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HomeMy WebLinkAbout2008-02-12 - AGENDA REPORTS - URGENCY ORD ABATE EXPENSES (2)Agenda Item: . 9' CITY OF SANTA CLARITA AGENDA REPORT CONSENT CALENDAR City Manager Approval: Item to be presented by: Carl Newton DATE: February 12, 2008 SUBJECT: URGENCY ORDINANCE FOR AN AMENDMENT OF SANTA CLARITA MUNICIPAL CODE SECTION 1.01.260(A) REGARDING NUISANCES: RECOVERY OF ABATEMENT EXPENSES DEPARTMENT: Community Development RECOMMENDED ACTION 1) City Council adopt as an urgency ordinance an ordinance entitled "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, AMENDING SECTION 1.01.260 OF TITLE 1, CHAPTER 1.01 OF THE SANTA CLARITA MUNICIPAL CODE REGARDING NUISANCES: RECOVERY OF ABATEMENT EXPENSES" ("The Urgency Version") 2) City Council introduce and pass to second reading an ordinance entitled "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, AMENDING SECTION 1.01.260 OF TITLE 1, CHAPTER 1.01 OF THE SANTA CLARITA MUNICIPAL CODE REGARDING NUISANCES: RECOVERY OF ABATEMENT EXPENSES" ("The Non -Urgency Version"). BACKGROUND Section 1.01.260 of Title 1, Chapter 1.01 of the Santa Clarita Municipal Code currently provides that abatement expenses, including attorneys' fees, can be recovered at the conclusion of nuisance abatement actions. California Government Code Section 38773.5, subdivision (b) provides: "A city may, by ordinance, provide for the recovery of attorneys' fees in any action, administrative proceeding, or special proceeding to abate a nuisance. If the ordinance provides for the recovery of attorneys' fees, it shall provide for recovery of attorneys' fees by the prevailing party, rather than limiting recovery of attorneys' fees to the city if it prevails." In light of this statute, in 2007, a California Court of Appeal held that for a city to recover its attorneys' fee, its ordinance needed to provide �Ordinance passed to �p�e�° &AA ��� "����`� Second reading— (�tce� nalcc— �jo�j -Ul�" C, that an attorneys' fee award in an administrative hearing or nuisance abatement action would be given to the "prevailing party." City of Monte Sereno v. Padgett, 149 Cal. App. 4th 1530, 1536. Section 1.01.260 of the Santa Clarita Municipal Code provides for a party's recovery of nuisance abatement costs, including attorneys' fees, in administrative hearing and nuisance abatement actions without explicitly using the phrase "prevailing party." In order to further clarify that any party can be awarded attorneys' fees in these types of matters, the City seeks to use the precise phrase "prevailing party" under Santa Clarita Municipal Code Section 1.01.260. The adoption of this revision will ensure that no conflict is found between the local ordinance and Government Code Section 38773.5, or the Padgett holding. An urgency ordinance is requested given that there are currently actions pending, and the public health, safety and welfare require approval of this urgency ordinance to eliminate the ambiguity in the City's code to minimize the impact that may have on the City's pending code enforcement activities. In the alternative of the Urgency Version, the City Council introduces the Non -Urgency Version to eliminate any potential ambiguity in the City's code to minimize the impact that may have on the City's pending code enforcement activities. ALTERNATIVE ACTIONS _ 1. Submit and introduce an amended version of the proposed ordinance. 2. Take no action. 3. Other action as determined by Council. FISCAL IMPACT The fiscal impact cannot be determined in advance of a particular nuisance abatement action. ATTACHMENTS Urgency Ordinance Non -Urgency Ordinance ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, AMENDING SECTION 1.01.260 OF TITLE 1, CHAPTER 1.01 OF THE SANTA CLARITA MUNICIPAL CODE REGARDING NUISANCES: RECOVERY OF ABATEMENT EXPENSES WHEREAS, Article XI, Section 7 of the California Constitution authorizes the City to enact and enforce ordinances that regulate conditions which may be public nuisances or health hazards, or that promote social, economic or aesthetic considerations; and, WHEREAS, California Government Code section 38773.5 authorizes cities to pass ordinances that provide for the recovery of attorneys' fees in any action, administrative proceeding, or special proceeding to abate a nuisance; and, WHEREAS, California Government Code section 38773.5 requires that any such municipal ordinance provide for the recovery of attorneys' fees by the prevailing party; and, WHEREAS, Section 1.01.260 of the Santa Clarita Municipal Code provides for a party's recovery of nuisance abatement costs, including attorneys' fees, in administrative hearing and nuisance abatement actions without explicitly using the phrase "prevailing party." WHEREAS, the City seeks to further clarify that any party can be awarded attorneys' fees in these types of matters and to ensure that no conflict is found between the local ordinance and Government Code section 38773.5 by using the precise phrase "prevailing party" under Santa Clarita Municipal Code section 1.01.260. WHEREAS, this Ordinance must take effect immediately to preserve the public peace, health and safety. There are currently code enforcement actions pending, and the public health, safety and welfare require approval of this urgency ordinance immediately to eliminate any potential ambiguity in the City's code to minimize the impact that may have on the.City's pending code enforcement activities. WHEREAS, all legal prerequisites have occurred prior to the adoption of this Ordinance. THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council finds that all the facts, findings and conclusions set forth above in this Ordinance are true and correct. SECTION 2. That Section 1.01.260 of the Santa Clarita Municipal Code is hereby amended to read as follows: A. Whenever any person creating, causing, committing, or maintaining a public nuisance, as referred to in Section 1.01.250 of this chapter, or other public nuisance, as defined under State law or other ordinance of regulation, has been given notice, by or on behalf of the City Attorney or by any other City officer, employee or policing agent authorized to give such notice, to abate such nuisance or cease and desist from continuing such nuisance or violation of law, and such person who was given notice fails, refuses, or neglects to comply with the notice within the time specified therein, or if such a time is not specified, then within a time reasonably sufficient to enable such compliance, such noncomplying person may be liable to the City for any and all costs and expenses to the City involved in thereafter abating the nuisance and in obtaining compliance with or enforcing the law as referred to or encompassed in the said notice. In any action or proceeding in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees and costs, the prevailing party in any such civil action or proceeding will be entitled to the recovery of its reasonable attorneys' fees and costs incurred in such action or proceeding. B. Costs and expenses, as referred to in subsection A of this section may include, but are not limited to, any and all direct costs and expense related to such things as personnel salaries and benefits, operational overhead, rent, interest, fees for experts or consultants, legal costs or expenses, including attorneys' fees, claims against the City arising as a consequence of the nuisance or violation, and procedures associated with collecting moneys due hereunder. C. The provisions of subsection A of this section shall also apply to any person who received a notice, as specified therein, and thereafter the nuisance or violation was abated, but such person subsequently allowed or was responsible for a recurrence of the nuisance or violation. D. The liability of any person for the payment of the costs and expenses provided for in subsection A of this section may be waived in whole or in part by the City Attorney in any case wherein he determines, in his sole discretion, that the failure of refusal of such persons to comply with the notice therein involved was based upon a good faith and bona fide issue of law or fact specifically involved in the circumstances of the case. Any determination or decision of the City Attorney in this regard shall be final and conclusive and shall not be, subject to appeal as prescribed in Chapter 2.04 of Title 2 of this code. f E. Moneys due to the City pursuant to this section may be recovered in an appropriate civil action. Alternatively, such liability may be enforced by special assessment proceedings against the parcel of land upon which the nuisance existed, which proceedings may be conducted in a manner substantively similar to proceedings described in Sections 39574 et seq. of the Government Code of the State relating to weed abatement assessments. SECTION 3. This Ordinance is hereby declared an urgency measure pursuant to the terms of California Government Code section 36937 (b) and shall be effective immediately upon adoption by a four-fifths (4/5th) vote of the City Council. SECTION 4. The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be published as required by law. PASSED, APPROVED AND ADOPTED this day of 12008. MAYOR ATTEST: CITY CLERK STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF SANTA CLARITA ) I, Sharon L. Dawson, CMC, City Clerk of the City of Santa Clarita, do hereby certify that the foregoing Ordinance No. was introduced and adopted as an urgency measure pursuant to the terms of California Government Code Section 36937 (b) at a regular meeting of the City Council of the City of Santa Clarita on the day of , 2008, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: AND I FURTHER CERTIFY that the foregoing is the original of Ordinance No. and was published in The Signal newspaper in accordance with State Law (G.C. 40806). CITY CLERK .19 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF SANTA CLARITA ) CERTIFICATION OF CITY COUNCIL ORDINANCE I, Sharon L. Dawson, City Clerk of the City of Santa Clarita, do hereby certify that this is a true and correct copy of the original Ordinance No. adopted by the City Council of the City of Santa Clarita, CA on , 2008, which is now on file in my office. Witness my hand and seal of the City of Santa Clarita, California, this day of , 2008. Sharon L. Dawson, CMC City Clerk By Susan Caputo Deputy City Clerk ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, AMENDING SECTION 1.01.260 OF TITLE 1, CHAPTER 1.01 OF THE SANTA CLARITA MUNICIPAL CODE REGARDING NUISANCES: RECOVERY OF ABATEMENT EXPENSES THE CITY COUNCIL OF THE CITY OF SANTA CLARITA, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. That Section 1.01.260 of the Santa Clarita Municipal Code is hereby amended to read as follows: A. Whenever any person creating; causing, committing, or maintaining a public nuisance, as referred to in Section 1.01.250 of this chapter, or other public nuisance, as defined under State law or other ordinance of regulation, has been given notice, by or on behalf of the City Attorney or by any other City officer, employee or policing agent authorized to give such notice, to abate such nuisance or cease and desist from continuing such nuisance or violation of law, and such person who was given notice fails, refuses, or neglects to comply with the notice within the time specified therein, or if such a time is not specified, then within a time reasonably sufficient to enable such compliance, such noncomplying person may be liable to the City for any and all costs and expenses to the City involved in thereafter abating the nuisance and in obtaining compliance with or enforcing the law as referred to or encompassed in the said notice. In any action or proceeding in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees and costs, the prevailing party in any such civil action or proceeding will be entitled to the recovery of its reasonable attorneys' fees and costs incurred in such action or proceeding. B. Costs and expenses, as referred to in subsection A of this section may include, but are not limited to, any and all direct costs and expense related to such things as personnel salaries and benefits, operational overhead, rent, interest, fees for experts or consultants, legal costs or expenses, including attorneys' fees, claims against the City arising as a consequence of the nuisance or violation, and procedures associated with collecting moneys due hereunder. C. The provisions of subsection A of this section shall also apply to any person who received a notice, as specified therein, and thereafter the nuisance or violation was abated, but such person subsequently allowed or was responsible for a recurrence of the nuisance or violation. LA #4830-8769-8434 v1 D. The liability of any person for the payment of the costs and expenses provided for in subsection A of this section may be waived in whole or in part by the City Attorney in any case wherein he determines, in his sole discretion, that the failure of refusal of such persons to comply with the notice therein involved was based upon a good faith and bona fide issue of law or fact specifically involved in the circumstances of the case. Any determination or decision of the City Attorney in this regard shall be final and conclusive and shall not be subject to appeal as prescribed in Chapter 2.04 of Title 2 of this code. E. Moneys due to the City pursuant to this section may be recovered in an appropriate civil action. Alternatively, such liability may be enforced by special assessment proceedings against the parcel of land upon which the nuisance existed, which proceedings may be conducted in a manner substantively similar to proceedings described in Sections 39574 et seq. of the Government Code of the State relating to weed abatement assessments. SECTION 2. This Ordinance shall be in full force and effect thirty (30) days from its passage and adoption. SECTION 3. The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be published as required by law. PASSED, APPROVED AND ADOPTED this day of 52008. MAYOR ATTEST: CITY CLERK LA #4830-8769-8434 vi STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF SANTA CLARITA ) CERTIFICATION OF CITY COUNCIL ORDINANCE I, Sharon L. Dawson, City Clerk of the City of Santa Clarita, do hereby certify that this is a true and correct copy of the original Ordinance No. adopted by the City Council of the City of Santa Clarita, CA on , 2008, which is now on file in my office. Witness my hand and seal of the City of Santa Clarita, California, this day of 11: Sharon L. Dawson, CMC City Clerk By Susan Caputo Deputy City Clerk LA #4830-8769-8434 v1