BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Dave Cox, Chair
BILL NO: AB 2613 HEARING: 6/16/10
AUTHOR: Beall FISCAL: No
VERSION: 6/9/10 CONSULTANT:
Weinberger
LOCAL 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, local officials want to
collect unpaid administrative fines that are levied for
local ordinance violations on real property using the same
powers that they already use to collect unpaid nuisance
abatement costs.
Proposed Law
Assembly Bill 2613 authorizes a city, county, or city and
county, after notice and public hearing, to order unpaid
fines or penalties related to ordinance violations on real
property to be specially assessed against the parcel. AB
2613 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. SB 2613
specifies that the assessment does not constitute a lien on
the real property until a notice of lien is recorded.
If a city, county, or city and county specially assesses
the cost of the administrative fines or penalties against
the parcel, AB 2613 authorizes it to record a notice of
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abatement lien to perfect the lien. The abatement 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 2613 declares that recordation of a notice of abatement
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 allows, the city, county, or city and
county, 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.
AB 2613 authorizes a city, county, or city and county to
combine the administrative procedures that govern the
imposition, enforcement, collection, and administrative
review of administrative fines and penalties with specified
nuisance abatement procedures.
AB 2613 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.
Comments
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 2613 helps local agencies
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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. Too broad ? AB 2613 lets local officials levy special
assessments and attach abatement liens to real property to
collect fines and penalties that are "related to ordinance
violations on the real property." Local officials might
specially assess property and impose a lien to collect
fines from property owners who leave their garbage cans at
the curb on days when there's no pickup, or someone who
dries laundry on a clothesline in front of a house. The
Committee may wish to consider amending AB 2613 to limit
the use of special assessments and liens only to collect
fines and penalties imposed for ordinance violations that
create public nuisances that threaten public health or
safety.
4. Let's be clear . The Committee may wish to consider
making three clarifying amendments to AB 2613:
Cross-reference local governments' existing
authority to appoint hearing officers to hear and
decide issues regarding ordinance violations and the
imposition of administrative fines and penalties by
inserting "or any other applicable provision of law,"
on page 2, line 23, after "Title 3,".
Cross-reference cities' authority to adopt
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administrative procedures for nuisance abatement by
deleting "Section 25845." and inserting "Sections
25845, 38773.1, and 38773.5." on page 2, line 31.
Clarify that a special assessment levied pursuant
to AB 2613 does not automatically become a tax lien on
the real property by inserting "The assessment does
not constitute an assessment lien pursuant to Part 1
(commencing with Section 53930) of Division 2." on
page 3 , line 10, after "assessment."
5. Related bills . At its June 16 hearing, the Committee
will also hear AB 2317 (Saldana, 2010), which lets cities
and counties to use special assessments and nuisance
abatement liens to collect fines related to nuisance
abatement. 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.
Assembly Actions
Assembly Local Government Committee: 6-3
Assembly Floor: 44-30
Support and Opposition (6/10/10)
Support : Santa Clara County, California State Association
of Counties.
Opposition : California Taxpayers Association, Howard
Jarvis Taxpayers Association.