Mission Viejo Municipal Code Div. 5 Enforcement

The director may, in addition to any other remedies provided in this Code, including, but not limited to, chapter 1.03, or available under applicable law, take enforcement action against violators of this chapter through one or any combination of the administrative enforcement options set forth below:

(a) Notice of noncompliance. The authorized inspector may deliver to the owner or occupant of any property, or to any person responsible for an illicit connection or prohibited discharge a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with subsection (e).

(1) The notice of noncompliance shall identify the provision(s) of this chapter or the applicable permit which has been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and/or person.

(2) The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and/or person; provided, however, that the compliance date may not exceed 90 days unless the authorized inspector extends the compliance deadline an additional 90 days where good cause exists for the extension.

(b) Administrative compliance orders.

(1) The authorized inspector may issue an administrative compliance order. The administrative compliance order shall be delivered in accordance with subsection (e). The administrative compliance order may be issued to:

a. The owner or occupant of any property requiring abatement of conditions on the property that cause or may cause a prohibited discharge or an illicit connection in violation of this chapter;

b. The owner of property subject to terms, conditions or requirements imposed on a project in accordance with subsection 6.65.310(a) to ensure adherence to those terms, conditions and requirements.

c. Any person responsible for an illicit connection or prohibited discharge.

(2) The administrative compliance order may include the following terms and requirements:

a. Specific steps and time schedules for compliance as reasonably necessary to eliminate an existing prohibited discharge or to prevent the imminent threat of a prohibited discharge, including but not limited to a prohibited discharge from any pond, pit, well, surface impoundment, holding or storage area;

b. Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection;

c. Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact stormwater runoff;

d. Any other terms or requirements reasonably calculated to prevent the imminent threat of or continuing violations of this chapter,, including, but not limited to requirements for compliance with best management practices guidance documents promulgated by any federal, state or regional agency; and

e. Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any permit issued by the city or of this chapter.

(c) Cease and desist orders.

(1) The authorized inspector may issue a cease and desist order. A cease and desist order shall be delivered in accordance with subsection (e). A cease and desist order may direct the owner or occupant of any property and/or other person responsible for a violation of this chapter to:

a. Immediately discontinue any illicit connection or prohibited discharge to the stormwater drainage system;

b. Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of this chapter;

c. Immediately discontinue any other violation of this chapter;

d. Clean up the area affected by the violation.

(2) The authorized inspector may direct by cease and desist order that the owner of any property, or his successor in interest, which property is subject to any conditions or requirements issued pursuant to subsection 6.65.310(a) hereof immediately cease any activity not in compliance with such conditions and requirements.

(d) Recovery of costs. The authorized inspector may deliver to the owner or occupant of any property, any permittee or any other person who becomes subject to a notice of noncompliance or administrative order, an invoice for costs. An invoice for costs shall be delivered in accordance with subsection (e). An invoice for costs shall be immediately due and payable to the city for the actual costs incurred by the city in issuing and enforcing any notice or order.

(1) If any owner or occupant, permittee or any other person subject to an invoice for costs fails to either pay the invoice for costs or appeal successfully the invoice for costs in accordance with subsection (f), then the enforcing attorney may institute collection proceedings.

(e) Delivery of notice. Any notice of noncompliance, administrative compliance order, cease and desist order or invoice of costs to be delivered pursuant to the requirements of this chapter shall be subject to the following:

(1) The notice shall state that the recipient has a right to appeal the matter as set forth in subsections (f) through (j).

(2) Delivery shall be deemed complete upon:

a. Personal service to the recipient;

b. Deposit in the U.S. mail, postage prepaid for first class delivery; or

c. Facsimile service with confirmation of receipt.

(3) Where the recipient of notice is the owner of the property, the address for notice shall be the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the city.

(4) Where the owner or occupant of any property cannot be located after the reasonable efforts of the authorized inspector, a notice of noncompliance or cease and desist order shall be deemed delivered after posting on the property for a period of ten business days.

(f) Administrative hearing for notices of noncompliance, administrative compliance orders, invoices for costs and adverse determinations. Except as set forth in subsection (h), any person receiving a notice of noncompliance, administrative compliance order, an invoice for costs, or any person who is subject to any adverse determination made pursuant to this chapter, may appeal the matter by requesting an administrative hearing. Notwithstanding the foregoing, these administrative appeal procedures shall not apply to criminal proceedings initiated to enforce this chapter.

(g) Request for administrative hearing. Any person appealing a notice of noncompliance, an administrative compliance order, an invoice for costs or an adverse determination shall, within 30 days of receipt thereof, file a written request for an administrative hearing, accompanied by an administrative hearing fee as established by separate resolution, with the office of the city clerk, with a copy of the request for administrative hearing mailed on the date of filing to the city manager. Thereafter, a hearing on the matter shall be held before the hearing officer within 45 business days of the date of filing of the written request unless, in the reasonable discretion of the hearing officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.

(h) Administrative hearing for cease and desist orders and emergency abatement actions. An administrative hearing on the issuance of a cease and desist order or following an emergency abatement action shall be held within five business days following the issuance of the order or the action of abatement, unless the hearing (or the time requirement for the hearing) is waived in writing by the party subject to the cease and desist order or the emergency abatement. A request for an administrative hearing shall not be required from the person subject to the cease and desist order or the emergency abatement action.

(i) Hearing proceedings. The authorized inspector shall appear in support of the notice, order, determination, invoice for costs or emergency abatement action, and the appealing party shall appear in support of withdrawal of the notice, order, determination, invoice for costs, or in opposition to the emergency abatement action. Except as set forth in subsection 6.65.110 (definition of discharge exception), the city shall have the burden of supporting any enforcement or other action by a preponderance of the evidence. Each party shall have the right to present testimony and other documentary evidence as necessary for explanation of the case.

(j) Final decision and appeal. The final decision of the hearing officer shall issue within ten business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party. The final decision shall include notice that any legal challenge to the final decision shall be made pursuant to the provisions of Code of Civil Procedure §§ 1094.5 and 1094.6 and shall be commenced within 90 days following issuance of the final decision. Notwithstanding this subsection, the final decision of the hearing officer in any preceding determining the validity of a cease and desist order or following an emergency abatement action shall be mailed within five business days following the conclusion of the hearing.

(k) City abatement. In the event the owner of property, the operator of a facility, a permittee or any other person fails to comply with any provision of a compliance schedule issued to such owner, operator, permittee or person pursuant to this chapter, the authorized inspector may request the enforcing attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the city in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to section 6.65.510(d).

(Ord. No. 10-285, § 1, 12-6-10)

Any condition in violation of the prohibitions of this chapter, including, but not limited to, the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Government Code § 38771.

(a) Court order to enjoin or abatement. At the request of the city manager, the enforcing attorney may seek a court order to enjoin and/or abate the nuisance.

(b) Notice to owner and occupant. Prior to seeking any court order to enjoin or abate a nuisance or threatened nuisance, the city manager shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring.

(c) Emergency abatement. In the event the nuisance constitutes an imminent danger to public safety or the environment, the authorized inspector or director, may enter the property from which the nuisance emanates, abate the nuisance and restore any property affected by the nuisance. To the extent reasonably practicable, informal notice shall be provided to the owner or occupant prior to abatement. If necessary to protect the public safety or the environment, abatement may proceed without prior notice to or consent from the owner or occupant thereof and without judicial warrant.

(1) An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public safety or the environment.

(2) Notwithstanding the authority of the city to conduct an emergency abatement action, an administrative hearing pursuant to section 6.65.505(h) hereinabove shall follow the abatement action.

(d) Reimbursement of costs. All costs incurred by the city in responding to any nuisance, all administrative expenses and all other expenses recoverable under state law, shall be recoverable from the person(s) creating, causing, committing, permitting or maintaining the nuisance.

(e) Nuisance lien. All costs shall become a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with Government Code §§ 38773.1 and 38773.5. The owner of record of the property subject to any lien shall be given notice of the lien prior to recording as required by Government Code § 38773.1. At the direction of the city manager, the enforcing attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgment or by delivery to the county assessor of a special assessment against the property in accord with the conditions and requirements of Government Code § 38773.5.

(Ord. No. 10-285, § 1, 12-6-10)

Each day in which a violation occurs and each separate failure to comply with either a separate provision of this chapter, an administrative compliance order, a cease and desist order or a permit issued by the city relating to any discharges to the stormwater drainage system, shall constitute a separate violation of this chapter punishable by fines or sentences issued in accordance herewith.

(Ord. No. 10-285, § 1, 12-6-10)

Each and every remedy available for the enforcement of this chapter shall be nonexclusive and it is within the discretion of the director or enforcing attorney to seek cumulative remedies, except that multiple monetary fines or penalties shall not be available for any single violation of this chapter.

(Ord. No. 10-285, § 1, 12-6-10)

(a) Pursuant to Penal Code § 836.5, the authorized inspector shall have the authority to cause the arrest of any person committing a violation of this chapter. The person shall be released and issued a citation to appear before a magistrate in accordance with Penal Code §§ 853.5, 853.6, and 853.9, unless the person demands to be taken before a magistrate. Following issuance of any citation the authorized inspector shall refer the matter to the enforcing attorney.

(b) Each citation to appear shall state the name and address of the violator, the provisions of this chapter violated, and the time and place of appearance before the court, which shall be at least ten business days after the date of violation. The person cited shall sign the citation giving his or her written promise to appear as stated therein. If the person cited fails to appear, the enforcing attorney may request issuance of a warrant for the arrest of the person cited.

(Ord. No. 10-285, § 1, 12-6-10)

Any person acting in violation of this chapter also may be acting in violation of the Federal Clean Water Act or the State Porter-Cologne Act and other laws and also may be subject to sanctions, including civil liability. Accordingly, the enforcing attorney is authorized to file a citizen suit pursuant to Federal Clean Water Act § 505(a), seeking penalties, damages, and orders compelling compliance, and other appropriate relief. The enforcing attorney may notify USEPA Region IX, the Santa Ana or San Diego regional water quality control boards, or any other appropriate state or local agency, of any alleged violation of this chapter.

(Ord. No. 10-285, § 1, 12-6-10)

At the request of the city manager, the enforcing attorney may cause the filing in a court of competent jurisdiction, of a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of this chapter. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing this chapter, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the city costs relating to restoration of the environment and all other expenses as authorized by law.

(Ord. No. 10-285, § 1, 12-6-10)

(a) The city manager may cause the enforcing attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of:

(i) All costs incurred in enforcement of the chapter, including, but not limited to, costs relating to investigation, sampling, monitoring, inspection, administrative expenses, all other expenses as authorized by law, and consequential damages,

(ii) All costs incurred in mitigating harm to the environment or reducing the threat to human health, and

(iii) Damages for irreparable harm to the environment.

(b) The enforcing attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the stormwater drainage system from any violation of this chapter where the same has caused damage, contamination or harm to the environment, public property or the stormwater drainage system.

(c) The remedies available to the city pursuant to the provisions of this chapter shall not limit the right of the city to seek any other remedy that may be available by law.

(Ord. No. 10-285, § 1, 12-6-10)