Milpitas Municipal Code Ch. D.18 Enforcement and Penalty

This Chapter establishes provisions for enforcement of this Title and any conditions of a permit or approval, to promote the City's planning efforts, and for the protection of the public health, safety, and welfare. This Chapter puts all persons on notice of the proceedings and penalties involved if any provision of this Title is violated.

(Ord. No. 38.858, § 4, 9/2/25)

All departments, officials and public employees of the City are vested with the duty or authority to issue permits shall conform to the provisions of this Chapter and shall not issue a permit or license for uses, buildings, or purposes in conflict with the provisions of this Title. Any permit or license issued in conflict with the provisions of this Title shall be null and void.

(Ord. No. 38.858, § 4, 9/2/25)

A. It shall be the duty of the Director to enforce the provisions of this Title on any use of land or structures, and the addition, alteration, moving, construction, erection, or reconstruction of or to any structure.

B. The Director, in consultation as needed with the Fire Chief, Building Official, Police Department, or other Code Enforcement Officials may conduct any investigation necessary to determine whether persons are complying with this Title, including the terms, conditions, mitigation measures, or project descriptions incorporated into any permit, approval, or clearance issued in accordance with this Title.

(Ord. No. 38.858, § 4, 9/2/25)

A. It shall be unlawful for any person to violate any of the provisions of this Title. Any person convicted of violating any of the provisions of this Title shall, upon conviction, be punished by a fine not-to-exceed the sum of $1,000 or by imprisonment in the County Jail not to exceed six months or by both a fine and imprisonment.

B. Each day that a violation of this Title continues shall be considered a separate offense.

C. Any use of a premises or a building which deviates from or violates any of the provisions of this Title shall be termed an illegal occupancy and the person or persons responsible shall be subject to the penalties as provided in this Section.

(Ord. No. 38.858, § 4, 9/2/25)

The following is unlawful and shall be declared a public nuisance:

A. Violation of, or noncompliance with, any term, condition, mitigation measure, or project description incorporated into any permit, approval, or clearance granted in accordance with this Title.

B. Any building or structure, set up, erected, altered, built, converted, moved, reconstructed, or demolished, and any use of property contrary to the provisions of this Title.

C. Any sign or sign structure erected, constructed, maintained, marked, posted, pasted, painted, printed, altered, or repaired in violation of the provisions of this Title.

D. Any sign or sign structure after a permit or Variance has been revoked or expired and which is determined to be unsafe and so as to constitute an immediate peril to persons or property, or has been placed upon public property without written permission of the Director.

(Ord. No. 38.858, § 4, 9/2/25)

A. Issuance of Stop Work Order. The Building Official may issue an order to stop work to prohibit further construction activity on any development, excavation, building, or structure on any land on which there is an uncorrected violation of a provision of this Title or of a permit or other form of authorization issued in accordance with this Title. The Building Official may also order work to be stopped in the event the activity is being conducted without having obtained a required permit or approval.

B. Serving of Stop Work Order. The Stop Work Order shall be served by posting a copy on the premises where the violation is located, or which is the subject of the permit or approval issued by the City. In addition, a copy of the Stop Work Order shall be personally served on the owner or responsible person or mailed to the owner or responsible person at the address shown on the current Department records or records pertaining to the permit or other approval issued by the City. The Stop Work Order shall become effective immediately upon posting.

C. Correction of Violation. After posting of a Stop Work Order, no person shall perform any act in violation of the terms of the Stop Work Order, except the actions as are determined by the Director, Fire Chief, Building Official, or other Code Enforcement Official to be necessary to correct the violation or to render the premises safe and secure, until the violation has been corrected to the satisfaction of the person serving the Stop Work Order.

(Ord. No. 38.858, § 4, 9/2/25)

A. Modifications, Revocation, and Suspension. The Council, Planning Commission, or Director may initiate the review of a permit or approval (including, but not limited to, a Conditional Use Permit, Variance, or Site Development Permit) for the purpose of deciding whether modification, revocation, or suspension of the permit or approval is needed, only after written notice of a violation or public nuisance is mailed to the holder of the permit or approval.

1. Planning Commission Action.

a. After initiation, a public hearing before the Planning Commission shall be noticed and held in compliance with Section D.2.040.F (Public Hearing Notice) and Section D.2.040.G (Public Hearings).

b. After the public hearing has been closed, the Planning Commission may modify, revoke, or suspend the permit or approval unless City Council action is required by law. See Subsection D.18.070.A.2 (Council Action) below.

2. Council Action.

a. If Council action is required by law, after the Planning Commission public hearing has been closed, the Planning Commission shall recommend to the Council, by resolution, whether the permit or approval shall be modified, revoked, or suspended.

b. Following receipt of a recommendation on the permit or approval from the Planning Commission, a public hearing before the Council shall be noticed and held in compliance with Section D.2.040.F (Public Hearing Notice) and Section D.2.040.G (Public Hearings).

c. After the public hearing has been closed, the Council may modify, revoke, or suspend the permit or approval.

B. General Findings for Modifications/Revocation/Suspension. A permit or approval may be modified, revoked, or suspended if any of the following conditions exist:

1. Conditions of approval of the permit or approval are being violated or are not being satisfied;

2. The application contained incorrect, false, or misleading information;

3. The permit or approval is being exercised in a manner that constitutes a public nuisance; or

4. The permit or approval is being exercised in a manner which is contrary to the public health, safety, and welfare.

(Ord. No. 38.858, § 4, 9/2/25)

A. Notification of Nuisance. Whenever the Director determines that any property within the city is being maintained contrary to one or more of the provisions of this Chapter, written notice ("Notice to Abate") shall be given to the owner/occupant(s) of the property stating the section(s) being violated. The notice shall set forth a reasonable time limit, in no event less than or equal to 30 days, for correcting the violation(s) of this Title. The Director may also set forth suggested methods of correcting the violation(s) unless he or she determines that the condition constitutes a threat to the health and safety of any person, in which event, the Director may designate a shorter time limit for correcting the violation(s). The notice shall be served upon the owner/occupant in accordance with provisions of Section D.18.080.D (Notice of Hearing), covering service in person or by mail.

B. Exception for Undue Hardship. The notice shall also inform the owner/occupant (excluding an owner acting in a capacity of landlord of rental property) that, upon written request of the owner/occupant submitted within seven days of the "Notice to Abate," the City Manager, in their sole discretion, may allow for a time limit in excess of 30 days for correcting the violation in cases where strict enforcement of the time limit would result in an undue hardship on the owner/occupant. In the written request, the owner/occupant shall state the reasons why strict enforcement of the time limit would result in an undue hardship.

C. Administrative Hearing to Abate Nuisance. In the event the owner/occupant fails, neglects, or refuses to comply with the "Notice to Abate," the City Manager shall conduct an administrative hearing to ascertain whether the violation constitutes a public nuisance.

D. Notice of Hearing. Notice of the administrative hearing shall be served upon the owner/occupant not less than seven days before the time fixed for the hearing. Notice of the hearing shall be served in person or by certified mail to the owner/occupant's last known address. Service shall be deemed complete at the time notice is personally served or deposited in the mail. Failure of any person to receive notice shall not affect the validity of any proceedings hereunder. The notice shall identify the date of the hearing, the conditions in violation, and the proposed method of abatement. Notice that substantially complies with the format provided below shall be deemed sufficient:

FIGURE D.18.080-1: NOTICE OF ADMINISTRATIVE HEARING ON ABATEMENT OF NUISANCE FORMAT

E. Administrative Hearing by City Manager.

1. At the time stated in the notice, the City Manager shall hear and consider all relevant evidence, objections, or protests, and shall receive testimony relative to the alleged public nuisance and to proposed rehabilitation, repair, removal, or abatement of the property. The hearing may be continued from time to time.

2. If the City Manager finds that a public nuisance exists and that there is sufficient cause to rehabilitate, abate, remove, or repair the public nuisance, the City Manager shall prepare findings and an order, which shall specify the nature of the nuisance, the method(s) of abatement, and the time within which the work shall be commenced and completed. A copy of the findings and order shall be served on all owner/occupants of the subject property in accordance with the provisions of Section D.18.080.D (Notice of Hearing). In addition, a copy of the findings and order shall be conspicuously posted on the property. The order shall include the time within which the owner/occupant shall complete the work, in no event less than 15 days.

3. In the event the owner/occupant fails to abate the nuisance as ordered, the City Manager shall cause the nuisance to be abated by City employees or private contract. The costs shall be billed to the owner/occupant, as specified in Section D.18.090 (Cost Recovery). In appropriate circumstances, the City Manager shall request the City Attorney to obtain all necessary judicial approval for entry onto the subject premises for abatement purposes.

F. Hearing Procedure Before City Manager. All hearings shall be recorded.

1. Hearings need not be conducted according to the technical rules of evidence.

2. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in California. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions in courts of competent jurisdiction in this state.

3. Irrelevant and unduly repetitious evidence shall be excluded.

G. Appeal of Decision by City Manager. The decision of the City Manager may be appealed to the Council in conformance with the provisions of Milpitas Municipal Code Section I-20-5 (Appeals to Council).

H. Limitation on Filing Judicial Action. Any judicial action appealing the Council's decision and order shall be commenced within 30 days of the date of service of the decision.

I. Summary Abatement of Immediate Hazard or Obstruction. The City Manager may, without notice, abate the nuisance and recover the cost of abatement as provided in Section D.18.090 (Cost Recovery) in the event of:

1. A nuisance defined by statute, ordinance, or resolution as a public nuisance which constitutes an immediate danger to persons or property;

2. A nuisance defined by statute, ordinance, or resolution as a public nuisance which is located or maintained on public property including, but not limited to, any public right-of-way, highway, sidewalk, easement, park, or building; or

3. Any obstruction or encroachment to free passage upon any public property (which is declared to be a public nuisance) including, but not limited to, any public right-of-way, highway, easement, sidewalk, park or building.

Summary abatement may include the temporary removal to a safe location of persons placed in immediate danger from a public nuisance. In this event, the City shall be entitled to recover all costs related to the removal, including, but not limited to, storage of possessions and rental of living accommodations, as well as any other recoverable cost provided in Section D.18.090 (Cost Recovery).

(Ord. No. 38.858, § 4, 9/2/25)

A. Recovery of Costs. This Section establishes procedures for the recovery of administrative costs, as well as attorneys' fees and costs, incurred by the City in the enforcement process, for the abatement of conditions defined as a nuisance or violation by Milpitas Municipal Code Chapter XI-21 (Administrative Citations).

B. Definition of Costs. For the purposes of this Chapter, "costs" shall mean administrative costs, including City staff time expended and reasonably related to nuisance abatement cases, for items including, but not limited to, investigation, site inspection and monitoring, testing, reports, telephone contacts, correspondence and meetings with affected parties, as well as all attorneys' fees incurred in accordance with any action, administrative proceeding, or special proceeding to abate the nuisance including, but not limited to, filing fees and fees for witnesses. In accordance with California Government Code section 38773.5(a), where the City seeks to recover attorneys' fees at the initiation of any action or proceeding, a prevailing opposing party may recover its reasonable attorneys' fees to the extent that the amount of the fees does not exceed the amount of reasonable attorneys' fees incurred by the City in the action or proceeding.

C. Cost Accounting and Recovery Required. The City shall maintain records of all costs incurred by responsible City departments associated with the enforcement process in accordance with this Chapter and shall recover the costs from the property owner/occupant as provided by this Section.

D. Notice of Cost Recovery Requirements. The City Manager shall include in the "Notice to Abate" a statement of the intent of the City to charge the property owner/occupant for all costs incurred by the City if the violation is not corrected as required. The notice shall state that the property owner/occupant will receive at the conclusion of the enforcement case a summary of enforcement costs associated with the processing of the case.

E. Collection of Charges. Costs of recovery shall be recoverable as provided in this Chapter.

(Ord. No. 38.858, § 4, 9/2/25)

A. Record of Cost of Abatement. The City Manager shall keep an account of the costs, as defined in Subsection D.18.090.B (Definition of Costs), for abating the nuisance on each separate lot or parcel of land where the work is done by the City and shall render an itemized report in writing showing the cost of abatement, including the rehabilitation or repair of the property, including any related salvage value. A copy of the report shall be posted for at least five days upon the property, together with a notice of the right to appeal to the City Manager. A copy of the report and notice shall be served upon the owner/occupants of the property, based on the last equalized assessment roll or the supplemental roll, whichever is more current. If the owner/occupant 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 10 days and publication published in a newspaper of general circulation in the county in which the property is located. Proof of the posting and service shall be made by affidavit filed with the City Clerk. The owner/occupant shall have 30 days from the date upon which the notice is served to reimburse the City for its costs or to otherwise make arrangements for repayment, to which the City, in its sole discretion, may agree.

B. Assessment and Lien.

1. The total cost for abating the nuisance, as so confirmed by the City Manager, shall, upon failure to pay the costs as specified in Subsection D.18.100.A (Record of Cost Abatement) constitute a lien or special assessment in accordance with California Government Code section 38773.1, 38773.2, 38773.5, or 38773.6 against the respective lot or parcel of land to which it relates. After confirmation and recordation of a Notice of Special Assessment, a certified copy of the City Manager's decision shall be filed with the Santa Clara County Assessor's Office on or before August 1 of each year, whereupon it shall be the duty of the County Assessor to add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land for municipal purposes and thereafter the amounts shall 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 of ordinary municipal taxes. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to the special assessments. Upon recordation in the Office of the County Recorder, a Notice of Lien, as so made and confirmed, shall constitute a lien on the property and from the date of recording shall have the force, effect, and priority of a judgment lien.

2. In the alternative, after recordation, the lien may be foreclosed by an action brought by the City for a money judgment or by any other means provided by law. A Notice of Lien for recordation shall be in form substantially as follows:

FIGURE D.18.100-1: NOTICE OF LIEN FORMAT

In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the amount of the lien, the name of the agency on whose behalf the lien was imposed, the date of the abatement order, the public right-of-way address, legal description, and the name and address of the recorded owner/occupant of the property shall be recorded by the governmental agency. A nuisance abatement and the release of the lien shall be indexed in the grantor-grantee index.

(Ord. No. 38.858, § 4, 9/2/25)

A. Amount of Interest on City Liens and Assessments-Findings. The Council finds and declares that the establishment of an interest accrual requirement as to unpaid City liens and assessments upon real property which are of record with the Santa Clara County Recorder is a necessary and appropriate exercise of the Council's police power.

B. Accrual of Interest on Liens and Assessments. Unless otherwise prohibited by law or regulation, all liens and assessments which are imposed by the City against any real property located in the City that are recorded on and after the effective date of this regulation shall accrue interest at the rate of eight percent annually until the lien or assessment, including any accrued interest, is paid in full.

(Ord. No. 38.858, § 4, 9/2/25)

A. Alternative Actions Available; Violation and Infraction. Nothing in this Chapter shall be deemed to prevent the Council from ordering the commencement of a civil proceeding to abate a public nuisance in accordance with applicable law or from pursuing any other remedy available under applicable law. Violation of the provisions of this Chapter constitutes an infraction, as set forth in Milpitas Municipal Code Subsection I-1-4.09 (Penalty Provisions). The City Manager is designated as the enforcement authority.

B. Additional Costs of Abatement. The Council provides that a court may order the owner/occupant of property responsible for a condition that may be abated in accordance with this Chapter to pay three times the costs of abatement in accordance with California Government Code section 38773.7 upon the entry of a second civil court judgment for violation of this Chapter within a two-year period.

C. Residential Rental Housing. The notice sent to the owner/occupant of residential rental housing in accordance with Subsection D.18.080.A (Notification of Nuisance) shall contain the statement required by California Health and Safety Code section 17980 regarding the application of California Revenue and Taxation Code section 17274 and section 24436.5, which allow the Franchise Tax Board to deny state income tax deductions to taxpayers who fail to bring substandard residential rental property into compliance with this Chapter.

(Ord. No. 38.858, § 4, 9/2/25)

The remedies provided in this Chapter shall be cumulative and not exclusive and are in addition to any other remedies as provided by law. The City's use or exercise of one remedy shall not preclude the City from using or exercising any other remedy as may be allowed by law.

(Ord. No. 38.858, § 4, 9/2/25)