that date.

A. A legal owner shall maintain vacant residential property purchased by that owner at a foreclosure sale, or acquired by that owner through foreclosure under a mortgage or deed of trust.

B. A legal owner's failure to maintain property under this chapter shall subject that owner to fines under this chapter. "Failure to maintain" is defined as:

1. Failure to care for the exterior of the property, including, but not limited to, permitting excessive foliage growth that diminishes the value of surrounding properties;

2. Failing to take action to prevent trespassers or squatters from remaining on the property;

3. Failing to take action to prevent mosquito larvae from growing in standing water; or

4. Other conditions that create a public nuisance under Title 8 of this Code or under state law.

(Ord. No. 2337, § 1, 6-1-2009)

In any proceeding under this chapter, the city may impose a civil fine of up to one thousand dollars ($1,000.00) per day for each day that the legal owner fails to maintain the property in violation of this chapter, commencing on the day following the expiration of the period to remedy the violation established in the notice of violation.

(Ord. No. 2337, § 1, 6-1-2009)

A. Whenever an enforcement officer, as defined in Section 8.08.030 of this Code, determines that a violation of the requirement to maintain property under this chapter has occurred, the enforcement officer shall have the authority to issue a "Notice to Legal Owner of Violation, Imposition of Fine, and Hearing." This notice shall be referred to as "notice to legal owner" in this chapter.

B. The Notice to legal owner shall include a description of the conditions giving rise to the violation and notice of the city's intent to assess a civil fine of up to one thousand dollars ($1,000.00) per day if action to correct the violation is not commenced within a period of not less than fourteen (14) days and completed within a period of not less than thirty (30) days. This period shall be referred to as the "compliance period." Notwithstanding this, a compliance period of less than thirty (30) days to remedy the violation may be required before imposing a fine if it is determined that a specific condition on the property threatens public health or safety. In that event, the notice to legal owner shall specifically state such determination and the lesser period for compliance. An enforcement officer may establish different compliance periods for different violations, subject to the minimums set forth in this section.

C. The notice to legal owner shall include the date, time, and place of a hearing at which time the legal owner shall be given an opportunity to contest any fine imposed. The hearing shall generally be set by the enforcement officer approximately thirty (30) days following expiration of the compliance period set forth in the notice to legal owner.

D. The notice to legal owner shall advise that fines will continue to accrue unless and until the enforcement officer inspects the property and issues a compliance certificate which the legal owner must produce at the hearing. In the event there is a delay of more than twenty-four (24) hours between the request for a reinspection and the reinspection, the fine shall be tolled between the date of the request for reinspection and the actual reinspection. It is the responsibility for the legal owner to arrange for such inspection and to obtain the compliance certificate. The notice to legal owner shall include contact information for the inspection and for the compliance certificate.

E. The notice to legal owner shall be sent by certified mail, return receipt requested, to the address provided in the deed or other instrument as specified in Government Code Section 27321.5(a), or, if none, to the return address on the deed or other instrument. Whenever a notice to legal owner is required to be provided to the legal owner, a copy thereof shall also be sent by certified mail, return receipt requested, to the "responsible person." The phrase "responsible person" for purposes of this chapter and this chapter only shall mean that individual who has signed up with the city to receive city-provided utility services.

(Ord. No. 2337, § 1, 6-1-2009)

A. The hearing shall be set and conducted regardless of whether the hearing was requested by the legal owner or responsible person. If the legal owner, representative of the legal owner, or responsible person, fails to appear for the hearing, the hearing officer will conduct the hearing to a conclusion and issue a decision as set forth in this chapter. Failure to appear at the hearing shall constitute a failure to exhaust administrative remedies for purposes of judicial review.

B. The hearing officer shall have the power to administer oaths.

C. At the hearing, the city shall present evidence in support of the notice to legal owner and imposition of fine(s). The legal owner, or any individual authorized in writing to represent the legal owner, including a responsible person, may present evidence in opposition to the notice to legal owner and/or imposition of fine(s).

D. The hearing shall be conducted informally. The rules of evidence shall not apply, except that irrelevant and unduly repetitious evidence may be excluded in the hearing officer's decision.

E. The city shall bear the burden of proof, which shall be preponderance of the evidence.

F. The city shall maintain the administrative record of the hearing.

G. If the property has a responsible person in addition to a legal owner, the hearing officer shall consider, in assessing the amount of the fine, if any, whether or not the responsible person was provided notice as required herein as well as how long the responsible person has been registered with the city as the responsible person for the property.

(Ord. No. 2337, § 1, 6-1-2009)

A. The hearing officer shall file a written decision with the city clerk within seventy-two (72) hours of the hearing. The decision shall include a statement of the issues, findings of fact, a summary of relevant evidence and an order setting the amount of the fine. In determining the amount of the fine, the hearing officer shall take into consideration any timely and good faith efforts by legal owner to remedy the violation(s).

B. The city clerk shall mail a notice of decision by certified mail with an attached copy of the hearing officer's decision to the legal owner at the address as set forth above in Section 8.50.040(E) of this Code and to any other address if requested by the legal owner.

C. The city's notice of decision shall provide as follows:

1. Contain a statement that the decision is final and that judicial review may be sought within twenty (20) days pursuant to Government Code Section 53069.4.

2. Advise that the total of the fines charged will become a lien against the property if not paid within forty-five (45) days of the notice of decision.

3. Notify the legal owner that fines will continue to accumulate if the violations are not abated following the hearing and that the legal owner and the responsible person, if any, shall be notified of the time and place of a subsequent hearing at which additional fines under this chapter may be imposed if the violation(s) is/are not abated.

(Ord. No. 2337, § 1, 6-1-2009)

Any fine imposed by a hearing officer's decision under this chapter shall be the personal obligation of legal owner and may become a lien on the property if not paid within forty-five (45) days of the decision. Such lien may be collected in the same time and manner as property taxes are collected as set forth in this Code regarding recovery of fees, costs, charges, and fines relating to public nuisances, except to the extent modified herein. It is the intent of the city council in adopting this chapter to hold financial institutions and investors in foreclosed and/or vacant property accountable for the conditions of their property. In no instance shall a financial institution require a real estate agent or broker to advance the funds to satisfy the fine or clear any lien imposed and any financial institution requiring the same shall be in violation of this Code by committing a misdemeanor subject to punishment in accordance with Chapter 1.12 of this Code.

(Ord. No. 2337, § 1, 6-1-2009)

All rights and remedies provided in this chapter are cumulative and in addition to any other rights and remedies provided by law. All procedures herein are intended to obtain the abatement of public nuisances and compliance with those provisions of the city's Code which are declared to be public nuisances.

(Ord. No. 2337, § 1, 6-1-2009)

Fines imposed under this chapter shall be payable to the City of Merced and shall be directed to the city's code enforcement budget for nuisance abatement purposes.

(Ord. No. 2337, § 1, 6-1-2009)