BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 129 HEARING: 6/8/11
AUTHOR: Beall FISCAL: No
VERSION: 1/11/11 TAX LEVY: No
CONSULTANT: Weinberger
LOCAL FINES
Allows cities and counties to assess property for unpaid
fines or penalties related to public nuisance ordinance
violations.
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
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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, 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
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
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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 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 129 authorizes a city, county, or city and
county, 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 public
nuisance or threat to public health and safety. AB 129
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
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to the levy, collection, and enforcement of county taxes
apply to the special assessment. AB 129 specifies that 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 a city, county, or city and county specially assesses
the cost of the administrative fines or penalties against
the parcel, AB 129 authorizes it to record a notice of 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 129 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 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 129 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 129 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.
State Revenue Impact
No estimate.
Comments
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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
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 129 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 129 is nearly identical to AB 2613
(Beall, 2010), which Governor Schwarzenegger vetoed. The
Governor's veto message stated:
It is important that the due process rights of
homeowners are balanced against a local government's
right to collect an ordinance violation fine. The
current system that requires a local government to
seek judicial approval to impose a lien properly
balances these opposing interests.
Assembly Actions
AB 129 -- 1/11/11 -- Page 6
Assembly Local Government Committee: 6-3
Assembly Floor: 46-17
Support and Opposition (6/2/11)
Support : Counties of Santa Clara and Sonoma; City of San
Marcos; California Association of County Treasurers and Tax
Collectors; California State Association of Counties;
League of California Cities; Sierra Club California.
Opposition : California Taxpayers Association, Howard
Jarvis Taxpayers Association.