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Ordinance No. 322 ORDINANCE NO. 322 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, CALIFORNIA, AMENDING THE CHINO HILLS MUNICIPAL CODE TITLE 1 (GENERAL PROVISIONS) TO AMEND SECTION 1.36.050 - (NUISANCES-RECOVERY OF ABATEMENT EXPENSES) AND TITLE 8 (HEALTH AND SAFETY) TO AMEND SECTION 8.12.140 - (ALTERNATE ACTIONS) TO PROVIDE FOR AWARDING ATTORNEYS' FEES TO THE PREVAILING PARTY IN NUISANCE ABATEMENT ACTIONS AND PLACING LIMITATIONS ON SUCH FEES AND DETERMINING THAT THE MUNICIPAL CODE AMENDMENT IS EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT THE CITY COUNCIL OF THE CITY OF CHINO HILLS DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby makes the following findings of fact: A. The City Council of the City of Chino Hills declares that the public interest Iand necessity demand the prudent expenditure of public money and time; B. Attorneys' fees may be collected when authorized by contract, statute or law. C.C.P. § 1033.5(a)(10); see also C.C.P. § 685.040. This includes City Ordinances, meaning a City may collect attorneys' fees if it has enacted an Ordinance authorizing their award. City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 492; City of Los Angeles v. Be!ridge Oil Co. (1954) 42 Ca1.2d 823, 833-34 (courts have interpreted "statute" to include "Municipal Ordinances"); Segundo v. Rancho Mirage City(9th Cir. 1989) 873 F.2d 1277, 1278-1279 (a City Ordinance may authorize an award of attorneys' fees). As a result, a City by Ordinance may authorize the collection of attorneys' fees; C. However, in the context of nuisance abatement, the State has limited the form an attorneys' fees Ordinance can take in Civil Code section 38773.5 such that: (1) only a prevailing party attorneys' fees Ordinance is allowed (thus an Ordinance that would only allow the City to collect is not allowed); but (2) the Ordinance may limit the prevailing party attorneys' fees award to cases where the City, upon initiating the action, seeks such fees; and (3) the Ordinance may also limit any recovery of attorneys' fees to the amount of the City's own attorneys' fees in the case; and Page 1 of 5 ICI D. The City Council finds and determines that this Ordinance is not subject to the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq. ("CEQA")) for the following reasons: (1) it will not result in a direct or reasonably foreseeable indirect physical change in the environment (14 Cal. Code Regs. § 15060(c)(2)), (2) there is no possibility that the Ordinance may have a significant effect on the environment (14 Cal. Code Regs. § 15061(b)(3)). Further, the proposed Ordinance is exempt pursuant to CEQA Guideline § 15308 (Actions by Regulatory Agencies for Protection of the Environment which consists of actions taken by regulatory agencies, as authorized by State or local Ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment). SECTION 2. Amend Section 1.36.050 of Title 1 of the Chino Hills Municipal Code to read as follows: "1.36.050 - Nuisances-Recovery of abatement expenses. A. Whenever any person creating, causing, committing, or maintaining a public nuisance, as referred to in Section 1.36.040 above, or other public nuisance, as defined under. State law or other Ordinances or regulations, has been given notice, by or on behalf of the City Attorney or by any other City officer, employee, or policing agent authorized to give such notice, to abate such r nuisance or cease and desist from continuing such nuisance or violation of law, L and such person fails, refuses, or neglects to comply with the notice within the time specified therein, or if such a time is not specified, then within a time reasonably sufficient to enable such compliance, such noncomplying person shall be liable to the City for any and all costs and expenses to the City involved in thereafter abating the nuisance and in obtaining compliance with or enforcing the law as referred to or encompassed within such notice. B. Costs and expenses, as referred to in subsection A of this section, may include, but are not limited to, any and all direct costs and expenses related to such things as personnel salaries and benefits, operational overhead, 'rent, interest, fees for experts or consultants, legal costs or expenses, including attorneys' fees, claims against the City arising as a consequence of the nuisance or violation, and procedures associated with collecting moneys due hereunder. Notwithstanding the above, attorneys' fees 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 attorneys' fees at the initiation of such action or proceeding. The non-City prevailing party's attorneys' fees shall be limited to the reasonable attorneys' fees incurred by the City in the action or proceeding to abate the nuisance, regardless of the actual cost of any party's attorneys' fees. • Page2of5 C. The provisions of subsection A of this section shall also apply to any person who received a notice, as specified therein, abated the nuisance or violation, but subsequently allowed or was responsible for a recurrence of the nuisance or violation. D. The liability of any person for the payment of the costs and expenses provided for in subsection A of this section may be waived in whole or in part by the City Attorney in any case wherein he or she determines, in his or her sole discretion, that the failure or refusal of such persons to comply with the notice therein involved was based upon a good faith and bona fide issue of law or fact specially involved in the circumstances of the case. Any determination or decision of the City Attorney in this regard shall be final and conclusive and shall not be subject to appeal. E. Money due to the City pursuant to this section may be recovered in an appropriate, civil action. Alternatively, such liability may be enforced by special assessment proceedings against the parcel of land upon which the nuisance existed, which proceedings may be conducted in a manner substantively similar to proceedings described in Sections 39574 et seq. of the California Government Code relating to weed abatement assessments." SECTION 3. Amend Section 8.12.140 of Title 8 of the Chino Hills Municipal Code I1 to read as follows: "8.12.140 -Alternate actions. Nothing in this chapter shall be deemed to prevent the City from commencing a civil or criminal proceeding to abate a public nuisance or from pursuing any other means or remedies available to it under provisions of applicable Ordinances, State law, or equity to correct hazards or deficiencies in real property in addition to or as alternatives to the proceedings set forth in this chapter. Where a civil action is filed, if the court issues an order or a judgment which finds a public nuisance to exist, and orders or approves the abatement of the public nuisance, or where the court validates an accounting, the court will also award the City its actual costs of abatement, including, without limitation, reasonable attorneys' fees incurred by the City in the judicial proceeding. Notwithstanding the above, attorneys' fees 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 attorneys' fees at the initiation of such action or proceeding. The non-City prevailing party's attorneys' fees shall be limited to the reasonable attorneys' fees incurred by the City in the action or proceeding to abate the nuisance, regardless of the actual cost of any party's attorneys' fees." SECTION 4. Upon the effective date of this Ordinance, the provisions hereof shall supersede any inconsistent or conflicting provisions of the San Bernardino County Page 3 of 5 Code, as the same were adopted by Reference by City Ordinance Nos. 91-01 and 92-02. SECTION 5. If any part of this Ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. SECTION 6. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council's intent that the provisions of this Ordinance be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 7. The City Clerk is directed to certify the passage and adoption of this Ordinance, cause it to be entered into the City of Chino Hills' book of original Ordinances, make a note of the passage and adoption in the records of this meeting, and, within fifteen days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. SECTION 8. This Ordinance will take effect on the 30th day following its final passage and adoption. PASSED, APPROVED, AND ADOPTED this 9th day of January, 2018. PETER J. R ERS, /IAYOR ATTEST: CHEkY.I-ALZ Cf fIY CLERK APPROVED AS TO FORM: MARK HEN4SLEY, CITY ATTORNEY Page 4 of 5 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) ss CITY OF CHINO HILLS ) I, CHERYL BALZ, City Clerk of the City of Chino Hills, DO HEREBY CERTIFY that Ordinance No. 322 was duly introduced at a regular meeting held December 12, 2017; and adopted at a regular meeting of the City Council held on the 9th day of January, 2018 by the following vote, to wit: AYES: COUNCIL MEMBERS: ROGERS, MORAN, BENNETT, JOHSZ, MARQUEZ NOES: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: NONE CHERYL BA Z, Y CLERK - I hereby certify that the foregoing is the original of Ordinance No. 322 duly passed and adopted by the Chino Hills City Council at their regular meeting held on January 9, 2018, and that summaries of the Ordinance were published on December 30, 2017 and January 13, 2018 in the Chino Hills Champion newspaper. CHERYL BALZ, CITY a Page 5 of 5 PROOF OF PUBLICATION This space is for the County Clerk's Filing Stamp STATE OF CALIFORNIA County of San Bernardino I am a citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years, and not a party to or interested in the above entitled matter. I am the principal clerk of the publisher of the CHINO CHAMPION, a newspaper of general circulation, printed and published weekly in the City of Chino, County of San PUBLIC NOTICE OF Bernardino, and which newspaper has been adjudged a ADOPTION of CITY OF CHINO HILLS newspaper of general circulation by the Superior Court of the ORDINANCE NO.322 County of San Bernardino, State of California, under the date NOTICE IS HEREBY GIVEN that on January 9, 2018, the City Council of August 5, 1952, Case Number 73453; that the notice, of of the City of Chino Hills adopted Ordinance No.322 entitled: which the annexed is a printed copy (set in type not smaller AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO than nonpareil), has been published in each regular and HILLS, CALIFORNIA, AMENDING THE CHINO HILLS MUNICIPAL CODE entire issue of said newspaper and not in any supplement TITLE 1 (GENERAL PROVISIONS) TO AMEND SECTION 1.36.050 - thereof on the following dates,to-wit: '(NUISANCES - RECOVERY OF ABATEMENT EXPENSES)AND TITLE 8(HEALTH AND SAFETY)TO AMEND SECTION 8.12.140 - (ALTERNATE ACTIONS) TO PROVIDE FOR January 13, all in the year 2018 AWARDING ATTORNEYS' FEES TO THE PREVAILING PARTY IN NUISANCE ABATEMENT ACTIONS AND PLACING LIMITATIONS ON (or declare) under penaltyof perjury that the SUCH FEES AND DETERMINING I certify p y THAT THE MUNICIPAL CODE foregoing is true and correct. AMENDMENT IS EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT Dated at Chino, California, this 13h day of The Ordinance provides: (1) for the recovery of attorneys' fees only to a prevailing party in a nuisance Jan ry 2 8 limiabatementts he action prevailing partyeeding attorneys j fees award to matters where the City, upon initiating the action or proceeding, seeks such fees; and (3) limits any recovery of attorneys'fees to U 4 the amount of the City's own attorneys' (J (Signature) fees incurred in the matter. Ordinance No. 322 was adopted Suzanne Rojas by the City Council by the following vote: JAN 1 8 2018 Ayes:Rogers,Moran,Bennett, Johsz, Marquez Noes:None A certified copy of the full text of Ordinance No. 322 is available for review in the office of the City Clerk, City of Chino Hills, 14000 City Center Champion Drive,Chino Hills. DATED: January 10,2018 s(CHERYL BALZ,CITY CLERK PUBLISH: Chino Hills Champion Serving the Chino Valley and Chino Hills January 13,2018 37-18 9th & D Streets • P.O. Box 607 Chino, California 91708 Phone: (909) 628-5501 Adjudicated August 5, 1952 Case No. 73453 City of Chino Hills CITY OF CHINO HILLS AFFIDAVIT OF POSTING STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO ) §. CITY OF CHINO HILLS ) CHERYL BALZ, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of Chino Hills; That in compliance with the State laws of the State of California, a certified copy of the full text of a proposed Ordinance entitled: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, CALIFORNIA, AMENDING THE CHINO HILLS MUNICIPAL CODE TITLE 1 (GENERAL PROVISIONS) TO AMEND SECTION 1.36.050 - (NUISANCES-RECOVERY OF ABATEMENT EXPENSES) AND TITLE 8 (HEALTH AND SAFETY) TO AMEND SECTION 8.12.140 - (ALTERNATE ACTIONS) TO PROVIDE FOR AWARDING ATTORNEYS' FEES TO THE PREVAILING PARTY IN NUISANCE ABATEMENT ACTIONS AND PLACING LIMITATIONS ON SUCH FEES AND DETERMINING THAT THE MUNICIPAL CODE AMENDMENT IS EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT attached hereto and made a part hereof, was caused to be posted in the Office of the City Clerk. Dated this 11th of January, 2018. CHERYL BALZ,'CITY CLERK