BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: AB 2317 HEARING: 6/16/10
AUTHOR: Saldana FISCAL: No
VERSION: 4/5/10 CONSULTANT:
Weinberger
NUISANCE ABATEMENT FINES
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.
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. The county supervisors can
delegate the hearing to a hearing board or hearing officer.
A county may summarily abate a nuisance that a board of
supervisors or county officer determine constitute an
immediate threat to public health or safety.
If the owner fails to pay the county's abatement costs, the
board of supervisors can order the abatement cost to be
specially assessed against the parcel. The assessment can
be collected on the property tax bill, subject to the same
penalties, procedure, and sale in case of delinquency as
are provided for ordinary county taxes. All laws regarding
the levy, collection, and enforcement of county taxes apply
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to the special assessment.
If a county specially assesses abatement costs against a
parcel, it can also record a notice of abatement lien,
which has the same effect as recordation of an abstract of
a money judgment and has 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 notice, 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,
procedure, 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 prior to
recordation of the abatement lien. If the owner cannot be
served with the notice, it can be posted on the property
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
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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, city and county officials
want to collect unpaid fines related to nuisance abatement
using the same powers that they already use to collect
unpaid nuisance abatement costs.
Proposed Law
Assembly Bill 2317 authorizes a county board of supervisors
to assess fines related to nuisance abatement against a
parcel if the parcel owner fails to pay the costs of
abatement upon demand by the county.
AB 2317 authorizes a city council to establish a procedure
to collect abatement related fines by a nuisance abatement
lien.
AB 2317 authorizes a city council to include fines in the
cost of abatement that the council can specially assess
against the parcel of land on which the nuisance is
maintained.
Comments
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1. A necessary enforcement tool . The current 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
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 2317 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 abatement 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. Related bills . At its June 16 hearing, the Committee
will hear AB 2613 (Beall, 2010), which authorizes a city,
county, or city and county to use special assessments and
nuisance abatement liens to collect unpaid fines related to
ordinance violations on real property. SB 1427 (Price,
2010), which is awaiting referral to an Assembly policy
committee, requires local governments to provide notice and
an opportunity to correct violations before levying a fine
or penalty on a property owner for failure to maintain a
vacant foreclosed property.
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Assembly Actions
Assembly Local Government Committee: 6-2
Assembly Floor: 47-24
Support and Opposition (6/10/10)
Support : Cities of San Marcos, Murrieta, Sacramento,
County of Sacramento, California State Association of
Counties, League of California Cities, Marin County Council
of Mayors & Councilmembers.
Opposition : Howard Jarvis Taxpayers Association.