Orinda Municipal Code Ch. 19.04 Remedies and Relief

The amount of a civil penalty authorized by this title shall be that established from time to time by the City Council in the comprehensive fee schedule. If no penalty has been established by resolution, the penalty shall be one thousand dollars ($1,000.00) per violation.

A. Penalty Reduction. Correction of any violation within ten days of the date of service of the citation, as verified by the signature of a compliance officer on the citation, will result in the reduction of civil penalties by two-thirds for a first time violator.

B. Penalty Enhancement. If the violator or property owner fails to correct the violation, subsequent administrative citations may be issued for the same violation(s). The amount of the civil penalty assessed for each section violated shall not exceed the following amounts:

1. First administrative citation: the amount shown on the city's comprehensive fee schedule;

2. Second administrative citation within one year for violation of the same code section: two times the fee schedule amount;

3. Third or subsequent administrative citation within one year for violation of the same code section: five times the fee schedule amount.

D. Effect of Payment. Payment of the civil penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the city.

E. Place of Payment. All civil penalties assessed shall be payable to the city at the address provided on the administrative citation.

F. Late Fee. If payment of a civil penalty and proof of correction is not received by the compliance officer within twenty-one (21) days of service of the citation, then a late fee shall be assessed. The amount of the late fee shall be one hundred (100) percent of the total amount of the civil penalty owed.

G. Failure to Pay is a Debt. The failure of any person to timely pay a civil penalty assessed by administrative citation or any late fee constitutes a debt to the city. To enforce that debt, the Director of Finance or designee may file a claim with the small claims court, or pursue any other legal remedy to collect such money. Such costs may be assessed by a court having jurisdiction over a city enforcement action.

(Ord. 04-08 § 3 Exh. B (part))

A. General. The city shall be entitled to recover all costs incurred in obtaining compliance with the code, and the compliance officer is authorized to collect all costs of enforcement of the provisions of the code from the person or entity violating the code. Costs of enforcement shall include all costs that:

1. Lead to the discovery and investigation of the violation;

2. Are incurred in removing, correcting, or terminating the adverse effect(s) resulting from the violation; and

3. Are incurred to insure compliance after the violation has been corrected, including but not limited to administrative proceedings and legal action.

Such costs shall include but are not limited to fees for the services of attorneys, consultants, and experts, costs of investigation, inspection, monitoring, costs of uniformed police action, and all related staff time and costs, and reasonable expenses of litigation.

B. Title 18 Violations. In the case of violations of Title 18 relating to clean water and drainage, costs shall include:

1. Compensatory damages for the loss or destruction of water quality, wildlife, fish or aquatic life. Costs and damages under this subsection shall be paid to the city and shall be used exclusively for costs associated with monitoring and establishing a stormwater discharge pollution control system, or implementing or enforcing the provisions of Title 18, or both;

2. The cost of maintenance and repair of any BMP or stormwater management facility that is not maintained in accordance with the guidebook or the stormwater control plan.

C. Nuisance Abatement Costs. The prevailing party in any action, administrative proceeding, or special proceeding to abate a nuisance which is initiated by the city may recover reasonable attorneys' fees, as provided by Government Code Section 38773.5(b).

D. Collection of Costs. The compliance officer is authorized to use any measures provided by law to collect such costs. Unpaid costs shall become a special assessment against the real property where the violation occurred. The assessment shall continue until it is paid, together with interest at the rate of ten percent per year computed from the date of confirmation of the statement until payment. The assessment may be collected at the same time and in the same manner as ad valorem real property taxes are collected and shall be subject to the same penalties and the same procedure, and sale in case of delinquency as provided for ad valorem real property taxes. All laws applicable to levy, collection, and enforcement of ad valorem real property taxes shall apply to this special assessment. Such unpaid costs shall also constitute a lien against the property, which may be foreclosed and the real property sold, by the filing of a complaint for foreclosure in a court of competent jurisdiction, and the issuance of a judgment to foreclose.

(Ord. 04-08 § 3 Exh. B (part))

A performance bond, a cash deposit, or a bank-authorized assignment of a cash equivalent may be required in an amount sufficient to cover the costs of bringing a violation into compliance with the code. In addition, a performance bond, a cash deposit, or a bank-authorized assignment of a cash equivalent may be required as a condition of approval of a permit authorized by the code, to ensure compliance with the terms of the permit. The form of security shall be in the reasonable discretion of the Finance Director.

(Ord. 05-07 § 11: Ord. 04-08 § 3 Exh. B (part))

An independent monitor to inspect and supervise a property or activity that has been in violation of the code may be required, along with periodic reports by the monitor to the compliance officer as is necessary, all costs to be borne by the person or entity found to be in violation of the code.

(Ord. 04-08 § 3 Exh. B (part))

The person or entity found to be in violation of the code may be required to make periodic reports concerning compliance to the compliance officer for a reasonable period of time.

(Ord. 04-08 § 3 Exh. B (part))

A person or entity found to be in violation of the code may be required to enter into an enforcement agreement with the city to address foreseeable enforcement issues. An enforcement agreement may include but is not limited to: security requirements (e.g., a certificate of deposit or letter of credit authorizing the city to draw on the account to cover enforcement costs without the consent of the applicant); summary right of entry and inspection; maintenance requirements; insurance; indemnification of the city; payment of city staff time required to administer the agreement and attorneys' fees and costs required to enforce the agreement.

(Ord. 04-08 § 3 Exh. B (part))

If construction, demolition, repairs, or any other activity occurs in violation of the code, the compliance officer may order the work or activity stopped by notice in writing served on the person so engaged. If a stop work order is served, the work shall stop immediately until reauthorized in writing by the compliance officer. Failure to cease the unlawful activity is a misdemeanor and is subject to civil penalties as set forth in this title.

(Ord. 04-08 § 3 Exh. B (part))

Any person required to perform monitoring, analysis, reporting or corrective activity by any officer may be informed of such decision, in writing, by a notice of violation. Any person aggrieved by the decision of the officer, may file a written appeal of the notice of violation to the director within ten days following the date of the notice of violation. Upon receipt of such request, the director shall request a report and recommendation from the officer and shall set the matter for hearing at the earliest practical date. At such hearing, the director may hear additional evidence, and may reject, affirm or modify the officer's decision. The decisions of the director shall be final.

(Ord. 04-08 § 3 Exh. B (part))

A notice of noncompliance may be recorded where uses or structures existing on a property are in violation of code requirements and are not legal nonconforming uses or structures. The notice of noncompliance shall list the specific circumstances and the code sections violated. A copy of the recorded notice of noncompliance shall be mailed to the owner of the property within ten days after recordation has occurred.

(Ord. 04-08 § 3 Exh. B (part))

(See Chapter 17.21 of this code.)

(Ord. 04-08 § 3 Exh. B (part))

After making a good faith effort to resolve a problem caused by a violation of this code directly with the person or persons responsible for the violation, and on providing credible evidence of that good faith effort, an individual may bring a private civil action for a violation of this code.

(Ord. 04-08 § 3 Exh. B (part))

Every person and entity who sells an interest in real property located in the city of Orinda shall provide a written statement to the buyer before the sale is completed describing the effect of certain city regulations which restrict property use and construction in Orinda. This statement shall be in the form required by the Community Development Department, as amended from time to time.

(Ord. 04-08 § 3 Exh. B (part))

California Code of Civil Procedure Section 1094.6 is applicable to the city of Orinda and provides that review of any decision of the city may be had under Code of Civil Procedure Section 1094.5 (review of administrative decisions) only if the petition for writ of mandate is filed within ninety (90) days after the decision becomes final.

(Ord. 04-08 § 3 Exh. B (part))