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HomeMy WebLinkAboutStaff Report 4.A 07/03/2017Agenda Item #4.A DATE: July 3, 2017 TO: Honorable Mayor and Members of the City Council through City Manager FROM: Ken Savano, Police Chiefq SUBJECT: Public Hearing and Resolution Approving a Lien Against Property Located at 1645 Weaverly Drive. RECOMMENDATION It is recommended that the City Council hold a public hearing and adopt the attached Resolution Approving a Lien Against Property Located at 1645 Weaverly Drive for Penalties for Violations of the Petaluma Municipal Code that Remain Unpaid by the Responsible Parties and Authorizing the Recordation of a Lien on the Property for Collection. BACKGROUND On December 6, 2010, the City Council amended Chapters 1.10 through 1.16 of the Petaluma Municipal Code. The amendments provided more tools for enforcement of public nuisances and property maintenance regulations within the City. Municipal Code Sections 1. 14.060 and 1. 14.140 allow the City to recover all past -due costs and penalties as a result of enforcement action by imposition of a lien on real property. DISCUSSION The attached Notice of Intent to Impose a Lien, Notice of Hearing and Cost Report describe the unpaid debts as they relate to the property listed above. These debts are a result of administrative actions taken by the City to abate ongoing nuisance violations at the subject property. In 2016, the City Council approved a special assessment on the same subject property for unpaid debts relating to similar violations. Staff has attempted to work with the property owners to resolve ongoing issues; however, no action was taken by the property owners to make the necessary changes. On February 28, 2017 an administrative hearing was held due to lack of compliance with the decision and administrative order dated July 26, 2015, as well as two Notices of Violation that were issued to the subject property. These notices were issued on January 5, 2017 and January 11, 2017. The City presented its case to the hearing officer. The property owners were present at the hearing and were given the opportunity to present their argument. On March 20, 2017 the Administrative Hearing Officer Ira Lowenthal issued his Decision and Administrative Order (attachment 2). Per Section 5 of the Order, the property owners were required to pay the City $41,500 in penalties that were previously held in abeyance'. The payment was to be made 30 days after the March 20, 2017 decision. On April 19, 2017, the $41,500 became due in full. Per Section 6 of the Decision and Administrative Order, the City Clerk is authorized to record*a lien for any administrative costs and penalties awarded by the Administrative Hearing Officer. Petaluma Municipal Code Section 1.14.060(B) authorizes a lien to be recorded if the payment has not been satisfied within 60 days of the due date. June 18, 2017 was 60 days from the payment due date. As of the time' of the preparation of this staff report, no payment has been received from the property owners to satisfy the unpaid debt. With regard to notice to the property owners, all Notices of Violation were mailed to both known addresses of the property owners via regular first class mail and via certified mail, return receipt requested. Additionally, copies of the Notices of Violation were posted on the subject property. Most recently, the property owners received two notices from the City of Petaluma regarding their unpaid debts. The first notice demanded payment within 10 days (attachment 3), advising the property owners that the City of Petaluma may seek to record a lien on their property for any unpaid debts. The second notice (attachment 4) advised the property owners of this hearing and possible action by the City Council. These notices were prepared in accordance with Petaluma Municipal Code section 1.14.130. and are attached for Council review. The total amount being sought for recordation of a lien totals $41,500. Using the current Sonoma County Tax Assessor's Roll, staff has verified that the listed property owners still own the property where the violations occurred. FINANCIAL IMPACTS As noted above, there is a potential for recovering up to $41,500 of unpaid debts owed to the City of Petaluma. All debts are recovered if the property owner chooses to pay off the lien or through the satisfaction of the lien during any property sale or transfer. This debt would be subordinate to other outstanding debt assigned to the property that may be outstanding. Any money collected will go into the General Fund. ATTACHMENTS 1. Resolution 2. Decision and Administrative Order 3. Letter to Property Owner Dated May 16, 2017 Notice of intent to impose a lien 4. Letter to Property Owner Dated June 5, 2017 Notice of Hearing 5. Cost Report 1 The Decision and Administrative Order lists two sections as Section 5. The section reference hereto refers to the first listed Section 5, and is noted on the attached Decision and Administrative Order. Attachment 1 RESOLUTION APPROVING A LIEN AGAINST PROPERTY LOCATED AT 1645 WEAVE RLY DRIVE FOR PENALTIES FOR VIOLATIONS OF THE PETALUMA MUNICIPAL CODE THAT REMAIN UNPAID BY THE RESPONSIBLE PARTIES AND AUTHORIZING THE RECORDATION OF A LIEN ON THE PROPERTY FOR COLLECTION WHEREAS, Petaluma Municipal Code section 1.14.060(B) states that if the amount of any penalty imposed for a violation relating to an affected -property has not been satisfied in full within sixty days of the date due and has not been successfully challenged by appeal or in court, the penalty amount may become a lien against the affected property, as provided in Section 1.14.140; and WHEREAS, Petaluma Municipal Code section 1.14.060(B) states that if the City elects to make any penalty a lien against the affected property, a statement of the amount due, and any additional costs or expenses that might be recoverable as part of the enforcement action, shall be prepared and submitted to the City Council for confirmation in accordance with the procedures described in Section. 1.14.130; and WHEREAS, Petaluma Municipal Code section 1.14.130(A) states in relevant part that if any order authorizes the City to abate a nuisance condition or other code violations, the City official responsible for such abatement shall keep an accounting of the cost of abatement along with any other recoverable costs, and shall render a written report ("the cost report") to the City Council showing the cost of removing and/or abating the nuisance condition and describing the work performed and the cost report shall be agendized as a public hearing item by the City Cleric at a subsequent City Council meeting following the required notice periods; and WHEREAS, Petaluma Municipal Code section 1.14.130(B) requires that at least ten days prior to the submission of the cost report to the City Council, the City Cleric's office or their designee shall cause a copy of the cost report to be mailed to the responsible party and/or to the owner of the property where the nuisance condition existed and if the nuisance concerns real property, a copy of the cost report shall be mailed to the owner(s) at the address shown for such owner(s) on the last tax roll; and WHEREAS, Petaluma Municipal Code section 1.14.130(B) requires the City Clerk's office or their designee to also cause a notice of hearing to be mailed to the same person(s) or entity receiving a copy of the cost report and the notice of hearing shall set forth the date, time and location of the City Council meeting at which the cost report shall be submitted to the City Council; and WHEREAS Petaluma Municipal Code Section 1.14.140(D) states in relevant part, that any penalty imposed for violations of this code, including any other codes or statutes that have been incorporated into this code, and any costs of enforcement or administration or expenses associated with the abatement of any nuisance levied in accordance with Chapters 1.10 through 1. 16, whether imposed or levied judicially or administratively, may be enforced by the recordation of a lien against the property of the owner of the real property where the nuisance condition existed.; and WHEREAS, in accordance with Petaluma Municipal Code section 1.14.130, on July 3, 2017, the Police Chief provided to the City Council of Petaluma an itemized report detailing the unpaid debts from 1645 Weaverly Drive located in Petaluma, as a result of administrative enforcement dating back to 2015, all as shown and set forth on the attached Cost Report; and WHEREAS, in accordance with Petaluma Municipal Code sections 1.14 and 1. 16, the property owners have not exercised their rights to appeal the original fines and penalties imposed; and WHEREAS, in accordance with Petaluma Municipal Code section 1.14.130(B), a cost report and notice of hearing for special assessment was mailed, via U.S. Mail and certified mail, return receipt requested, to the identified property owners at the addresses listed on the most recent Tax Assessor's Role, advising the property owners of the City of Petaluma's intent to impose a special assessment for all outstanding debts that remained after 10 days of said notice; and WHEREAS, at the time and place referred to in said notice, the City Council heard the Police Chief's Cost Report, together with any objections raised by the property owners, and the City Council made its recommendations and any modifications it deemed necessary to be included in the final report; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma as follows: 1. The Police Chief's Cost Report, and the amount of $41,500, is hereby confirmed, and as to the delinquent parcel known as 1645 Weaverly Drive, Petaluma, the amount shown for such parcel constitutes a lien against the property. 2. In accordance with Petaluma Municipal Code section 1.14.130(D), a copy of this City Council order confirming costs against the responsible party shall be served on the responsible party within ten days of such order in the manner described in Section 1.14.020(B), which states that it shall be served upon the responsible party or owner personally or by United States mail, first-class postage prepaid, and if by such mail, it shall be sent to the last known address listed on the most recent tax assessor's records; when service is by first-class mail, a copy of the City Council order shall be conspicuously posted at the affected property when reasonably practicable for a period of not less than three calendar days prior to the first date of commencement of the action. 3. In accordance with Petaluma Municipal Code section 1.14.020(C), proof of service of the City Council order confirming costs shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time and manner of service, and the date and place of posing, if applicable and the declaration shall be affixed to a copy of the City Council order and retained by the enforcement officer. 4. In accordance with Petaluma Municipal Code section 1.14.140(B), before recordation of a lien authorized by this section, a notice of lien shall be served on the responsible party and/or owner of record of the parcel of land on which the nuisance existed, based on the last equalized assessment roll or the supplemental roll, whichever is more current. The notice of lien shall be served in the same manner as a summons in a civil action. If the owner of record cannot be found, after a diligent search, the notice of lien may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten days and publication thereof in a newspaper of general circulation published in Sonoma County. 5. In accordance with Petaluma Municipal Code section 1.14.140(D), a notice of any special assessment that is levied on real property shall be given to the owner by certified mail, and shall contain the information set forth in Government Code Section 38773.5(c). 6. A copy of this City Council Order shall be received by the County Recorder's Office for placement of the lien on the real property. CITY OF PETALUMA DECISION AND ADMINISTRATIVE ORDER DECISION AND ADMINISTRATIVE ORDER OF HEARING OFFICER REGARDING THE ADMINISTRATIVE CITATION ON THE REAL PROPERTY LOCATED AT 1645 WEAVERLY DRIVE, PETALUMA, CALIFORNIA, APN: 007-553-011 On February 28, 2015 (following Decision and Administrative Orders dated July 26, 2015 and September 12, 2015), a duly noticed Public Hearing was held before Ira Leslie Lowenthal, a Hearing Officer appointed by the City Council, City of Petaluma, to consider whether violations of the Petaluma Municipal Code exist on that certain real property located within the City of Petaluma generally referred to as 1645 Weaverly Drive, Petaluma, CA 94954 and more particularly described as Assessor's Parcel No. 007-553-011 (subject property") and further to determine whether the terms of the Decision and Administrative Order dated July 26, 2015 were violated. At the hearing, all interested parties were given an opportunity to be heard. Testimony was given by under oath by City of Petaluma staff, Joe Garcia, Neighborhood Preservation Coordinator (Notice of Violation Issuing Officer), Deputy City Attorney Jordan Green and property owners Kim Richardson and Arty Richardson. Testimony was also received by Kyle Richardson, property owner's son and tenant. Public comment was received. ISSUES - Notice of Violation pursuant to Petaluma Municipal Code (PMC) Pursuant to Notice of Hearing on Administrative Orders, dated February 13, 2017 ISSUE #1: Improperly maintained furnace in violation of PMC 1.10.085(B)(6), 1.10.085(H),1.10.085(L)(1)(e) and 1.10.085(P) ISSUE #2: Hole in fire wall of garage in violation of PMC 1.10.085 (K), 1.10.085(Q) and 1.10.085(U). ISSUE # 3 Tile surrounding tub/shower no longer providing a non-absorbent surface in violation of PMC1.10.085(L)(1)(b), 1.10.085(L)(1)(1). ISSUE #4: Furniture stored in front yard visible from off-site view in violation of PMC 1. 10.075 (G)(9). ISSUE # 5 Mattress in rear yard visible from off-site view in violation of PMC1.10.075(G)(3). APPLICABLE LAW Same as set forth in Issues above. EXHIBITS RECEIVED IN EVIDENCE The HEARING ON ADMINISTRATIVE ORDER - STAFF REPORT was received into evidence as Exhibit 1, without objection. Exhibit 1 contained twenty-four (24) documents. (Color copies of the photographs contained in Exhibit 1 were provided to the hearing officer at the hearing.) A Notice of Hearing on Administrative Orders dated February 13, 2017 previously received was also considered. Exhibit 1 also contained a Notice of Hearing on Administrative Orders *Updated* dated February 15, 2017. A one (1) page Daily Shipment Detail Report dated February 21, 2017 was received into evidence as Exhibit 2, without objection. A four (4) page document titled "1645 Weaverly Drive Administrative Costs and Penalties Worksheet" was received into evidence as Exhibit 3, without objection. Exhibit 3 indicates that all of the violations set forth in the Notice of Violations dated January 5, 2017 and January 11, 2017 were abated except for one violation of - Trash, Junk, garbage, and Debris in rear yard - for 5 days with a civil penalty of $5,000.00. CIVIL PENALTIES PMC Section 1.16.030 allows administrative penalties up to $1,000.00 a day, per violation and administrative costs pursuant to PMC 1.14.050. ADMINISTRATIVE COSTS The City of Petaluma requests administrative costs in the sum of $1,231.95 asset forth in Exhibit 3 received into evidence. Additional costs as the result of this hearing are hearing officer fees in the sum of $1,440.00, Total administrative costs are $2,671.95. REASONS FOR DECISION The property owners' tenant (son and brother), Kyle Richardson, testified that many of the violation had been abated or corrected to what he believed were according to code. He and property owners were given 10 days to provide proof of abatement or compliance. No documentation or evidence of compliance was submitted. The City has proved by a preponderance of the evidence that that violations of Issues #1, #2, #3, #4 and #5 as set forth above and Petaluma Municipal Codes therein exist. The City has further proved by a preponderance of the evidence, that an accumulation of junk, trash, garbage, debris, and mattresses has and does exist on the subject property visible from off-site view in violation of PMC 1. 10.075 G 1, 3 and 99 and has and does exist on the subject property within three years of the Decision and Administrative Order issued on July 26, 2015. Nonetheless, violations #1, #2 and #3 do not justify a civil penalty of $1,000.00 per day. Violations #4 and #5 are repetitive of the orders contained in the July 26, 2015 Decision and Administrative Order. The civil penalty therein was payment of the civil penalty held in abeyance for a repeated violation. HAVING CONSIDERED ALL OF THE EVIDENCE PRESENTED, THE HEARING OFFICER MAKES THE FOLLOWING FINDINGS OF FACT AND CONCLUSION OF LAW: Based on the Notice of Hearing On Administrative Orders dated February 13, 2017: 1. The violation of PMC 1.10.085(B)(6), 1.10.085(H),1.10.085(L)(1)(e) and 1.10.085(P) has been proven. 2. The violation of PMC 1.10.085(B)(6), 1.10.085(H),1.10.085(L)(1)(e) and 1.10.085(P) has been proven. 3. The violation of PMC1.10.085(L)(1)(b), 1.10.085(L)(1)(1 has been proven. 4. The violation of PMC 1.10.075 (G)(9) has been proven. 5. The violation of PMC1.10.075(G)(3) has been proven. 6. Violations of 1 through 5 above existed on the subject property from the date of Notice of Violation on February 13, 2017 through February 27, 2017. 7. An accumulation of junk, trash, garbage, debris, and mattresses on the subject property visible from off-site view has and does exist on the subject property in violation of PMC 1.10.075 G. 1 and 3, within three years of the Decision and Administrative Order issued on July 26, 2015. 8. The City is authorized to issue penalties up to $1,000 per day, per violation. The total civil penalty in this regard would amount to $70,000 based on 5 violations, lasting 14 days at $1,000.00 per day per violation.' While the violations exist, this hearing officer deems a civil penalty in this amount to be unconscionable as it applies to violations #1, #2, and #3. 9. Violations #4 and #5are deemed to be subject to the Decision and Administrative Order dated July 26, 2015. BASED UPON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW, IT IS HEREBY ADJUDGED AND DECREED THAT: 1. Five (5) violations of the PMC as specified in the Notice of Violation has existed and continues to exist on the subject property from January 11, 2017, the date of the Notice of Violation through February 13, 2017. 2. The Petaluma Municipal Code and the City's adopted Schedule of Penalties allow for penalties up to $1,000 per day, per code violation. 3a. Arty Richardson and Kim Richardson are ordered to pay the City of Petaluma $1,000 per day, per code violation, for one violation of the Notices of Violation dated January 5, 2017 and Januaryl 1, 2017 for 5 days in the total sum of $5,000 within 90 days from the date of the Hearing Officer's decision. Payment is to be made to the City of Petaluma, Administrative Services Department -Citations, 11 English Street, Petaluma, CA 94952. b. Notwithstanding 3a. above, in the event that all 5 violations of the PMC in the February 13, Notice of Violation and the one remaining violation in the January 5, 2017 and January 11, 2017 Notices of Violation are abated within said 90 days, the sum of $1,500.00 only, shall be paid within 90 days from the date of the Hearing Officer's decision. Payment is to be made to the City of Petaluma, Administrative Services Department -Citations, 11 English Street, Petaluma, CA 94952. c. In the event that all violations of the PMC are not abated within said 90 day period; or, said property is again in violation of any of the 5 violations of PMC within a three (3) year period of the date of the Hearing Officer's decision, the balance of the penalty set forth in 3a above shall become immediately due and payable. 4. The City of Petaluma may grant extensions of time to comply with any deadline set forth herein 5. For the violation of the Decision and Administrative Order dated July 26, 2015, Arty Richardson and Kim Richardson are ordered to pay $41,500.00 to the City of Petaluma within 30 days of this decision. Payment is to be made to the City of Petaluma, Administrative Services Department -Citations, 11 English Street, Petaluma, CA 94952. 5. Arty Richardson and Kim Richardson are ordered to pay the City of Petaluma its administrative costs in the amount of $1,231.95, plus the cost of the Administrative Hearing Officer in the sum of $1,440.00 for a total of $2,671.95, within 90 days fi•om the date of the Hearing Officer's decision. Payment is to be made to the City of Petaluma, Administrative Services Department -Citations, 11 English Street, Petaluma, CA 94952. 6. The City Cleric is authorized to record at the Sonoma County Recorder's Office a lien against the subject property for the combined total of the administrative costs and penalties awarded by the Administrative Hearing Officer, to the extent that such amount has not been tendered to or recovered by the City within 90 days of the date of the Hearing Officer's decision. 8. The City of Petaluma is authorized to abate or cause the abatement of a nuisance condition if the property owners fail to abate the violations within the time frames set forth above. If the City undertakes to abate or eliminate any nuisance condition as provided in PMC Section 1.11.030, the City shall be entitled to recover all costs of abatement incurred in performing such work and other costs necessary to enforce the order. Such costs may be recovered by the City as a personal obligation and/or through a lien or a special assessment on the affected property as provided in Section 1.14.140. 9. The property owners have the right to judicial review of the Administrative Hearing Officer's. decision pursuant to PMC Section 1.14.110. Date of decision: March 20, 2017 Wm - Ira Leslie Lowenthal Abatement Hearing Officer I am and at all times mentioned herein was, an active member of the State Bar of California and not a party to the above entitled cause. My business address is 1729 Mariposa Drive, Santa Rosa, CA 95405. On March 20, 2017, I served the forgoing document, described as: DECISION AND ADMINISTRATIVE ORDER By placing a true copy thereof enclosed in a sealed envelope addressed as follows: City of Petaluma P.O. Box 61 Petaluma, CA 94953-0061 Attn: Joe Garcia Arty Richardson Kim Richardson 1645 Weaverly Drive Petaluma, CA 94954 I deposited such envelopes in the mail at Santa Rosa, California. The envelope was mailed with postage thereon fully prepaid. Executed on March 20, 2017 at Santa Rosa, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Ira Leslie Lowenthal David Glass gra} m Chris Albertson Teresa Barrett Afilce Healy Gabe Kearney Dave King Kathy Miller Counclimernhers Police Department 969 Petaluma Boulevard North Petaluma, CA 94952-6320 Phone (707),778-4372 Fax (707) 778-4502 E-11 fail: yoliceadmin i.petaluma.ca.its TY OF PETALUMA POST Orr+mr Box 61 PETAmimA, CA 94953-0061 May 16, 2017 Arty Richardson Kim Richardson 1645 Weaverly Drive Petaluma, CA 94954 By Regular Mail and Certified Mail, Return Receipt Requested Subject Property: 1645 Weaverly Drive APN: 007-553-011 RE: Notice of intent to impose a lien on real property located at 1645 Weaverly Drive, Petaluma, CA. Dear Property Owners: This letter shalt serve as your notice of the City of Petaluma's intent to impose a lien against your property for the following unpaid debts owed: 1. Decision and Administrative Order dated March 20, 2017, issued by Ira Lowenthal. Section 5, civil penalties awarded: $41,500.00. Due in full April 19, 2017. The total amount owed to the City of Petaluma is $41,500. If payment is not received in full within 10 days of this letter, the City of Petaluma will commence proceedings to impose a lien on your property, pursuant to Section 1, 14.140 of City of Petalumia Municipal Code. Payment can be made to the following: City of Petaluma Attn: Accounts Receivable 11 English Street Petaluma, CA 94952 Your cooperation with this matter is greatly appreciated. Please do not hesitate to contact me with any further questions or concerns you may have. Thank you. Sincerely, WI Joe Ga cia Neighborhood Preservation Coordinator Code Enforcement Division City of Petaluma Police Department 707-778-4558 Cc; Arty Richardson, Kim Richardson, 2 Park Circle, Unit 101, Marin City, CA 94965 Finance Division City Attorney David Glass ,Mayor Chris Albertson Teresa Barrett Mike Mealy Gabe Kearney Dave I{ing Kathy Miller Councilmenibers Police Depm7ment 969 Pe(alunia Boulevard North Petahana, CA 94952-6320 Phone (707) 778-4372 Fax (707) 778-4502 EAlaPl: pol iceadiniti@ci.petahaiia. ca. tis 0-4 CITY OF PETALUMA POST OFFICE BOX 61 PETALUMA, CA 94953-0061 June 5, 2017 Arty Richardson Kim Richardson 1645 Weaverly Drive Petaluma, CA 94954 By Regular Mail and Certified Mail, Return Receipt Requested Subject Property: 1645 Weaverly Drive APN: 007-553-011 RE: Notice of Hearing to seek City Council authorization to impose a lien for costs and penalties for violations of the Petaluma Municipal Code on real property located at 1645 Weaverly Drive, Petaluma, CA, 94954. Dear Property Owners: Pursuant to Petaluma Municipal Code sections 1,14.060(B) and 1.14.130, this letter shall serve as your notice of the City of Petaluma's intent to impose a lien against your property for the unpaid debts described in the attached Cost Report. The City Council Meeting will be on the following date, time and location: DATE: July 3, 2017 TIME: 7:00 p.m. LOCATION: City Hall: Council Chambers 11 English Street Petaluma, CA 94952 If you would like to make a payment before the City Council hearing, payment may be made to the following: City of Petaluma Attn: Accounts Receivable 11 English Street Petaluma, CA 94952 Please do not hesitate to contact me with any further questions or concerns you may have, Sincerely, Joe Gacia Neighborhood Preservation Coordinator Code Enforcement Division City of Petaluma Police Department 707-778-4558 Cc: Arty Richardson, Kim Richardson, 2 Park Circle, Unit 101, Marin City, CA 94965 Finance Division City Attorney Cost Report Pursuant to Petaluma Municipal Code sections 1.14.060(B) and 1.14.130. 1645 Weaverly Drive (APN 007-553-011) Below please find an itemized account of the fines and penalties owed to the City of Petaluma: Decision and Administrative Order dated March 20, 2017, issued by Ira Lowenthal. Section 5, civil penalties awarded: $41,500.00. Due in full April 19, 2017. The total amount owed to the City of Petahu aa: $41,500.