BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 683 HEARING: 7/3/13
AUTHOR: Mullin FISCAL: No
VERSION: 5/28/13 TAX LEVY: No
CONSULTANT: Weinberger
LOCAL FINES
Allows cities, counties, and special districts to assess
property for unpaid fines or penalties related to ordinance
violations that threaten public health and safety.
Background and Existing Law
The United States and California Constitutions prohibit
governments from impairing property rights without due
process of law. The California Constitution also allows
counties and cities to adopt and enforce ordinances that
regulate local health, safety, peace, and welfare
(California Constitution, Article XI, Section 7).
State law defines a nuisance as anything that is injurious
to health, indecent or offensive to the senses, obstructs
the free use of property, or unlawfully obstructs free
passage. In addition to civil and criminal enforcement
mechanisms, counties and cities can adopt ordinances that
establish local procedures for abating nuisances (AB 2593,
Veysey, 1965). Counties and cities can recover abatement
costs, including administrative costs, by using a special
assessment, abatement lien, or both.
I. Counties' nuisance abatement procedures . A county
ordinance establishing administrative procedures for
nuisance abatement must require that the owner of the
parcel, and anyone known to be in possession of the parcel,
receive notice of the abatement proceeding and have a
hearing before the board of supervisors before the county
can abate the nuisance. County supervisors can delegate
the hearing to a hearing board or a hearing officer. A
county can abate a nuisance that a board of supervisors or
county officer determines constitutes an immediate threat
to public health or safety.
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If the owner fails to pay the county's abatement costs, the
board of supervisors can order the abatement costs to be
specially assessed against the parcel. The assessment can
be collected on the property tax bill, subject to the same
penalties, procedures, and sale in case of delinquency as
for ordinary county taxes. All laws regarding the levy,
collection, and enforcement of county taxes apply to the
special assessment.
If a county specially assesses abatement costs against a
parcel, it also can record a notice of abatement lien,
which has the same effect as recording an abstract of a
money judgment and the same priority as a judgment lien.
If no abatement lien is recorded and the real property on
which an assessment is imposed is sold, or becomes
foreclosed, before the first installment of the taxes
becomes delinquent, then the assessment transfers to the
unsecured tax roll for collection.
II. Cities' nuisance abatement procedures . A city
ordinance establishing a procedure for nuisance abatement
and making the cost of abatement of a nuisance upon a
parcel of land a special assessment against that parcel
must include no-tice, by certified mail, to the property
owner. The notice must be given at the time of imposing
the assessment and must specify that the property may be
sold after three years by the tax collector for unpaid
delinquent assessments. The tax collector's power of sale
is not affected by the failure of the property owner to
receive notice. The assessment can be collected on the
property tax bill, subject to the same penalties,
procedures, and sale in case of delinquency as provided for
ordinary municipal taxes. All laws regarding the levy,
collection, and enforcement of municipal taxes apply to the
special assessment. However, if the real property is sold,
or becomes foreclosed, before the first installment of the
taxes becomes delinquent, then the cost of abatement
transfers to the unsecured tax roll for collection.
Alternatively, a city can, by ordinance, establish a
procedure to collect abatement costs, including
administrative costs, by a nuisance abatement lien. The
ordinance must require that the owner of the parcel on
which the nuisance is maintained receive notice before
recording the abatement lien. If the owner cannot be
served with the notice, it can be posted on the property
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and published in a newspaper. A nuisance abatement lien
must be recorded with the county recorder and has the
force, effect, and priority of a judgment lien. The lien
may be foreclosed by an action brought by the city for a
money judgment.
III. Local administrative fines and penalties . As an
alternative to civil and criminal enforcement mechanisms, a
local agency's legislative body can make any violation of
any of its ordinances subject to an administrative fine or
penalty (SB 814, Alquist, 1995). The local agency must
adopt an ordinance specifying the administrative procedures
that govern the imposition, enforcement, collection, and
administrative review of the fines or penalties. The
administrative procedures must grant a reasonable time to
remedy a continuing violation before the imposition of
administrative fines or penalties, when the violation
pertains to building, plumbing, electrical, or other
similar structural and zoning issues that do not create an
immediate danger to health or safety. Within 20 days after
service of a final administrative order or decision
regarding administrative fines or penalties, a person
contesting that final administrative order or decision may
appeal in Superior Court. Local agencies must go through a
civil court proceeding to collect unpaid fines and
penalties.
To strengthen local code enforcement authority and avoid
the expense of civil litigation, local officials want to
collect unpaid administrative fines and penalties for local
ordinance violations that threaten health and safety using
the same powers that they use to collect the costs of
abating those ordinance violations.
Proposed Law
Assembly Bill 683 authorizes, until January 1, 2020, a
city, county, city and county, or special district, after
notice and public hearing, to order unpaid fines or
penalties to be specially assessed against a parcel if the
fines or penalties are related to ordinance violations on
the real property that constitute a threat to public health
and safety. AB 683 requires a local government to mail or
deliver notice of a hearing at least 15 days prior to the
hearing to the owner of the parcel. For purposes of
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notice, ownership of the parcel must be determined by the
latest assessment roll, the records of the county assessor,
or the records of the tax collector, whichever is most
recent.
AB 683 allows the assessment to be collected at the same
time and in the same manner as ordinary county taxes and
subject to the same penalties and the same procedure and
sale in case of delinquency. The bill declares that all
laws applicable to the levy, collection, and enforcement of
county taxes apply to the special assessment, except the
assessment does not constitute an assessment lien pursuant
to specified statutes governing special assessment liens'
priority. The bill also specifies that the assessment does
not constitute a lien on the real property until a notice
of lien is recorded.
If any administrative fine or penalty remains unpaid for 10
days following the conclusion of the public hearing, the
tax collector may send to the owner of the parcel, by
certified mail, a notice of enforcement that states that if
payment has not been received within 45 days following the
date of the notice, a lien will be recorded. If, after
the 45-day period following the notice, the fine or penalty
has not been paid, a local government may specially assess
the cost of the administrative fines or penalties against
the parcel and record a notice of lien to perfect the lien.
The lien notice must:
Identify the assessor's parcel number,
Identify the record owner,
Set forth the last known address of the record
owner,
Set forth the date upon which assessment was
ordered by the city, county, or city and county, and
State the amount of the lien.
AB 683 declares that recordation of a notice of lien has
the same effect as recordation of an abstract of a money
judgment. The lien against the parcel has the same force,
effect, and priority as a judgment lien on real property.
The bill al-lows the city, county, city and county, or
special district, or any authorized officer, to release or
subordinate an abatement lien in the same manner as
releasing or subordinating a judgment lien on real
property.
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AB 683 authorizes a city, county, or city and county to
combine the administrative procedures governing the
imposition, enforcement, collection, and administrative
review of administrative fines and penalties with specified
nuisance abatement procedures.
The bill allows a local agency, in administrative
procedures, to authorize the appointment of hearing
officers to hear and decide issues regarding ordinance
violations and the imposition of administrative fines or
penalties.
AB 683 declares that the power it gives to the legislative
body of a city, county, city and county, or special
district is in addition to any other powers of a city,
county, or city and county under its charter or any other
legal authority.
AB 683 prohibits a city, county, city and county, or
special district from exercising specified assessment and
lien powers if the total amount of fines and penalties to
be specially assessed against a parcel or the amount of the
lien to be recorded exceeds the amount of money that the
city, county, city and county, or special district could
recover by bringing action in small claims court.
AB 683's provisions are automatically repealed on January
1, 2020.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . The recent recession has
increased public nuisances in many cities and counties
while forcing local officials to cut their enforcement
budgets. Local governments have fewer resources to enforce
codes and standards. Some recalcitrant property owners
maintain nuisances on their properties while ignoring
administrative fines. These fines accumulate into large
debts, which are costly for local officials to recover
through the courts. Using special assessment and abatement
AB 683 -- 5/28/13 -- Page 6
liens gives local officials a less expensive and more
effective method for collecting unpaid fines and will
provide a stronger incentive for property owners to comply
with local ordinances. AB 683 helps local agencies protect
the public's health and safety by giving them stronger code
enforcement authority that mirrors the authority they
already use to collect nuisance abatement costs.
2. Too strong ? Special assessments and liens are powerful
debt collection mechanisms, which local officials can use
to foreclose and sell real property. When local
governments use such powerful tools, property owners need
substantial due process safeguards. Local administrative
proceedings must meet minimum due process standards
established by the courts, including adequate notice to the
proper parties, a reasonable opportunity to be heard, and a
chance to challenge the evidence. Additionally, state law
specifically allows property owners to appeal local
administrative fines and penalties in Superior Court.
Before allowing local officials to collect unpaid
administrative fines with special assessments and abatement
liens, the Committee may wish to consider whether existing
administrative protections and appeals opportunities
adequately protect property owners' due process rights.
3. Try again . AB 683 is nearly identical to AB 129
(Beall, 2011), which Governor Brown vetoed. The Governor's
veto message expressed his concern that the bill weakened
due process requirements for local agencies to obtain
property liens and stated his reluctance to change the
current process for collecting unpaid fines and penalties.
AB 683 is also substantially similar to AB 2613 (Beall,
2010), which Governor Schwarzenegger vetoed. The
Governor's veto message cited the need to balance
homeowners' due process rights against a local government's
right to collect an ordinance violation fine.
Assembly Actions
Assembly Local Government Committee: 7-2
Assembly Floor: 54-22
Support and Opposition (6/27/13)
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Support : California Association of County Treasurers and
Tax Collectors; American Federation of State, County, and
Municipal Employees, AFL-CIO; California Special Districts
Association; California State Association of Counties;
Cities of Sunnyvale and San Marcos; Counties of Sacramento
and Santa Clara; League of California Cities.
Opposition : Unknown.