Article 1 — COST RECOVERY AND PENALTIES

The council finds that substantial public resources are spent each year to enforce the municipal code and state laws, as well as federal and county laws that may fall within the jurisdiction of the city, enacted to protect the public health, safety and welfare. The council further finds that the responsibility of these costs should be properly placed on those persons responsible for violating the municipal code or federal, state and county laws and/or causing public nuisances. The council also finds that the recovery of costs incurred by the city to enforce these laws and to collect penalties issued to those persons causing public nuisances or violating these laws is important in deterring future violations and maintaining the integrity of the city's code enforcement system. The purpose of this article is to provide a means for the City of Parlier under its police power authority and other applicable law to recover these costs and penalties from those persons responsible for creating, causing, committing or maintaining a public nuisance or municipal code or other law violation.

(Ord. No. 07-2019, § 5, 9-15-2019)

Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this

article.

"Abatement costs" means the actual and reasonable costs incurred by the city to abate a public nuisance. These costs include all direct and indirect costs to the city that result from the total abatement action, including, but not limited to, investigation costs, costs to enforce the municipal code and any applicable federal, state or county law, clerical and administrative costs to process paperwork, costs incurred to provide notices and prepare for and conduct administrative appeal hearings, and costs to conduct actual abatement of the nuisance. Costs include staff costs, administrative overhead, costs for equipment, such as cameras and vehicles, staff time to hire a contractor, and reasonable attorneys' fees incurred by the city. Costs also include those incurred in seeking cost recovery. Abatement costs may be established in the master administrative fee schedule. At any administrative hearing, judicial action or special proceeding where the city elects to recover attorneys' fees in connection with an abatement action, the prevailing party shall be awarded attorneys' fees not to exceed the amount of reasonable attorneys' fees incurred in the action, hearing or proceeding.

"Bona fide encumbrancer" means a person who: (1) receives a lien or encumbrance on the subject property after the city incurs abatement costs or enforcement costs, and (2) at the time he or she acquired the interest did not have actual or constructive knowledge of the city's interest in the property.

"Bona fide purchaser" means a person who: (1) purchases any portion of the subject property after the city incurs abatement costs or enforcement costs, and (2) at the time he or she acquired his or her portion of the subject property did not have actual or constructive knowledge of the city's interest in the property.

"Enforcement costs" means all actual and reasonable costs incurred by the city to enforce compliance with the municipal code and any applicable federal, state, county or city public health and safety law that are not included within abatement costs. These costs include, but are not limited to, actual cost of the enforcing department's services including, but not limited to, costs of personnel (including costs of workers compensation benefits and fringe benefits), administrative overhead, costs of equipment, costs of materials, costs related to investigations pursuant to the municipal code or federal, state or county law, costs related to issuing and defending administrative or court citations, costs incurred investigating and abating violations of the municipal code or federal, state or county law violations, and reasonable attorneys' fees. Enforcement costs include multiple response and similar costs as permitted by this chapter. Costs also include those incurred in seeking cost recovery.

al, state or county law, costs related to issuing and defending administrative or court citations, costs incurred investigating and abating violations of the municipal code or federal, state or county law violations, and reasonable attorneys' fees. Enforcement costs include multiple response and similar costs as permitted by this chapter. Costs also include those incurred in seeking cost recovery.

"Enforcing department" means the departments or divisions of the city that directed and are responsible for the enforcement of the municipal code or applicable federal, state or county law or the abatement of a public nuisance.

"Noticed party" means the person or entity that is required to be noticed in the underlying abatement or enforcement action in which costs were incurred, but in all cases must include the record owner(s) of the property for property related violations. A noticed party should be notified for purposes of cost or penalty recovery in the same manner as they were required to be noticed, either by the municipal code or applicable federal, state or county law, in the abatement or enforcement action which resulted in the incurring of costs or penalties sought to be recovered under this article.

"Penalties" means fines imposed by administrative citations issued pursuant to the municipal code or other penalties specifically identified in the municipal code or permit relating to a specific use. Penalties for

purposes of this article do not include criminal fines.

"Public nuisance" means a public nuisance as declared or defined in Title 6, Chapter 6.11 of the municipal code or any other provision of the municipal code.

"Record owner" means the person to whom land is assessed as shown on the last available equalized assessment roll, supplemental roll of the County, or as otherwise known to the enforcement official or his/her designee by virtue of more recent or reliable information.

"Responsible party" means a person or entity identified by the municipal code or law as responsible for creating, causing, committing, or maintaining the violation of the municipal code or law and/or responsible for the abatement of a municipal code or law violation, including public nuisance, as defined in this section.

"Subject property" means the real property that is the subject of any enforcement or abatement action by the city for which the city incurred costs sought to be recovered under this article.

(Ord. No. 07-2019, § 5, 9-15-2019)

A.

Special assessment and lien or personal obligation. The cost of abating a public nuisance or enforcing the municipal code or applicable federal, state or county law shall either be a special assessment and lien on the subject property and/or the personal obligation of the owner of the subject property and/or the person responsible for creating, causing, committing or maintaining the public nuisance or violating the municipal code or federal, state or county law. If there is more than one responsible party, each responsible party shall be jointly and severally liable for the costs. Costs incurred by the city are recoverable even if a public nuisance, municipal code, or other law violation is corrected by the property owner or other responsible party.

B.

Applicability. This article shall govern the procedures used to recover all abatement and enforcement costs incurred by the city in the abatement of a public nuisance or municipal code violation and/or the enforcement of the municipal code or other law pursuant to the procedures and authority found in the municipal code. In addition, this article shall govern the procedures used to recover administrative penalties and costs as well as multiple response costs imposed pursuant to the procedures and authority found in the municipal code.

C.

Cumulative Remedies. The remedies provided in this article shall be cumulative to any other provided in the municipal code or by law.

D.

Payment Plan. Nothing in this article shall prevent the city at any time from accepting payment for unpaid costs or penalties in whole or by way of a payment plan.

(Ord. No. 07-2019, § 5, 9-15-2019)

A.

Accounting. The enforcing department shall keep an itemized account of the abatement and/or enforcement costs incurred by the city. Those costs shall be detailed in a report that includes a description of the abatement and/or enforcement action taken by the city; a statement as to whether the monies to be collected are abatement costs, enforcement costs, or penalties; and where applicable a description of the subject property. Any such report may include costs or penalties on any number of properties, whether or not contiguous to each other.

B.

Applicability. The enforcing department shall invoice the noticed party for the costs incurred by the city, except that an invoice is not necessary for administrative citations or other fixed penalties where notice of the penalty and an opportunity for appeal of the underlying violation has been provided.

C.

Invoice. The invoice shall notify the noticed party of the following:

A description of the abatement or enforcement action taken by the city, a description of the property subject to the abatement or enforcement where applicable, and the total amount of the costs incurred by the city. The requirements of this subsection may be met by providing the noticed party with a copy of the report required by subsection A.

A statement that, should the noticed party fail to pay the costs within thirty days from the date of service of the invoice, the costs may be collected in any or all of the following ways: By a collection agency as a personal obligation; by the city attorney's office through judicial action; or as a special assessment and lien attached to the subject property.

That the noticed party has a right to administrative review of the accounting of the costs incurred by the city by filing a written request for such review with the city clerk within fifteen days of the date of the invoice, and that a failure to request administrative review will be deemed a waiver of a right to review of the amount of the costs.

That before a special assessment is placed on the subject property, the costs will be confirmed by the city council and a notice will be issued at least fifteen days before the council meeting.

That the invoice may be recorded as a notice of costs or penalties in the Fresno County Recorder's Office.

D.

Recording. The enforcing department may record the invoice as a notice of costs or penalties in the county recorder's office. Once payment is received for the outstanding costs and/or penalties, or any reduction of costs following administrative review, and no further action will be taken under this article, the enforcing department shall record a notice of satisfaction.

(Ord. No. 07-2019, § 5, 9-15-2019)

A.

Right to Administrative Review. A noticed party shall have the right to administrative review of the accounting of the costs incurred by the city by filing a written request for such review with the city clerk within fifteen days of the date of the invoice. A failure to timely request administrative review will be deemed a waiver of a right to review of the amount of the costs.

B.

Procedures for Administrative Review. If a request for administrative review is timely filed, the city clerk shall deliver a copy of the accounting report, invoice, and request for administrative review to the city manager or his/her designee, which may include the appointment of a hearing officer, who shall set a date and time to review the accounting report and invoice with the requesting party. The administrative review shall be an informal proceeding where the enforcement department and requesting party may present any evidence they deem pertinent to the amount of the costs. The scope of review shall be limited to the amount of the costs unless there has been no opportunity for a hearing on the underlying violation. The city manager shall designate the city clerk or an appointed hearing officer to conduct the administrative review.

C.

City Manager's Decision. The city manager may affirm or reduce the costs if he or she determines that they are not supported by the evidence or upon a showing that the costs were unnecessary or unreasonable. The city manager will not pass upon the validity of the underlying enforcement action or the amount of any penalties unless there has been no opportunity for a hearing of the underlying action. The city manager's decision shall be memorialized in writing. The city manager may, with the approval of the finance director or his/her designee, approve a payment plan for the costs.

D.

Time for Payment. The requesting party shall have thirty days from the date of the city manager's decision to pay the costs, unless a payment plan is approved, in which case the costs shall be paid in accordance with the payment plan.

E.

Prior Hearing. There is no right to administrative review if the costs have already been approved by a court of competent jurisdiction. There is no right to administrative review to confirm costs under this section if they have been previously upheld in an abatement or other administrative hearing held under Chapter 6.12.

(Ord. No. 07-2019, § 5, 9-15-2019)

Administrative penalties unpaid after the required time set forth in the municipal code, or within fifteen days from the final decision after an appeal, may be collected in the manner set forth in this article except the city is not required to send an invoice under Section 6.13.104. Penalties may only be made a lien or special assessment upon a subject property when the record owner of the property was issued and properly noticed with the citation or other basis for the penalty. The master administrative fee schedule may provide for additional penalties to be added to unpaid citations.

(Ord. No. 07-2019, § 5, 9-15-2019)

Abatement and enforcement costs unpaid after the required time set forth in this article, may be collected in the manner set forth in this article. Interest shall accrue at a rate of ten percent per year on unpaid costs until paid. To collect costs under these procedures, the city must send an invoice under Section 6.13.104.

(Ord. No. 07-2019, § 5, 9-15-2019)

Any costs or penalties subject to collection under this article may be recovered as a personal obligation against the responsible party and may be referred to a collection agency or the city attorney's office for collection. Upon referral of these costs and obligations, the collection agency and the city attorney's office may seek collection through any legal means provided to them, including judicial action. Nothing in this section shall be affected by or affect the city's use of any other procedure provided in this article or by law to collect unpaid costs and penalties. In a judicial action to recover abatement costs, the city attorney's office may elect to recover attorneys' fees. In any action in which the city attorney's office elects to recover attorneys' fees under this section, attorneys' fees will be recovered by the prevailing party.

(Ord. No. 07-2019, § 5, 9-15-2019)

A.

Collection. Unpaid penalties, abatement costs, and enforcement costs that relate to a property-related violation may be confirmed by the city council as a special assessment and collected with property taxes or as a judgment lien.

B.

Notice. Notice of a public meeting to confirm the penalties and/or costs shall be provided to all noticed parties by the enforcing department or city clerk at least fifteen days before the meeting. The notice shall: (1) contain a description of the subject property sufficient to enable the person(s) served to identify it; (2) shall state that the city intends to collect unpaid costs or penalties by placing a lien or a special assessment on the subject property; (3) shall specify the day, hour and place where the council will hear and pass upon the penalties and/or costs; (4) shall specify that the property may, in some cases, be sold after three years by the tax collector pursuant to Revenue and Tax Code § 3691 for unpaid delinquent assessments or be subject to judicial foreclosure before the three years; and (5) shall specify that any noticed party may appear at the council meeting and present objections to the lien or assessment.

C.

Confirmation by City Council. During the council meeting, the council may adopt a resolution confirming the amount of the penalties and costs, or any lesser amount, based upon staff reports and any public comments received during the meeting. The city council shall take into consideration whether any noticed party sought administrative review of the costs and shall only reduce the costs if: (1) the noticed party sought administrative review, and (2) the decision of the city manager is not supported by substantial evidence in the record. The basis for the code enforcement action will not be the subject of the council's consideration. Where the costs have already been approved by a court of competent jurisdiction or the penalties have been previously upheld in an abatement or other administrative hearing held under Chapter 6.12, the council shall simply confirm the costs or penalties. The council may confirm the costs for more than one property in a single resolution. If the council confirms the costs, the procedures set forth in this section may be utilized.

D.

Time to Contest Confirmed Special Assessment or Lien. The validity of any special assessment or lien levied under the provisions of this section shall not be contested in any action or proceeding unless such action or proceeding is commenced within thirty days after the special assessment is confirmed by the city council.

E.

Recording. Immediately upon the council's confirmation of costs or penalties, the city clerk shall record a notice of special assessment and lien in Fresno County Recorder's Office, which shall constitute a lien on that property for the amount of the assessment, except that if any real property to which the lien would attach has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of taxes that included the special assessment imposed under this section would become delinquent, then the lien that would otherwise be imposed by this section shall not attach to real property and the costs of abatement and enforcement relating to the property shall be transferred to the unsecured roll for collection.

F.

Form of Notice of Special Assessment and Lien. The notice of special assessment and lien for recordation shall be in the form substantially as follows:

NOTICE OF SPECIAL ASSESSMENT AND LIEN Claim of the City of Parlier

Under authority vested by provision of Chapter ___, Article ___, of the Parlier Municipal Code, the City of Parlier did on or about the _______ day of _____, 20, assess [describe penalties, abatement costs, enforcement costs] on the real property hereinafter described; and the same has not been paid nor any part thereof. The City of Parlier does hereby claim a lien for such [penalties, abatement costs, and enforcement costs] to wit: the sum of _______ dollars, plus legal rate of interest to be accrued from the date of recording this lien, and any and all administrative costs to file and record the lien. The same shall also be a lien upon the real property until it has been paid in full and discharged of record.

The real property hereinafter mentioned, upon which a lien is claimed, is that certain parcel of land in the City of Parlier, County of Fresno, State of California, more particularly described as follows: [Describe property]

DATED: this ___ day of ____, 20

(Name) ___________, City of Parlier (Job Title)

G.

Collection with Taxes. After confirmation and recordation, a copy may be turned over to the Fresno County Tax Collector. At that point, it will be the duty of the tax collector to add the amounts of the respective assessments to the next regular tax bills levied against the lots and parcels of land for municipal purposes. Those 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 procedures and sale in the cases of delinquency as provided for with ordinary municipal taxes.

H.

Foreclosure. After confirmation and recording, the lien may be also be foreclosed by judicial or other sale in the manner and means provided by law. The city may recover from the record property owners any costs incurred regarding a foreclosure action.

I.

Priority. A special assessment and lien imposed under this section shall have the priority of a tax lien, unless prohibited by state law, in which case the special assessment and lien shall have the priority of a judgment lien.

J.

Release of Lien. Once payment in full is received for the special assessment and lien, including applicable penalties, administrative fees and interest charges; or the amount is deemed satisfied pursuant to a subsequent administrative or judicial order; or the city has entered into some other arrangement with the property owner for satisfaction of the assessment; the enforcing department shall either record a notice of

satisfaction or provide the property owner or financial institution with the notice of satisfaction so they can record the notice with the Fresno County Recorder's Office.

K.

Refund. The council may order a refund of all or part of a tax paid pursuant to this section if it finds that all or part of the tax has been erroneously levied. A tax or part thereof shall not be refunded unless a claim is filed with the city clerk in accordance with the city's claim filing requirements, and in no event later than November 1 after the tax became due and payable. The claim shall be verified by the person who paid the tax, or his/her guardian, executor or administrator.

(Ord. No. 07-2019, § 5, 9-15-2019)