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HomeMy WebLinkAboutPlanning Comm Rpts./1997/09/10 \..., v CANCELLED 9/10/97 PLANNING COMMISSION MTG. CANCELLED DUE TO LACK OF QUORUM Public Hearing: PCA 98-02 (large Family Day Care Ordinance) to be continued to next Planning Commission meeting on 9/24/97. ,\.,..- --_._---,..__..,,_.__..._-_...._~-_._-- -_._---~ REVISED AGENDA CITY PLANNING COMMISSION Chula Vista, California 7:00 p.m. Wednesdav. September 10. 1997 Council Chambers Public Services Building 276 Fourth Avenue. Chu\a Vista CALL TO ORDER ROLL CALL/MOTIONS TO EXCUSE PLEDGE OF ALLEGIANCE INTRODUCTORY REMARKS APPROVAL OF MINUTES - Meeting of August 13,1997 ORAL COMMUNICATIONS Opportunity for members of the public to speak to the Planning Commission on any subject matter within the Commission's jurisdiction but not an item on today's agenda. Each speaker's presentation may not exceed three minutes. 1. PUBLIC HEARING: PCA-98-01; Consideration of amendment to Section 19.08.020 and 19.08.030 of the Municipal Code to add Administrative citation and procedures - City Initiated 2. PUBLIC HEARING: PCA-98-02; Consideration of amendment to Section 19.58.147 of the Municipal Code to revise standards for large family day care - City Initiated (To be continued to meeting of September 24, 1997) 3. Update on Council Items Agenda -2- September 10, 1997 DIRECTOR'S REPORT COMMISSIONER COMMENTS ADJOURNMENT at p.m. to the Workshop Meeting of September 17, 1997 at 5:30 p.m. in Conference Rooms 2/3 (Topic of Agenda will be the discussion of Otay Valley Regional Park Concept Plan), and to the Regular Business Meeting of September 24, 1997, at 7:00 p.m. in the Council Chambers. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT (ADA) The City of Chula Vista, in complying with the Americans with Disabilities Act (ADA), requests individuals who may require special accommodations to access, attend. and/or participate in a City meeting, activity, or service to request such accommodation at least forty-eight hours in advance for meetings and five days in advance for scheduled services and activities. Please contact Nancy Ripley for specific information at (619) 691.5101 or Telecommunicatinns Devices for the Deaf (TDD) (619) 585-5647. California Relay Service is available for the hearing impaired. PLANNING COMMISSION AGENDA STATEMENT Item ...L. Meeting Date 9/10/97 ITEM TITLE: Public Hearing: PCA-98-01; Consideration of amendment to Section 19.08.020 and 19.08.030 of the Municipal Code to add administrative citation and procedures - City Initiated BACKGROUND: Chapter 19.08 of the Municipal Code outlines how the enforcement of the Zoning Ordinance will occur and makes reference to other sections of the Municipal Code which detail the enforcement process. The Building & Housing Department is initiating a request to amend various sections of the Municipal Code to add provisions for administrative citations and procedures. Section 19.08.020 and 19.08.030 must be amended to add references to these new administrative procedures which will be delineated elsewhere in the Municipal Code. The Environmental Review Coordinator has determined that, as a procedural amendment, the project is exempt from the California Environmental Quality Act (CEQA) under the General Rule exemption Section 15061(b)(3). RECOMMENDATION: That the Planning Commission adopt the attached Resolution PCA 98-02 recommending the City Council adopt an ordinance to amend sections 19.08.020 and 19.08.030 of the Municipal Code to add references to new administrative citations and procedures to be used for the enforcement of the provisions contained within the Zoning Ordinance (Chapter 19). MAIN ISSUES: 1. In response to Council's concerns, the City has been looking at ways to effectively enforce the provisions of the Municipal Code. 2. The Building & Housing Department recommends using the City of San Diego's Code Enforcement Program as a model to achieve enhanced enforcement options. 3. Recommended enhanced enforcement options include the ability to issue Administrative Citations with accompanying fines through the development of an Administrative Citation Program. Page 2, Item 1 Meeting Date 9/10/97 4. Chapter 19.08 of the Municipal Code must be amended to add references to the use of the Administrative Citation Program as a method of enforcing the provisions of the Zoning Ordinance. DISCUSSION: Current Code Requirements Section 19.08.020 currently reads: Any building or structure set up, erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of this title, and any use of any land, building or premises established, conducted, operated or maintained contrary to the provisions of this title shall be, and the same is declared to be unlawful and a public nuisance; and the city attorney shall immediately commence action or proceedings for the abatement and removal and enjoinment therein in the manner provided by law, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining or using any such building or structure or using property contrary to the provisions of this title. The remedies provided for herein shaH be cumulative and not exclusive. Any person who violates any provision of the certified Local Coastal Program adopted pursuant to Division 20 of the California Public Resources Code shall be subject to the penalties contained therein. Section 19.08.030 currently reads: Violations-Penalties Any person, finn or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this title shall be punishable pursuant to the provisions of Section 1.20.010. Section 1.20.010 discusses General Penalty procedues and is shown on Attachment 2. ..__..__._~-._- Page 3, Item 1 Meeting Date 9/10/97 Proposed Modification The proposed modification will add references for the allowance of administrative citations and procedures to be used for the enforcement of provisions of the Municipal Code. Section 19.08.020 shall be amended to read: It is unlawful to cause or allow to occur the Any building or structurc set up, erectedion, constructedion, alteredion, enlargeament, converteElion, moveement or maintainedance of any building or structure contrary to the provisions of this title, and any use of any land, building or premises established, conducted, operated or maintained contrary to the provisions of this title shall be, and the same is declared to be unlawful and a public nuisance; and the city attorney and city manager. respectivelv. shall immediately commence action or proceedings for the abatement and removal and enjoinment therein in the manner provided by law or Title 1 of this Code, and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining or using any such building or structure or using property contrary to the provisions of this title. The remedies provided for herein shall be cumulative and not exclusive. Any person who violates any provision of the certified Local Coastal Program adopted pursuant to Division 20 of the California Public Resources Code shall be subject to the penalties contained therein. Section 19.08.030 shall be amended to read: Violations-Penalties Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this title shall be punishable pursuant to the provisions of Section 1.20.010 ChaPter 1.2 through 1.41. These modified and proposed Chapters 1.2 through 1.41 discuss General Penalty, Abatement of Public Nuisance, Administrative Procedures and Process and Administrative Compliance and Enforcement Procedures and (see Attachment 3) ANALYSIS: M__.__m_______ Page 4, Item 1 Meeting Date 9/10/97 After investigating code enforcement programs utilized within Southern California, the Building & Housing Department selected the City of San Diego's Code Enforcement Program as an appropriate model to follow to enhance code enforcement options within the City of Chula Vista. Chief among these options will be the establishment of an Administrative Citation Program. Prior to Council adopting these newly enhanced enforcement tools, the Planning Commission must take action on proposed amendments to Chapter 19.08 of the Zoning Ordinance to reference these new enforcement procedures which can be used to enforce the provisions of the Zoning Ordinance. CONCLUSION: Based upon the above analysis, staff recommends the current Chapter 19.08 be amended to add references for an Administative Citation Program available for the enforcement of provisions of the Zoning Ordinance (Title 19 of Municipal Code). Attachments 1. Draft Planning Commission Resolution 2. Section 1.20.010 of the Municipal Code 3. Modified and Proposed Chapters 1.2 thru 1.41 of the Municipal Code (h: \home\planning\jeff\enforce) September 2, 1997 (1:43pm) RESOLUTION NO. PCA-98-01 RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THE CITY COUNCIL ADOPT AN ORDINANCE TO AMEND SECTIONS 19.08.020 AND 19.08.030 OF THE MUNICIPAL CODE RELATING TO ENFORCEMENT OF TITLE 19 (ZONING ORDINANCE). WHEREAS, in response to Council's concerns, the City has been looking at ways to effectively enforce the provisions of the Municipal Code. WHEREAS, The Building & Housing Department recommends using the City of San Diego's Code Enforcement Program as a model to achieve enhanced enforcement options. WHEREAS, recommended enhanced enforcement options include the ability to issue Administrative Citations with accompanying fines through the development of an Administrative Citation Program. WHEREAS, the City has initiated a request to amend Chapter 19.08 of the Municipal Code to allow references to an Administrative Citation Program which may be utilized for the enforcement of provisions of the Zoning Ordinance, and WHEREAS, the Planning Commission set the time and place for a hearing on said amendment and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city at least ten days prior to the hearing, and WHEREAS, the hearing was held at the time and place as advertised, namely September 10, 1997, at 7:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed, and WHEREAS, the Commission found that the proposal, as a procedural amendment, is exempt from environmental review and is not subject to CEQA. NOW, THEREFORE, BE IT RESOLVED THAT FROM THE FACTS PRESENTED AT THE HEARING, THE PLANNING COMMISSION recommends that the City Council amend Section 19.08.020 and 19.08.030 of the Municipal Code to allow forthe more restrictive standards for large family day care homes as shown on Exhibit "A". BE IT FURTHER RESOLVED THAT a copy of this resolution be transmitted to the City Council. PASSED AND APPROVED BY THE PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA, this 10 day of September by the following vote, to-wit: AYES: NOES: ABSENT: ABSTENTIONS: Patty Davis, Chairperson Diana Vargas, Secretary EXHIBIT A Section 19.08.020 shall be amended to read: It is unlawful to cause or allow to occur the Any building or structure set up, erectetlion, constructetlion, alteretlion, enlargedment, convertedion, movetlment or maintainetlance of any building or structure contrary to the provisions of this title, and any use of any land, building or premises established, conducted, operated or maintained contrary to the provisions of this title shall be, and the same is declared to be unlawful and a public nuisance; and the city attorney and city manager. respectively. shall immediately commence action or proceedings for the abatement and removal and enjoinment therein in the manner provided by law or Title 1 of this Code. and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining or using any such building or structure or using property contrary to the provisions of this title. The remedies provided for herein shall be cumulative and not exclusive. Any person who violates any provision of tlle certified Local Coastal Program adopted pursuant to Division 20 of the California Public Resources Code shall be subject to the penalties contained therein. Section 19.08.030 shall be amended to read: Violations-Penalties Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this title shall be punishable pursuant to the provisions of Section 1.20.010 Chapter 1.2 through 1.41. ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA CITY COUNCIL AMENDING SECTIONS 19.08.020 AND 19.08.030 OF THE CHULA VISTA MUNICIPAL CODE RELATING TO ENFORCEMENT OF TITLE 19 (ZONING ORDINANCE). The ordinance proposed to be adopted by the Chula Vista City Council contains numerous provisions. The proposed amendments to Title 19 are as follows: SECTION I: That Section 19.08.020 of the Chula Vista Municipal Code is hereby amended to read as follows: It is unlawful to cause or allow to occur the Any building or structure set up, erectedion, constructeaion, altereaion, enlargedment, convertedion, movedment or maintainetlance of anv building or structure contrary to the provisions of this title, and any use of any land, building or premises established, conducted, operated or maintained contrary to the provisions of this title shall be, and the same is declared to be unlawful and a public nuisance; and the city attorney and citv manager. respectively, shall immediately commence action or proceedings for the abatement and removal and enjoinment therein in the manner provided by law or Title 1 of this Code. and shall take such other steps and shall apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building or structure, and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining or using any such building or structure or using property contrary to the provisions of this title. The remedies provided for herein shall be cumulative and not exclusive. Any person who violates any provision of the certified Local Coastal Program adopted pursuant to Division 20 of the California Public Resources Code shall be subject to the penalties contained therein. Section 19.08.030 shall be amended to read: Violations-Penalties Any person, firm or corporation, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this title shall be punishable pursuant to the provisions of Section 1.20.010 Chapter 1.2 through 1.4. Presented by Approved as to form by Ken Lee Director of Planning (Acting) John M. Kaheny City Attorney (a:\day.ord) ATTACHMENT 2 Chapter 1.20 GENERAL PENALW Sections: 1.20.010 1.20.020 1.20.030 1.20.040 Designated-Applicability. Infractions: Prosecutor's Discretion Defendant's Election to have Infraction treated as Misdemeanor. Applicability of Misdemeanor Provisions. Precedence over other Sections. 1.20.010 Designated-Applicability. A. Any person violating any of the prOVISIons or failing to comply with any of the mandatory requirements of the ordinances of the city shall be guilty of an infraction or a misdemeanor. B. An infraction is punishable by: 1. A fme not exceeding one hundred dollars for a first violation; 2. A fme not exceeding two hundred dollars for a second violation of the same ordinance within one year; 3. A fme not exceeding five hundred dollars for each additional violation of the same ordinance within one year. -"'1 C. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be . entided to a trial by jury. A person charged with an infraction shall not be entided to have the public defender or other counsel appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, his own recognizance, or a deposit of bail. D. A misdemeanor is punishable by: 1. Imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. E. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the ordinances of the city is committed, continued or pennitted by any such person, and he shall be punished accordingly. F. Payment of a fine shall not excuse payment of any fee required by the Municipal Code. G. In addition to the foregoing, any violation of the provisions of the ordinances of the City is deemed to be a public nuisance. Such violations may be abated by civil action or pursuant to applicable abatement procedures. (Ord. 2474 ~1, 1991; Ord. 2284 ~1, 1988; Ord. 2213 ~1, 1987; Ord. 2077 ~1, 1984; Ord. 1765 ~1, 1977; Ord. 1551 ~1, 1974; prior code ~1.7A). 9 (R 11/91) ATTACHMENT 3 andate is filed not later than the ninetieth day following d e on which the decision becomes final: except that if the ac on imp es an administrative fine or penal tv , the petition for eview must filed within twentv days after the order is final rsuant to Gove ent code 'Section 53069. (Ord 1870 Sl, 1979) 1.16.010 required. ary to make an inspec to enforce any ordinance or resolut n, or whenever there' reasonable cause to believe there exists a ordinance or reso tion violation in any building or upon any prem es within the urisdiction of the city, any 'authorized official 0 the city ay, upon presentation of proper credentials, .enter s h b . ding or premises at all reasonable times to inspect the or to perform any duty imposed upon him by ordinance; provi that except in emergency situations or when consent of he ner and/or .occupant to the inspection has been otherwis obtaine he shall give the owner and/or occupant, if they ca be located fter reasonable effort, twenty-four hours' -writte notice of the uthorized official's intention to inspect. T notice.transmitte to the owner and/or occupant shall state at the property owne has the right to refuse entry and t in the event such e ry is refused, inspection may be m e only upon issuance of ~ 3c~r an inspection warrant by a duly uthorized magistrate pursuant to de of Civil Procedure secti 1822.50. In the event the owner and occupant. refuses entry fter such request has been made, the 0 'cial is hereby empo red to seek assistance from any court of co etent jurisdict' n in obtaining an inspection warrant for such ent . It is am' demeanor to wilfully refuse access after an inspect:' n warr has 'been dulv issued. (Code of Civil Procedure Sectio 182 .57. (Ord 1550 Sl, 1974; prior code S1.7). 1.20.010 Designated-Applicability. A. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of. the ordinances of the city shall be guilty of ~n infr~ction or a misdemeanor. unless the violation is prosecuted as an infraction. B. An infraction is punishable by: h A fine not exceeding one hundred dollars for a first violation; , c. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, 5 his own recognizance, or a deposit of bail. D. A misdemeanor is punishable by: -%-r Imprisonment in the county jail not exceeding six months, .or by fine not exceeding one thousand dollars ($1,000), or by both. E. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the ordinances of the city is committed, continued or permitted by any such person, and he shall be punished accordingly.. F. Payment of a fine shall not excuse payment of any fee required by the Municipal Code. ' G. In addition to the foregoing, any violation of the provisions of the ordinances of the city. is deemed to be a public nuisance. Such violations may be abated by civil action or pursuant to applicable administrative abatement procedures. (Ord 2474 Sl, 1991; Ord 2284 Sl, 1988; Ord 2213 Sl, 1987; Ord 2077 Sl, 1984; Ord 1765 51, 1977; Ord 1551 Sl, 1974; prior code S1.7A). 1.20.020 Infractions: Prosecutor's Discretion Defendant's Election to have Infraction Treated as Hisdemeanor.. A. A violation of any Chula vista Municipal Code section may, at the discretion of the prosecutor, be prosecuted as an infraction, subject to the procedures described in sections 1.20.010(C) and 1.20.030 when: 1. The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he is arraigned, after being informed of his rights, elects to have the case proceed as a misdemeanor or; 2. The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on a.infraction complaint. (Ord 2284 51, 1988; Ord 2265 Sl, 1988; Ord.2253 S2, 1988; Ord 2213 52, 19B7). , 1.24.010 Notice required-con tents-Bail. A. If .any person is arrested for a misdemeanor violQtion of the provi~ion3 codified in ChQptcr3 5.02, 5.04, 5.00, 5.10, 5.1C, 5.10, 5.22, 5.2C, 5.34, 5.30 5.4C, 5.50, 5.54, 5.CO, C.20 6.28 ~~d 0.16, and ~uch pcr~on is not immediately taken before 6 a magistrate as is more fully set forth in the Penal Code of the state, the arresting officer shall prepare in duplicate a written notice to appear in court, containing .the name and address of such person, the offense charged, and the time and place where and when such person shall appear in court. B. The time specified in the notice to appear must be at least ~ ten days after such arrest. unless waived. C. The place specified in the notice to appear shall be as prescribed bv Penal Code Section 853.6 either: ~. DcfoJ!'c a judgc of a municipal court wi thin thc county, if thc offc~sc ch~J!'qcd io ~llcgcd to havc bccn committcd thcJ!'cin, and'who h~3 jUJ!'iodiction ef thc offc~sc a~d who i3 ~e~J!'cot 'and meat accco3iblc with J!'efcJ!'c~cc to the pl~cc whcJ!'c thc aJ!']!'cot io maec; OJ!' 2. Upon dcm~nd of thc. pCJ!'oon arrcotcd, befoJ!'e ~ .municip~l court judge in thc city, if 3uch offc~3c io ~lleged to h~vc bcc~ committcd within thc county; OJ!' bcfoJ!'c ~ judge in thc judici~l diotJ!'ict i~ which the offcnoc io ~lleqed to h~vc been committcd; 3. Before ~n officeJ!' authorized by the city to reccive ~ depooit of b~il. D. The officer shall deliver one copy of the notice to appear to the arrested person and the arrested person in order to .secure , release'must give his written promise so to appear in court by signing the duplicate notice which shall be retained by the officer. Thereupon the arresting officer shall forthwith release the person arrested from custody. E. .- The officer shall, as soon as practicable, file the duplicate notice with the magistrate as specified therein. Thereupon the. magistrate shall fix tlie amount of bail which in his judgment, in accordance with the provisions of Section ~275 of the Penal Code of the state, will be reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by him in the form set forth in section 8~5A of the Penal Code of the state. The defendant may, prior to the date upon which he promised to appear in court, deposit with the magistrate the amount of bail thus set. Thereafter, at the time when the case is called for arraignment before the magistrate, if the defendant shall not appear, either in person or by counsel, the magistrate may, declare the bail forfeited, and may in his discretion order that no further proceedings shall be had in such case. Upon the making of such order that no further proceedings be had, all sums deposited as bail shall forthwith be paid into the county treasury for distribution pursuant to Section 1463 of the Penal Code of the State. 7 F. No warrant shall issue on such charge for the arrest of a person who has given such written promise to appear in court, unless and until he has violated such promise or has failed to deposit bail, to appear for arraignment, trial or judgIDent, or to comply with the terms and provisions of the judgment, as required by law. (Prior code Sl.8). sections: 1.30.010 1.30.020 1.30.030 1.30.040 ,1.30.050 1.30.060 1.30.070 1.30.080 1.30.090 1.30.100 1.30.110 1.30.120 1.30.130 1.30.140 1.30.150 1.30.160 1.30.170 1.30.180 Chapter 1.30 ABATEMENT OF PUBLIC NUISANCE Purpose. Definitions. summary abatement power. Scope of chapter. Nuisance declared. Service of notice and order to abate. Appeal procedure. Appeal fee: Determination of amount/waiver of payment/refund. Hearing procedure. Determination of the city ee~Beil Manaaer. Time for compliance. Noncompliance with order to abate. Report and notice of hearing. Hearing on report. Cost as special assessment and lien. Transmittal of report to aUditor-inclusion in tax bill. Manner of collection-law applicable. Violations. 1.30.010 purpose. This chapter is enacted pursuant to Civil Code Section 3491 et seq. and Government Code section 38771 et seq., and is intended to be an alternative procedure for the abatement of any public nuisance declared 'to be a violation of any statute, regulation or ordinance enforced by the city. It is intended to provide a uniform procedure for notification, right of appeal and assessment of costs and collection thereof for the abatement of public nuisances. This chapter may be used in coniunction with procedures established in Chapters 1. 40 and 1. 41. The procedure herein is supplemental to the general penalty provision found in Chapter 1.20, and is intended to provide due process for all those required' to abate a public nuisance. (Ord 2187 S2 (part), 1987; Ord 1655 S1 . (part), 1975). 1.30.030 summary abatement power. 8 Whenever this code or any other- provision of law authorizes the city manager or any other city officer to declare a public nuisance, the nuisance may be summarily abated by any reasonable means and without notice or hearing when immediate action is necessary to preserve or protect the public health or safety because of the existence. of a danqerous condition or imminent threat to life. safety on public or private property. Summary abatement actions shall not be subject to the notice and hearinq requirements of this chapter and a city abatement officer shall not .be prohibited from summary abatement actions after initiation of proceedings pursuant to this chapter if immediate action at any time becomes necessary to preserve or protect the public health or safety. Summarv abatement is to be limited to those actions which are necessary to immediately remove the threat. In the event a public nuisance is summarily abated, the city abatement officer may nevertheless keep an account of the cost of abatement and bill the property owner therefor. If the bill is not paid wi thin fifteen . (15) days from the date of mailing, the Abatement Officer may proceed to obtain a special assessment and lien against the owner's property in accordance with the procedures set forth in Sections 1.30.130 through 1.30.170 of this chapter, ex~ept that, in addition to a review of the costs of abatement, the city eei:i~eil manaqer shall also ,hear and determine any issues relative to the necessity for or manner in which the property was declared to be a public nuisance and summarily abated. (Ord 2187 52 (part), 1987; Ord 1655 51 (part), 1975). 1.30.050 Nuisance declared. A city abatement officer may declare a public nuisance for any reason specified, in any city ordinance. ,Upon a public nuisance being declared, the. city abatement officer shall issue a Notice and Order to Abate substantially in the following form: NOTICE AND ORDER TO ABATE NOTICE IS HEREBY GIVEN THAT constitutinq the nuisance) (specify the condition is in violation of Section of the (Chula Vista Municipal Code. or other applicable code or ordinance). The violation has been declared a public nuisance by the (city abatement officer) and must be abated immediately. The public nuisance is on property located at (insert address or other leqal property description) , YOU ARE HEREBY ORDERED TO ABATE SAID PUBLIC NUISANCE within (insert a reasonable number of davs) ( ) rnot. less than ten' consecutive calendar days from the issuance of this order. The issuance date is specified below. You may abate the nuisance by 9 (in~ert de~ired action which. if taken. will adequatelY remedy the situation) . If you fail to abate the public nuisance within the number of days specified, the city may order its abatement by public employees, private contractor, or other means, and the cost of said abatement may be leyied and assessed against the property as a special assessment lien or billed directly to the property owner. YOU MAY APPEAL FROM THIS ORDER OF ABATEMENT but any such appeal must be brought prior to the expiration of the number of days specified above for completion of abatement. ' The appeal must be in writing; specify the reasons for the appeal; contain your name, address and telephone number; be accompanied by an appeal fee of ' dollars ($ ); and be submitted to the city eler]( manaaer at the following address: Chula Tel. City Clerk Manaqer 276 Fourth Avenue Vista, California No. (~19) 691 5e~1 92010 5031 One who is legally indigent may obtain a waiver of the appeal fee. Upon timely receipt of the appeal and accompanying fee, or waiver, the city elerk manaaer will cause the matter to be set for hearing before the city council Ditting ~3 the city ~batement bo~rd and notify you of the,date and location of the hearing. If you have any questions regarding this matter, you may direct them to the city officer issuing this notice at the address or telephone,number listed below. ISSUANCE DATE: Name, title, address and telephone number of the city abatement office issuing this notice) (Ord 2187 S2 (part), 1987; Ord 1655 S1 (part), 1975). 1.30.060 Service of notice and order to abate. The Notice and Order to Abate shall be served in the following manner. A. Bv personal service; or. !L.. By certified mail, addressed to the owner, or his or her agent, at the address shown on the last equalized assessment' roll or as otherwise known, and addressed to anyone known to the city abatement officer to be in possession of the property at the street address of the property being possessed. Service shall be deemed to have been completed upon the deposit of said Notice and Order, postage pre-paid, in the 10 United states mail; and, ~ By posting such Notice and Order to Abate conspicuously in front of the property on which, or in front of which, the nuisance exists, or if the property has no frontage, upon any, street, highway, or road then upon the portion of the property nearest to a street, highway, or road, or most likely to give actual notice to' the owner and any person known by the city abatement officer to be in possession of the property. (Ord 2187 52 (part), 1987; Ord 1655 51 (part), 1975). 1.30.070 Appeal procedure. Any owner or other person in possession of the property may appeal any abatement proceeding commenced pursuant to~is chapter to the .city ee1ifleil manaCler within thc numbcr. of ten days as allowed in the Notice and Order to Abate. The appeal shall be submitted in writing, specify the grounds upon which th~ appeal is taken, contain the name, address, and telephone number of the appellant, be accompanied by the .payment of an appeal fee and be filed with the city elerk manaaer. Timely appeal shall stay any further abatement action until the hearing is concluded. The city eler]t manaaer shall set the matter for hearing before a hearina examiner the city council and notify the parties in writing of the date and location of the hearing, at least ten (10) days prior to said date. (Ord 2187 52 (part), 1987; Ord 1655 51 (part), 1975). 1.30.080 Appeal fee: Determination payment/refund. At the time of filing an appeal, the appellant shall pay the Required Fee(s). of amount/waiver of '.If the appellant claims an economic hardship in paying the appeal fee, he or she may submit an application for waiver of the appeal fee on forms provided by the city elerk.manaaer for that purpose. The forms shall be substantially similar to those required of litigants initiating court proceedings in forma pauperis pursuant to section 68511.3 of the Government Code. The forms shall be executed under penalty of perjury and contain a declaration as to the truthfulness and correctness of the information contained therein. Upon submittal of the completed forms, the appeal fee shall be waived. if ;ustification is demonstrated. ' Failure to submit the waiver forms or pay the appeal fee in a timely manner shall cause the appeal request to be automatically denied. Enforcement of the Order to Abate may then proceed as if no appeal request had been submitted. 11 . If the appeal fee is paid and the city e6H~eil manaqer finds there is no public nuisance, the appeal fee shall be refunded to the appellant without the payment of any interest which could have accrued. COrd 2506 51 (part), 1992; Ord 2187 52 (part), 1987; Ord 1655 51 (part), 1975). 1.30.090 Bearing procedure. ~he hHearings before a hearing examiner appointed bv the city e6a~eil manaqer shall be conducted in accordance with the following procedures: A. Oral evidence shall be taken only on oath or affirmation. The city council hearinq examiner is authorized to issue subpoenas, administer oaths, and conduct the hearing. B. Each party shall have these rights: to be. represented by legal counsel; to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though the matter was not covered in the direct examination; to impeach any witness regardless of which party first called the witness; to testify in his or her own behalf. He or she may be called and examined as if under cross-examination. C. The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, 'regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions and irrelevant and unduly repetitious evidence shall be excluded. D. The hearing shall be conducted in the English language. The proponent of any testimony to be offered by a witness who does not proficiently speak the English language shall provide an interpreter, approved by the city council conducting the proceeding as proficient in the English language and the language in which the witness will testify. The cost of the interpreter shall be paid by the party providing the interpreter. ' E. The hearing may be continued from time to time upon request of a party to the hearing and upon a showing of good cause therefor. ~ The administrative procedures of Chapter 1.40 may be utilized to supplement the above. (Ord 2187 52 (part), 1987; Ord 1655 12 51 (part), 1975). 1.30.100 Determination of the city Ce~Bei1 Manaqer. Based upon the decision of the hearinq examiner. At the ce~clusion ef the heaping, the city eeaneil manaqer shall allow or overrule any or all objections, and reverse, modify or affirm the determinations of the city abatement officer and may direct the city abatement officer to proceed and perform the work of abatement if not performed by the owner or the person in possession of the property within the prescribed time. The decision of the hearinq examiner shall be in writing, contain findings of fact and conclusions of law, and be filed with the city elerk manaqer within five (5) working days of the conclusion of the hearing. A copy of the decision shall be sent to each party appearing at the hearing, and if no appearance was made by the ~ppellant, to him or her by mail, at the address specified in the appeal. The decision of the city eel:1l'1eil manaqer shall be- final whcn filcd with thc city clcrk and constitutes the exhaustion of administrative remedy. - (Ord 2187 52 (part), 1987). 1.30.110 Time for compliance. If the city eeul'Isil manaqer decides that the Order to Abate should be enforced, the owner, his or her agent or person in possession of the property shall comply with the order within such period of time as may be therein prescribed, and in the absence of any prescribed time, within three (3) days from the date of final determination. (Ord 2187 52 (part), 1987). 1.30.120 Noncompliance with order to abate. Upon the failure, neglect or refusal to properly comply with the Order to Abate within the prescribed time period, the city abatement officer may cause to be done whatever work is necessary to abate the public nuisance. An account of the cost of abatement shall be kept for each separate assessor's parcel involved in the abatement. '- When the city has completed the work of abatement, or has paid for such work, the owner of the property shall pay the Requipcd Fee(e) costs of abatement (See also Section 1.41.140\. To this amount shall be added the appeal fee, if it was previously waived. The combined amounts shall be included in a bill and sent by mail to the owner, or his or her agent for payment, if not paid prior' thereto. The bill shall apprise the owner that failure to pay the bill within fifteen (15) days from the date of mailing may result - in a lien or assessment beinq placed upon the property. COrd 2506 51 (part)" 1992; Ord 2187 52 (part), 1987). 1.30.130 Report and notice of hearing. 13 If the bill is not paid within fifteen (15) days from the date of mailing, the city abatement officer shall render an itemized report in writing to the city elEr]t manaqer for :3Ubmitt;1l to the city council for hearing and confirmation. To the report shall be attached the names and addresses of all persons having any record interest in the property. At least ten (10) days prior to said hearing, the city el~rk manaqer shall give notice, by certified mail, of said hearing to the record oWner of each assessor's parcel involved in the abatement, the holder of any mortgage or deed of trust of record, and any other person known to have a legal interest in the property. Said notice shall describe the property by street number. leqal O~ Dome othe~ description and tax assessor's parcel number sufficient to enable identification of the pr.operty and contain a statement of the amount of the proposed assessment. (Ord 2187 52 (part), 1987). 1.30.140 Rearing on report. At the time fixed for receiving and considering the report, the city ee~~eilmanaqer shall hear it or cause it to be heard bv a hearinq examiner reqardinq eM any objections of any of the owners liable to be assessed for the work of abatement or any other persons who may have a legal interest in the property. The city eeaReil manaqer shall add to the proposed assessment an amount equal to the cost of conducting the assessment confirmation hearing. The Ce1:l1'16il citv manaqer may also make such other modifications in the report as -H= is deemed necessary, after which7' by ~csolutien, the report shall be confirmed. The ~e301ution and moaificd report of the city ;1b;1tement bO;1rd ~h;11l .and be final and conclusive. (Ord 2187 S2 (part), 1987). 1.30.150 Cost as special assessment and lien. A certified copy of the rc~olution order shall be recorded by th.e city elerk manaqer in the Office of the County Recorder. The amounts and the costs of abatement mentioned in the report as confirmed shall constitute a special assessment against such property and are a lien on the property for the amount of the respective assessment. In addition to its rights to impose said special assessment, the city shall retain the alternative right to recover its costs by way of civil action against the owner and person in possession or control jointly and severally. (Ord 2187 52 (part), 1987). , 1.30.170 Hanner of collection-law applicable. ~ Thereafter, the amounts of the assessment shall be collected at the same time and in the same manner as city taxes are collected, and are subject to the same penalties and the same 14 procedure and sale in case of delinquency as provided for ordinary ci ty taxes. All laws applicable to the levy , collection and enforcement of city taxes are applicable to such assessments, except that if any real property to which such lien would attach has been transferred or conveyed to a bona fide encumbrancer for value has been created and attaches thereon prior to the date on which first installment of such taxes would become delinquent, then the lien which would other wise be imposed shall not attach to such 'real property and the cost of abatement and the cost of enforcing abatement was confirmed, relating to such property, shall be transferred to the unsecured roll for collection. ~ As an alternative. the citv manaqer mav impose an abatement lien upon the propertv in accordance with section 1.41.160. (Ord 2187 S2 (part), 1987). 1.30.180 violations. It shall .li!. unlawful for any person to interfere with the performance of the duties herein 'specified for the city abatement officer or any authorized officer or employee thereof, or to refuse to allow any such officer or employee or approved private contractor, to enter upon any premises for the purpose of abating the public nuisance or to interfere in any manner whatever with said officers or employees in the work of abatement. Paying a fine or serving a jail sentence shall not relieve any person from responsibility for correcting any condition which violates any provision of a code being enforced pursuant to this chapter. (Ord 2187 S2 (part), 1987). 2.26.030 Functions and Duties. The function and duties of the Board of Appeals and Advisors shall be as follows: A. Create a analysis including forum for city-wide discussions, of critical issues of building plumbing, mechanical and electrical research, and construction, installations. B. Where authorized by a Uniform Code adopted by the city to do so, investigate and advise as to the suitability of alternate materials, types of construction, and interpretation of said adopted Uniform Code. ' C. Conduct public hearings and recommend to the city council, the passage of new legislation pertaining to .the design and construction of buildings, 15 Sections: 1.40.010 1.40.020 1.40.030 1.40.035 1.40.040 1.40.050 1.40.060 1.40.010 .!L. . ATTACHMENT "B" CHAPTER 1.40 . ADMINISTRATIVE PROCEDURE AND PROCESS. Purpose and Intent. Administrative Process. Service of Notices. Proof of Service of Notices. Reserved. ~dministrative Hearinq Procedure. Immediate Action Excusinq Prior Notice for Purposes of Abatinq Danqerous Conditions or Imminent Threat to Life - Safety. Purpose and Intent. It is the purDose and intent of the City Council to promu1qate rules and procedures for the conduct of administrative hearinqs required by this Municipal Code. statute. or administrative requ1ation. in order to insure administrative due process is accorded to affected parties. The requirements and procedures of this Chapter shall be applicable to administrative procedures and hearinqs reqardinq the denial. suspension or revocation of a permit. license or entitlement. and may be used to supplement or substitute for any administrative hearinq or administrative procedure prescribed elsewhere in this Municipal Code. The procedures under Chapter 1.40 may also be used in those situations where the Municipal Code authorizes a hearinq as a precondition to the abatement of a nuisance. the imposition of an administrative fine or penalty. or. as an administrative appeal~ procedure. 1 ~ These rules of procedure are not applicable to any appeal authorized bY this Code and directed to the City Council under Chapters 12.24. 12.40. 14.10. 15.04. 18.52 and Title 19. Sec. 1.40.020 ~dministrative Process. lu. Subiect to the provisions of Section 1.40.060. the City ~anaqer or desiqnate shall serve notice pursuant to section 1.40.030 upon a 'party whose permit. license or entitlement has been denied. or is to be suspended or revoked. or aqainst whom administrative enforcement action is pro?osed. that they shall be allowed ~~;;? of ten calendar days to request an administrative hearinq to appeal or contest that proposed action.before it will become final. The request for hearinq must be made no later than ten calendar days from the date of notification of the proposed action. The proposed action by the City Manaqer shall become final and conclusive if not appealed or contested. Except as provided in Section 1.40.060. the proposed action shall be stayed if appealed. and .. be made final followinq the issuance of a decision bY a hearinq officer pursuant to section 1.40.020G. ~ Upon the filinq of a request for a hearing or an appeal. th~ city Manaqer shall appoint a hearinq examiner who shall be peutral and unbiased as to the matter in contention and experienced in the qeneral subiect matter. The hearing 2 examiner may be appointed either from within the City staff or outside sources. The city Manaqer may provide compensation to outside sourced hearinq examiners. ~ The hearinq examiner shall notify the appellant of the time and place for the hearinq in accordance with Section 1.40.030. allowinq a minimum of ten calendar days before the hearinq is to be held. ~ The hearinq examiner shall conduct the administrative hearing in accordance with section 1.40.050 and issue a written decision promptlY to all parties upon the conclusion of the pearinq. unless the appeal or request for hearinq is withdrawn bv the requestinq partv. The hearinq examiner may impose conditions and deadlines for corrective action and reduce. waive or conditionallY suspend any fines or penalties proposed. when the hearinq examiner concludes. based upon the evidence. that such action is more likely to brinq about compliance with the proposed order. ~ The hearinq examiner's decision shall be based upon findinqs supported bv evidence. The standard of proof required to render the decision shall be that of a preponderance of the , evidence. A preponderance of the evidence is established when the weiqht of the evidence supportinq the existence of a fact in contention has the more convincinq force. when balanced 3 aaainst that evidence opposina the non-existence or of the same fact in contention. L. The hearina examiner shall limit cOllate~irv durina the c:tS pearina. The hearina may not be use a substitute for discovery pursuant to the Code of civil Procedure. and anv inauiry or discoverv in violation of this section 1.40.020F is not competent or admissible aaainst the partv against whom it is to be used upon appropriate motion or objection of that partv. ~ A final order shall be issued by the city Manager based upon the hearina examiner's decision aovernina the proposed action. The date of mailina of the final order by the City Manaaer to the party by first class mail. with certificate of service attached. shall constitute the date of the exhaustion of administrative remedy. A party shall be advised bY the City Manaaer that it has ninety days pursuant to Code of Civil Procedure Section 1094.6 from that date in which to file for a writ of mandamus or other applicable judicial review. except that if the determination is made as to a decision imposina an administrative penalty. fine or charae under section 1.41.100. the time to appeal to the Municipal Court is limited to twent~ days pursuant to Government Code Section 53069.4. Failure to file for iudicial review within the applicable time limit makes the order final. non-appealable and confirmed. Until a 4 timelY request for ;udicial review is filed. enforcement of the final order may proceed in due course. H.... A party may request a transcript of the proceedinqs. if prepared. or be provided a copy of any recordinq. if made. upon paYment of the costs of preparation or duplication. Sec. 1.40.030 service of Notices. A. Except as provided in section 1.40.030D. whenever a notice is required to be qiven under the Municipal Code for the enforcement of a proposed order or for hearinq or appeals purposes. the notice shall be served bY any of the followinq methods. unless different provisions are otherwise specifically stated to applY: 111 Personal service upon the responsible party: or m.. Certified mail. postaqe prepaid. return receipt requested. SimultaneouslY. a duplicate notice mav be sent bv reqular mail. postaqe prepaid. If a notice that is sent by certified mail is returned unsiqned. service shall be , deemed effective pursuant to service of the duplicate notice bY regular mail. provided that the duplicate notice sent bv reqular mail is not returned as undeliverable. 5 Notice shall be mailed to the last address shown on the County Tax Assessor's records if the notice concerns real property. and to the last known address of any other party to the proceedinq shown in official records of the city of Chula vista: lJl Postinq the notice conspicuouslY on or in front of the . property. ~ postinq a notice or service by certified mail and duplicate service bv reqular mail in the manner described above shall be effective on the tenth day of mailinq or postinq. ~ The service of an initial Notice of Violation may also be sent bv reqular mail. service of a Notice of Violation bv reqular ~ail is effective on the date of mailinq. ~ service of Notice throuqh which a lien will be placed upon ~eal propertv will be in accordance with Code of Civil procedure Sections 415.10. 415.20. 415.30. or Section 415.40 if the responsible party resides out of state. ~ The failure of any party or person with an interest in th~ property or the proceeding to receive any notice served in accordance with this section 1.40.030 shall not affect the validity of any proceedinqs taken under this Code. 6 Sec. 1.40.035 Proof of Service of Notices. Proof of service of any notice required bv this Code may be made bv certificate or affidavit of an officer or employee of this citv or bv affidavit of any person over the aqe of eiqhteen years. The proof of service shall show that service was done in conformity with this Code and any other provisions of law applicable to the subiect matter concerned. Sec. 1.40.040 Reserved. Sec. 1.40.050 ~dministrative Hearina Procedure. The hearinq before a hearinq examiner shall be conducted in accordance with the followinq procedures: ~ Ahearinq examiner is authori~ed to issue sUbpoenas. administer oaths. and conduct the hearinq. Subpoenas shall be sianed bv the Citv Clerk. Oral evidence shall be taken only on oath or affirmation. . 14 Each party shall have the followinq riqhts: to be represented bv legal counsel: to call and examine witnesses: to introduc~ evidence: to cross-examine opposinq witnesses on any matter relevant to the issues even thouqh the matter was not covered in the direct examination: to impeach any witness regardless 7 of which party first called the witness: to testifY in his or her own behalf. A partv may be called as a witness bv the other partv and be examined as if under cross-examination. C.' The hearinq need not and should not be conducted accordinq to the technical rules of procedure and the California Evidence Code relatinq to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to relv in the conduct of serious affairs. reqardless of the existence of any common law or statutorv rule which miqht make improper the admission of such evidence over ob;ection in civil actions. Hearsav evidence mav be used for the purpose of supplementinq or explaininq any direct evidence but shall not be sufficient bv itself to support a findinq unless it would also be admissible over ob;ection in civil actions. Irrelevant and undulv repetitious evidence shall be excluded. Ih. The proponent of anv testimony to be offered bv a witness who does not proficientlv speak the Enqlish lanquaqe shall provide ., an interDreter. The interpreter shall be approved bv the hearinq examiner conductinq the proceedinq as proficient in the Enqlish lanquaqe and the language in which the witness . will testifv. The cost of the interpreter is to be paid by the party providinq the interpreter. 8 .E... The proponent for the Director may introduce into evidence and rely upon an administrative record which clearlY demonstrates: a) The condition(s). act(s) or omission(s) upon which the proposed action is based: b) the regulatory authority for the proposed action: c) technical or factual data supportina the proposed action: and. d) any other information or data relevant to the proposed action. An administrative record ~~ the Director which meets this criteria shall constitute prima facie evidence in support of the proposed action. The burden of aoina forward may then shift to the opposina party. who may then cross-examine on the basis of the administrative record and call witnesses appropriate to aid in its examination of the administrative record. The opposina party may call additional witnesses and introduce additional evidence appropriate for opposition. defense. excusal or mitiaation of the proposed action. ~ The hearina may be continued from time to time upon reauest of a party to the hearina and upon a showina of aood cause therefor. 1.40.060 7mmediate Action Excusinq Prior Notice for purposes of Abating Danqerous Conditions or 7mminent Threat to Life - Safetv. 9 The ?rovisions for prior notice and hearinq may be dispensed with when. in the opinion of the Director with the concurrence of the city Manager. immediate action is necessary to summarilY abate a danqerous condition on public or private property or an imminent threat to life-safety on public or private property. The Director shall take onlY such action as is reasonablv necessary to summarilY abate the danqer. and shall thereafter immediatelY campI y with Sections 1.40.020 throuqh 1.40.050 reqardinq notice and hearinq. if requested. to the responsible partvCies) reqardinq the action taken by the Director to summarilvabate the condition. The purpose of the hearinq will be to afford the responsible partvCies) the opportunity to contest their responsibility for the costs or scope of abatement. If further corrective action is necessarv. the Director will compl)! with this Chapter 1.40. and such other sections of the Code as may be applicable reqardinq further corrective action. 1.40.070 Consolidation of Proceedinqs. ~ Director or the Hearinq Examiner may consolidate one or more administrative processes and orders proposed under this chapter and Chapters 1.30 or 1.41. or both. into a sinqle hearinq. if consolidation would be more efficient and cost-effective. , U:\ho.e\attorney\chap140.rh 10 ~ It is unlawful for any person to whom a cease and desist order has been personal Iv issued or served to continue to perform work in violation of the terms of that order. ~ It is unlawful for any responsible party to whom a cease and desist order has been served to continue to perform work or to allow or permit another to continue to perform work in violation of the terms of that order. ~ Prosecution under Sections 1.41.070B or 1.41.070C does not bar prosecution or administrative enforcement. or both. of the previous underlyinq violations for any or all days the violation had been in existence. or for the continuance of the underlyinq violation. ~ Any Director or Code Enforcement Officer in whose presence a violation of section 1.41.070B or 1.41.070C occurs may arrest the violator without a warrant. and a police officer may accept custodY of that arrestee for criminal enforcement processinq. L. The Director mav initiate other administrative enforcement and compliance methods in accordance with this Chapter 1.41 and Chapters 1.30 and 1.40. as appropriate. Sec. 1.41.080 Reserved. 12 Sec. 1.41.090 Reserved. Sec. 1.41.100 Administrative citations. ~ p'n administrative citation can be issued to. a responsible party for violation of a requlatorv provision of this code or state law. and the responsible party be reauired to pay an administrative fine. Administrative citations and penalties are particularly appropriate in cases of structural. buildina and ~onina violations that do not create an immediate danaer to health or safety if the responsible party has failed to correct the violation after the issuance of a notice of violation pursuant to section 1.41.030. ]L. An administrative citation. may be issued in lieu of the initiation of a criminal action for the same violation. <Hnweve~ particularlY eareaious cases. criminal enforcement may be appropriate for continuina violations if the administrative citation is ianored bv the responsible party. , ~ The amount of administrative fine that may be imposed for each separate violation of the same code section is as follows: 13 1L $100 for a first violation: $200 for a second violation within the twelve calendar months of the first violation: $500 for each additional violation occurring after the second violation and within 12 months of any 'Prior violation. l.... Issuance of an administrative citation and paYment of the administrative fine does not excuse compliance and corrective action reqardinq the violations. Al thouqh continuinq violations of the Municipal Code are separate offenses. the responsible 'Partv shall be allowed a reasonable time of not less than thirty days in which to correct the violation before a second or subsequent administrative citation may be issued. ~ A responsible party may request administrative review of an administrative citation pursuant to Chapter 1.40. Jh The administrative citation shall contain the followinq information: .. ~ Date of the violation. , l.... bddress and location of violation. ~ Description of violation. 14 ~ ~pplicable codes and statutorv sections violated. ~ corrective action reauired. ~ An order to brinq the violation into compliance. 7. Notice of the fines to be imposed. ~ A date. not less than twenty davs. bv which pavrnent of the fine must be made. ~ Location for pavrnent. ~ Notification that payment does not excuse correction of the violation. .1.L. Notice of riqht to request review pursuant to Chapter 1.40 of the Municipal Code. ~ A ?artv filinq a timelv request for review pursuant to Chapter 1.40 and Section 1.41.090 shall post a $25 deposit with the director. Enforcement of the administrative fine shall be staved pendinq the decision of a hearing examiner if a hearinq , is reauested. Procedures for review shall be in accordance with Chapter 1.40. The deposit will be returned if the appeal is granted. A final order is not subiect to judicial review 15 _._~ after twenty days have elapsed from the date of its issuance. unless the party complies with Government Code section 53069.4. See Section 1.40.020CG). A final order may be enforced pursuant to section 1.41.160. Sec. 1.41.110 civil Penalties. ~ Civil penalties may be assessed aqainst a responsible party for continued violations. of the Municipal Code. whether of the same section or any combination. that reflect a continuinq disreqard for the requirements of this code. The director may issue a notice and order to the responsible party assessinq a civil penalty pursuant to Section 1.41.110. The civil penalty may be enforced aqainst the responsible party as a lien pursuant to section 1.41.140. ~ Except for violations of land qradinq ordinances contained in Chapter 15.04: civil penalties may be assessed at a daily rate not to exceed $1.000 per violation per day. and not to exceed a total of $100.000 per tax assessor's parcel number in the case of unimproved real property. or $100,000 per each structure aqainst which violations have existed on a sinqle tax assessor's parcel number for any related . ' serles of violations. For violations of land qradinq permits or land gradinq work done without the issuance of a permit. the rate 16 of civil penalties shall be the areater of the above rates or S rto be added by Enaineerinal Per cubic yard. ~ civil penalties under this Section 1.41.110 may be accrued retroactive to the date the violations were first discovered as evidenced bY the issuance of a notice of violation pursuant to Section 1. 41. 030. or any later date determined bY the director. In determinina the amount to be imposed on a daily rate. the director shall consider the followina factors: ~ puration of the violation: ~ Freauency or occurrence of the violation: ~ Freauency or occurrence of other violations durina the period of accrual: ~ Seriousness of the violation in relation to its threat or impact upon public health. welfare or safety: ~ History of the violations: , ~ Activity taken by the responsible party to obstruct or . interfere with correction of the problem: 17 ~ Good faith or bad faith efforts bv the responsible party to comply: ~ The impact of the violation on the surrounding property and community: - ~ 1he financial ability of the responsible party to have corrected the violation in a timely fashion. ~ The director shall complY with Chapter 1.40 concerninq notice of the proposed civil penalties and the riqht to a hearinq to contest or confirm. Unless contested. the notice and order shall be final and be enforced pursuant to section 1.41.160. If contested. the hearinq examiner shall limit the hearing to the followinq issues: ~ Whether the responsible party maintained a use or condition on real property that violated the Municipal Code or state law on the dates specified: and ~ Whether the civil penalty assessed is consistent with the criteria expressed in section 1.41.110C. The hearinq examiner may. however. exercise discretion pursuant to Section 1.40.020G and increase or decrease the penalties 18 assessed to a level determined to be supported bv the evidence meetinq the criteria under Section 1.41.110C. ~ The director shall issue a final order based on the proceedings under Section 1.41.110D. and establish a date for pavment. followinq which date an enforcement lien shall be imposed upon the property. The imposition of an enforcement lien mav be made a part of the proceedinqs and notice and order under the precedinq Section 1.41.100 or this Section 1.41.110. Sec. 1.41.120 ~batement Action. Procedures for the abatement of nuisances. when required for corrective action. are contained in Chapter 1.30. Sec. 1.41.130 Reserved. Sec. 1.41.140 Cost Recoverv. Pursuant to Government Code Section 38773. costs and penalties may be recovered and enforced agai~st responsible parties under this Chapter 1.41 include, but are not limited to. the followinq: , ~ citv'sdirect cost for abatement of nuisances. toqether with applicable overhead: 19 ~ Costs of salary and applicable overhead of those city employees and contract personnel involved in the investiqation. enforcement and remediation or abatement of a nuisance: ~ city costs for equipment use or rental: ~ Attornev's fees: ~ Court costs and witness fees: ~ Costs of qeotechnical, enqineerinq and other technical services and studies: ~ Administrative fines and civil penalties imposed pursuant to this Chapter 1.41: ~ Reinspection fees pursuant to section 1.41.060: ~ Costs of monitorinq programs necessary for correctinq. monitoring. abatinq or mitiqatinq nuisances and violations: ;h. Any other fee. cost. or exPense reasonablv and ~ationallV' related to the City's enforcement efforts to abate a nuisance or correct a violation of this code: 20 . K.. Treble damaqes recoverable pursuant to Government Code Section 38773.7. (See section 1.41.160rC)). Sec. 1.41.150 confirmation of costs. Followinq the conclusion of the citv's remediation. abatement or corrective actions. the director shall notifv the property owner and appropriate responsible parties of a proposed assessment of costs aqainst each individuallY and as a lien or assessment aqainst the real property that was the subiect of abatement or corrective action. Notice and an opportunity to be heard and contest the basis for the assessment of costs or lien shall be provided to those parties in accQrdance with Chapter 1.40. Followinq any hearinq or waiver thereof. the city Manaqer may then issue a final order of confirmation of costs aqainst the respective responsible partLes. Sec. 1.41.160 Enforcement. L. In accordance with Government Code Section 38773. the city Manaqer or a director. or both as appropriate. may enforce the confirmation of costs as fol~ows: , 1.... As a personal obliqation aqainst a responsible Darty: . AD.!L. 21 L... Either: As a recorded lien with the priority of a iUdqement lien in the real property records of the County aqainst any real property which was the subiect of abatement or correctiye action: or. ~s an assessment aqainst the property which was subiect to abatement or corrective action. to be collected in the ~ame manner as municipal" taxes. . ~ The director shall first provide notice and an opportunity for a hearing to the responsible party to contest the proposed enforcement in accordance with Chapter 1.40. ~ The city Manaqer. City Attorney or director is authorized to obtain iudicial enforcement for the foreclosure of the lien. where apDropriate. In addition. pursuant to Government Code Section 38773.7. the City Manaqer may seek treble damaqes for the abatement costs where the corrective action arose out of or constituted a second or subsequent civil or criminal judqrnent within a two year period. as provided for in that section. Enactment of this Section 1.41.160C constitutes the enactment of an ordinance authorizinq the recoyery of treble damaqes in accordance with Government Code Section 38773.7. ' Sec. 1.41.170 Satisfaction of Lien or Obliqation. 22 Upon payment in fuLl by one or more responsible parties for al~ costs of enforcement and the satisfactory completion of all corrective action required. the city Manaqer or director shall promptlY issue to all responsible parties a notice of compliance. The notice of compliance will be slqned and identify the affected real property by address. leqal description and tax assessor's parcel number. and be recorded in the real property records of the County by the director if a lien was recorded. Sec. 1.41.180 ~batement Fund. The City Manaqer is authorized to establish a revenue fund to be used for abatement and code enforcement purposes. Funds recovered under section 1.41.140 may be deposited in this account. and any surplus above an operating reserve as may be established by the city council shall be transferred from time to time to the General Fund. All penalties and fines collected under Section 1.41.140 shall be deposited to the General Fund. M:\hoee\lttorney\chapter.141 , 23 .' -ATTACHMENT "c" Chapter 1. 41 ADMINISTRATIVE PROCEDURES. COMPLIANCE AND ENFORCEMENT Sec. 1.41.010 Purpose and Intent. Sec. 1.41.020 Overview of Process. Sec. 1.41.030 Notice of Violation. Sec. 1.41.040 Recordation of Notice of Violation. Sec. 1.41.050 Non-Issuance of Permits. Sec. 1.41.060 Reinspection Fees. Sec. 1.41.070 Cease and Desist orders. Sec. 1.41.080 Reserved. Sec. 1.41.090 Reserved. Sec. 1.41.100 Administrative citations. Sec. 1.41.110 civil Penalties. Sec. 1.41.120 Abatement Action. Sec. 1.41.130 Reserved. Sec. 1.41.140 Cost Recoverv. Sec. 1.41.150 Confirmation of Costs. Sec. 1.41.160 Enforcement. Sec. 1.41.170 Satisfaction of Lien or Obliqation. Sec. 1.41.180 Revolvinq Abatement Fund. Sec. 1.41.010 PurDose and Intent. ~ It is the purpose and intent of the city Council to establish , administrative ~rocedures for obtaininq prompt compliance in the correction of both maior and minor violations of the Chula Vista Municipal code and state law. Conditions in violation 1 of the Municipal Code or state law which affect conditions upon or uses of real property within the city of Chula vista are desiqnated nuisances. The procedures authorized or identified bv this Chapter 1.41 are the followinq: notices of violation: administrat~ve citations: administrative fines and penalties: cease and desist orders: abatement of nuisances: recordation of notices of violation: authorization to charqe reinspection fees: cost recovery for costs of enforcement: confirmation of costs: and recordation of- liens and assessments for cost recovery. ~ The procedures established in and throuqh Chapter 1.41 may cross reference, consolidate or incorporate by reference. as applicable. enforcement methods established elsewhere in this code. in order to create a uniform process for prompt code compliance. administrative due process and effective enforcement. ~ The city Manaqer. any coqnizant Director and the city Attorney .are each authorized to utilize and initiate the procedures - established in this chapter and Chapters 1.30 and 1.40. ~ The procedures in Title 1 may be used as a supplement to , criminal or ;udicial enforcement action. or both. or in lieu thereof. Selection of one method shall not preclude the use 2 of any other method or combination of methods when appropriate. E.... The terms "Abatement". "City Manaqer". "Code Enforcement Officer". "Director". "Nuisance". and "Responsible Party" are as defined in Section 1.04.010. Sec. 1.41.020 Overview of Process. ~ violations of the Municipal Code affectinq uses of or conditions upon real property may be corrected throuqh the issuance of a notice of violation pursuant to Section 1.41.030 to the Responsible Party requirinq certain actions to be taken to brinq the property or structure into compliance. The responsible partv will be allowed a reasonable period of time in which to correct the violation. normally not less than ten calendar days. Failure to complY within the time prescribed can then result in the issuance of an administrative citation in accordance with Section 1.41.100. 14 Jrn administrative citation is a notice to the responsible party which mandates the corrective action and establishes a fine as a penalty for the prior non-compliance of the notice , of violation. Subsequent administrative citations may be issued with increased penalty. Corrective action that may be required of a responsible party includes. but is not limited 3 to. the removal of encroachments into public property. the mitiqation or restoration of land or ad;oininq property for illeqal qradinq or development. and the removal or modLfication of structures. It includes any other process necessarY for abatement. In addition. throuqh the notice and hearinq procedures of Chapters 1.30 and 1.40. the responsible party can be made subiect to an order of abatement throuqh which the corrective work will be undertaken bv the citv and the cost be imposed as a lien aqainst the property if the responsible party fails to respond. ~ Each dav a violation exists on real proDerty is a continuing violation. and all remedies, penalties and assessments are cumulative. ~ In addition to a notice of violation. a cease and desist order can be issued pursuant to section 1.41.070 to one or more responsible parties or other persons who perform work in violation of a permit or without a required permit. Violation of the cease and desist order is a separate misdemeanor. A responsible party or any person on scene activelY conductinq the violation under the direction of a responsible party is Bub;ect to arrest without a warrant for continuinq work in violation of the cease and desist order. as well as for the actions constitutinq the violation of this code. A ~esponsible partv can be required to obtain necessarv permits. 4 restore or reveaetate the property. or both. and correct or mitigate theconseauences of the violation. Administrative citations can also be issued assessina administrative fines for both the creation of and the continuance of the violation. .E..... If . the .responsible party fails or refuses to correct the violation. proceedinas may be undertaken to abate any existina or resultina nuisance pursuant to Chapter 1.30. Abatement orders authorize a Director to enter upon property and correct the violation or condition or the removal of encroachment upon public propertv. Enforcement costs may be imposed aaainst the responsible party and non-complvina property. L Durina the pendency of the violation and the enforcement process. a notice of violation may be recorded aaainst the property pursuant to Section 1.41.040 describina the particulars of the violation. to insure that the property is properly abated prior to or upon transfer. The recorded notice of violation will be released upon issuance of a notice of compliance which shall be recorded by the Director. ~ Durina the inspection and enforcement process. cost recovery can be imposed for the cost o~ reinspection (Section 1.41.060\ . and the costs of City services to abate (Chapter 1.30. and 1.41.140). These costs may be recorded as a lien aaainst the 5 property followinq the procedures under Chapter 1.41 or the waiver thereof bv the responsible party. JL: various steps or procedures under Chapter 1.41 may require notice and a hearinq pursuant to Chapter 1.40. When appropriate. notice and hearina requirements for separate administrative actions may be consolidated. Sec. 1.41.030 Notice of Violation. ~ A Code Enforcement Officer is authori~ed to serve a notice of violation upon a responsible party for any violation of the Municipal Code. The notice of violation will describe the violation. the dates and location of the violation. the applicable code section (s) . the corrective action required and a date for compliance reinspect ion. The responsible party will be advised that a reinspection fee (Section 1.41.060) will be imposed for a second and all subsequent reinspections if compliance is not voluntarily obtained. and that an administrative citation may also be issued alonq with civil penalties pursuant to sections 1.41.100 and 1.41.110 until the property is brouqht into compliance. The responsible party will be allowed a minimum of ten calendar days to correct , minor violations and thirty calendar days for maior violations. A Code Enforcement Officer may extend the time for a reasonable period beyond those limits if circumstances 6 dictate. The notice of violation will inform the responsible party of the potential costs and conseauences that may ensue under this Chapter 1. 41 if voluntarily compliance is not obtained within the time prescribed. If the violation is corrected in accordance with the terms of the notice of violation. no costs or charqes will be imposed. ~ Service of a notice of violation is effective upon delivery or mailinq pursuant to section 1.40.030. Failure or refusal to siqn does not invalidate the notice of violation and subseauent proceedinqs. ~ The property will be reinspected once for compliance. If the responsible party re~uses to allow inspection. after a reasonable demand. the Code Enforcement Officer shall obtain an inspection warrant pursuant to Code of civil Procedure section 1822.50. Failure of the responsible party to allow inspection or remedy the violation shall result in the issuance of an administrative citation. the charqinq of reinspection fees and may result in a separate criminal violation for the failure to allow inspection. (CCP Section 1822.571 , )h If the violation also constitutes the performance of work without a reauired permit or in violation of an issued permit. the Code Enforcement Officer may issue a cease and desist 7 order pursuant to section 1.41.070 to temporarily and immediatelY en;oin the work and to take anY other action appropriate at that time. If the violation creates a hazardous condition which affects public safety or an imminent threat to life. safety. summary abatement may be initiated pursuant to Section 1.30.030. Sec. 1.41.040 Recordation of Notice of Violation. ~ Whenever a violation on real pro-pertv remains uncorrected after a notice of violation has been issued. a copy of the notice of violation may be recorded by the director in the real property records of San Dieqo County if the followinq prerequisites are met: ~ A violation has remained uncorrected on the property for at least 30 calendar days followinq service of the notice of violation: A... The owner. if not the responsible party. has been notified of the prospective recordation and been offered the opportunity to correct the violation: .. . ~ The property owner and all of the responsible parties shall be notified that development permits shall be withheld durinq the time the property remains in 8 violation pursuant to section 1.41.040. except for those permits that are necessary to brinq the property into compliance. 4. The responsible party and the property owner have been noticed and offered a hearing pursuant to Chapter 1. 40 to contest the proposed corrective action and the proposed recordation. ~ The director is authorized to record the notice of violation pursuant to this section upon issuance of the final order; ~ Cancellation of Recordation. The director shall issue to the propertv owner and other responsible parties a siqned notice of compliance which states on its face that it cancels the notice of violation once all violations have been corrected and any administrative penalties. costs and fines involved in the enforcement process have been paid. The notice of compliance shall be recorded bv the Director if the notice of violation was recorded. Sec. 1.41.050 Non-Issuance of Permits. , l\.fter a notice of violation has been recorded aqainst the property pursuant to section 1.41.050. the city, Manaqer shall withhold the issuance of any permits for development upon that 9 property save for those permits necessary to correct the violation(s). A party whose permits are to be withheld shall be noticed as part of the recordation process pursuant to Section 1.41.040 and offered a hearinq pursuant to Chapter 1.40 in which to contest this decision. ~ec. 1.41.060 Reinspection Fees. AL Reinspection fees are authorized to recover citv costs when excessive time and effort becomes necessary to obtain code compliance. Reinspection fees are an appropriate method to recover costs that are disproportionatelY attributable to recalcitrant responsible parties. ~ After a notice of violation or an administrative citation is issued or an order is issued bv or under the authority of a director which requires corrective action by a responsible party. that partv will be notified that it will be liable for any reinspection fees necessary if the condition remains uncorrected. The first inspection followinq the issuance of the notice of violation. citation or order is considered part of the normal cost of enforcement and will not be charqed if the condition is then promptlv corrected. Otherwise. it will , be included as part of the costs of enforcement. 10 ~ Reinspection fees may be collected and enforced as part of the enforcement process or in combination with other administrative proceedinqs under this Chapter 1.41. provided the responsible party was notified in advance of its liability for reinspection fees under Section ~.41.060(B). Appeals. service of notice and hearinq procedures are established in Chapter 1. 40. ~. Reinspection fees will be charqedon the basis of actual staff time utilized for the inspection(s). based upon the Master Fee and rate schedule on file in the office of the City Clerk rother). Sec. 1.41.070 Cease and Desist Orders. ~ A director or code enforcement officer is authorized to issue personallY or to serve in accordance with Section 1.40.030 a written cease and desist order upon any person violatinq a provision of the Municipal Code throuqh which work is beinq performed without a permit. if required. or in violation of an issued permit. Cease and desist orders are particularly appropriate for violations of land qradinq. watercourse and water and sewer requlations and related work which alters the condition of real property or throuqh which environmental deqradatLon or pollution will continue to occur if not stopped immediately. 11