sr-051110-8bCity Council Meeting: May 11, 2010
Agenda Item: ~' ~'
To: Mayor and City Council
From: Rod Gould, City Manager
Marsha Jones Moutrie, City Attorney
Subject: Enforcing Code Provisions, Permit Conditions, Deed Restrictions and
Development Agreements
Recommended Action
Staff recommends that the City Council review and comment upon the enforcement
policies and practices described in this report, endorse or revise those policies and
practices, and direct staff to continue its ongoing effort to ensure that enforcement of
code provisions, permit conditions, deed restrictions, and Development Agreement
requirements is consistent, fair, timely and effective.
Executive Summary
In Santa Monica's Council-Manager form of government, the City Council establishes
City policy, and staff effectuates it. For example, the Council adopts ordinances; and,
both the Council and City Boards and Commissions establish permit conditions. Once
such legislative and quasi-judicial decisions are made, staff has the responsibility of
ensuring they are implemented. Staff accomplishes this through a wide spectrum of
activities ranging from providing information, notice and warnings to filing lawsuits and
instituting prosecution. Usually, compliance is readily obtained. But, in all categories of
enforcement, the City encounters a relatively small number of cases in which formal
enforcement procedures must be utilized to obtain compliance with local, state and
federal requirements. Fortunately, the City Council has adopted effective local
remedies, and state law also provides a range of enforcement options.
Generally speaking, City Departments or divisions have the initial responsibility for
enforcement. Their work may be followed by a referral to the City Attorney's Office.
Thus, the two public safety Departments routinely refer to the City Attorney's Office
cases involving violations of local and state laws with penal sanctions. As to other types
of violations -- including violations of environmental laws, business license
requirements, building and zoning codes, permit conditions, and Development
Agreements -- enforcement efforts are initially undertaken and usually successfully
concluded by the responsible Department. However, at some point, if compliance is not
achieved, the case is referred to the City Attorney's Office, which works with the
Department and pursues the remedy appropriate to the case.
Over the years, the non-safety Departments have developed protocols for enforcement
and for utilizing the procedures adopted by the Council. Sometimes, stumbling blocks
impeded progress. These included: inadequate enforcement resources; staff changes in
high level positions; occasional reluctance, perhaps arising from the perception of a
mixed message from Council or City management on the City's commitment to
enforcement; a lack of priority on proactive enforcement of certain laws causing some
property owners to rely on a history of non-enforcement; and, in one category of cases,
an unfortunately heavy-handed use of enforcement authority, which drew criticism that
engendered qualms about enforcement. However, difficulties. and mistakes provided
learning opportunities. Key positions have been filled. And, procedures have been
improved. Today, enforcement work is much better organized and more effective than
in past years; and improvements continue. Staff seeks Council's review, direction and
endorsement to ensure a uniform and ongoing commitment to this effort.
Background
Early Efforts at Code Enforcement
The City's present enforcement tools and practices have evolved and improved over the
last ten years. During the 1990's, enforcement of code requirements and permit
conditions was almost entirely complaint driven, very few cases were referred to the
City Attorney's Office, and almost all code enforcement was limited to multiple written
warnings without any subsequent legal action. Except for Building Code requirements
relating to life safety, proactive enforcement tended to occur mainly if directed by
Council. For instance, in the late 1990's Council members received many complaints
related to automobile repair shops. This resulted in staff undertaking enforcement
against a number of businesses. They in turn complained to Council because the laws
had gone unenforced for so long that the business operators had come to rely upon a
status quo of nonenforcement. Ultimately, Council dealt with this set of issues by
reviewing the law, making changes in some provisions and reaffirming others. This
provided ample notice and a sound policy platform on which to undertake future
enforcement.
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Based on this experience, staff formulated the practice of notifying Council in advance
of beginning proactive enforcement efforts with regard to older laws that had long gone
unenforced. This practice affords ample opportunity for Council to publicly consider
whether it wishes to make adjustments in policy before property and business owners
are required to take action or change behaviors.
The Council's Direction To Improve Enforcement
In November of 1999, when Council reviewed and updated the law regulating
automobile repair shops, it also directed staff to explore means of enhancing code
enforcement efforts by researching enforcement systems including penalties and cost
recovery. This direction is reflected in the findings for Ordinance No. 2043, which
established the City's current administrative remedies.
On June 19, 2001, staff reported in an Information Item that iYwas prepared to "initiate a
new approach to enforcement" consisting of "a combination of education, proactive
investigation (both targeted and random patrol) and complaint investigation to maximize
enforcement resources." One week later, staff recommended that the Council authorize
a contract for services to bolster the City's ability to undertake inspections and code
enforcement. In its staff report of June 26, 2001, staff explained that complaints
received had risen in the past year from 1380 to 2343 for FY 00/01 and that the backlog
of cases had grown to over 450. Accordingly, Council approved contracts for temporary
assistance, one of which has been extended and remains in effect.
At the same time and as part of the research undertaken to effectuate the Council's
direction to improve code enforcement, the Building Officer and Senior Land Use
Attorney traveled to San Jose to review that City's code enforcement system, which was
known throughout the State as particularly effective. As a result, in 2002 the Council
adopted sweeping code revisions that created local enforcement mechanisms similar to
San Jose's. Those mechanisms, which are described below, include provisions for the
issuance of citations and compliance orders and administrative review procedures.
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The following year, Council approved the imposition of fees to fund systematic
inspections and enforcement to ensure compliance with permit conditions, including
CUP conditions. See SMMC Section 2.72.010.
The City's Struggles With Enforcement Issues And Receipt Of The Matrix Report
Despite these changes in law to facilitate enforcement, the City continued to struggle
with enforcement issues in the areas of code and permit enforcement, partly because of
the massive workload that resulted from increased development within the City and
sometimes overwhelmed the resources available to the Planning and Community
Development Department (PCD). Ultimately, an item appeared on the December 16,
2003 Council agenda entitled "Recommendation of the Planning Commission that the
City Council direct a performance audit of the Planning Department."
Partly in response to this recommendation, the then City Manager recommended and
Council approved a contract with Matrix Consulting Group to "evaluate the City's permit,
plan check, and inspection process and the code enforcement process." Staff Report,
March 9, 2004. The Matrix Report was prepared, and on July 13, 2004 the City
Manager submitted it to an unusual joint meeting of the City Council and Planning
Commission, which was convened to consider the report and its subject. The
Manager's Staff Report summarized some of the Report's recommendations, which
were related to administration and operational issues but not to code enforcement. On
October 26, 2004, the Manager submitted a second staff report. It summarized certain
policy recommendations related to the work of Boards and Commission and to
customer service but did not address code enforcement.
Though they were not the focus of the report submitted to Council, the Matrix Report
included a detailed analysis, findings and recommendations on code enforcement.
They included that: (1) the staffing levels in the Code Compliance section were
adequate to the workload; (2) code compliance staff should prepare monthly reports to
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show lapsed time between complaints and site visits; (3) inspectors were required to
spend too much time in the office and not enough in the field; (4) the supervisor should
enhance case management to assure consistency in meeting enforcement timelines;
and (5) code compliance should provide a quarterly performance report to the Planning
Director.
The Hedge Height Controversy And Further Improvements To Enforcement
Reasons that the Matrix Report included that they were seen as addressing operational
(rather than policy) issues and recommendations regarding code enforcement were not
discussed by Council may have been that the entire subject of enforcement became
controversial following problematic enforcement of a local law regulating the height of
walls, fences and hedges. This controversy ignited after the City sent out notices to
property owners stating that the penalties for code violations included huge fines and
even prosecution. In fact, while such penalties could be imposed for major violations,
such as those threatening life safety, local law did not authorize them for minor
violations, like hedge violations.
The City responded to the complaints about the notices by revising the text of the notice
so that it would accurately reflect the penalties for a particular violation as opposed to
the possible penalties for the most serious violations. Like the earlier controversy about
auto repair shop enforcement, this experience provided an opportunity to learn from
mistakes and improve the City's enforcement practices.
Despite the hedge controversy, staff continued to improve enforcement practices. In
2005, the Interim Planning Director, the Development Services Officer (whose duties
included overseeing implementation of the Matrix Report), and the Building Officer
provided a detailed report to Council on enforcement by a staff report dated October
11t". Among other things, staff reported that it had initiated referrals to the City
Attorney's Office for hearings and pre-hearing conferences with very good results.
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During the next couple of years, the pre-hearing conference process was successfully
utilized by the Building & Safety Division and the City Attorney's Office to resolve a very
large complaint backlog, numbering hundreds of cases. This relatively informal process
was effective for almost all cases. However, there was a small but troubling class of
cases, for which the informal conference process proved ineffective because owners
simply refused to cooperate. For this class of cases, formal administrative hearings and
court proceedings were required.
To address these intractable cases, legal staff began searching for new remedies and
identified receivership as one good option for the small number of acutely neglected
properties within the City. One of the earliest cases in this category was brought by the
City to end a ten year struggle to force the owner of a slum property to comply with
basic building and other life-safety standards. That case led to a legal challenge to one
of California's receivership statutes, which was ultimately favorably. decided in the
California Supreme Court.
Mid-way through the decade, staff also initiated efforts to monitor compliance with
permit conditions. The Staff Report .dated October 11, 2005 states that a permit
compliance monitoring program had been initiated in February of 2004 but was
suspended in October 2004, "due to staffing shortages." Staff reported that 484 sites
had been inspected, that the use related to the permit was not in place on half the sites,
and that, as to the remainder, 95 percent were in compliance.
Along with staffing shortages, staff changes also probably impacted enforcement during
this period. Within the span of two or three years, the City Manager retired, and the
Planning Director and Building Officer both left for other cities. By the time all three of
those positions were filled (or covered in the case of the Building Officer), the City's
focus had, of necessity, shifted to expediting the LUCE process.
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Recent Improvements
In 2008, the City Council received complaints that the owner of The Arboretum was
violating affordable housing requirements imposed by its Development Agreement with
the City by, among other things, failing to effectuate deed restrictions. Pursuant to the
Development Agreement, the project included 97 deed-restricted units (45 for low-
income and 52 for moderate-income households.) Housing staff conducted full audits
as to both The Arboretum and The Sea Castle, which have the same owner, and
provided an Information Item to the City Council in Januan! of 2009. As a result of the
investigation, the City filed a lawsuit involving The Arboretum to ensure compliance with
affordability restrictions and other requirements. This was the City's first lawsuit to
effectuate deed restrictions and apparently one of the first in the state. At present, a
settlement is being finalized. It will bring both The Arboretum and The Sea Castle into
compliance with housing requirements and ensure the City's ability to enforce housing
obligations as to both properties in the future.
Last year, staff recommended and the Council approved additional Municipal Code
amendments to strengthen remedies available to achieve code compliance. Among
other things,. these amendments authorized the recordation of compliance orders
against subject properties, clarified that prosecution is one means of obtaining
compliance, and clarified the City's authority to .seek administrative penalties and costs
in cases where a property owner fails to timely comply with a lawfully issued order.
Also on March 24, 2009 the Housing Division proposed and Council adopted new
Administrative Guidelines for the Affordable Housing Program. Among other things,
these guidelines require owners of newly-constructed, deed-restricted units to use the
City's waiting list in selecting tenants. This process helps ensure that tenants will be
income-qualified.
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Overall, over the last ten years, the City has significantly enhanced the mechanisms for
achieving compliance with code requirements and has implemented the use of those
remedies. The Building & Safety and Housing Divisions began referring enforcement
cases to the City Attorney's. Office. Through both informal and formal proceedings,
previously intractable cases have been resolved. Additionally, the City successfully
addressed a huge backlog of code enforcement cases, instituted use of and
successfully defended the state remedy of receivership, used that remedy in a number
of cases, instituted proactive monitoring of compliance with deed restrictions, and filed
litigation to enforce affordable housing requirements. Perhaps most important, the City
has filled key management and supervisory positions with oversight responsibilities for
enforcement.
Discussion
The City's Administrative Enforcement Procedures
The enforcement processes adopted by the Council in 2002, together with state and
other local remedies, afford the City excellent and comprehensive legal mechanisms to
achieve compliance with. code requirements, permit conditions, housing exactions, and
requirements imposed by Development Agreements.
Municipal Code Chapter 1.09 establishes the administrative citation process, which
"applies to discrete and transitory or easily remediable violations of the Code" and "does
not apply to continuing violations ... that pertain to building, plumbing, electrical or other
similar structural or zoning issues." Section 1.09.010. This chapter gives various City
enforcement officers; working in several City Departments, the authority to issue
administrative citations. The citation specifies the date of the violation, the address or
description of the location, the section of the code violated and a description of the
violation, the amount of the fine, a description of the fine payment process, an order
prohibiting the continuation or repeated occurrence of the violation, a description of the
process for contesting the citation, and the name and signature of the citing officer.
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Fines are proportionate to the nature of the violation, and their amounts are set by
Council resolution. Payment must be made within 30 days; and the amount paid is
refunded if the citation is overturned. The person cited may obtain review by filing a
hearing request with the City Clerk and either depositing the fine or seeking and
obtaining a hardship waiver from the Finance Department pursuant to the Municipal
Code.
The Code specifies that appeal hearings for administrative citations are conducted by
City staff members, including the Building Officer, Zoning Administrator, Fire Marshall,
the Department or division head of the Department that issued the citation, or a qualified
Hearing Examiner. In lieu of a hearing, the appellant may request a "paper review",
which is a review of the documentary evidence. Hearings are scheduled not less than 5
or more than 30 days. after the hearing is requested. After the hearing, the hearing
officer issues a written decision. It upholds or cancels the citation and explains the
reasons for the decision. The decision must be issued within 30 days of the hearing's
conclusion. Any person aggrieved by the hearing decision may seek judicial review.
The other administrative enforcement system established by the Council in 2002 is
based upon the issuance of Compliance Orders and the imposition of penalties. This
system is used for violations that are more serious and are anticipated to take some
time to remedy.
A Compliance Order may be issued by a "city official" including, but not limited to the
Fire Marshal, the Building Officer, the Zoning Administrator, the City Engineer or the
head of any Department charged with responsibility for enforcement of the code or
his/her designee. The Order sets forth some of the same basic information as a
citation: the date, time, location of the violation, a description of the violation along with
a reference to the Code section violated, and notice of the consequences of
noncompliance and a description of the appeal process. The Order also specifies the
actions required to correct the violation and a reasonable time period allowed for.. the
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correction after which administrative penalties will begin to accrue if compliance is not
achieved. Except in cases where there is an immediate danger to health or safety,
Section 1.10.030 prohibits the imposition of penalties for violations of the building,
plumbing, electrical or structural codes or provisions of the zoning ordinance unless the
responsible party has been afforded a reasonable period of time to correct the violation.
Thus, while an administrative citation requires the violator to stop an illegal action and
imposes a fine for that action, a Compliance Order directs the violator to bring the
property into compliance within a specified time and imposes penalties for failing to do
so.
The recipient of the Compliance Order may request a hearing. Compliance Order
hearings are conducted by independent hearing examiners, who are prescreened for
qualifications, and randomly selected from a list maintained by the City Attorney's Office
in the manner required by state law, which ensures fairness. These hearings are
significantly more formal than those involving administrative citations. For instance,
testimony is given under oath, and the proceedings are recorded.
Within 30 days after the hearing, the Hearing Examiner issues a written decision,
including written findings supported by the evidence: If the Hearing Examiner
determines that a violation has occurred, he/she issues an order to correct the violation,
including a time schedule and also imposes penalties and costs. The amount of any
penalty is set by the code according to the class of violations, with more serious
violations carrying higher penalties. The penalty amounts established by Section
1.10.110 range from a low of $100 for Level D violations up to a high of $25,000 per day
for violations that present a substantial probability of death or serious physical harm.
(Of course, in the event of life-threatening conduct, it is actually unlikely that the City
would use this enforcement mechanism; it is much more likely that the City would either
immediately seek an injunction and/or undertake criminal prosecution.)
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In addition to specifying a range of penalties for each level of violations, Section.
1.10.100 sets forth the standards that the Hearing Examiner must utilize in setting the
penalty: They include, among other things: the seriousness, duration, impact and
history of the violation; its frequency or recurrence; and the responsible party's efforts to
come into compliance. The decision of a Hearing Examiner is subject to judicial review.
The failure to comply with hearing decisions about administrative citations and
compliance orders is a crime. Thus, the City may obtain compliance with the
administrative decision through prosecution, a civil action or the imposition of a lien or
special assessment against the property. Section 1.10.130
Together with state law, these two mechanisms -- administrative citations and
compliance orders -- provide the City with excellent tools for enforcing local law. Most
important, when Council adopted these procedures, it ensured that their scope is much
broader than standard code enforcement. Thus, the 2002 ordinance creating these
procedures provides that administrative citations and compliance orders may also be
used to enforce "anv condition or requirement imposed on or by anv entitlement, permit,
contract, or environmental document issued or approved by the City." SMMC Section
1.08.010(c)(2). This language ensures that, for instance, compliance orders could be
issued to mandate compliance with the terms of recent Development Agreements and
conditions of discretionary permits. And, other remedies are available for achieving
compliance with the City's older Development Agreements.
Thus, given the availability of criminal and civil judicial remedies and local administrative
remedies, there is no doubt that the City has the legal authority and the legal means to
enforce all types of City requirements.
The City's Enforcement Practices
Enforcement is a routine and necessary component of the City's daily effort to protect
and enhance the community's health, safety and welfare. The City's public safety
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departments, Police and Fire, routinely and successfully utilize enforcement systems
established by state and local law every day. Thus, Santa Monica police officers issue
citations; make arrests, and refer cases to the District Attorney and to the City Attorney
for prosecution. Police personnel also participate in some types of administrative
enforcement, including noise and sign enforcement, particularly on the Third Street
Promenade. Likewise, Fire Department personnel utilize the criminal justice system
and also issue administrative citations to enforce provisions of the California Fire Code
and other laws. For example, the Fire Department acts as the local Certified Unified
Program Agency (CUPA), implementing state requirements that ensure compliance with
environmental and emergency response standards applicable to, among other things,
tanks containing hazardous materials. If compliance cannot ultimately be achieved
through administrative processes, individual cases may be referred to the City
Attorney's Office for prosecution. Thus, the combination of excellent public safety
departments and in-house prosecution has, for decades, ensured that the City has the
means necessary to protect community safety and quality of life.
In addition to Police and Fire, several other City Departments or divisions have
significant enforcement workloads; and they successfully achieve compliance with state
and local requirements through a combination of education, notification, and, if
necessary, administrative and judicial enforcement. For instance, the Office of
Sustainability and the Environment (OSE) has had noteworthy success in its programs
to effectuate state and local environmental protections, including water conservation
and urban runoff requirements. OSE routinely issues citations and conducts hearings.
Similarly, Public Works enforces laws protecting public rights of way, including local
laws regulating the placement and design of newsracks; and the Business License
Division enforces business license requirements. And, of course both PCD and the
Housing Division have significant enforcement responsibilities. Thus, counting the
safety departments, there are at least seven City Departments with enforcement
responsibilities that are discharged through the use of both administrative and judicial
remedies.
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The City Attorney's Office provides support to all of these departments. This assistance
consists mainly of answering questions about enforcement and providing other advice
and support. In a small percentage of non-criminal enforcement matters, City
departments or ofFices cannot achieve compliance through education and administrative
procedures. These cases are referred to the City Attorney's Office for additional work.
Some of the referrals involve appeals of administrative orders, and many of these can
be resolved through office conferences conducted in advance of hearings. Others --
generally the most challenging -- are resolved through court proceedings. Classes of
cases requiring court proceedings have included those in which the property owner has
taken the case to hearing and then ignored the hearing decision and those involving
severe nuisances in which the owner refuses to bring a grossly substandard property
into conformity with legal requirements.
Most questions about enforcement involved enforcement of housing obligations and
land use- requirements. Therefore, additional informatiori is supplied about those
activities.
Inclusionary Housing Monitoring and Enforcement.
The Housing Division actively monitors compliance with inclusionary housing
requirements by investigating complaints and by requesting and reviewing annual
compliance reports. The annual reports document current rents and occupants'
incomes. If a report is either incomplete or indicates noncompliance, or if no report is
submitted, Housing Division staff contacts the owner or management firm. If this effort
is unavailing, after three notices, the case is referred to the City Attorney's Office. Once
the matter is referred, the property owner usually provides a complete response. If not,
the City Attorney's Office takes action to compel compliance.
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Reports filed for 2008 showed that 36 out of 106 properties were in compliance.
Owners or managers of 23 properties did not submit reports, and a list of those
owners/managers was provided to the City Attorney's Office, which assisted by
enforcing the reporting requirement. Reports for another 47 properties failed to
demonstrate compliance, either because the reports were incomplete or appeared to
indicate noncompliance with income qualifications or rent restrictions. Housing staff is
working with the owners/managers of those properties. If compliance is not achieved,
individual cases can be referred to the City Attorney's Office.
In addition to reviewing the annual reports, staff physically inspects all units occupied by
households participating in the rental subsidy programs to ensure compliance with
federal housing quality standards. About 20 percent of the City's rental subsidy
households reside in inclusionary units; so 267 of the 861 inclusionary units are
physically inspected annually.
Recent activity in the realm of enforcing affordability requirements includes staffs work
on The Arboretum, The Sea Castle and The Dorchester. All three of these efforts were
complaint driven. After the Council received complaints that the owner of the Arboretum
was failing to comply with requirements imposed by the Development Agreement
governing the property, staff investigated; and the City Attorney's Office instituted
litigation. As of the writing of this report, it is anticipated that the case will settle very
shortly and that the terms of the settlement will better ensure future compliance with
affordable housing requirements and tenant protections at both The Arboretum and The
Sea Castle. As to The Dorchester, information received in a complaint indicated and
staffs investigation confirmed that some of the affordable units are not rented to
income-qualified tenants. The matter is being handled by the City Attorney's Office and
formal legal action appears likely.
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In the wake of these complaints and the questions they raised about enforcement,
Housing staff is in the process of assessing its monitoring and enforcement processes
and has reached a preliminary conclusion that additional staffing resources are likely
necessary to enhance compliance with deed restrictions. Staff is considering a proposal
for a monitoring fee to cover these additional costs.
Development Agreement Compliance Monitoring
Though both local and state law have, for many years, required the Council to annually
determine compliance with Development Agreements, the City's older Development
Agreements do not contain adequate provisions relating to compliance determinations.
In more recent years, the language has been greatly improved. This .facilitates
enforcement of the newer agreements. And, if necessary and as opportunities arise,
staff will obtain amendments to the older agreements.
Additionally, PCD has undertaken a program to comprehensively monitor compliance
with requirements of all Development Agreements. As part of this work, staff has
established a master list containing. basic information about each Development
Agreement: contact information regarding the developer and its representatives: the due
date for each annual compliance report; and the status of review of the report. Staff has
also prepared a spreadsheet for each Development Agreement showing the term of
each agreement, compliance requirements, actions the development has taken to fulfill
each requirement, the City Department responsible for monitoring, and the status of
compliance for each agreement. Additionally, staff has devised a system for reminding
developers of the due dates on compliance reports.
When reports are submitted, staff compares the contents of the report to the list of
requirements on the spread sheet. Staff pays particular attention to the developer's
ongoing obligations, such as the provision of childcare programs, open. space
management requirements, and the provision of parking for the public. As part of staffs
review, site visits are conducted if necessary to determine compliance.
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Following completion of the compliance report review, staff sends follow-up letters to
either require compliance with specific terms of the Agreement or to advise the
developer that staff has made a preliminary finding of good faith compliance and intends
to recommend to Council that it make such a finding in conjunction with the annual
review of good faith compliance required by state and local law. If the review shows
that the developer is not in compliance, Planning staff will supply that information to
Council in the annual report and also refer the matter to the Code Compliance Division
for enforcement action. Ultimately, the matter can be referred to the City Attorney's
Office for additional action.
In addition to the annual review of compliance reports, periodic monitoring of
Development Agreements also occurs at several stages of projects. Obviously, various
inspections occur during construction and at issuance of the Certificate of Occupancy.
After construction is complete, the owner may request an estoppel certificate in
conjunction with a financial or real estate transaction; and this request could also trigger
a compliance review. Similarly, requests for conformance determinations are routinely
submitted by lenders and appraisers, and these may trigger compliance review.
Going forward, as new Development Agreements are executed, information will be
logged into the Development Agreement Master List to facilitate tracking compliance;
and staff will create a monitoring spreadsheet for each project showing the
requirements imposed by the particular agreement. These improvements will facilitate
future compliance assessments and will better enable Planning staff to bring
compliance information to Council so that it can annually determine good faith
compliance.
Enforcement of Discretionary Permit Conditions
As noted above in the section supplying background, a monitoring and inspection effort
was previously undertaken as to permits issued before 2005. Recently, PCD has
established new processes and procedures for enforcing conditions of discretionary
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permits. The track database established by Planning staff will provide an effective tool,
newly approved projects will be entered into the database, conditions of approval will be
given to Code Compliance staff, and an inspection schedule will be generated.
Additionally, Building & Safety is currently reviewing discretionary permits approved
from 2005-2009. One and a half Code Enforcement Officers have been assigned to this
work, which is ongoing.
Code Enforcement
The Code Compliance Unit within Building & Safety handles a large volume of cases,
which is estimated at over 2,000 annually. The vast majority are successfully resolved
through education, warnings, citations and orders. Only about 5% of cases need to be
referred to the City Attorney's Office. Of these, about sixty per year involve compliance
order disputes, many of which are resolved through an office conference procedure
conducted in advance of a hearing. Only a few cases proceed to hearing, and as to that
small group, the stafFs experience has been that appellants may simply ignore adverse
decisions. If so, the matter is referred to the Criminal Division for prosecution.
Another group of referrals involves citations issued by Building & Safety, some of which
are unpaid and some of which are issued repeatedly to the same violator and paid each
time (so the violator is merely treating the fine as a cost of doing business and ignoring
the legal requirement). Both of these classes of cases go directly to the Criminal
Division for prosecution.
Thus, staff in the Building & Safety Division and the City Attorney's Office actively and
successfully utilize the administrative remedies adopted by the City Council in 2002 for
code enforcement; and, criminal enforcement is available as a fall back in the extremely
small class of cases involving intractable noncompliance. This collaborative effort has
been enhanced in the last two years with the assignment of a Deputy City Attorney to
code compliance. He works with compliance officers from all City Departments,
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handles appeals of citations and orders, and initiates court actions when necessary.
The success of this work indicates that the same procedures utilized for code
enforcement will work well for enforcing permit conditions and Development Agreement
requirements.
Conclusions
Based on the foregoing, it is apparent that the City has the legal tools, expertise, and
experience necessary to obtain compliance with requirements imposed by the Municipal
Code, discretionary permits, deed restrictions and Development Agreements. This is
demonstrated both by the local laws establishing administrative remedies, and by the
fact that the City has done excellent enforcement work in the field of public safety for
decades and has achieved successes in the areas of environmental protection,
affordable housing and code enforcement in recent years.
In the past, there have been impediments to effective code enforcement and
enforcement of permit conditions, deed restrictions, and Development Agreements. At
various times, the impediments included staff turnover and inadequate resources.
Today, key positions have been filled. However, there are still resource limitations that
impact enforcement work. Additional fees provide resources for enhancing enforcement
work; staff will explore that possibility.
Meanwhile, PCD will, of necessity, continue to prioritize its enforcement work. In
addition to continuing to respond to complaints, PCD is committed to undertaking
proactive enforcement, focused first on life safety issues and also on conditions of
discretionary permits. And, this coming year, proactive work will be initiated on
residential properties which are not utilized as residences and are, instead, continuously
operated as vacation properties.
In addition to resource limitations, another impediment to enforcement, particularly in
the past, has been some staff reluctance to refer cases to the City Attorney's Office.
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This reluctance could have arisen from any one of several causes. It may have arisen
many years ago, before state-mandated vacancy decontrol, when City leaders were
concerned that requiring rental housing owners to comply with code requirements might
result in rent increases. Or perhaps enforcement was seen by some worker groups with
multiple missions as inconsistent with "responsiveness" and "good customer service."
In any event; that reluctance has greatly diminished. Building & Safety has been
referring a stream of code enforcement cases for over five years; and, the Housing
Division has been referring cases since 2008. With referrals ongoing, the remaining
issue is promptness.
Any lingering hesitancy about referring cases promptly can be addressed if Council
simply directs staff to ensure that the relatively small number of cases involving
persistent noncompliance are expeditiously referred to the City Attorney's Office. To
this end, staff recommends that Council endorse the concept of limits on the number of
written warnings that are given before a matter is referred. Specifically, in cases where
the property or business owner does. not respond or cooperate, staff favors limiting the
number of written warnings to two with the second stating that the matter will be referred
to the City Attorney's Office for further action. This referral policy would be subject to an
exception for special circumstances, unique to the particular case, which warrant
delaying the referral. In the case of a residential property, such circumstances might
involve family illness or another emergency that temporarily interfered with an owner's
ability to respond and comply. This protocol will avoid the risk of multiple warnings
conveying a message that the City will likely not take action, but will also preserve the
flexibility necessary to ensure fairness. And, it will allow the flexibility necessary to
ensure that the system functions fairly in special cases.
Overall, in recent years, significant progress has been made. In the immediate future,
more can be achieved with Council support for consistent and fair enforcement of local
laws, permit conditions, deed restrictions and terms of Development Agreements.
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Financial Impacts & Budget Actions
There are no direct financial costs to Council approving present enforcement practices
and policies. Generally- speaking, most administrative enforcement costs can be
covered by fees and fines. And, if adjustments to those are necessary to cover any
increase in costs that may result from Council's action, staff will bring proposals to
Council.
Prepared by: Marsha Jones Moutrie, City Attorney
Rod Gould, City Manager
Eileen Fogarty, Director of Planning and Community Development
Andy Agle, Director of Housing and Economic Development
Approved: Forwarded to Council:
Rod Gould
City Manager
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