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Home My WebLink About17 - Nuisance Abatement ActionsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 March 10, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David R. Hunt, City Attorney ext. 3131, dhunt @city.newport- beach.ca.us SUBJECT: AMENDMENT OF NUISANCE ABATEMENT ORDINANCE, AS REVISED, TO PROVIDE FOR RECOVERY OF ATTORNEYS' FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS ISSUE: Should the Council amend the nuisance abatement ordinance, as revised, in order to add recovery of attorneys' fees and expert costs? RECOMMENDATION: Approve an ordinance amending Section 10.50.160 of the Municipal Code, as revised, and pass to second reading on March 24, 2009. DISCUSSION: Background: I must admit I erred in the language I recommended at the last meeting for the amendment to the nuisance abatement procedures. While I was aware and advised that attomeys' fees provisions are interpreted as reciprocal, thus essentially becoming prevailing party provisions, I missed a 2007 case that held ordinance provisions that provide for unilateral attomeys' fees awards to municipalities were unenforceable. In the past they were simply interpreted as being reciprocal. Fortunately, my mistake was caught by my office and we now bring revised provisions to you. Since this is a substantial change to the ordinance as introduced, it must have first reading once again, and then be passed to second reading at the March 24, 2009 meeting. Additionally, the City may limit recovery of attorneys' fees to those actions in which the City chooses at the initiation of the action or proceeding to seek its own attorneys' fees. State law also provides that such fees shall not exceed the amount of reasonable attomeys' fees incurred by the city in the action or proceeding. The ordinance presented to the City Council at its February 24, 2009 meeting has been amended to reflect state law provisions. Amendment of Nuisance Abatement Ordinance March 10, 2009 Page 2 We recommend section 10.50.160 be amended to add a subdivision "D," as revised, that states: D. The prevailing party in any judicial action or administrative proceeding to abate a nuisance shall recover the attorneys' fees incurred as follows: 1. The recovery of attorneys' fees shall be limited to those individual judicial actions or administrative proceedings in which the City elects, at the initiation of the individual judicial action or administrative proceeding, to seek recovery of its own attorneys' fees; and 2. In no judicial action or administrative proceeding shall an award of attomeys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the judicial action or administrative proceedings; and 3. Attomeys' fees and costs may include, but not be limited to, costs and expenses related to the use of expert witnesses incurred in the evaluation and /or prosecution of any nuisance abatement proceedings pursuant to the provisions of this Chapter. This change is reflected in proposed Ordinance No. 2009 -_ attached hereto. We recommend this ordinance as revised be introduced for first reading and scheduled for second reading and adoption of the ordinance at the March 24, 2009 City Council meeting. Environmental Review: This is not a project under CEQA. Public Notice: This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). It was posed at City Hall and on the City's website. Funding Availability: No funding is necessary. Alternatives: The Council may choose not to take the action recommended or instruct staff to consider alternatives to this cost shifting ordinance and return with possible alternatives for Council's consideration. Prepared by: ate,_ David R. Hunt, City Attorney Attachments: Revised Ordinance Amending 10.50.160 ORDINANCE NO. 2009- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTION 10.50.160 OF CHAPTER 10.50 OF TITLE 10 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO NUISANCE ABATEMENT The City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code section is amended to read, in full, as follows: SECTION 1: Section 10.50.160 of Chapter 10.50 is hereby amended to read as follows: Section 10.50.160 Alternative Actions. A. Nothing in this chapter shall be deemed to prevent the City Council from authorizing the City Attorney to commence a civil action to abate the nuisance in addition to, alternatively to, or in conjunction with the proceeding set forth in this chapter, nor shall anything in this chapter be deemed to prevent the City from commencing a criminal action with respect to the violation of this chapter. B. This chapter is not the exclusive regulation of property maintenance. It shall be supplemental in addition to other regulatory codes, statutes and ordinances heretofore or hereinafter enacted by the City, State of California, or any other legal agency having jurisdiction. C. Each day that an owner allows a public nuisance to remain on his /her property shall be considered a violation of this code and may be punished as provided in Chapter 1.04 or Chapter 1.05 of this code. D. The prevailing party in any judicial action or administrative proceeding to abate a nuisance shall recover the attorneys' fees and costs incurred as follows: The recovery of attorneys' fees shall be limited to those individual judicial actions or administrative proceedings in which the City elects, at the initiation of the individual judicial action or administrative proceeding, to seek recovery of its own attorneys' fees; and 2. In no judicial action or administrative proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by the City in the judicial action or administrative proceedings; and 3. Attorneys' fees and costs may include, but not be limited to, costs and expenses related to the use of expert witnesses incurred in the evaluation and /or prosecution of any nuisance abatement proceedings pursuant to the provisions of this Chapter. SECTION 2: If any section, subsection, sentence,, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections; sentences, clauses and phrases be declared unconstitutional. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the day of 2009 and adopted on the _ day of 2009, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEM ABSENT COUNCILMEMBERS . MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By AVID R. HUNT, CITV ATTORNEY K "RECEIVE ER AG N� A PRiPJTEl1" 3' I 12822 Garden Grove Blvd. Ste. D, Garden Grove, California 92843 -2010 (714) 638 -5550 Fax (714) 638-8042 www.aaoc.com CQ v March 6, 2009 CD_. z Mayor Edward D. Selich c ? 3330 Newport Blvd. _ T' 'O 1-1 Newport Beach, CA 92663 rn' ca ^ m Dear Mayor Selich, y o 0 0 We are writing on behalf of the Apartment Association of Orange County (AAOC) to express support of the change in an amendment to the City of Newport Beach's Nuisance Abatement Ordinance recently passed by the City Council on February 24, 2009, with the changes being presented at the March 10, 2009 meeting. At the February 20 City Council meeting, Council Members voted to amend section 10.50.160 and add subdivision "D" that states "The City shall recover its attorneys' fees and costs, including, but not limited to, costs and expenses related to the use of expert witnesses, incurred in the evaluation and/or prosecution of any nuisance abatement proceeding pursuant to the provisions of this Chapter." The March 10'h meeting will present a change in this amendment to "the prevailing party in any judicial action or administrative proceeding to abate a nuisance shall recover attorney's fees..: We feel that if legal action concerning the nuisance issue must be taken, the prevailing party should recover its attorney fees, whether it is the City or the property owner. We realize that a majority of the time the City has good reason to take the person causing the nuisance to court and that the City will most likely be the prevailing party. However, there is the possibility that the City will not always be the victor, and it is not fair to put the burden of payment on the owner if that is the case. More so, having the prevailing party, not only the City, recover its fees keeps local government in check by prompting them to consider all options before relying on a count to take action. While we are sure the City already takes precaution, holding local government accountable is an important part of making sure they are doing what is in their coustituen& best interest, not just their own. We appreciate the City's thoroughness in this matter and are pleased to see the changes made frorn the originate amendment. Thank you very much for your consideration ofthds issue. Sincerely, "erry Fcuyer Dean Zarkos President Vice President Legislative Affairs A non- profit organization serving the rental housing industry since 1961