Mountain House Municipal Code Ch. 4 Administrative Abatement Procedures

The purpose and authority for this Chapter is as follows:

(a) Pursuant to the authority granted to the City Council by the State, including but not limited to Sections 38771 et seq. and 53069.4 of the Government Code, the City Council does enact this chapter.

(b) It is the intent of the City Council in adopting this chapter to set forth procedures for administrative abatement of violations of this code and that govern imposition, enforcement, collection, and administrative review of administrative fines/penalties for violations of this code and State laws within authority of the City.

(c) It is the intent of the City to utilize administrative abatement procedures to seek voluntary compliance with these provisions, and to provide an effective means of enforcement if compliance is not obtained voluntarily.

(Ord. 2024-19, § 1(Exh. A), 2024)

When the Enforcement Official determines that a condition constituting a violation of this code has occurred or exists they may provide a written notice of violation and order to abate to the responsible party. If the violation relates to real property then notice shall also be given to the owner(s) and possessors of the property involved. Notice shall be given as follows:

(a) In writing and delivered either personally or by deposit in the United States certified and by first class mail in a sealed envelope, postage prepaid, addressed to the person to be notified at their last known business or residence address appearing in the public records or in other records of the matter for which notice is given. Notice by mail shall be deemed served at the time of deposit in the United States mail.

(b) If delivery of the notice cannot be accomplished pursuant to subsection (a) despite diligent effort then notice may be given by posting copies of the notice/order to abate at the premises involved and recording the notice/order to abate in the official records of the City.

(c) The failure of an addressee to receive the notice provided to them in compliance with this section shall not affect in any manner a determination that notice was provided or the validity of any proceedings taken under this code.

(Ord. 2024-19, § 1(Exh. A), 2024)

The date of notification of a notice/order to abate is presumed to have occurred as follows:

(a) On the date the notice/order to abate was personally served; or

(b) On the date the City deposited the Notice in the United States Mail; or

(c) On the date the notice/order to abate was posted at the premises involved.

(Ord. 2024-19, § 1(Exh. A), 2024)

The notice/order to abate shall include at least the following information, as applicable, unless otherwise determined by the Enforcement Official, or otherwise specified in this code:

(a) Determination that a violation of this code and/or any other ordinance, code, statute, act, regulation, or law occurred or currently exists.

(b) Description of: (1) the action(s) or condition(s) that did or currently are constituting a violation of this code, and (2) the section(s) of this code and/or any other ordinance, code, statute, act, regulation, or law that the action or condition(s) were or are in violation of.

(c) Statement of any fines/penalties ordered to be paid by the responsible party(s) for the violation(s) described in the notice/order to abate.

(d) State that the violation(s) must be addressed, corrected, or abated within ten (10) days or as otherwise specified in the notice/order to abate from the date of the notice/order to abate.

(e) State that the City may take legal action to address, correct, or abate the violation(s) up to and including criminal action pursuant to this code.

(f) State that the addressee(s) of the notice/order to abate has a right to appeal the determination of a violation of this chapter and/or imposition of administrative fines/penalties by filing a written notice of appeal to the Enforcement Official within than ten (10) days or as otherwise stated in the notice/order to abate of the date of receipt of the notice/order to abate. Imposition of administrative fines/penalties will be stayed as of the date of appeal through the resolution of the appeal.

(g) State that unless the resident and/or owner of the premises involved voluntarily abates a continuing violation of this chapter or timely appeals the notice/order to abate, then the Enforcement Official may take action to abate a continuing violation of this chapter.

(h) State that the resident and/or owner of the premises involved may be responsible for the cost of abatement in addition to any fines/penalties. These costs will be calculated and provided to the owner in a statement of expenses.

(i) State that the resident and/or owner of the real property involved has a right to appeal the accounting of costs for abatement in writing within thirty (30) days of receiving the statement of expense. Collection pursuant to the statement of expense will be stayed pending resolution of the appeal.

(j) State that if the owner of the real property involved fails to pay the cost of abatement then a special tax may be assessed on the property tax of the real property involved which shall have the same priority as other taxes and be collected at the same time and manner as other City taxes.

(k) State that in the event that the violation of this chapter poses an imminent health, safety, or fire hazard the Enforcement Official may reduce the noticed time and take action to abate.

(Ord. 2024-19, § 1(Exh. A), 2024)

Following issuance of a notice/order to abate pursuant to this chapter, the Enforcement Official may record with the City Recorder:

(a) A notice of violation. The notice will describe (1) the action(s) or condition(s) that constitute(d) a violation of this chapter, and (2) the section(s) of this chapter and/or any other ordinance, code, statute, act, regulation, or law that the action or condition(s) were or are in continuing violation.

(1) If the Enforcement Official records a notice of violation, then the Enforcement Official shall serve and record a release of lien or release of notice of violation when the violation has been abated, including any hearings or appeals and the completion of any work necessary to abate the nuisance, and all costs, fines/penalties have been paid or a lien for those costs and penalties has been recorded.

(b) A notice of lien; nuisance abatement. The notice will describe: (1) the action(s) or condition(s) that constitute(d) a violation of this chapter, (2) the section(s) of this chapter and/or any other ordinance, code, statute, act, regulation, or law that the action or condition(s) were or are in continuing violation, (3) the actions taken by the City to abate the violations, (4) the cost of abating the violations, and (5) the date the costs were incurred.

(1) If the Enforcement Official records a notice of lien - nuisance abatement, then the Enforcement Official shall serve and record a release of lien - nuisance abatement when the costs of abatement and fines/penalties have been paid.

(Ord. 2024-19, § 1(Exh. A), 2024)

A responsible party may appeal a determination of violation as follows:

(a) If a responsible party found to be in violation of this code objects to the Enforcement Official's findings and conclusions in the notice/order to abate, then they may within no less than ten (10) days of the date of receipt of the notice/order to abate file a written appeal with the Enforcement Official that issued the notice/order to abate or if it subjects the person to administrative fines/penalties then to the Superior Court in accordance with Section 53069.4 of the Government Code.

(b) If the appeal is to the Enforcement Official, then the appellant shall then select a Hearing Officer appointed pursuant to Title 2, Division 3, Chapter 5 of this code to conduct a hearing.

(1) The Enforcement Official's findings and orders in the notice/order to abate shall remain in full force and effect until modified or rescinded by the Enforcement Official or the Hearing Officer's decision affirms, reverses, or modifies them.

(2) The technical rules relating to evidence, including but not limited to the California Evidence Code, will not apply during the appeal hearing. The Hearing Officer may allow any relevant evidence to be admitted. The Hearing Officer may reject any evidence they deem to be unreliable, irrelevant, or unduly repetitious. The Hearing Officer shall not consider any oral or documentary evidence presented to them outside of the hearing or during inspection of the premises made pursuant to these procedures unless the parties stipulate in writing to such evidence and the stipulation is made part of the hearing record.

(3) Within five (5) days of the completion of the appeal proceeding, the Hearing Officer shall provide the final written decision on the appeal to the parties by personal service or by certified mail and the City Clerk.

(4) The Hearing Officer's written decision shall be final and shall be enforceable five (5) days after the appellant receives the decision by personal service or receipt of certified mailing. If neither personal service nor receipt of certified mail is successful, then the Hearing Officer shall mail the final written decision to appellant and receipt will be presumed to have occurred five (5) days after the Hearing Officer mailed the decision to the appellant.

(5) If the Hearing Official's written decision is in favor of the Enforcement Official and against the appellant, the costs incurred by the City in holding the hearing with the Hearing Officer shall be added to the other costs of abatement and included in the statement of expense which may be billed to the appellant and/or responsible party and/or owner of the premises involved.

(6) The City Council may, by resolution, establish a fee for filing an appeal pursuant to this section.

(Ord. 2024-19, § 1(Exh. A), 2024)

All fines/penalties collected pursuant to the provisions of this chapter, not including the reimbursement for costs of abatement pursuant to the statement of expense, shall be paid into the City treasury, to the credit of the general fund, unless otherwise specified in this code.

(Ord. 2024-19, § 1(Exh. A), 2024)

The responsible party and/or premises owner and/or person in possession or control of the premises involved may voluntarily abate the violation(s) of this code at any time. If a party claims such voluntary abatement has occurred, they shall notify the Enforcement Official who shall then inspect the premises involved to confirm the voluntary abatement. Voluntary abatement does not preclude the Enforcement Official, or any other party allowed by law, from pursuing legal or equitable action against the resident and/or property owner for the violation(s) of this chapter or from pursuing actual cost of all time, services, and materials associated with enforcement and/or abatement of violation(s) of this code.

(Ord. 2024-19, § 1(Exh. A), 2024)

The City may summarily abate a violation as follows:

(a) If a responsible party has failed to voluntarily abate any ongoing violation(s) of this code as required in the notice/order to abate, no appeal has been filed, or the final decision on appeal upholds the Enforcement Official's findings in the notice/order to abate, then the Enforcement Official may commence involuntary abatement.

(b) Involuntary abatement includes, but is not limited to, one (1) or more of the following actions:

(1) Entry onto the premises pursuant to consent or other legal authorization to for the City or an agent of the City to perform work to abate the violation(s) of this code;

(2) Office of the City Attorney commencing action to abate the violation of this chapter pursuant to this code and/or Section 731 of the Code of Civil Procedure; and

(3) Office of the City Attorney commencing a civil action for injunctive relief for which the relief may take the form of a court order to allowing abatement or other relief, enforceable through civil contempt proceedings, prohibiting the maintenance of the violation of this code, and requiring compliance with other terms.

(c) Following abatement the Enforcement Official shall add the costs of abatement to the statement of expense prepared pursuant to Section 1-2-414, Recovery of Enforcement if they are not otherwise recovered.

(Ord. 2024-19, § 1(Exh. A), 2024)

Notwithstanding any other provision of this code, if the Enforcement Official determines that a violation of this code poses an immediate threat of life, limb, health, property, safety, or welfare of anyone, the Enforcement Official may act to immediately notify the responsible party and/or the owner of premises involved orally or in writing that the violation must be abated immediately.

(a) If, despite diligent effort, the Enforcement Official is unable to notify the responsible party and/or the owner of the premises within a reasonable period of time considering the immediate threat, or after notification that the responsible party and/or owner has failed to abate the violation, the Enforcement Official may cause the abatement of the condition, which poses an immediate threat.

(b) Immediately following abatement, the Enforcement Official shall notify the responsible party and/or owner of the premises of the abatement.

(c) The post-abatement notice to the responsible party and/or owner of the premises involved shall include a statement of expense pursuant to Section 1-2-414, Recovery of Enforcement.

(Ord. 2024-19, § 1(Exh. A), 2024)

The Enforcement Official shall keep an account of the investigation, abatement, and administrative costs for each enforcement action. When any abatement is conducted by the City, it shall cause the work to be accomplished by City personnel or by private contract under the direction of the City.

(Ord. 2024-19, § 1(Exh. A), 2024)

There shall be no civil liability on the part of, and no cause of action shall arise against, the Enforcement Official or any City official or personnel acting pursuant to this code and within the scope of their authority.

(Ord. 2024-19, § 1(Exh. A), 2024)

No provision in this code precludes a responsible party from entering into a settlement agreement with the City at any time.

(Ord. 2024-19, § 1(Exh. A), 2024)

The prevailing party in any civil action to abate a violation of this code may recover reasonable attorney's fees and costs. No party's fees shall be awarded at an hourly rate greater than the hourly rate charged by the City Attorney.

(Ord. 2024-19, § 1(Exh. A), 2024)

Recovery and enforcement costs shall be recovered by the City as follows:

(a) In any enforcement action brought by the City pursuant to this chapter, whether by administrative proceeding, judicial proceeding, or summary abatement, the responsible party found to have caused, permitted, created, or maintained a nuisance shall be personally liable for the following:

(1) All actual costs incurred by the City including, but not limited to, all time, services, and materials associated with or incurred to undertake, or to cause or compel any responsible party to undertake, any voluntary and involuntary abatement.

(2) Reasonable attorney's fees in the event the City is the prevailing party and elected, at the initiation of the action or proceeding, to seek recovery of its own attorney's fees. In no action, administrative proceeding, or special proceeding shall an award of an attorney's fees to a prevailing party exceed the amount of reasonable attorney's fees incurred by the City in the action or proceeding.

(3) Reimbursement of these costs shall be in addition to and shall not limit the prevailing party's right to recover costs pursuant to Code of Civil Procedure Sections 1032 and 1033.5 or any other provision of law.

(4) Any administrative penalty imposed pursuant to this chapter.

(b) Interest shall accrue on all amounts due under this chapter from the effective date of final decision on the amount owed to the date paid pursuant to the laws applicable to civil money judgments.

(c) Late charges may be charged for fines/penalties and/or on the amount owed on a statement of expense not paid by the required date, excluding any time the proceeding is stayed pending appeal. Late charges if any, shall be the same as those established by the City Council for the City's Revenue and Recovery Division.

(d) If the Enforcement Official seeks to recover amounts owed under this chapter, then they shall compile them into a statement of expense, which shall be an itemized statement of all amounts owed under this chapter explaining all abatement costs and/or administrative fines/penalties incurred by the City in abating any violation of this code that the Enforcement Official seeks to recover.

(e) Any time spent on enforcement that the Enforcement Official seeks to recover shall be charged by City personnel at an hourly rate determined by the Enforcement Official or otherwise set by the City Council.

(f) Any costs of time, services, and/or materials spent on enforcement that the Enforcement Official seeks to recover may be calculated from the time a violation is reported or discovered through and including successful abatement of the violation.

(g) The statement of expense shall be mailed to the property owner with a demand for payment within thirty (30) days of the date the statement was mailed unless otherwise specified by this code.

(h) Reserved.

(i) In the event that two (2) or more persons are found to be responsible for the violation and the costs of abatement, they shall be jointly and severally liable for the full amount owed.

(j) If the responsible party does not pay the amount due under the statement of expense within the time specified by the statement, then the City shall request placement on the calendar of the City Council for a resolution confirming the amount due under the statement of expense.

(k) If the tax lien has not been recorded prior to the transfer to any real property involved before the date on which the first installment of City taxes becomes delinquent, then the cost of abatement shall not be a lien on the property but shall be transferred to the unsecured roll for collection. For the purposes of this section, a transfer must be to a bona fide purchaser for value.

(Ord. 2024-19, § 1(Exh. A), 2024)

(a) Before the Enforcement Official's statement of expense is placed on the City Council's calendar, a copy of the statement of expense shall be posted for at least three (3) days on or near the City Council's meeting room with a notice of when the statement of expense will be submitted to the City Council for confirmation. Copies of the statement of expense and the notice shall also be mailed to the owner of each property identified in the statement of expense, using the owner's name and address as it appears on the latest equalized assessment roll, at least fifteen (15) days prior to the meeting. At the meeting, the City Council shall consider the statement of expense. At the time fixed receiving and considering the statement of expense, the City Council shall hear it as well as any objections of any of the property owners liable to be assessed.

(b) After hearing the report, the City Council may make any modifications to the statement of expense as it deems necessary, after which, by resolution should confirm the report.

(c) The confirmed statement of expense shall constitute special assessments against the respective parcels, and are a lien on the property for the amount of the respective assessments. Such lien attaches upon recordation in the office of the Mountain House City Recorder of a copy the City Council's resolution confirming the statement of expense.

(d) The assessment may be collected at the same time and in the same manner that property taxes are collected, and are subject to the same penalties and the same procedures and sale in case of delinquency as provided for City property taxes.

(e) On or before the next August 10 following Council's confirmation of the statement of expense, the City shall file copies of Council's resolution confirming the statement of expense with the Mountain House City Auditor for entry of the assessments on the City tax roll. The auditor shall enter the amounts of the respective assessments against the respective parcels as they appear on the current assessment roll.

(Ord. 2024-19, § 1(Exh. A), 2024)

Late charges and interest may be charged for fines/penalties and/or the statement of expense not paid by the required date.

(Ord. 2024-19, § 1(Exh. A), 2024)

Nothing in this code shall be construed as imposing on the Enforcement Official or the City any duty to issue a notice of violation and order to abate any violation of this chapter, nor to take any other action with regard to any violation of this chapter. Neither the Enforcement Official nor the City shall be held liable for failure to issue a notice of violation and order to abate any violation of this chapter, nor for failure to take any other action with regard to any violation of this chapter.

(Ord. 2024-19, § 1(Exh. A), 2024)

Upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property or a person is responsible for a condition that may be abated in accordance this code, except for conditions abated pursuant to Section 17980 of the Health and Safety Code, the court may order that person to pay treble the costs of the abatement pursuant to Government Code 38773.7.

(Ord. 2024-19, § 1(Exh. A), 2024)

In addition to other provisions of this code, in any action to abate a violation, whether by administrative proceedings, judicial proceedings, or summary abatement, the owner of the parcel upon which the violation is found to exist shall be liable for all costs of abatement incurred by the City, including, but not limited to, administrative costs, and any and all costs incurred in the physical abatement of the nuisance. Recovery of costs as allowed by Section 38771 et seq. of the Government Code shall be in addition to and shall not limit any prevailing party's right to recover costs pursuant to Sections 1032 and 1033.5 of the Code of Civil Procedure or any other provision of law.

(Ord. 2024-19, § 1(Exh. A), 2024)

Except as otherwise provided by law, the remedies provided in this chapter are cumulative and not exclusive. Nothing in this chapter is intended, or shall be deemed or construed, to limit or impair the ability of the City, or any of its officers, agents, or employees, to take any administrative or judicial action, otherwise authorized by law, to abate any violations.

(Ord. 2024-19, § 1(Exh. A), 2024)

In any action, administrative proceeding, or special proceeding to abate a violation, the prevailing party may recover its attorney's fees. Recovery of attorney's fees to the prevailing party shall be limited to those individual actions or proceedings in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorney's fees. In no action, administrative proceeding, or special proceeding shall an award of attorney's fees to a prevailing party exceed the amount of reasonable attorney's fees incurred by the City in the action or proceeding.

(Ord. 2024-19, § 1(Exh. A), 2024)

Any person aggrieved by an administrative decision of the Hearing Officer may obtain review of the administrative decision by filing a petition for review with the Superior Court in the City in accordance with the provisions set forth in Section 53069.4 of the Government Code.

(Ord. 2024-19, § 1(Exh. A), 2024)