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Home My WebLink About2021-09-21; City Council; ; Adoption of Ordinance No. CS-402 – NuisancesMeeting Date: Sept. 21, 2021 To: Mayor and City Council From: Scott Chadwick, City Manager Staff Contact: Faviola Medina, City Clerk Services Manager Faviola.medina@carlsbadca.gov, 760-434-5989 Subject: Adoption of Ordinance No. CS-402 – Nuisances Districts: All Recommended Action Adopt Ordinance No. CS-402 amending Title 6, Chapter 6.16 of the Carlsbad Municipal Code concerning public nuisances. Executive Summary/Discussion Ordinance No. CS-402 was introduced and first read at the City Council meeting held Sept. 14, 2021. On a motion by Mayor Pro Tem Blackburn, seconded by Council Member Bhat-Patel, the City Council voted 5-0 to introduce Ordinance No. CS-402. The second reading allows the City Council to adopt the ordinance, which will become effective 30 days after the adoption. 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 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. Next Steps The City Clerk’s Office will have the ordinance, or a summary of the ordinance, published in a newspaper of general circulation within fifteen days following adoption of the ordinance. Sept 21, 2021 Item #6 Page 1 of 5 Environmental Evaluation In keeping with California Public Resources Code Section 21065, this action does not constitute a “project” within the meaning of the California Environmental Quality Act 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. Therefore, it 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. Ordinance No. CS-402 Sept 21, 2021 Item #6 Page 2 of 5 Sept 21, 2021 Item #6 Page 3 of 5 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 pro~eeding, 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 of the 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 21, 2021 Item #6 Page 4 of 5 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. 8. 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: 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 iri 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. 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. Sept 21, 2021 Item #6 Page 5 of 5 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 21st day of September 2021, by the following vote, to wit: AYES: Hall, Blackburn, Bhat-Patel, Acosta, Norby NAYS: None. ABSENT: None. APPROVED AS TO FORM AND LEGALITY: CELIA A. BREWER, City Attorney (SEAL)