BILL ANALYSIS
AB 2317
Page 1
REPLACE - 08/26/2010 Changes per consultant.
CONCURRENCE IN SENATE AMENDMENTS
AB 2317 (Saldana)
As Amended August 20, 2010
Majority vote
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|ASSEMBLY: |47-24|(May 17, 2010) |SENATE: |21-14|(August 25, |
| | | | | |2010) |
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Original Committee Reference: L. GOV.
SUMMARY : Authorizes cities and counties to collect fines
related to nuisance abatement using a nuisance abatement lien or
a special assessment.
The Senate amendments add a repeal date of January 1, 2014, to
the authorization for 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.
AS PASSED BY THE ASSEMBLY , this bill authorized cities and
counties to collect fines related to nuisance abatement using a
nuisance abatement lien or a special assessment.
FISCAL EFFECT : None
COMMENTS : Government Code (GC) Sections 38773.5 and 25845 were
added in 1965 (Chapter 1941, Statutes of 1965) 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
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abatement were too slow a process for local governments and were
frustrating for private lenders. Thus, GC Section 38773.1 was
added in 1990 (Chapter 965, Statutes of 1990) 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 GC Section 25845 (Chapter 617, Statutes
of 1985) also allowed counties to impose an abatement lien.
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.
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
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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
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.
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.
Opposition arguments. Opposition might object to using liens
and special assessments to impose fines because liens and
special assessments are powerful tools that should be used in
limited circumstances. Opposition also might say 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.
Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958
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