ORDINANCE NO. 608-24
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MURRIETA, CALIFORNIA, AMENDING CHAPTERS 1.04, 1.32, and 8.20 OF THE MURRIETA MUNICIPAL COUNCIL REVISING THE CITY’S MUNICIPAL CODE TO PROVIDE AUTHORITY AND FLEXIBILITY FOR THE CITY TO RECOVER THE COSTS INCURRED IN ABATING NUISANCES Summary: This ordinance amends Murrieta Municipal Code sections 1.04.010, 1.32.050, 8.20.020, 8.20.090, 8.20.100, and 8.20.130 to define “responsible party,” clarifies nuisance abatement options for the City, updates provisions relating to the costs of abatement including attorney’s fees and costs, and establishes lien and special assessment procedures for the recovery of nuisance abatement costs.
WHEREAS, the City of Murrieta (“City”) has the authority, under its police power, to enact regulations for the public peace, morals, and welfare of the City, Cal. Const. Art. XI, section 7; and WHEREAS, the City Council of the City of Murrieta (“City Council”) finds that certain conditions constitute a public nuisance and are a threat to the public peace, safety, and welfare of the City; and WHEREAS, the City Council finds that ensuring compliance with the Murrieta Municipal Code and other regulations is vital to the protection of the public’s health, safety, and quality of life throughout the City, and is an important public service; and WHEREAS, by declaring that violations of the Murrieta Municipal Code constitute a public nuisance, the City Council has determined that violations of the City’s laws constitute a threat to the public health, safety, and welfare; and WHEREAS, Sections 36901, 38771 and 38773.5 of the Government Code authorize the City to enact ordinances declaring what constitutes a public nuisance and the procedures for abating nuisance conditions, as well as providing for the recovery of costs and attorney fees to abate the nuisance and for the collection of civil penalties; and WHEREAS, Government Code Section 38773.5 authorizes a city to establish, by ordinance, a procedure for the recovery of attorneys’ fees and costs in any action, administrative proceedings, or special proceeding to abate a nuisance; and WHEREAS, The City Council finds that the responsibility of these costs, abatement and enforcement costs, should be properly placed on those persons responsible for violating the Murrieta Municipal Code, or federal, state and county laws and/or causing public nuisances. The City Council further finds that the recovery of costs incurred by the City to enforce these laws and to collect penalties issued to those persons causing public nuisances and/or violating these laws is important in deterring future violations and maintaining the integrity of the City’s code enforcement system; and WHEREAS, the City Council now desires to amend the City of Murrieta Municipal Code to provide a means for recovery of its abatement and enforcement costs, and recovery of attorneys’ fees in nuisance abatement cases from those persons responsible for creating, causing, committing, or maintaining a public nuisance or Murrieta Municipal Code or other law violation.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MURRIETA, CALIFORNIA DOES HEREBY RESOLVE AS FOLLOWS:
The recitals above are true and correct and incorporated herein by this reference.
Section 1.04.010 “Definitions” of the Murrieta Municipal Code is amended, to add a new definition in alphabetical order (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to read as follows:
““Responsible party” means a person whom a city official reasonably believes is causing, performing, permitting to exist, or otherwise maintaining, or allowing to be maintained, a public nuisance or violation of this Code, and includes, but is not limited to, the owner of the property involved, and any tenant or occupant or user thereof, or any other person in real or apparent charge or control of said real property.” Section 1.32.050 of the Murrieta Municipal Code is hereby amended (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to read as follows:
“1.32.050 Attorney Fees
In the event that it is necessary for the city to maintain any criminal or civil action or administrative proceeding or a special proceeding to enforce the provisions of this code or to abate a public nuisance, or to foreclose on any lien imposed as a result of the imposition of fines or penalties by the city, the city shall be entitled to recover reasonable attorney's fees.
The prevailing party in any action, administrative proceeding, or special proceeding to abate a public nuisance, or in any appeal or other judicial action arising therefrom, shall be entitled to recover its reasonable attorneys' fees. Recovery of attorneys' fees shall be limited to those actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees. In no action or proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.” Section 8.20.020 “Definitions” of the Murrieta Municipal Code is amended (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to add a new definition in alphabetical order to read as follows:
""Costs":
"Abatement costs" means the actual and reasonable costs incurred by the city to abate a public nuisance. These costs include all direct and indirect costs to the city that result from the total abatement action, including, but not limited to, investigation costs, costs to enforce this Code and any applicable federal, state or county law, clerical and administrative costs to process paperwork, costs incurred to provide notices and prepare for and conduct administrative appeal hearings, and costs to conduct the actual abatement of the nuisance, including lawful disposal of abandoned personal property, trash, and debris. Abatement costs include staff costs, including costs of worker's compensation benefits, fringe benefits, administrative overhead administrative overhead, costs for equipment, such as cameras and vehicles, staff time to hire a contractor, and reasonable attorneys' fees incurred by the city. Costs also include those incurred in seeking cost recovery. "Enforcement costs" means all actual and reasonable costs incurred by the city to respond to and enforce compliance with this Code and any applicable federal, state, county or city public health and safety law that are not included within abatement costs. These costs include, but are not limited to, actual cost of the enforcing department services including, but not limited to, costs of personnel, including costs of worker's compensation benefits, fringe benefits, administrative overhead, costs of equipment, costs of materials, costs related to investigations pursuant to this Code or federal, state, or county law, costs related to issuing and defending administrative or court citations, costs incurred investigating and abating violations of this Code or federal, state or county law violations, and reasonable attorneys' fees. Enforcement costs include multiple response and similar costs as permitted by this chapter. Enforcement costs also include those incurred in seeking cost recovery.” Section 8.20.020 “Definitions” of the Murrieta Municipal Code is amended, to add a new definition for “Responsible party” in alphabetical order and to replace the definition of “Violator,” in its entirety, (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to read as follows:
"Violator" means any responsible party, including the landowner, or lessee, tenant, or any other person who had possession or custody of the property. ““Responsible party” shall have the same meaning as set forth in 1.04.010. “Violator” means any responsible party.””
Section 8.20.090 “Abatement by city” of the Murrieta Municipal Code is replaced, in its entirety, (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to read as follows :
“8.20.090 Abatement by city; Statement of costs.
A. If the nuisance is not completely abated by the responsible party, as directed, within the time provided to do so, then the city manager, or their designee, may cause the same to be abated by city personnel or private contract, and entry upon the premises is expressly authorized for such purposes.
B. Upon completion of the abatement by direction of the city manager, or their designee, a statement of the total amount of abatement and enforcement costs incurred by the City shall be prepared, to include attorney’s fees and civil penalties, as appropriate, and as provided in 1.32.050 C. The city manager, or their designee, shall serve on the violator a copy of the statement of costs and a notice that, unless a notice of appeal is received within ten (10) calendar days of the date of the statement of costs, the statement of costs shall become final administrative order of the city and subject to recordation as a lien or collection via special assessment as set forth in this chapter. The statement of costs and the notice shall be served in the same manner as provided in Section 8.20.060(B) of this chapter.” Section 8.20.100 “Report—Hearing on assessment” of the Murrieta Municipal Code is replaced, in its entirety, (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to read as follows:
“At the time and place set for receiving and considering the statement of costs, the city council shall hear and pass upon the statement together with any objections or protests raised by any of the persons liable to be assessed for the cost of abating the nuisance. Thereupon, the city council may make any such revision, correction or modification to the statement of costs as it may deem appropriate, after which the statement as submitted, or as revised, corrected or modified, shall be confirmed by resolution. Such hearing may be continued from time to time. The decision of the city council shall be final.” “Section 8.20.100 Appeal of statement of costs
A. If a timely appeal of the statement of costs is received, the city manager, or their designee, shall set a time and place for the city council to receive and consider the statement of costs, and shall serve on the appealing violator a copy of the statement of costs and a notice of the time and place at which the city council will receive and consider the statement of costs. The statement of costs and the notice of hearing shall be served in the same manner as is provided in Section 8.20.060(B) of this chapter.
B. At the time and place set for receiving and considering the statement of costs, the city council shall hear and pass upon the statement together with any oral or written objections or protests raised by any responsible party. Thereupon, the city council may make any such revision or modification to the statement of costs as it may deem appropriate, after which the statement as submitted, as revised, or as modified, shall be confirmed. Such hearing may be continued from time to time. The decision of the city council shall be deemed a final administrative order of the city.” Section 8.20.130 “Assessment of costs a lien against the property” of the Murrieta Municipal Code is replaced, in its entirety, (new language is indicated in bold and italics, language proposed to be deleted is shown with an underline and strikethrough) to read as follows:
“The costs of abatement of a nuisance, as confirmed by resolution of the city council, shall constitute a special assessment against the property to which it relates, and after its recording, as thus made and confirmed, the same shall constitute a lien on the property in the amount of such assessment. After the confirmation of the statement, a copy thereof shall be recorded in the official records of Riverside County and shall be transmitted to the assessor and tax collector of the county by the city clerk. Whereupon it shall be the duty of the assessor and tax collector to add the amount of such assessment, or assessments, to the next regular bills of taxes levied against the said respective lot or parcel of land, and thereafter the amount shall be collected at the same time and in the same manner as ordinary real property taxes are collected, and shall be subject to the same penalties and the same procedure for foreclosure and sale in the case of delinquency as provided for ordinary real property taxes.” “Section 8.20.130 Nuisance Abatement Costs Recovery; Lien and Special Assessment A. Lien Procedure
1. Pursuant to California Government Code Section 38773.1, a lien procedure is adopted to collect any nuisance abatement costs, including the city’s actual costs of enforcement, any associated penalties, and the city attorney’s fees and costs as administrative costs. A lien may be recorded on the real property of each responsible party, jointly and severally, within thirty (30) days of the date the statement of costs becomes a final administrative order of the city.
2. Prior to recording a lien, a notice shall be given to all persons or entities of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplement roll, whichever is more current. The notice shall be served in the same manner as a summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure. If the responsible party or parties, after diligent search, cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and by publication in a newspaper of general circulation published in Riverside County for a period of ten (10) days.
3. After notice is given in accordance with the above, a lien shall be recorded in the Riverside County recorder's office and shall constitute a lien on the real property for abatement costs. From the date of recording, the lien shall have the force, effect, and priority of a judgment lien.
4. A lien recorded pursuant to this section shall specify the amount of the lien, the name of the agency on whose behalf the lien is imposed, the date of the abatement order, the street address, the legal description and the assessor's parcel number of the parcel on which the lien is imposed and the name and address of the recorded owner of the parcel.
5. In the event the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge containing the same information as the notice of lien shall be recorded in the Riverside County recorder's office by the city.
B. Special Assessment
1. As an alternative to the lien procedure set forth in section 8.20.130(A), the city may make the cost of abatement of a nuisance, including penalties, enforcement costs, and attorney’s fees and costs, a special assessment against the subject property, in accordance with Government Code section 38773.5, or as otherwise permitted by law.
2. Notice requirements.
a. Notice under this section shall be provided by certified mail, to the property owner, if the property owner’s identity can be determined from the county assessor’s or county recorder’s records. b. Notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three years by the tax collector for unpaid delinquent assessments. c. Notices shall contain the following information:
i. A legal description, street address, assessor's parcel number and other description sufficient to identify the premises affected; ii. A description of the violations of the code on the real property which caused the issuance of a citation; iii. A description of any proceeding under which penalties, costs, and/or fees were imposed, including any final administrative order of the hearing officer or appeals board, or other confirmation process; and iv. The total amount to be assessed.”
This ordinance is exempt from the California Environmental Quality Act (“CEQA”) under Section 15061(b)(3) of the CEQA Guidelines, which provides that CEQA only applies to projects that have the potential for causing a significant effect on the environment. Where, as here, it can be seen with certainty that there is no possibility that the activity in question would have a significant effect on the environment, the activity is not subject to CEQA.
If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional.
This Ordinance shall become effective on the thirty-first (31st) day after its passage and adoption, and within fifteen (15) days after its final passage and the City Clerk shall cause it to be posted and published in a newspaper of general circulation, printed, published and circulated in the City in the manner required by law and shall cause a copy of this Ordinance and its certification, to be entered in the Book of Ordinances of the City.
PASSED AND ADOPTED this __________, 2024.
Lori Stone, Mayor
ATTEST:
Cristal McDonald, City Clerk
APPROVED AS TO FORM:
Tiffany J. Israel, City Attorney
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE )§
CITY OF MURRIETA )
I, Cristal McDonald, City Clerk of the City of Murrieta, California, do hereby certify that the foregoing Ordinance No. 608-24 was duly passed and adopted by the City Council of the City of Murrieta at the regular meeting thereof, held on the _________, and was signed by the Mayor of the said City, and that the same was passed and adopted by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Cristal McDonald, City Clerk
I, Cristal McDonald, City Clerk of the City of Murrieta, California further certify that Ordinance No. 24-____ was duly published according to law and the order of the City Council of said City and the same was so published in Press Enterprise, a newspaper of general circulation on the following date(s):
Adopted Ordinance: , 2024.
In witness whereof, I have hereunto subscribed my name this __ day of ______________, 2024.
Cristal McDonald, City Clerk
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