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When Chapter 6.16 was repealed and replaced in 2020, one of the stated purposes was to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:
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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