Mountain View Municipal Code § 25.100 Procedure for appeal to city council

For purposes of this division, "director" means the fire chief or his/her designee who is charged with responsibility for enforcement of any provisions of this code.

(Ord. No. 4.94, 3/8/94; Ord. No. 10.07, 11/27/07.)

a. Whenever the director determines that a violation of any provision of this code within the director's responsibility is occurring or exists, the director may issue a written Compliance Order to any person responsible for the violation.

b. A Compliance Order issued pursuant to this division 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 enforcement fees will begin to accrue if compliance with the order has not been achieved; and

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

The Compliance Order shall be in substantially the following form:

COMPLIANCE ORDER

To Record Owner:

The Fire Chief has determined that conditions exist at the property located at ___________, which violate (State ordinance or code sections violated or condition of approval violations).

You must correct or remove such violation by ________ (specific date). Failure to timely correct or remove the violation within the time specified will result in all cumulative administrative enforcement costs being charged against you in accordance with the provisions of Mountain View City Code, Chapter 25, Article 3, Division 4. If the violation is corrected within the allotted time, no administrative costs except those referenced in Chapter 25, Article III, Division 3 will be assessed.

(Ord. No. 4.94, 3/8/94; Ord. No. 10.07, 11/27/07.)

a. If the director determines that all violations have been corrected within the time specified in the Compliance Order, no further action shall be taken.

b. If full compliance is not achieved within the time specified in the Compliance Order, the director may issue a final notice.

(Ord. No. 4.94, 3/8/94.)

If the violations noted in a Compliance Order are not corrected on or before the compliance date specified in the Compliance Order, the director may issue a Final Notice on Compliance Order. The Final Notice on Compliance Order shall be in substantially the following form:

FINAL NOTICE ON COMPLIANCE ORDER

To (Record Owner):

You were notified on ___ that a violation of _______ exits on property located at _______. You have failed to correct or remove said violation. You are hereby notified that as a part of the resolution of this matter, you will be required to pay an amount equal to all cumulative administrative costs incurred in this enforcement proceeding. Written notice of the enforcement fees will be given. You have the right to contest the amount charged. To contest the amount due, you must file a notice of contest with the _______ department within 15 days of the notice of charges.

(Ord. No. 4.94, 3/8/94.)

The administrative costs recoverable pursuant to this division may include any and all unreimbursed costs incurred by the city in connection with the matter, including but not limited to costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, attorneys' fees, vehicle operation costs, clerical costs, labor overhead, mailing costs, and costs for all reinspections necessary to enforce the Compliance Order.

(Ord. No. 4.94, 3/8/94.)

When the director determines the enforcement action to be concluded, either upon correction or removal of the violation(s), approval of permit application, modification of conditions or other resolution, or at any other time as may be determined appropriate by the director, the director or his authorized designee shall send a written Notice of Enforcement Fees to the property owner, setting forth a summary of the fees to be recovered, including time expended, hourly charges, and other costs incurred in the enforcement action. The Notice of Enforcement Fees shall be in substantially the following form:

NOTICE OF ENFORCEMENT FEES

To (Record Owner):

The Fire Chief has determined that the administrative costs incurred in the enforcement proceedings and actions taken in regard to the violation of _______ existing on the property located at ___________ are $_______ detailed as follows:

If you wish to contest these charges, you must file a request for hearing with the City Manager by ________ (specific date).

adv=8q;IF YOU FAIL TO TIMELY FILE A REQUEST FOR HEARING, YOUR RIGHT TO CONTEST THE ABOVE CHARGES WILL BE WAIVED AND YOU WILL BE LIABLE TO THE CITY FOR THESE CHARGES, WHICH MAY BE RECOVERED AS A CONDITION OF ANY PERMIT OR MODIFICATION OF CONDITIONS, AS A LIEN AGAINST THE PROPERTY, OR MAY BE RECOVERED IN A CIVIL ACTION FILED BY THE CITY IN A COURT OF COMPETENT JURISDICTION.

(Ord. No. 4.94, 3/8/94; Ord. No. 10.07, 11/27/07.)

Any property owner or other person having possession and control of property subject to a Compliance Order who receives a Notice of Enforcement Fees under this division shall have the right to contest the amount and basis of said enforcement fees. To contest the fees, a written request for hearing must be filed with the city manager within fifteen (15) days of the date of the Notice of Enforcement Fees. An appeal fee shall be charged for filing the request for hearing.

(Ord. No. 4.94, 3/8/94.)

a. Within thirty (30) days of the filing of a request for hearing, the city manager or designee shall hold a hearing on the owner's objections and determine the validity thereof. The city manager may extend the time for hearing upon a showing of good cause.

b. Notice of the time, date and place of the hearing shall be provided to the owner in writing at least ten (10) before the date set for the hearing.

c. The purpose of the hearing is to provide a person subject to a Notice of Enforcement Fees a full opportunity to object to a determination that a Compliance Order was warranted, that timely compliance was not achieved, and to the amount of fees set forth in the Notice of Enforcement Fees. The failure of any person subject to a Compliance Order and Notice of Enforcement Fees thereon to request a hearing or to appear at the hearing shall constitute a waiver of their right to appeal and a failure to exhaust administrative remedies.

(Ord. No. 4.94, 3/8/94.)

a. At the place and time set forth in the notice of hearing or continuance thereof, the city manager or designee (hearing officer) shall conduct a hearing on the Compliance Order and Notice of Enforcement Fees issued pursuant to Sec. 25.86 and Sec. 25.92.

b. The hearing officer shall consider any written or oral evidence regarding the violation and compliance by the real property owner, and the enforcement costs incurred.

c. Within fifteen (15) days following the conclusion of the hearing, the hearing officer shall issue written findings on each violation. The findings shall be supported by evidence and shall indicate the hearing officer's determination regarding:

1. The existence of the violation;

2. The failure of the owner to take required corrective action within the mandated time period;

3. The amount of costs incurred in the enforcement action.

d. 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 Order on Enforcement Fees imposing the full amount of enforcement costs reasonably incurred or such other lesser amount as the hearing officer deems appropriate.

e. 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.

f. The Order on Enforcement Fees shall include a statement that the property owner may appeal the decision of the hearing officer to the city council through the procedures set forth in Section 25.100.

(Ord. No. 4.94, 3/8/94.)

The person subject to an Order on Enforcement Fees pursuant to Sec. 25.98 may appeal the decision of the hearing officer to the city council by filing a written request which states the specific reasons for the appeal with the city clerk. In order to be considered, the written request for an appeal must be received by the city clerk no later than seven (7) days after the service of the decision of the hearing officer on the property owner.

Upon receipt of a timely written request for an appeal, the city clerk shall set the matter for a hearing before the city council at a meeting which is to be held no less than ten (10) days and no more than sixty (60) days after the filing of the request for an appeal and shall give the person filing the request for an appeal written notice of the date, time and place of the appeal hearing.

(Ord. No. 4.94, 3/8/94.)

a. Appeal hearing. Unless otherwise continued for good cause, the city council shall hear the appeal on the decision of the hearing officer at the date, time and place designated on the notice sent to the property owner. At the hearing, the property owner, the director and the hearing officer shall have the opportunity to present relevant evidence and arguments regarding whether the decision of the hearing officer on the order to impose enforcement cost fees should be upheld, reversed or modified. Both the property owner and the hearing officer shall have the right to be represented by counsel.

b. Decision of city council. At the close of the hearing or as soon thereafter as is practicable, the city council shall determine whether the decision of the hearing officer on the order to impose enforcement cost fees should be upheld, reversed or modified. Within thirty (30) days after the close of the appeal hearing, the city council shall serve on the property owner a written decision which states whether the decision of the hearing officer should be upheld, reversed or modified, and the nature of any modifications to the hearing and the nature of any modifications to the hearing officer's decision. The decision of the city council shall be final.

(Ord. No. 4.94, 3/8/94.)

In the event that: (a) no request for hearing is timely filed; or (b) after a hearing, the hearing officer issues an Order on Enforcement Fees and there is no appeal to the city council; or (c) after an appeal hearing by the city council, the validity of the enforcement cost fees are affirmed, the property owner shall be liable to the city in the amount determined.

(Ord. No. 4.94, 3/8/94.)

Any person aggrieved by an order of the city council rendered pursuant to this article may obtain review of the order in the superior court by filing a petition for writ of mandate within ninety (90) days of the council's decision.

(Ord. No. 4.94, 3/8/94.)

a. Written notice required pursuant to this division shall be mailed to the property owner at the address as shown on the last equalized county assessment roll.

b. Where personal service or service by mail upon the property owner is unsuccessful, a copy of the order shall be conspicuously posted at the property which is the subject of the order.

c. The failure of any person to receive any notice required under this division shall not affect the validity of any proceedings taken under this division.

(Ord. No. 4.94, 3/8/94.)

Failure to pay the assessed fees and/or enforcement costs ordered pursuant to this article may be enforced as:

a. A personal obligation of the violator; and/or

b. A lien upon the real property. The lien shall remain in effect until all the enforcement fees, interest and costs are paid in full.

(Ord. No. 4.94, 3/8/94.)

a. Whenever the amount of any enforcement fees imposed pursuant to this division 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 writ of mandate, this obligation may constitute a lien against the real property on which the violation occurred.

b. The lien provided herein shall have no force and effect until recorded with the county recorder. Once recorded, the Order on Enforcement Fees shall have the force and effect in priority of a judgment lien governed by the provisions of Sec. 697.340 of the Code of Civil Procedure and may be extended as provided in Sec. 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

c. Interest shall accrue on the principal amount of the judgment remaining unsatisfied pursuant to law.

d. Prior to recording any such lien, a report stating the amounts due and owing shall be prepared and filed with the city clerk.

e. The city clerk shall fix a time, date and place for hearing said report and any protests or objections thereto by city council.

f. The city shall cause written notice to be served on the property owner not less than ten (10) days prior to the time set for the hearing. Such notice shall be served as provided in Sec. 25.103 of this division.

(Ord. No. 4.94, 3/8/94.)

a. Any person whose real property is subject to a lien pursuant to Sec. 25.106 may file a written protest with the city clerk and/or may protest orally at the city council meeting.

b. Each written protest or objection must contain a description of the property in which the protesting party is interested and the grounds of such protest or objection.

c. The city council, after the hearing, shall adopt a resolution confirming, discharging or modifying the amount of the lien.

(Ord. No. 4.94, 3/8/94.)

Thirty (30) days following the adoption of a resolution by the city council imposing a lien, the city clerk shall file the same as a judgment lien in the office of the county recorder of Santa Clara County, California. The lien may carry such additional administrative charges as set forth by resolution of the city council.

(Ord. No. 4.94, 3/8/94.)

Once payment in full is received by the city pursuant to the Order on Enforcement Fees, the city shall either record a notice of satisfaction or provide the property owner or financial institution with the notice of satisfaction so they may record this notice with the office of the county recorder. Such notice of satisfaction shall cancel the city's lien.

(Ord. No. 4.94, 3/8/94.)