Tiburon Municipal Code Art. V Administrative Remedies—Abatement—Code Enforcement Assessment Lien

(a) This article provides for administrative remedies, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the town to address any violation of this Code or other public nuisances.

(b) The purpose and intent of this article is to effectively enforce this Code and/or other public nuisance from violations and/or nuisances committed by continuing offenders.

(c) Use of this chapter shall be at the sole discretion of the town.

(d) For the purposes of this article, the code enforcement officer shall be the building official.

(Ord. No. 439 N.S., § 9 (part))

(a) Whenever a code enforcement officer determines that a violation of this Code or any other public nuisance, is occurring or exists, the officer may issue a written notice and compliance order to the person or persons responsible for the code violation or other public nuisance.

(b) A notice and compliance order issued pursuant to this article shall contain the following information:

(1) The date and location of the code violation or public nuisance;

(2) The section and description of the code violation or public nuisance;

(3) The action required to correct the code violation or abate the public nuisance, and the date by which compliance shall be achieved;

(4) A statement that if compliance is not achieved by the compliance date, that administrative civil penalties and administrative costs, as well as the costs of actual abatement by the town, may be imposed on the responsible person and/or record property owner, and collected judicially, or by special assessment or tax collection, as provided in the article;

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

(Ord. No. 439 N.S., § 9 (part))

(a) The notice and compliance order and any other notices required by this article shall be served as provided in section 1-7 of this Code.

(b) Where real property is involved, the notice and compliance order shall be mailed to the record property owner at the address as shown on the last equalized county assessment roll.

(c) Where personal service or service by mail upon the record property owner is unsuccessful, a copy of the notice and compliance order shall be conspicuously posted at the property which is the subject of the compliance order.

(d) The failure of any person to receive any notice required under this article shall not affect the validity of any proceedings taken under this article.

(Ord. No. 439 N.S., § 9 (part))

If the code enforcement officer determines that all violations have been corrected or the public nuisance eliminated within the time specified in the notice and compliance order, no further action shall be taken.

(Ord. No. 439 N.S., § 9 (part))

(a) If the code enforcement officer determines that full compliance has not been achieved by the compliance date specified in the notice and compliance order, the officer may schedule a hearing before an administrative hearing officer.

(b) A written notice of hearing shall be served on the responsible person and, where real property is involved, on the record property owner, as provided in section 31-27.

(Ord. No. 439 N.S., § 9 (part))

(a) Every notice of hearing on a notice and compliance order shall contain the date, time and place at which the hearing shall be conducted by the administrative hearing officer.

(1) The notice of hearing shall state that the purpose of the hearing will be determination on the existence of the code violations and/or other public nuisance described in the notice and compliance order, on the compliance with the notice and compliance order, on the notice of summary abatement, and on the adoption of an administrative order, including imposition of civil penalties and administrative costs pursuant to the article.

(2) The notice and compliance order shall be attached to the notice of hearing.

(b) The hearing shall be set for a date not less than fifteen days nor more than sixty days from the date of service of the notice or hearing unless the code enforcement officer determines that the matter is urgent or that good cause exists for an extension of time.

(c) This hearing serves the full opportunity of a person subject to a notice and compliance order to object to the determination that a code violation has occurred and/or that the violation has continued to exist or that a public nuisance exists. If any person subject to a notice and compliance order, pursuant to this article, fails to appear at this hearing, such nonappearance shall constitute a failure to exhaust administrative remedies.

(Ord. No. 439 N.S., § 9 (part))

(a) At the place and time set forth in the notice of hearing, the administrative hearing officer shall conduct a hearing concerning the code violation, and/or other public nuisance described in the notice and compliance order issued pursuant to section 31-26 or the notice of summary abatement pursuant to section 31-41.

(b) The administrative hearing officer shall consider any written or oral evidence, regarding the violation and/or public nuisance described in the notice and compliance order, and compliance therewith, by the responsible person and/or by the record property owner.

(c) Within thirty days following the conclusion of the hearing, the administrative hearing officer shall issue a written decision containing factual findings and determinations referenced by supporting evidence, regarding:

(1) The existence of each code violation and/or public nuisance described in the notice and compliance order;

(2) The failure of the responsible person and/or record property owner to take corrective action within the time period required in the notice and compliance order.

(d) If the administrative hearing officer finds by a preponderance of the evidence that a code violation and/or other public nuisance has occurred, and that the code violation and/or other public nuisance was not corrected within the time period specified in the notice and compliance order, the administrative hearing officer's decision shall include an administrative order as specified in section 31-32.

(e) If the administrative hearing officer finds by a preponderance of the evidence that a code violation and/or other public nuisance occurred that required summary abatement, the administrative hearing officer's decision shall include an administrative order as specified in section 31-32.

(f) If the administrative hearing officer finds that no code violation and/or other public nuisance has occurred or that the code violation and/or other public nuisance was corrected within the time period specified in the notice and compliance order, the administrative hearing officer shall issue a finding of those facts.

(g) The administrative hearing officer shall submit the decision to the town clerk, and serve a copy on the responsible party and/or record property owner. The decision is final upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the responsible person and/or record property owner as provided in Code of Civil Procedure section 1094.6(b)

(h) The administrative hearing officer's decision shall include a notice to the responsible party and/or record property owner that the decision (and administrative order if applicable) is subject to judicial review according to the provision and the time limits set forth in Code of Civil Procedure section 1094.6.

(Ord. No. 439 N.S., § 9 (part))

If the administrative hearing officer determines that a code violation and/or other public nuisance occurred which was not corrected within the time period specified in the notice and compliance order, the administrative hearing officer's decision shall include an administrative order which imposes any or all of the following:

(a) An order to correct or abate, including a compliance date for completion if compliance has not been achieved by the date of the hearing;

(b) An order authorizing the code enforcement officer to correct or abate, by use of town employees or a town contractor, and to enter upon the private property where such code violation and/or other public nuisance exists, for purposes of correcting and abating same, if the responsible person and/or record property owner fails to do so by the compliance date;

(c) Administrative civil penalties as provided in section 31-33;

(d) Administrative costs as provided in section 31-34.

(Ord. No. 439 N.S., § 9 (part))

(a) The administrative hearing officer may impose administrative civil penalties for the violation of any provision of this Code, or the existence of a public nuisance, in an amount not to exceed a maximum of one thousand dollars per day for each ongoing code violation, or other public nuisance, except that the total administrative penalty shall not exceed one hundred thousand dollars, exclusive of administrative costs, interest and restitution for compliance re-inspections, for any related series of code violations or conditions constituting a public nuisance.

(b) In determining the amount of the administrative penalty, the administrative hearing officer may take any or all of the following factors into consideration:

(1) The duration of the code violation and/or other public nuisance;

(2) The frequency, recurrence and number of code violations and/or other public nuisance conditions related or unrelated, by the same responsible person and/or record property holder;

(3) The seriousness of the violation;

(4) The good faith efforts of the responsible person and/or record property owner to come into compliance;

(5) The economic impact of the penalty on the responsible party and/or record property holder;

(6) The impact of the code violation and/or other public nuisance on the community and/or general public;

(7) Such other factors as justice may require.

(c) Administrative civil penalties imposed by the administrative hearing officer shall accrue from the date specified in the notice and compliance order and shall cease to accrue on the date the violation and/or other public nuisance is corrected as determined by the code enforcement officer or the administrative hearing officer.

(d) The administrative hearing officer may suspend the imposition of applicable administrative civil penalties for any period of time during which:

(1) The responsible party and/or record property owner has filed for necessary permits;

(2) Such permits are required to achieve compliance; and

(3) Such permit applications are actively pending before the town, state or other appropriate governmental agency.

(e) Administrative civil penalties assessed by the administrative hearing officer shall be due by the date specified in the administrative order, which shall be no later than ninety days from the date of such administrative order.

(f) Administrative civil penalties assessed by the administrative hearing officer are a debt owed to the town and, in addition to all other means of enforcement, if the code violation and/or other public nuisance is located on real property, the penalty may be enforced by means of a lien against the real property on which the violation and/or other public nuisance occurred.

(g) If the code violation and/or other public nuisance is not corrected as specified in the administrative hearing officer's administrative order, administrative penalties shall continue to accrue on a daily basis until the violation and/or other public nuisance is corrected, subject to the maximum amount set forth in section 31-33(a).

(h) If the violator gives written notice to the code enforcement officer that the violation has been corrected and if the code enforcement officer finds that compliance has been achieved, the code enforcement officer shall deem the date the written notice was postmarked or personally delivered to the code enforcement officer or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. If no written notice is provided to the code enforcement officer, the violation and/or other public nuisance will be deemed corrected on the date of the final inspection.

(Ord. No. 439 N.S., § 9 (part))

(a) The administrative hearing officer shall assess administrative costs against the responsible person and/or record property owner when such officer finds that a violation and/or other public nuisance has occurred and that compliance has not been achieved by the compliance date specified in the notice and compliance order.

(b) The administrative costs may include any and all costs incurred by the town in connection with the matter before the administrative hearing officer including, but not limited to, the costs for the administrative hearing officer's services, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, costs for all re-inspections necessary to enforce the notice and compliance order, and the costs of actual abatement if undertaken by the town.

(c) Administrative costs assessed by the administrative hearing officer shall be due by the date specified in the administrative order, which shall be no later than ninety days from the date of such administrative order.

(Ord. No. 439 N.S., § 9 (part))

Following issuance of an administrative hearing officer's decision and administrative order, the code enforcement officer may schedule a supplemental hearing before the same or another administrative hearing officer, for the purpose of obtaining a supplemental decision and administrative order, which may include the confirmation or imposition of administrative civil penalties or administrative costs applicable to continuation of the code violation and/or other public nuisance following the date of the original hearing with respect to a notice and compliance order. The supplemental hearing date, notice of supplemental hearing, supplemental hearing procedures, and the contents, submission and service of the supplemental decision and administrative order shall be consistent with the provision of sections 31-27, 31-29, 31-30, 31-31, 31-32, 31-33 and 31-34.

(Ord. No. 439 N.S., § 9 (part))

Failure to pay the assessed administrative penalties and administrative costs specified in the administrative order of the administrative hearing officer may be enforced as:

(a) A personal obligation of the violator; and/or

(b) If the violation is in connection with real property, a code enforcement assessment lien upon the real property. The code enforcement assessment lien shall remain in effect until all of the administrative civil penalties, interest and administrative costs are paid in full.

(Ord. No. 439 N.S., § 9 (part))

Any decision and administrative order or supplemental decision and administrative order of an administrative hearing officer shall be subject to judicial review in the Marin County courts by filing with the court a petition for writ of mandate pursuant to the provision and time limits set in the Code of Civil Procedure section 1094.6.

(Ord. No. 439 N.S., § 9 (part))

The town may collect the assessed administrative civil penalties and administrative costs by use of all available means, including but not exclusive to the code enforcement assessment lien as provided in section 31-42 or by civil action in which the town may recover its reasonable attorneys' fees as provided in section 1-10.

(Ord. No. 439 N.S., § 9 (part))

If the code enforcement officer determines that compliance has been achieved after a compliance order has been sustained by the administrative hearing officer, the code enforcement officer shall file a report to the town department of proper jurisdiction and to the administrative hearing officer, indicating that compliance has been achieved.

(Ord. No. 439 N.S., § 9 (part))

(a) If the code enforcement officer does not file a report pursuant to section 31-39, a violator who believes that compliance has been achieved may request a compliance hearing before the administrative hearing officer by filing a request for a hearing with the town clerk.

(b) The hearing shall be noticed and conducted in the same manner as a hearing on a notice and compliance order provided in sections 31-30 through 31-31 of this article.

(c) The administrative hearing officer shall determine if compliance has been achieved and, if so, when it was achieved.

(Ord. No. 439 N.S., § 9 (part))

(a) Notwithstanding any of the provisions of this article, a public nuisance which is an emergency and which, if unabated, constitutes a threat to the public safety, health and/or welfare may be summarily abated upon the determination of the town manager or his designee that such nuisance exists and does, in fact, constitute a threat to the public safety, health and welfare. Such determination of the above public nuisance shall not be subject to the procedures set forth in sections 31-26 and 31-31 of this Code.

(b) Upon such determination, the town manager or his designee may enter upon private property for the purpose of abating the public nuisance. Should it be practicable to sell or salvage any material procured from such abatement, it may be sold at public or private sale at the best price obtainable, and an itemized account of the proceeds shall be maintained by the town manager. Such proceeds, if any shall be deposited in a general fund of the town and shall be credited against the cost of abatement as provided for in this article.

(c) The town manager or his designee shall calculate the cost of summary abatement, including but not exclusive to, costs of inspection and the costs of actual summary abatement undertaken by the town.

(d) The town manager shall submit the outstanding balance of summary abatement costs to the town clerk. The town clerk shall serve a notice of summary abatement upon the responsible party and/or record property owner as provided in Code of Civil Procedure section 1094.6(b). The notice of summary abatement shall contain the following information:

(1) The date and location of the public nuisance summarily abated;

(2) The section and description of the public nuisance summarily abated;

(3) The action taken by the town to summarily abate the public nuisance;

(4) A statement that summary abatement costs are being imposed on the responsible person and/or record property owner, that the summary abatement costs are due within thirty days from the date of service of the notice of summary abatement, and that the summary abatement costs may be collected judicially, or by special assessment or tax collection, as provided by this article;

(5) Either a copy of this article, or an explanation that the responsible person and/or record property owner may contest the existence of the public nuisance and/or that the costs of summary abatement are unreasonable, by filing a request with the town clerk within ten days from the date of service of the notice of summary abatement, for an administrative hearing before an administrative hearing officer.

(e) Method of service of the notice of hearing, the notice of hearing and the administrative hearing shall be in accordance with sections 31-27, 31-30 and 31-31.

(f) If the administrative hearing officer determines that a code violation and/or other public nuisance occurred which justified summary abatement, the administrative hearing officer's decision shall include an administrative order which imposes any or all of the following:

(1) Summary abatement costs as provided in this section;

(2) Administrative civil penalties as provided in section 31-33;

(3) Administrative costs as provided in section 31-34.

(g) The code enforcement officer may request a supplemental hearing, decision and administrative order as provided in section 31-35.

(h) Any failure to comply with the administrative order may be enforced as provided by section 31-36.

(i) The administrative order or supplemental decision and administrative order are subject to judicial review as provided by section 31-37.

(j) Recovery of the summary abatement costs, administrative civil penalties and administrative costs may be recovered as provided in section 31-38.

(Ord. No. 439 N.S., § 9 (part))

(a) Whenever any administrative civil penalties and/or administrative costs imposed in an administrative hearing officer's decision and administrative order or supplemental decision and administrative order have not been paid in full when due, and a timely writ of mandate has not been filed or has been filed but not been successful, the amounts owing may constitute a code enforcement assessment lien and special assessment against the real property on which the code violations and/or other public nuisance occurred.

(b) Whenever any past due administrative citation fine and/or late payment charge of an administrative citation fine, pursuant to article IV of this chapter, have not been paid in full when due, and a timely writ of mandate has not been filed or has been filed but not been successful, the amounts owing may constitute a code enforcement assessment lien and special assessment against the real property on which the code violations or other public nuisance occurred.

(c) The town clerk may cause to be recorded in the county recorder's office a notice of code enforcement assessment lien against the subject real property. Such notice of code enforcement assessment lien shall specify the amount of the lien, the name of the Town of Tiburon on whose behalf the lien is imposed, the street address, legal description and assessor's parcel number of the property on which the lien is imposed, the name and address of the record property owner, and the date of the administrative hearing officer's decision and administrative order to which the lien relates. Upon recordation of such code enforcement assessment lien, it shall attach as a lien against such real property, and shall have the same effect and priority as recordation of an abstract of judgment.

(d) In addition to the foregoing, the town clerk may file a certified copy of the notice of code enforcement assessment lien in the office of the county treasurer-tax collector, whereupon it shall be the duty of the county treasurer-tax collector to add the unpaid amount as a special assessment to the next regular tax bills levied against the property for municipal purposes. 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 under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes.

(e) A notice of assessment lien shall be issued to the property owner and shall include notice by certified mail, to the property owner, if the property owner's identity can be determined from the county assessor's or county recorder's records. The notice of assessment lien shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice.

(f) Upon receiving a report from the director of finance that payment in full has been received by the town of the amount specified in the notice of code enforcement assessment lien, the town clerk shall either record a notice of satisfaction of the code enforcement assessment lien with the county recorder, and file a certified copy of same with the county treasurer-tax collector, or provide the property owner or financial institution with a notice of satisfaction so that they may record it with the office of county recorder and file it with the county treasurer-tax collector. Recordation of such notice of satisfaction shall cancel the town's code enforcement assessment lien and assessment against the property.

(Ord. No. 439 N.S., § 9 (part))