Loading...
HomeMy WebLinkAbout2021-09-14; City Council; ; Amendment to Carlsbad Municipal Code Chapter 6.16 - NuisancesMeeting Date: Sept. 14, 2021 To: Mayor and City Council From: Scott Chadwick, City Manager Staff Contact: Marissa Kawecki, Deputy City Attorney marissa.kawecki@carlsbadca.gov, or 760-434-2891 Subject: Amendment to Carlsbad Municipal Code Chapter 6.16 - Nuisances District: All Recommended Action Introduce the ordinance in Exhibit 1 to amend Article 1 of Carlsbad Municipal Code Chapter 6.16 – Nuisances to provide for the recovery of attorneys’ fees. Executive Summary The City Council adopted an ordinance on Oct. 6, 2020, to repeal and replace Carlsbad Municipal Code Chapter 6.16 – Nuisances. The ordinance did not include a provision for the prevailing party to recover attorneys’ fees in any judicial action, administrative proceeding and/or special proceeding to abate a nuisance. This amendment would add such a provision. Discussion When Chapter 6.16 was repealed and replaced in 2020, one of the stated purposes was to establish the city’s authority to abate nuisances, such as abandoned buildings and dangerous residential or commercial structures, and to recover the costs when the city conducts the abatement on the property owner’s behalf. California Government Code Section 38773.5(b) authorizes a city to adopt an ordinance to “provide for the recovery of attorneys’ fees in any action, administrative proceeding, or special proceeding to abate a nuisance.” The ordinance must also provide for recovery of attorneys’ fees by the prevailing party, not only the city. The ordinance may limit the prevailing party’s recovery of attorneys’ fees to those individual actions or proceedings in which the city elects, at the initiation of the action or proceeding, to seek recovery of its own attorneys’ fees. The award of the prevailing party’s attorneys’ fees must not exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. The proposed amendment is authorized by this state code section and would align with the stated purpose of Carlsbad Municipal Code Chapter 6.16 concerning cost recovery in nuisance abatement actions. This provision would provide greater certainty in the recovery of attorneys’ fees for nuisance abatement actions. These fees can quickly accumulate, given the often time-consuming and complex nature of nuisance abatement. Attorneys’ fees can become significant when outside CA Review MK Sept. 14, 2021 Item #7 Page 1 of 7 counsel is retained to assist in a nuisance abatement action, which has been and may be necessary in certain cases. The downside of such a provision is that the city will have to pay the opposing party’s attorneys’ fees if the opposing party prevails in the nuisance abatement action. Options Staff provide the following options for the City Council’s consideration: 1. Introduce the proposed ordinance to amend Chapter 6.16. Pros • If the ordinance is subsequently adopted, the city would have a mechanism for seeking and recovering its reasonable attorneys’ fees in a nuisance abatement action or proceeding. Cons • The city would have to pay the opposing party’s reasonable attorneys’ fees, up to the amount the city itself expended on attorneys’ fees, if the city is not the prevailing party in the nuisance abatement action or proceeding. 2. Do not introduce the proposed ordinance to amend Chapter 6.16. Pros • There would be no statutory authority requiring the city to pay the opposing party’s reasonable attorneys’ fees if the city is not the prevailing party in a nuisance abatement action or proceeding. Cons • Without the ordinance’s attorneys’ fees provision, the city would not have statutory authority to recover reasonable attorneys’ fees in a nuisance abatement action or proceeding. Staff recommend the City Council select Option 1 and introduce the ordinance amending Chapter 6.16 to include an attorneys’ fees recovery provision. Fiscal Analysis The existing fiscal year 2021-22 budgets for the City Attorney’s Office and City Clerk’s Office include sufficient funding for the cost of amending Chapter 6.16, Article I. This amendment would be beneficial from a fiscal standpoint so long as the city prevails in any judicial action, administrative proceeding and/or special proceeding to abate a nuisance. In recent years, the city has prevailed in the few nuisance abatement actions that it has pursued, or it has incurred no costs or fees from the opposing party. While nuisance abatement actions are rare, the attorneys’ fees can accumulate quickly. These fees can range from less than $10,000 to as much as $100,000 or more, depending on whether the city uses in-house or outside counsel and whether the action is pursued administratively or in court. Conversely, if the city is not successful in a judicial action, administrative proceeding and/or special proceeding to abate a nuisance, the city will be required to pay the opposing party’s attorneys’ fees. However, such fees would be capped at the reasonable attorneys’ fees incurred by the city in the action or proceeding. Sept. 14, 2021 Item #7 Page 2 of 7 Next Steps If the ordinance is approved by the City Council, the City Clerk’s Office will prepare it for adoption at the next regular City Council meeting. Once adopted, the City Clerk will publish the ordinance or a summary of the ordinance in a newspaper of general circulation within 15 days. The ordinance will be effective 30 days following its adoption. Environmental Evaluation (CEQA) This action does not constitute a “project” within the meaning of the California Environmental Quality Act under California Public Resources Code Section 21065 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment and therefore does not require environmental review. Public Notification and Outreach This item was noticed in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date. Exhibits 1. Amended ordinance for Chapter 6.16, Article I 2. Amended ordinance for Chapter 6.16, Article I with revisions highlighted Sept. 14, 2021 Item #7 Page 3 of 7 ORDINANCE NO. CS-402 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 6, CHAPTER 6.16 OF THE CARLSBAD MUNICIPAL CODE CONCERNING PUBLIC NUISANCES WHEREAS, on October 26, 2020, the City Council adopted Ordinance CS-385 amending Carlsbad Municipal Code Chapter 6.16 regarding public nuisances and property maintenance in its entirety; and WHEREAS, the purpose of Chapter 6.16 of the code is to provide comprehensive and transparent procedures to identify public nuisances within the City of Carlsbad, encourage compliance where a public nuisance violation exists, and establish the authority to abate and recover costs of abatement when the responsible party and/or property owner fails to comply; and WHEREAS, California Government Code Section 38773.5, subdivision (b), authorizes a city to adopt an ordinance to "provide for the recovery of attorneys' fees in any action, administrative proceeding, or special proceeding to abate a nuisance;" and WHEREAS, attorneys' fees can be a significant portion of the costs associated with nuisance abatement actions and Chapter 6.16 does not currently allow for their recovery; and WHEREAS, adding a provision for the recovery of attorneys' fees to Chapter 6.16 of the Code would allow for a greater recovery ofthe city's costs of nuisance abatement in any action in which the city prevails; and WHEREAS, a provision for the recovery of attorneys' fees in a nuisance abatement action is reasonably necessary for the protection of the health, safety, morals and well-being of the community. Nuisance conditions by their very nature threaten the health, safety, morals and well- being of the community, yet bringing a successful nuisance abatement action can be complex and incur costly attorney expenses. The attorneys' fees recovery provision will minimize this financial barrier and enable the city to swiftly and competently bring forward a nuisance abatement action to protect the community. NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows: 1. The above recitations are true and correct. 2. Carlsbad Municipal Code, Title 6, Chapter 6.16, Section 6.16.120 is amended to read as follows: Sept. 14, 2021 Item #7 Page 4 of 7 6.16.120 Account of cost of abatement to be kept. A. The city manager or designee shall keep an account of the cost of abatement and of rehabilitating, demolishing, or repairing any premises, buildings, or structures, including any related salvage value and administrative costs. Upon completion of this work, the city manager or designee shall authorize a written abatement cost report stating these costs. B. For purposes of this chapter, "administrative costs" includes, without limitation, the actual expenses and costs of the city in preparing, printing, and mailing notices, specifications and contracts and in inspecting the work, and may include attorneys' fees. 3. Carlsbad Municipal Code, Title 6, Chapter 6.16, is amended by the addition of Section 6.16.205 to read as follows: II II II II II II II II II II II II 6.16.205 Attorneys' fees. In any judicial action, administrative proceeding or special proceeding to abate a nuisance, the prevailing party shall recover the incurred attorneys' fees as follows: A. The recovery of attorneys' fees by the prevailing party is limited to those individual actions or proceedings in which the city elects, at the initiation of the action or proceeding, to seek recovery of its own attorneys' fees. B. 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. Sept. 14, 2021 Item #7 Page 5 of 7 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, provided that the ordinance is intended to apply to those code enforcement proceedings commenced or continuing 2 years before or any time after the effective date; and the City Clerk's Office shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 14th day of September, 2021, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the_ day of ___ ~ 2021, by the following vote, to wit: AYES: NAYS: ABSENT: APPROVED AS TO FORM AND LEGALITY: c ELIA A. BREWER, City Attorney MATT HALL, Mayor FAVIOLA MEDINA, City Clerk Services Manager (SEAL) Sept. 14, 2021 Item #7 Page 6 of 7 6.16.120 Account of cost of abatement to be kept. A.The city manager or designee shall keep an account of the cost of abatement and of rehabilitating, demolishing, or repairing any premises, buildings, or structures, including any related salvage value and administrative costs. Upon completion of this work, the city manager or designee shall authorize a written abatement cost report stating these costs. B.For purposes of this chapter, “administrative costs” includes, without limitation, the actual expenses and costs of the city in preparing, printing, and mailing notices, specifications and contracts and in inspecting the work, and may include attorneys’ fees. . . . 6.16.205 Attorneys’ fees. In any judicial action, administrative proceeding or special proceeding to abate a nuisance, the prevailing party shall recover the incurred attorneys’ fees as follows: A.The recovery of attorneys’ fees by the prevailing party is limited to those individual actions or proceedings in which the city elects, at the initiation of the action or proceeding, to seek recovery of its own attorneys’ fees. B.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. Exhibit 2 Sept. 14, 2021 Item #7 Page 7 of 7