BILL ANALYSIS Ó
AB 129
Page 1
GOVERNOR'S VETO
AB 129 (Beall)
As Amended August 16, 2011
2/3 vote
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|ASSEMBLY: |46-17|(April 14, |SENATE: |22-15|(August 30, |
| | |2011) | | |2011) |
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ASSEMBLY: 50-27 (September 2, 2011)
Original Committee Reference: L. GOV.
SUMMARY : Authorizes a city or county after notice and public
hearing to specially assess and record a notice of lien for any
fines or penalties related to ordinance violations constituting a
public nuisance or threat to public health and safety on the real
property that the fines or penalties are being assessed or recorded
on if the owner of the real property fails to pay those fines or
penalties after demand by the city or county.
The Senate amendments:
1)Provide that the powers given to the legislative body of a city,
county, or city and county under the provisions of this measure
are in addition to any other powers of a city, county, or city and
county under its charter or any other legal authority.
2)Require a city or county to mail or deliver notice of the hearing
at least 15 days prior to the public hearing at least 15 days
prior to the hearing to the owner on record of the parcel.
3)Remove public nuisance from the list of items that can cause a
lien to be recorded.
4)Add a sunset date of January 1, 2020.
EXISTING LAW :
1)Permits the legislative body of a city, county, school district,
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municipal corporation, district, political subdivision, or any
board, commission, or agency thereof, or other local public agency
to make any violation of any ordinance enacted by the legislative
body subject to an administrative fine or penalty.
2)Permits cities and counties to establish by ordinance a procedure
to collect nuisance abatement costs and related administrative
costs by a nuisance abatement lien or a special assessment.
3)Allows a county board of supervisors to delegate its powers and
duties to establish a nuisance abatement procedure to a hearing
officer pursuant to statutory provisions governing hearing
officers.
AS PASSED BY THE ASSEMBLY , this bill:
1)Authorized a city or county after notice and public hearing to
specially assess and record a notice of lien for any fines or
penalties related to ordinance violations constituting a public
nuisance or threat to public health and safety on the real
property that the fines or penalties are being assessed or
recorded on if the owner of the real property fails to pay those
fines or penalties after demand by the city or county.
2)Authorized the assessment imposed by a city or county to be
collected at the same time and in the same manner as ordinary
county taxes are collected, and requires all laws applicable to
the levy, collection, and enforcement of county taxes be
applicable to the assessment.
3)Provided the assessment does not constitute an assessment lien,
and does not constitute a lien on real property until a notice of
lien is recorded, pursuant to these provisions.
4)Required the notice of lien to, at a minimum, do all of the
following:
a) Identify the assessor's parcel number and record owner;
b) Set forth the last known address of the record owner;
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c) Set forth the date on which the assessment was ordered by
the city or county; and,
d) The amount of the lien.
5)Provided the recordation of a notice of lien has the same effect
as recordation of an abstract of a money judgment, as recorded
according to provisions in the California Code of Civil Procedure.
6)Provided the lien created has the same force, effect, and priority
as a judgment lien on real property, and, upon order of the city,
county, or any officer authorized by the city or county to act on
its behalf, the lien may be released or subordinated in the same
manner as a judgment lien on real property may be released or
subordinated.
7)Authorized a city or county through an ordinance to combine the
administrative procedures adopted for the imposition, enforcement,
collection, and administrative review for administrative fines or
penalties related to the violation of any ordinance with nuisance
abatement procedures that are adopted through ordinance.
8)Authorized a city, county, school district, municipal corporation,
district, political subdivision, or any board, commission, or
agency thereof, or other local public agency to appoint one or
more hearing officers to hear and decide issues regarding
ordinance violations and the imposition of fines and penalties.
FISCAL EFFECT : None
COMMENTS : SB 814 (Alquist and Kopp), Chapter 898, Statutes of 1995,
which added Government Code Section 53069.4, was intended to
facilitate the implementation of the Administrative Citation
Ordinance as an efficient code enforcement methodology that would
avoid the necessity of a criminal prosecution. Specifically,
Government Code Section 53069.4 was written to allow administrative
citations to closely mirror the parking citation program.
Subsequent amendments to that code section dealt with accommodating
changes in the municipal and superior courts.
Under existing law, cities and counties are authorized to establish
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by ordinance a procedure to collect nuisance abatement costs and
related administrative costs by a nuisance abatement lien or a
special assessment. At one point, there was a concern that special
assessments for the purpose of collecting the costs of nuisance
abatement were too slow a process for cities and counties and were
frustrating for private lenders. Alternatively, abatement liens
were seen as a viable way to speed up cost recovery and relieve
lenders' worries because, unlike special assessments, which are
"superliens" and jump to the front of the line when collection comes
due, abatement liens assume a sequential priority with respect to
other financial claims against the real property.
According to the author, this bill is intended to allow local
governments to make their code enforcement processes more efficient
and effective by authorizing them to make unpaid fine and penalties
for property-related code violations by a special assessment against
the property, allowing them to streamline their code enforcement
processes by combining their fine and penalties and nuisance
abatement processes. This bill also will allow for a more
streamlined process for hearing officers for these administrative
procedures. The author says existing law allows counties to use
hearing officers, but imposes certain procedural and substantive
requirements that make the use of hearing officers more onerous and
expensive.
AB 2613 (Beall) of 2010 contained identical provisions. The
Assembly Local Government Committee passed AB 2613 on a 6-3 vote.
The Governor vetoed AB 2613, saying:
"It is important that the due process rights of homeowners are
balanced against a local government's right to collect an ordinance
violation fine. The current system that requires a local government
to seek judicial approval to impose a lien properly balances these
opposing interests."
Support arguments: Supporters, County of Santa Clara, say, allowing
local agencies to use hearing officers and combine their
administrative fine/penalty and nuisance abatement processes,
streamlines code enforcement procedures. Also, chronic and
unresolved code enforcement situations could be addressed quickly
and efficiently under this bill.
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Opposition arguments: Opposition, California Taxpayers Association,
say liens are a powerful tool that should only be used in the most
limited circumstances. Expanding the liabilities for which a lien
may be imposed to fines could incentivize local governments to
increase fines and set a precedent for further expanding special
assessments and liens.
GOVERNOR'S VETO MESSAGE :
"At a time when property owners are struggling to pay their
mortgages, this bill would weaken the due process requirements for
local building departments to obtain property liens.
"Local governments already have a fair process in place, and I see
no reason to change it."
Analysis Prepared by: Katie Kolitsos / L. GOV. / (916) 319-3958
FN: 0002924