HomeMy WebLinkAbout17 - Nuisance Abatement ActionsCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 17
March 10, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David R. Hunt, City Attorney
ext. 3131, dhunt @city.newport- beach.ca.us
SUBJECT: AMENDMENT OF NUISANCE ABATEMENT ORDINANCE, AS REVISED,
TO PROVIDE FOR RECOVERY OF ATTORNEYS' FEES AND COSTS IN
NUISANCE ABATEMENT ACTIONS
ISSUE:
Should the Council amend the nuisance abatement ordinance, as revised, in order to add
recovery of attorneys' fees and expert costs?
RECOMMENDATION:
Approve an ordinance amending Section 10.50.160 of the Municipal Code, as revised, and
pass to second reading on March 24, 2009.
DISCUSSION:
Background:
I must admit I erred in the language I recommended at the last meeting for the amendment
to the nuisance abatement procedures. While I was aware and advised that attomeys' fees
provisions are interpreted as reciprocal, thus essentially becoming prevailing party
provisions, I missed a 2007 case that held ordinance provisions that provide for unilateral
attomeys' fees awards to municipalities were unenforceable. In the past they were simply
interpreted as being reciprocal. Fortunately, my mistake was caught by my office and we
now bring revised provisions to you. Since this is a substantial change to the ordinance as
introduced, it must have first reading once again, and then be passed to second reading at
the March 24, 2009 meeting.
Additionally, the City may limit recovery of attorneys' fees to those actions in which the City
chooses at the initiation of the action or proceeding to seek its own attorneys' fees. State
law also provides that such fees shall not exceed the amount of reasonable attomeys' fees
incurred by the city in the action or proceeding. The ordinance presented to the City
Council at its February 24, 2009 meeting has been amended to reflect state law provisions.
Amendment of Nuisance Abatement Ordinance
March 10, 2009
Page 2
We recommend section 10.50.160 be amended to add a subdivision "D," as revised, that
states:
D. The prevailing party in any judicial action or administrative proceeding to abate a
nuisance shall recover the attorneys' fees incurred as follows:
1. The recovery of attorneys' fees shall be limited to those individual judicial actions
or administrative proceedings in which the City elects, at the initiation of the
individual judicial action or administrative proceeding, to seek recovery of its own
attorneys' fees; and
2. In no judicial action or administrative proceeding shall an award of attomeys' fees
to a prevailing party exceed the amount of reasonable attorneys' fees incurred by
the City in the judicial action or administrative proceedings; and
3. Attomeys' fees and costs may include, but not be limited to, costs and expenses
related to the use of expert witnesses incurred in the evaluation and /or
prosecution of any nuisance abatement proceedings pursuant to the provisions
of this Chapter.
This change is reflected in proposed Ordinance No. 2009 -_ attached hereto. We
recommend this ordinance as revised be introduced for first reading and scheduled for
second reading and adoption of the ordinance at the March 24, 2009 City Council meeting.
Environmental Review: This is not a project under CEQA.
Public Notice: This agenda item has been noticed according to the Ralph M. Brown Act (72
hours in advance of the public meeting at which the City Council considers the item). It was
posed at City Hall and on the City's website.
Funding Availability: No funding is necessary.
Alternatives: The Council may choose not to take the action recommended or instruct staff
to consider alternatives to this cost shifting ordinance and return with possible alternatives
for Council's consideration.
Prepared by:
ate,_
David R. Hunt,
City Attorney
Attachments: Revised Ordinance Amending 10.50.160
ORDINANCE NO. 2009-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH AMENDING SECTION 10.50.160 OF
CHAPTER 10.50 OF TITLE 10 OF THE NEWPORT BEACH
MUNICIPAL CODE, PERTAINING TO NUISANCE
ABATEMENT
The City Council of the City of Newport Beach does hereby ordain that certain Newport Beach
Municipal Code section is amended to read, in full, as follows:
SECTION 1: Section 10.50.160 of Chapter 10.50 is hereby amended to read as follows:
Section 10.50.160 Alternative Actions.
A. Nothing in this chapter shall be deemed to prevent the City Council from authorizing
the City Attorney to commence a civil action to abate the nuisance in addition to,
alternatively to, or in conjunction with the proceeding set forth in this chapter, nor
shall anything in this chapter be deemed to prevent the City from commencing a
criminal action with respect to the violation of this chapter.
B. This chapter is not the exclusive regulation of property maintenance. It shall be
supplemental in addition to other regulatory codes, statutes and ordinances
heretofore or hereinafter enacted by the City, State of California, or any other legal
agency having jurisdiction.
C. Each day that an owner allows a public nuisance to remain on his /her property shall
be considered a violation of this code and may be punished as provided in Chapter
1.04 or Chapter 1.05 of this code.
D. The prevailing party in any judicial action or administrative proceeding to abate a
nuisance shall recover the attorneys' fees and costs incurred as follows:
The recovery of attorneys' fees shall be limited to those individual judicial actions
or administrative proceedings in which the City elects, at the initiation of the
individual judicial action or administrative proceeding, to seek recovery of its own
attorneys' fees; and
2. In no judicial action or administrative proceeding shall an award of attorneys' fees
to a prevailing party exceed the amount of reasonable attorneys' fees incurred by
the City in the judicial action or administrative proceedings; and
3. Attorneys' fees and costs may include, but not be limited to, costs and expenses
related to the use of expert witnesses incurred in the evaluation and /or
prosecution of any nuisance abatement proceedings pursuant to the provisions
of this Chapter.
SECTION 2: If any section, subsection, sentence,, clause or phrase of this ordinance is, for
any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or
constitutionality of the remaining portions of this ordinance. The City Council hereby declares
that it would have passed this ordinance, and each section, subsection, clause or phrase
hereof, irrespective of the fact that any one or more sections, subsections; sentences, clauses
and phrases be declared unconstitutional.
SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this
ordinance. The City Clerk shall cause the same to be published once in the official newspaper
of the City, and it shall be effective thirty (30) days after its adoption.
SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach, held on the day of 2009 and adopted on the _
day of 2009, by the following vote, to wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEM
ABSENT COUNCILMEMBERS .
MAYOR
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
By
AVID R. HUNT, CITV ATTORNEY
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I 12822 Garden Grove Blvd. Ste. D, Garden Grove, California 92843 -2010
(714) 638 -5550 Fax (714) 638-8042
www.aaoc.com
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March 6, 2009
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Mayor Edward D. Selich c ?
3330 Newport Blvd. _ T' 'O
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Newport Beach, CA 92663 rn'
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Dear Mayor Selich, y o
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We are writing on behalf of the Apartment Association of Orange County (AAOC) to
express support of the change in an amendment to the City of Newport Beach's Nuisance
Abatement Ordinance recently passed by the City Council on February 24, 2009, with the
changes being presented at the March 10, 2009 meeting.
At the February 20 City Council meeting, Council Members voted to amend section
10.50.160 and add subdivision "D" that states "The City shall recover its attorneys' fees
and costs, including, but not limited to, costs and expenses related to the use of expert
witnesses, incurred in the evaluation and/or prosecution of any nuisance abatement
proceeding pursuant to the provisions of this Chapter." The March 10'h meeting will
present a change in this amendment to "the prevailing party in any judicial action or
administrative proceeding to abate a nuisance shall recover attorney's fees..:
We feel that if legal action concerning the nuisance issue must be taken, the prevailing
party should recover its attorney fees, whether it is the City or the property owner. We
realize that a majority of the time the City has good reason to take the person causing the
nuisance to court and that the City will most likely be the prevailing party. However,
there is the possibility that the City will not always be the victor, and it is not fair to put
the burden of payment on the owner if that is the case. More so, having the prevailing
party, not only the City, recover its fees keeps local government in check by prompting
them to consider all options before relying on a count to take action. While we are sure
the City already takes precaution, holding local government accountable is an important
part of making sure they are doing what is in their coustituen& best interest, not just their
own.
We appreciate the City's thoroughness in this matter and are pleased to see the changes
made frorn the originate amendment. Thank you very much for your consideration ofthds
issue.
Sincerely,
"erry Fcuyer Dean Zarkos
President Vice President Legislative Affairs
A non- profit organization serving the rental housing industry since 1961