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Home My WebLink About15 - Nuisance Abatement Ordinance Fee RecoveryCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 115 February 24, 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 TO PROVIDE FOR RECOVERY OF ATTORNEYS' FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS ISSUE: Should the Council amend the nuisance abatement ordinance in order to add recovery of attomeys' fees and expert costs? RECOMMENDATION: Approve an ordinance amending Section 10.50.160 of the Municipal Code and pass to second reading on March 10, 2009. DISCUSSION: Background: Nuisance abatement is a procedure by which the City brings properties into compliance with City regulations and the law, and addresses public health and safety issues. Proceedings to enforce the City's laws often results in the retention of outside counsel and the use of expert witnesses at significant cost to the City. In our opinion, costs of those proceedings are appropriately shifted to the party and property against whom the enforcement proceedings are compelled and should not be paid by the citizens of Newport Beach. The City's nuisance abatement procedures are set out in Chapter 10.50 of Title 10 of the City's Municipal Code. These regulations provide the City with many tools to bring properties . into conformance. Section 10.50.160 specifically provides that the City may pursue a legal process available for enforcement, or any combination of avenues, Amendment of Nuisance Abatement Ordinance February 24, 2009 . Page 2 including criminal and civil enforcement. Thus, it is appropriate to add to the right to recover attorneys' fees and expert witness expense to those provisions. We recommend section 10.50.160 be amended to add a subdivision "D" that states: D. 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. This change is reflected in proposed Ordinance No. 2009 - _'attached hereto. We recommend this matter be scheduled for a second reading and adoption of the ordinance at the March 10, 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: David R. Hunt, City Attorney Attachments: 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 evaluation and /or prosecution of any nuisance abatement proceeding 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, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY 0 DAVID R. HUNT, CITY ATTORNEY F:\ usersl pQsharecROrdinance\ PublicNuisAbatement \02.17.09.doc 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 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. 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, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By DAVID R. HUNT, ITY ATTORNEY F: fusers\ ca kgharechOrdinance\PublicNu'us/ tement102.17.09.doc 2