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sr-032409-7b~® ~;~Yof City Council Report Santa Monica City Council Meeting: March 24, 2009- . Agenda Item: ~''"J To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Proposed Amendments to the Santa Monica Municipal Code Chapter 1.10 Regarding Code Compliance Regulations. Recommended Action Staff recommends that the City Council approve on first reading the attached Ordinance amending Santa Monica Municipal Code Chapter 1.10 regarding code compliance regulations. Executive Summary This staff report provides information relating to the City's Code Enforcement Program, discusses the need'to amend certain sections within Chapter 1.10 of the Municipal Code in order to enhance the City's Code enforcement efforts and to give notice to the public regarding the same, and includes a recommendation that the City Council introduce for first reading the attached ordinance. The recommended changes include: 1) authorization for the recordation of any issued compliance order with the County Recorder's Office; 2) granting of prosecutorial discretion to the City Attorney's Office in pursuing Code Compliance matters; 3) clarification of the City's"ability to criminally prosecute personslparties that commit Code violations; 4) clarification of -the City's ability to-seek administrative penalties and administrative costs when faced with substantially delayed compliance with an issued compliance order; and 5) various technical clarifications. Background Chapter 1.10 is an essential part of the City's Code Compliance ordinance, which guides Code Enforcement efforts by various City departments charged with enforcing compliance with the Municipal Code. The chapter was added to the Municipal Code on May 14, 2002, in .response to the Council's directive that code enforcement be enhanced in order to protect residents' quality of life, preserve public safety, effectuate the community's aesthetic values, and promote the City's continued economic success. 1 Santa Monica Municipal Code Chapter 1.10 is designed to provide a mechanism to address serious code violations. It authorizes the issuance of a compliance order and administrative penalties for violations of Municipal Code Articles 4, 6, 7, 8, and 9 that are ongoing and correctable but relatively permanent in nature. Such violations would typically relate to building, plumbing, electrical, or other similar structural or zoning issues. Common examples .would include illegal garage conversions, substandard housing, and construction without a permit. However, compliance orders could also be issued for less common violations. If the violation is corrected timely, no further action would occur. If not, the City would set the matter to be heard by a hearing officer. Any person who objects to the decision of the hearing officer has the right to seek judicial review. Discussion City legal staff recommends -the following updates to Chapter 1.10 to clarify and enhance enforcement rights by the City S.M.M.C 1.10.030 In order to properly notify all current and future interested parties of a pending Code violation at a particular property and to aid code enforcement efforts, staff recommends amending the Municipal Code to authorize the recordation of any compliance order issued against a property with the County Recorder's office. As soon as the violations identified in the compliance order are abated at the property, the amendment would require the City to remove the recordation or record a notice of satisfaction of the compliance order. Notably, the California State Attorney General has opined that such a recordation ordinance is lawful and does not conflict with State law. (See 63 Ops. Cal. Atty. Gen. 905 (1980).) Staff believes this amendment is a particularly useful tool to inform and protect the public, in light of the fact that substantial property transactions occur within the City, and 2 that without recordation, subsequent buyers or lenders may be unaware of an outstanding compliance order when a transaction is consummated. Staff further believes recordation would encourage responsible parties to promptly comply with an issued compliance order. While staff believes that the City's broad police powers may already provide the legal authority to undertake such recordation even without this amendment, having this amendment would serve the benefit of clearly notifying the public of how the City will exercise its police powers when enforcing its Code. This amendment would also alleviate any potential future concerns by the public that the City may be acting outside of its enforcement authority when it engages in recordation because there is no specific Municipal Code authorization for recordation. S.M.M.C. 1.10.060 Staff recommends amending S.M.M.C. 1.10.060 to provide the City Attorney's Office with a choice, when faced with non-compliance with an issued compliance order, of criminal prosecution of the responsible persons and/or parties, in addition to or in lieu of, proceeding with an administrative hearing. Criminal prosecution of Code violations is already authorized pursuant to S.M.M.C. 1.08.010. This addition would bring Code enforcement efforts in harmony with S.M.M.C. 1.08.010 and it would serve to provide an additional level of notice to the public of this potentially serious consequence for non- compliance. Having the choice of criminal prosecution provides greater Code enforcement options and flexibility to the City. The criminal justice system provides remedies, such as jail time, that are unavailable in the administrative context. That system also operates at a faster pace than the administrative system. Accordingly, criminal prosecution can be a more effective tool in bringing about compliance in certain instances, such as when time is of the essence or when the Code violations present significant and imminent threats to the health and safety of the public. 3 Staff further recommends amending S.M.M.C. 1.10.060 by granting the City Attorney's Office prosecutorial discretion on whether to proceed with an Administrative Hearing and/or criminal prosecution on any particular Code compliance matter. The United States Department of Justice has described prosecutorial discretion as "the authority that every law enforcement agency has to decide whether to exercise its enforcement powers against someone:" .Courts have long recognized that prosecutorial discretion applies in the civil, administrative arena just as it does in the criminal context. In this context, it would provide the City Attorney's Office with greater flexibility in allocating City resources to achieve the City's Code compliance goals and thereby effectuate local law and policy. Staff further recommends amending S.M.M.C. 1.10.060 by adding language to inform the public of the City's right to proceed with a scheduled hearing, even if full compliance is achieved after service of the written notice of hearing, in order to seek administrative penalties and administrative costs. Staff believes that this right currently exists and is implied under the current Code;. but finds that it would be helpful to clearly inform the public of the City's ability to exercise this enforcement option. Availability of this enforcement option is particularly helpful to gain early compliance and prevent any person from timing the Code enforcement system by waiting until a hearing is scheduled before remedying the code violations identified in an issued compliance order. S.M.M.C. 1.10.130 Staff recommends amending S.M.M.C. 1.10.060 to provide clearer guidance regarding the options that the City may undertake. to compel compliance with an administrative order from a Hearing Examiner. More specifically, even without this proposed amendment, criminal .prosecution of any person who refuses to comply with an administrative order could be initiated pursuant to S.M.M.C. 1.08.010. Nonetheless, 4 inclusion of the proposed text amendment would provide an additional level of notice to the public of this potentially serious consequence for non-compliance. S. M.M.C. 1.10.150 Staff recommends amending S.M.M.C. 1.10.150 to correct a typographical error. This section currently references S.M:M.C. 1.09.180; however, it was, and is, intended to reference S.M.M.C. 1.10.180. S.M.M.C. 1.10.240 Staff recommends repealing S.M.M:C. 1.10.240 because the recommended amendments to S:M.M.C. 1.10.130, as discussed above, incorporate the function served by S.M.M,C. 1.10.240, thus making it duplicative. Financial Impacts & Budget Actions There are no financial impacts associated with the adoption of the proposed ordinance. Prepared by: Yibin Shen, Deputy City Attorney 5 Approved: Forwarded to Council Council Meeting: March 24, 2009 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA UPDATING CHAPTER 1.10 OF THE SANTA MONICA MUNICIPAL CODE TO CLARIFY CODE ENFORCEMENT RIGHTS AND EFFORTS BY THE CITY WHEREAS, the City of Santa Monica is committed to protecting its residents', businesses' and visitors' health, safety, welfare, and quality of life; and WHEREAS, the City is also committed to preserving aesthetic qualities and charm which enrich residents' lives and attract visitors; and WHEREAS, effective code enforcement is vital to effectuatioh of these commitments; and WHEREAS, achieving effective code enforcement in Santa Monica is complicated by various factors including the City's unusual density (11,200 persons per square mile), its age, its diversity of structures, and the variety of sometimes conflicting activities and land uses. occurring within the City's eight square miles; and WHEREAS, the City has a broad array of regulations and permit requirements governing the use of land in the City; and WHEREAS, code enforcement is the method by which the City assures that the use of land continues to comply with the laws and policies adopted by the City Council; and 1 WHEREAS, it is critical that the City have a full range of remedies available to protect the community, ensure compliance with local law and, vvhere necessary, penalize violators for the failure to comply with these laws; and WHEREAS, enforcement of this Code and conditions on entitlements are matters of local concern and serve important public purposes; and WHEREAS, recordation of uncorrected Code violations is an effective means of providing notice to interested parties and to the public, and to ensure prompt compliance with this Code; and WHEREAS, the California State Attorney General has opined, in 63 Ops. Cal. Atty. Gen. 905 (1980), that recordation of uncorrected Code violations is lawful and consistent with State law; and WHEREAS, enabling the City to seek administrative costs and penalties when faced with unduly delayed compliance would encourage early correction of Code violations and allow the City to recover costs it incurred to gain compliance; and WHEREAS, criminal prosecution is an effective means of gaining prompt compliance and is particularly appropriate for certain types of cases, such as cases where time is of the essence or where the health and safety of the public is being placed at significant and imminent risk by ongoing Code violations; WHEREAS, criminal prosecution of responsible persons andlor parties who refuse to comply with the administrative order of a Hearing Examiner is an important and effective tool for gaining prompt compliance of uncorrected Code violations, 2 WHEREAS, enabling the City to exercise prosecutorial discretion does not lessen the City's commitment to enforce its Code, nor is it an invitation to violate or ignore the law, but a means to effectively use the City's resources in a way that best accomplishes the City's mission of administering and enforcing its Municipal Code. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Section 1.10.030 of the Santa Monica Municipal Code is hereby amended to read as follows: 1.10.030 Compliance order. (a) Whenever the City Official determines that a violation of any provision of this Code, or other provisions asset forth in Santa Monica Municipal Code Section 1.08.010(c), within the City Official's responsibility is occurring or exists, the City Official may issue a written compliance order to any person responsible for the violation. (b) A compliance order issued pursuant to this Chapter shall-contain the following information: . (1) The date, approximate time and location of the violation; (2) The section of this Code violated and a description of the violation; (3) The actions required to correct the violation; 3 (4) The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved. No administrative penalty shall be imposed for violations of City building, plumbing, electrical or structural codes or provisions of the City Zoning Ordinance unless the responsible party has been provided a reasonable period of time to correct the violation before imposition of the penalty, except in those cases in which there is an immediate danger to health or safety. (5) Either a copy of this Chapter or an explanation of the consequences of noncompliance with this Chapter and a description of the hearing procedure and appeal process to the responsible party. (c) If compliance with an issued compliance order is not achieved within the time period prescribed by the order at issue, the City Official may file and record a Notice of Compliance Order in the Office of the County Recorder to certify that: (i) the subject property is being maintained in violation of the Municipal Code and/or applicable statue, rule, code and regulation; (ii) penalties, including liens, special assessments. and/or other penalties, may be imposed; and (iii) the property owner has been so notified. (d) Whenever the Citv Official determines that the Compliance Order has been fully complied with, including correction of all identified violations payment of all penalties, and satisfaction of all other requirements imposed by the Compliance Order, and if a compliance order has been recorded pursuant to sub-section (c) the City 4 Official shall cause the removal of the recordation of the applicable compliance order or file and record a Notice of Satisfaction of Compliance Order certifying that the violation(s) of the Municipal Code at the subject property which caused the issuance of the compliance order has been corrected. Section 2. Section 1.10.060 of the Santa Monica Municipal Code is hereby amended to read as follows: 1.10.060 Hearing. (a) If the City Official determines that all violations have been corrected within the time specified in the compliance order, no further action shall be taken. (b) If full compliance is not achieved within the time specified in the compliance order, the City Official shall advise the City Attorney's Office which shall mav, consistent with well established principles of prosecutorial discretion schedule a hearing before the Hearing Examiner and/or pursue criminal prosecution of the responsible persons and/or parties as authorized by Section 1.08.010. (c) The Gity Attorney's Office shall cause a written notice of the hearing to be served on the violator and, where real property is involved, a notice of hearing shall be served on the property owner at the address as it appears on the last equalized County assessment roll available on the date the notice is prepared. (d) If full compliance is achieved after service of the written notice of the hearing, the City Attorney's Office mav, nonetheless continue to proceed with the 5 scheduled hearing before the Hearing Examiner in order to seek Administrative Penalties as authorized by Section 1.10.110 and Administrative Costs as authorized by Section 1.10.120. Section 3. Section 1.10.130 of the Santa Monica Municipal Code is hereby amended to read as follows: 1.10.130 Failure to comply with administrative compliance order Failure to comply with the administrative order of the Hearing Examiner, including failure to pay the assessed administrative penalties and pay administrative costs specified in the administrative order ^* *"° u^~~ ^^ ~~^^,~^^• may be enforced as: (a) A personal obligation of the violator; and/or (b) If the violation is in connection with real property, a lien or special assessment upon the real property. The lien or special assessment shall remain in effect until all of the administrative penalties, interest and administrative costs are paid in full-; and/or (c) An infraction which shall be punishable by a fine not exceeding two hundred fifty dollars, or a misdemeanor, which shall be punishable by a fine not exceeding one thousand dollars per violation or by imprisonment in the County Jail for a period not exceeding six months or by both such fine and imprisonment as authorized by Section 1.08.010. 6 Section 4. Section 1.10:150 of the Santa Monica Municipal Code is hereby amended to read as follows: 1.10.150 Recovery of administrative civil penalties. The City may collect the assessed administrative penalties and administrative costs by use of all available legal means, including recordation of a lien pursuant to Section 1.108.180 or imposition of a special assessment. pursuant to the procedures established in Section 8.96.190(1). Section 5. Section 1.10.240 of the Santa Monica Municipal Code is hereby repealed. Section 6. Any provision. of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance,, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. Section 7. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. 7 Section 8. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: MAR HA JO MOU RIE City orney 8