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2000 Municipal Code Ordinance 328 - Amending RH Municipal Code 8.24.090CC 04-23-12 NEW BUSINESS ORDINANCE NO. 328 - AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE ("RHMC") § 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND PERMIT AWARD OF ATTORNEY'S FEES AND COSTS TO THE PREVAILING PARTY IN AN ACTION FOR NUISANCE ABATEMENT. Mayor Black introduced the item and asked for staff's comments. City Attorney Jenkins stated that State law allows the City to recover its attorney's fees when it pursues a nuisance abatement proceeding and this proposed ordinance allows the City to ask the Court for recovery of legal fees in those unusual cases where the City files a lawsuit to abate a nuisance. He further commented that the ordinance also makes on minor change to correct what he believes to be an error in the code whereby the City Manager could make the determination that a nuisance exists and that determination could be appealed to the City Council. Councilmember Lay moved that the City Council introduce Ordinance No. 328 for first reading and waive full reading of the Ordinance. Councilmember Heinsheimer seconded the motion. Mayor Black called for public comment. Cathy Nichols, 14 Crest Road West, addressed the City Council to express concern that residents will not be given appropriate notice regarding a nuisance. She stated that she feels this is a mean spirited approach and should be addressed by the City Council before action taken. Councilmember Lay commented in response to Ms. Nichols comments that this ordinance is the same ordinance as was in effect before this proposed change and that the change is to simply clean-up the ordinance. He stated that the City spends many years talking to the individuals where a nuisance exists. Discussion ensued concerning the City's current ordinance and active nuisance abatement case. City Attorney Jenkins commented that the ordinance is unchanged in so far as it requires notice, it allows for an appeal to the City Council and it is a very deliberative process and there has been no circumstance where the resident wasn't given the benefit of the doubt and given opportunity to abate the nuisance. He stated that there is not substantive change proposed to the process. Councilmember Lay called the question and the motion carried by the following roll call vote: AYES: Councilmembers Heinsheimer, Lay, Hill, Pernell and Mayor Black. NOES: None. ABSENT: None. ABSTAIN: None. Second reading and adoption was scheduled for the next regular meeting of the City Council. ORDINANCE NO. 328 AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE SECTION 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND THE COURT TO AWARD ATTORNEY'S FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS The City Council of the City of Rolling Hills does hereby ordain as follows: SECTION 1: Section 8.24.030 of Title 8, Chapter 8.24 of the Rolling Hills Municipal Code is amended in its entirety to read as follows: 8.24.030 — Notice to Abate Nuisance. Whenever the City Manager determines that a nuisance exists upon any property, place or area within the boundaries of the City, the City Manager may notify in writing the owner or person in possession of the property, place or area to abate the nuisance within fifteen days from the date of the notice. The' notice shall be given by registered or certified mail addressed to the owner or person in possession of the property, place or area at his last known address. SECTION 2: Section 8.24.090 of Title 8, Chapter 8.24 of the Rolling Hills Municipal Code is amended in its entirety to read as follows: "8.24.090 — Court action. The City may bring appropriate actions, in a court of competent jurisdiction, to collect any amounts due by reason of the abatement of a nuisance by the City and to foreclose any existing liens for such amounts. Notwithstanding the provisions of this chapter, the City may bring the appropriate civil and criminal actions in a court of competent jurisdiction for abatement of any nuisance existing within the City pursuant to any other provision of law. In addition to costs recoverable pursuant to Section 8.24.060, attorney's fees, expert fees, and court costs shall be awarded to the prevailing party in any action taken by the city to abate a nuisance if, and only if, the city seeks the award of attorney's fees and court costs at the initiation of such legal action or proceeding. The attorney's fees recoverable pursuant to this section shall be limited to the reasonable attorney's fees incurred by the city in the legal action or proceeding, regardless of the actual cost of any party's attorney's fees." SECTION 3: CEQA. This ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to permit operation of existing facilities; consists only of minor revisions and clarifications to existing regulations and specification of procedures related thereto; and consists of actions taken to assure the maintenance, protection and enhancement of the environment. This ordinance, therefore, does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under 14 Cal. Code Regs. §§ 15301, 15305, and 15308. SECTION 4: The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Rolling Hills' book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. PASSED, APPROVED, AND ADOPTED this 14'h day of May, 2012. Jame t ack, M. Mayor Ordinance No. 328 STATE OF CALIFORNIA) COUNTY OF LOS ANGELES ) §§ CITY OF ROLLING HILLS ) I HEREBY CERTIFY that the above and foregoing Ordinance No. 328 entitled: AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE SECTION 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND THE COURT TO AWARD ATTORNEY'S FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS was duly passed and adopted by the Rolling Hills City Council at its regular meeting held on 14th of May, 2012, by the following vote, to wit: AYES: Councilmembers Heinsheimer, Hill, Lay, Pernell and Mayor Black. NOES: None. ABSENT: None. ABSTAIN: None. and in compliance with the laws of California was posted at the Bowing: Administrative Offices. // // on D: le 'ruck. - Clerk Ordinance No. 328 - 2 - , TO: FROM: SUBJECT: aiRalle get4 INCORPORATED JANUARY 24, 1957 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CA 90274 (310) 377-1521 FAX (310) 377-7288 Agenda Item No.: 3-D Mtg. Date: 05-14-12 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL MICHAEL JENKINS, CITY ATTORNEY ORDINANCE NO. 328 AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE ("RHMC") § 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND PERMIT AWARD OF ATTORNEY'S FEES AND COSTS TO THE PREVAILING PARTY IN AN ACTION FOR NUISANCE ABATEMENT. DATE: APRIL 18, 2012 ATTACHMENTS Draft Ordinance No. 328 RECOMMENDATION It is recommended that the City Council conduct the second reading by title only and adopt Ordinance No. 328 amending Rolling Hills Municipal Code ("RHMC") § 8.24.090 to allow the City Manager to initiate nuisance abatement proceedings and permit award of attorney's fees and costs to the prevailing party in an action for nuisance abatement. BACKGROUND AND DISCUSSION This ordinance, which was introduced for first reading on April 23, 2012, makes two changes to the City's nuisance abatement ordinance in Chapter 8.24 of the Municipal Code. First, the ordinance corrects a procedural error in the Code that currently requires the City Council to initiate a nuisance abatement proceeding. Ordinarily, the City Manager should initiate the proceeding, with an appeal available to the Council. The existing language arguably causes the Council to pre -decide the issue of the existence of a nuisance prior to an appeal. Page 1of2 A city may collect attorney's fees in an action for nuisance abatement if it has enacted an ordinance authorizing their award. However, the state has limited the form an attorney's fees ordinance can take, in that the ordinance must authorize award of attorney's fees and costs to the prevailing party. The City's Municipal Code currently does not include language specifically authorizing the City to collect attorney's fees in cases involving nuisance abatement. It is recommended that the City amend the RHMC to permit award of attorney's fees and costs to the prevailing party of a nuisance abatement action. This amendment should limit collection of attorney's fees to cases where the City seeks attorney's fees at the initiation of the action or proceeding and limit the attorney's fees collected to the cost of the City's attorney's fees in the action or proceeding. FISCAL IMPACT The Ordinance would likely result in a positive fiscal impact through ensuring that the City may recover attorney's fees and court costs if it is determined to be the prevailing party in a lawsuit in which it seeks such fees and costs. However, the Ordinance may also subject the City to paying attorney's fees in cases where it is not found to be the prevailing party but requested such fees at the commencement of litigation. ENVIRONMENTAL IMPACT This ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to permit operation of existing facilities; consists only of minor revisions and clarifications to existing regulations and specification of procedures related thereto; and consists of actions taken to assure the maintenance, protection and enhancement of the environment. This ordinance, therefore, does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under 14 Cal. Code Regs. §§ 15301, 15305, and 15308. CONCLUSION The City Council is requested to consider the proposed Ordinance authorizing award of attorney's fees to the prevailing party in a nuisance abatement action. Following adoption the Ordinance would become effective in 30 days. Page 2 of 2 ORDINANCE NO. 328 AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE SECTION 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND THE COURT TO AWARD ATTORNEY'S FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS The City Council of the City of Rolling Hills does hereby ordain as follows: SECTION 1: Section 8.24.030 of Title 8, Chapter 8.24 of the Rolling Hills Municipal Code is amended in its entirety to read as follows: 8.24.030 — Notice to Abate Nuisance. Whenever the City Manager determines that a nuisance exists upon any property, place or area within the boundaries of the City, the City Manager may notify in writing the owner or person in possession of the property, place or area to abate the nuisance within fifteen days from the date of the notice. The notice shall be given by registered or certified mail addressed to the owner or person in possession of the property, place or area at his last known address. . SECTION 2: Section 8.24.090 of Title 8, Chapter 8.24 of the Rolling Hills Municipal Code is amended in its entirety to read as follows: "8.24.090 — Court action. The City may bring appropriate actions, in a court of competent jurisdiction, to collect any amounts due by reason of the abatement of a nuisance by the City and to foreclose any existing liens for such amounts. Notwithstanding the provisions of this chapter, the City may bring the appropriate civil and criminal actions in a court of competent jurisdiction for abatement of any nuisance existing within the City pursuant to any other provision of law. In addition to costs recoverable pursuant to Section 8.24.060, attorney's fees, expert fees, and court costs shall be awarded to the prevailing party in any action taken by the city to abate a nuisance if, and only if, the city seeks the award of attorney's fees and court costs at the initiation of such legal action or proceeding. The attorney's fees recoverable pursuant to this section shall be limited to the reasonable attorney's fees incurred by the city in the legal action or proceeding, regardless of the actual cost of any party's attorney's fees." SECTION 3: CEQA. This ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to permit operation of existing facilities; consists only of minor revisions and clarifications to existing regulations and specification of procedures related thereto; and consists of actions taken to assure the maintenance, protection and enhancement of the environment. This ordinance, therefore, does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under Ordinance No. 328 - 1 - 14 Cal. Code Regs. §§ 15301, 15305, and 15308. SECTION 4: The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Rolling Hills' book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. PASSED, APPROVED, AND ADOPTED this day of , 2012. Dr. James Black Mayor ATTEST: Anton Dahlerbruch, City Clerk Ordinance No. 328 - 2 STATE OF CALIFORNIA) COUNTY OF LOS ANGELES ) §§ CITY OF ROLLING HILLS ) I HEREBY CERTIFY that the above and foregoing Ordinance No. 328 entitled: AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE SECTION 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND THE COURT TO AWARD ATTORNEY'S FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS was duly passed and adopted by the Rolling Hills City Council at its regular meeting held on of , 2012, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: and in compliance with the laws of California was posted at the following: Administrative Offices. Anton Dahlerbruch, City Clerk Ordinance No. 328 3 eerf ge& INCORPORATED JANUARY 24, 1957 NO. 2 PORTUGUESE BEND ROAD ROLLING HILLS, CA 90274 (310) 377-1521 FAX (310) 377-72 Agenda Item No.: 7-A Mtg. Date: 04-23-12 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: MICHAEL JENKINS, CITY ATTORNEY SUBJECT: ORDINANCE NO. 328 AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE ("RHMC") § 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND PERMIT AWARD OF ATTORNEY'S FEES AND COSTS TO THE PREVAILING PARTY IN AN ACTION FOR NUISANCE ABATEMENT. DATE: APRIL 18, 2012 ATTACHMENTS Draft Ordinance No. 328 RECOMMENDATION It is recommended that the City Council introduce Ordinance No. 328 amending Rolling Hills Municipal Code ("RHMC") § 8.24.090 to allow the City Manager to initiate nuisance abatement proceedings and permit award of attorney's fees and costs to the prevailing party in an action for nuisance abatement. BACKGROUND AND DISCUSSION This ordinance makes two changes to the City's nuisance abatement ordinance in Chapter 8.24 of the Municipal Code. First, the ordinance corrects a procedural error in the Code that currently requires the City Council to initiate a nuisance abatement proceeding. Ordinarily, the City Manager should initiate the proceeding, with an appeal available to the Council. The existing language arguably causes the Council to pre -decide the issue of the existence of a nuisance prior to an appeal. A city may collect attorney's fees in an action for nuisance abatement if it has enacted an ordinance authorizing their award. However, the state has limited the form an Page 1 of 2 ® • 1..� attorney's fees ordinance can take, in that the ordinance must authorize award of attorney's fees and costs to the prevailing party. The City's Municipal Code currently does not indude language specifically authorizing the City to collect attorney's fees in cases involving nuisance abatement. It is recommended that the City amend the RHMC to permit award of attorney's fees and costs to the prevailing party of a nuisance abatement action. This amendment should limit collection of attomey's fees to cases where the City seeks attorney's fees at the initiation of the action or proceeding and limit the attorney's fees collected to the cost of the City's attorney's fees in the action or proceeding. FISCAL IMPACT The Ordinance would likely result in a positive fiscal impact through ensuring that the City may recover attorney's fees and court costs if it is determined to be the prevailing party in a lawsuit in which it seeks such fees and costs. However, the Ordinance may also subject the City to paying attorney's fees in cases where it is not found to be the prevailing party but requested such fees at the commencement of litigation. ENVIRONMENTAL IMPACT This ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to permit operation of existing facilities; consists only of minor revisions and clarifications to existing regulations and specification of procedures related thereto; and consists of actions taken to assure the maintenance, protection and enhancement of the environment. This ordinance, therefore, does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under 14 CaL Code Regs. §§ 15301,15305, and 15308. CONCLUSION The City Council is requested to consider the proposed Ordinance authorizing award of attorney's fees to the prevailing party in a nuisance abatement action. Following adoption the Ordinance after a first and second reading, the new Ordinance would become effective in 30 days. Page 2 of 2 r.� ORDINANCE NO. 328 AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE SECTION 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND THE COURT TO AWARD ATTORNEY'S FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS The City Council of the City of Rolling Hills does hereby ordain as follows: SECTION 1: Section 8.24.030 of Title 8, Chapter 8.24 of the Rolling Hills Municipal Code is amended in its entirety to read as follows: 8.24.030 — Notice to Abate Nuisance. Whenever the City Manager determines that a nuisance exists upon any property, place or area within the boundaries of the City, the City Manager may notify m writing the owner or person in possession of the property, place or area to abate the nuisance within fifteen days from the date of the notice. The notice shall be given by registered or certified mail addressed to the owner or person in possession of the property, place or area at his last known address. SECTION 2; Section 8.24.090 of Title 8, Chapter 8.24 of the Rolling Hills Municipal Code is amended in its entirety to read as follows: "8.24.090 — Court action. The City may bring appropriate actions, in a court of competent jurisdiction, to collect any amounts due by reason of the abatement of a nuisance by the City and to foreclose any existing liens for such amounts. Notwithstanding the provisions of this chapter, the City may bring the appropriate civil and criminal actions in a court of competent jurisdiction for abatement of any nuisance existing within the City pursuant to any other provision of law. In addition to costs recoverable pursuant to Section 8.24.060, attorney's fees, expert fees, and court costs shall be awarded to the prevailing party in any action taken by the city to abate a nuisance if, and only if, the city seeks the award of attorney's fees and court costs at the initiation of such legal action or proceeding. The attorney's fees recoverable pursuant to this section shall be limited to the reasonable attorney's fees incurred by the city in the legal action or proceeding, regardless of the actual cost of any party's attorney's fees." SECTION 3-, CEQA. This ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to permit operation of existing facilities; consists only of minor revisions and clarifications to existing regulations and specification of procedures related thereto; and consists of actions taken to assure the maintenance, protection and enhancement of the environment. This ordinance, therefore, does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under Ordinance No. 328 14 Cal. Code Regs. §§ 15301, 15305, and 15308. SECTION 4: The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Rolling Hills' book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. PASSED, APPROVED, AND ADOPTED this day of , 2012. Dr. James Black Mayor ATTEST: Anton Dahlcrbruch, City Clerk Ordinance No. 328 , STATE OF CALIFORNIA) COUNTY OF LOS ANGELES CITY OF ROLLING HILLS ) ) §§ I HEREBY CERTIFY that the above and foregoing Ordinance No. 328 entitled: AN ORDINANCE AMENDING ROLLING HILLS MUNICIPAL CODE SECTION 8.24.090 TO ALLOW THE CITY MANAGER TO INITIATE NUISANCE ABATEMENT PROCEEDINGS AND THE COURT TO AWARD ATTORNEY'S FEES AND COSTS IN NUISANCE ABATEMENT ACTIONS was duly passed and adopted by the • Rolling Hills City Council at its regular meeting held on of , 2012, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: and in compliance with the laws of California was posted at the following: Administrative Offices. Anton Dahlerbruch, City Clerk Ordinance No. 328