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HomeMy WebLinkAbout15-03 CC OrdinanceORDINANCE NO. 15 -03 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMECULA AMENDING SECTION 8.12.140 OF THE TEMECULA MUNICIPAL CODE RELATING TO THE RECOVERY OF ABATEMENT EXPENSES IN PUBLIC NUISANCE ACTIONS THE CITY COUNCIL OF THE CITY OF TEMECULA DOES ORDAIN AS FOLLOWS: Section 1. Amendment. Section 8.12.140 of the Temecula Municipal Code is hereby amended to read as follows: 8.12.140 Nuisances — Recovery of abatement expenses. A. Whenever any person creating, causing, committing, or maintaining a public nuisance, as referred to in Section 8.12.140, or other public nuisance, as defined under state law or other ordinances or regulations, has been given notice, by or on behalf of the city attorney or by any other city officer, employee or policing agent authorized to give such notice, to abate such nuisance or cease and desist from continuing such nuisance or violation of law, and such person fails, refuses or neglects to comply with the notice within the time specified therein, or if such a time is not ' specified, then within a time reasonably sufficient to enable such compliance, such noncomplying person shall be liable to the city for any and all costs and expenses to the city involved in thereafter abating the nuisance and in obtaining compliance with or enforcing the law as referred to or encompassed within said notice. B. Costs and expenses, as referred to in subsection A. of this section, may include, but are not limited to, any and all direct costs and expenses related to such things as personnel salaries and benefits, operational overhead, rent, interest, fees for experts or consultants, or claims against the city arising as a consequence of the nuisance or violation, and procedures associated with collecting moneys due hereunder. Additionally, in any legal action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party shall be entitled to recovery of attorneys' fees. The recovery of attorneys' fees by the prevailing party shall be limited to those individual 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, administrative proceeding, or special 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. C. The provisions of subsection A of this section shall also apply to any person who received a notice, as specified therein, abated the nuisance or violation, but ' subsequently allowed or was responsible for a recurrence of the nuisance or violation. Ords 15 -03 1 D. The liability of any person for the payment of the costs and expenses ' provided for in subsection A of this section may be waived in whole or in part by the city attorney in any case where he or she determines, in his or her sole discretion, that the failure or refusal of such persons to comply with the notice therein involved was based upon a good faith and bona fide issue of law or fact specially involved in the circumstances of the case. Any determination or decision of the city attorney in this regard shall be final and conclusive and shall not be subject to appeal as prescribed in Chapter 2.04. E. Money due to the city pursuant to this section may be recovered in an appropriate civil action. Alternatively, such liability may be enforced by special assessment proceedings against the parcel of land upon which the nuisance existed, which proceedings may be conducted in a manner substantively similar to proceedings described in Sections 39574 et seq. of the California Government Code relating to weed abatement assessments. Section 2. Findings. In adopting this Ordinance, the City Council hereby finds, determines and declares that: A. The amendment to Temecula Municipal Code Section 8.12.140 by this Ordinance is declaratory of existing law. B. Government Code Section 38773.5 requires that in all city nuisance abatement actions the "prevailing party" shall be entitled to reasonable attorney fees even if the ordinance limits recovery of attorney fees to the city and further provides that ordinances providing for nuisance abatement shall state that the prevailing party may be entitled to recovery of reasonable attorneys fees in any such abatement action. C. This provision is similar to Civil Code Section 1717 that provides that even if a contract provides for the payment of attorneys fees to a particular party to the contract, the court will award attorney fees to the prevailing party in a legal action involving the contract. D. Section 8.12.140 is construed as providing for the award of attorney fees in a legal action, administrative proceeding, or special proceeding for nuisance abatement to the prevailing party and not just to the City. The wording of the section should, however, be amended to specifically state this construction of Section 8.12.140 in order to prevent confusion and provide for a clear statement of the law. Section 3. Severability. If any section or provision of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, or contravened by reason of any preemptive legislation, the remaining sections and /or provisions of this Ordinance shall remain valid. The City Council hereby declares that it would have adopted this Ordinance, and each section or provision thereof, regardless of the fact that any one or more section(s) or provision(s) may be declared invalid or ' unconstitutional or contravened via legislation. Ords 15 -03 2 PASSED, APPROVED, AND ADOPTED by the City Council of the City of ' Temecula this 14th day of April, 2015. ATTEST`? Ran - Ison, City Clerk [SEAL] Ords 15-03 Mayor STATE OF CALIFORNIA ) ' COUNTY OF RIVERSIDE ) ss CITY OF TEMECULA ) I, Randi Johl - Olson, City Clerk of the City of Temecula, do hereby certify that the foregoing Ordinance No. 15 -03 was duly introduced and placed upon its first reading at a meeting of the City Council of the City of Temecula on the 24th day of March, 2015, and that thereafter, said Ordinance was duly adopted by the City Council of the City of Temecula at a meeting thereof held on the 14"' day of April, 2015, the following vote: AYES: 4 COUNCIL MEMBERS: Edwards, Naggar, Rahn, Comerchero NOES: 0 COUNCIL MEMBERS: None ABSTAIN: 0 COUNCIL MEMBERS: None ABSENT: 0 COUNCIL MEMBERS: None an i Johl- Olson, City Clerk 1 Ords 15 -03 4