BILL ANALYSIS
AB 2317
Page 1
Date of Hearing: April 14, 2010
REVISED
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 2317 (Saldana) - As Amended: April 5, 2010
SUBJECT : Local government: nuisance abatement.
SUMMARY : Authorizes cities and counties to collect fines
related to nuisance abatement using a nuisance abatement lien or
a special assessment.
EXISTING LAW 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.
FISCAL EFFECT : None
COMMENTS :
1)Sections 38773.5 and 25845 were added to the Government Code
in 1965 (Statutes 1965, Chapter 1941) to allow cities and
counties to use special assessments to collect nuisance
abatement costs. The original language for both these
sections was identical and gave cities and counties the
authority to establish by ordinance a procedure for nuisance
abatement and to make a special assessment against the parcel
in order to recover the cost of the abatement.
In 1990, the Legislature responded to concerns that special
assessments for the purpose of collecting the costs of
nuisance abatement were too slow a process for local
governments and were frustrating for private lenders. Thus,
Section 38773.1 was added to the Government Code in 1990
(Statutes 1990, Chapter 965) to allow cities to use abatement
liens as an alternative to special assessments in the
collection of nuisance abatement costs. It was said the
alternative would 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.
Subsequent amendments to Section 25845 (Statutes 1985, Chapter
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617) also allowed counties to impose an abatement lien.
2)Under existing law, the legislative body of a local agency is
authorized to adopt an ordinance making the violation of any
local ordinance subject to an administrative fine or penalty.
In existing law, there are distinctions between public and
private nuisance along with potential remedies, including
civil actions to recover damages. A nuisance is defined as:
"Anything which is injurious to health, including, but not
limited to, the illegal sale of controlled substances, or is
indecent or offensive to the senses, or an obstruction to the
free
use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the
free passage or use, in the customary manner, of any navigable
lake, or river, bay, stream, canal, or basin, or any public
park, square, street, or highway, is a nuisance." Any private
individual or public entity can seek recourse for a public
nuisance.
For a public nuisance, those remedies are indictment or
information, a civil action, or abatement.
3)According to the author, the collapse of the real estate
market has increased nuisance conditions found on real
property and, consequently, has become a vexing problem for
communities and local governments. Owners often fail to
maintain their properties to such an extent that they pose
health and safety threats to their community. Despite court
hearings and findings of violation, owners often ignore the
imposition of fines, and cities and counties have difficulty
enforcing local nuisance ordinances.
According to the author, although current law allows cities
and counties to adopt procedures for the recovery of nuisance
abatement and related administrative costs through a lien or
special assessment against the nuisance property, fines levied
against a property owner for maintaining the nuisance must be
addressed by local governments under entirely separate
procedures. For instance, the City of San Marcos can levy a
fine for any violation of its municipal code as provided for
in its local ordinances. Thus, a local government wishing to
collect both costs and fines for the nuisance abatement is
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required to endure two administrative proceedings to recover
fines and out-of-pocket expenses for the same nuisance. This
is not only an unnecessary burden to cities and counties; it
is a burden to any defendant who wishes to contest the
imposition of fines and costs. In addition, while the costs
incurred by a local government to abate a nuisance are
typically low, the administrative burden to recover those
costs is disproportionately high and often economically
unfeasible.
4)Support Arguments. Supporters say allowing cities and
counties to impose fines for nuisance abatement using the same
procedure for which they seek reimbursement for administrative
costs promotes government efficiency by combining two
administrative procedures into one. It lowers the costs to
cities and counties in pursuing their legal right to seek
fines for nuisance abatement and lowers the cost to those who
have had the nuisance abated because they do not have to go
through two administrative procedures.
5)Opposition Arguments . The opposition, Cal-Tax, objects to
using liens and special assessments to impose fines because
liens and special assessments are powerful tools that should
be used in limited circumstances. Cal-Tax also says expanding
the liabilities for which liens and special assessments may be
imposed encourages local governments to increase fines,
thereby setting a precedent for the further expansion of liens
and special assessments.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 2317
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City of San Marcos [SPONSOR]
American Planning Association, CA Chapter
CA Peace Officers' Association
CA Police Chiefs Association
CA State Association of Counties
League of CA Cities
Marin County Council of Mayors & Councilmembers
Opposition
Cal-Tax
Howard Jarvis Taxpayers Association
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958