The County of Santa Clara
California

Report
71748

Accept report relating to proposal to overhaul the Code Enforcement Program, address the current backlog of cases, and develop revenue sources to maximize program cost recovery.

Information

Department:Department of Planning and DevelopmentSponsors:
Category:Report

Body

FISCAL IMPLICATIONS

There are impacts to the General Fund resulting from the recommended actions, and the Department has submitted a FY2015 budget request that would provide for additional positions to be allocated to Code Enforcement to effectuate the new Program and address a backlog of cases.  As of the writing of this report, the recommended FY2015 budget contains two (2) FTE Permit Technicians that would be assigned to code enforcement efforts.

CONTRACT HISTORY

There is no contract history pertaining to this report.

 

REASONS FOR RECOMMENDATION

This report describes the current Code Enforcement Program, and sets forth the staffing and resources required to overhaul the Program, address a backlog of cases, and effectively abate graffiti through a revised Graffiti Ordinance. 

 

The volume of code violation complaints has varied over time, and the County’s ability to quickly and effectively address code violations has been uneven over the long history of the Department.  The struggle to effectively address significant, long-standing code complaints and notable problem properties led the Board in 2007 to request the Department to institute reforms.

 

At this time, the Code Enforcement function is defective in so far as the Department does not resolve all code complaints, and has a significant backlog of cases of various types (building, grading, zoning, etc).  The findings below reflect the Department’s conclusions about the deficiencies of the current Program.  An elaborate depiction of the current Program can be found in the section entitled “Current Code Enforcement Process” in the Background section of this transmittal. 

 

The intention of this report is to show that the proposed reform of the Code Enforcement Program will make it swift, fair, and effective for the long-term because the Program will have new, effective tools at its disposal, the ability to take advantage of the Transformation and Modernization Project’s significant data management/information technology investments, and be financially sustainable during periods when the County is in deficit-reduction mode through the development of Program-specific revenue sources.

 

Summary Findings

1.     Since 2010, the Department has lost several positions (primarily due to the economic downturn) that served to address code enforcement issues in Land Development and Engineering (LDE) and Building Inspection.  Currently, due to retirements in LDE, Building Inspection, and Zoning Investigation, there is a void in each of the divisions until recruitments are completed.  Code enforcement matters are routinely deferred unless they are deemed to be an immediate threat to public health, safety, or welfare.

 

2.     The Department’s multiple databases are woefully lacking the needed infrastructure to adequately monitor, track, and accurately report status of all violations.

 

3.     There are a number of historical code violations, especially in the Building Inspection Office that have not been completely closed.  This has occurred primarily because staff has been focused on addressing the increase in development applications received over the last two years, leaving few resources for code enforcement efforts.

 

4.     Once violations have escalated to a point where they are referred to the Administrative Hearing process, many of these cases are recorded but the violation not necessarily abated.  The violation may not be completely abated and, in many cases, may not be an immediate life/safety threat that would escalate the enforcement action to a Nuisance Abatement procedure.

 

5.     One of the biggest complaints that constituents have about the process is that it takes too long to resolve violations.  This is a result, in part, of due process proceedings, which include proper noticing and a hearing, to ensure that an inappropriate taking of property does not occur.  It is also a reflection of the fact that the Department has not addressed to resolution all code complaints that have been received.

 

6.     Once a case cannot be resolved by working with the violator, the matter is escalated to the Administrative Hearing process.  The violator is then provided time to abate the violation (25 days).  If the violator fails to meet the prescribed timeline, the violator receives notices of escalating fines due.  When the fine is not paid, the matter is then referred to the Department of Revenue (DOR) for collections.  It is the experience of the Department that it receives only about 1% of revenue from all referrals sent to DOR.  This makes for a Program that is not sustainable and continues to be supported by the General Fund.

 

7.     Currently, the Building Inspection Office assesses an Investigative Fee on unpermitted structures of $140/hour with a $350 minimum.  This fee is currently in the Department’s fee schedule (adopted in 2012).  The purpose of this fee is to recover staff time spent resolving the violation up to the issuance of the Building Permit.  With a permit/enforcement tracking software that has the capability of accurately tracking code enforcement violations, this Investigative Fee could be better utilized thereby providing for a more sustainable Program.

 

8.      Currently, violations are not prioritized or categorized by levels of severity.  The Department attempts to handle the cases as they are received and, to some degree, has attempted to prioritize when there is eminent danger to life or property.  Beyond the immediate health, safety, and danger to human life, prioritizing cases has not been consistently applied across divisions.  Moving forward, all violations should be prioritized and a policy created to effectuate this practice.

 

Proposal to Restructure Code Enforcement

The Department is proposing the following to restructure the Code Enforcement Program:

 

·        The Department proposes to add two (2) FTE Permit Technicians.  One technician would be assigned to a proposed Central Permitting Office and the other would be assigned to the Code Enforcement Division.  The two positions are necessary to reduce the existing code violation backlog, support the proposed improvements to the Program and staff ongoing operations. For Fiscal Year 2015, the two positions would be funded by a combination of the General Fund and a newly proposed Code Enforcement Cost Recovery mechanisms discussed later in this transmittal.

 

·        The Department is proposing to create a two-tiered structure that addresses both “difficult” and “routine” cases.  Under this approach, the Code Enforcement Permit Technician working within the Central Permitting Office would be responsible for the intake of all new cases.  The technician would receive the complaint, open the file, make contact with the alleged violator and schedule site inspections.  If a violation is confirmed, the technician would communicate the options for resolution with the violator and refer the case to the appropriate division for resolution through routine permitting processes or re-inspections.  The technician would continue to track the status of the case until the complaint is resolved and closed.

 

If the complaint is not resolved through this “routine” process, the technician would refer the case to the Code Enforcement Unit for resolution.  Assuming the proper incentives for compliance are in place and diligent staff communication with the violator, less than 20% of confirmed violations should be escalated to the Code Enforcement Unit.  These “difficult” cases would be resolved by staff within the Code Enforcement Unit in coordination with County Counsel’s office and the appropriate division personnel.  These cases involve additional time and compliance tools, such as, Compliance Agreements, time and material cost recovery billing, and Nuisance Abatement proceedings, as the cases are either complex or there is a complete refusal from the violator to comply.

 

·        As part of the Department’s Transformation and Modernization ™ Project, the Department is implementing a Central Permit Database and workflow information technology system.  The Department will be adding a Code Enforcement Module to the central system to support the data and reporting needs of the new code enforcement process.

 

·        To oversee the reengineering of the current process and code enforcement implementation, the Deputy County Executive would convene a working group consisting of the Department Director, Planning Manager, Building Official, Code Enforcement Manager, LDE Manager, and a representative of Environmental Health and Roads and Airports.  The committee would initially meet monthly, then quarterly after the first year.  The committee group will be responsible for coordination between divisions and departments, provide operational and policy direction to staff, prioritize code enforcement cases, direct resources, track progress and oversee continuous improvement efforts.

 

The steps necessary and timing to implement the proposed improvements are:

 

1) Propose preliminary plans to HLUET to receive direction

April 2014

2) Establish cost recovery mechanisms to support code enforcement program development and long-term operation

May 2014 (BOS hearing) – August 2014 (effective date)

3) Convene code enforcement oversight committee

May 2014

4) Hire two Code Enforcement Technicians

July 2014 - September 2014

5) Inventory and prioritize existing known violations (back-log)

September 2014 – June 2015

6) Develop and implement processes and procedures for the two-tier code enforcement operation

July 2014 – December 2015

7) Develop specifications and implement code enforcement information technology system

July 2014 – April 2015

 

 

Compliance Agreement

In addition to the proposed changes to the Code Enforcement Program, the Department has developed a Compliance Agreement mechanism with the Office of County Counsel. The Compliance Agreement establishes a procedure between the County and a property owner for situations where a property needs time to cure a known Ordinance Code violation.  Instead of proceeding directly to a civil court abatement action, the property owner would be steered toward a written contract to follow a process to obtain permits and abate the violations within a specified time.  If the property owner timely abates the violations, the County would, after a determination of compliance by the County, reduce administrative fines.  But, if the property owner fails to timely abate, the property owner stipulates to an order and judgment in the County’s favor for the full amount of County’s fees and fines and full abatement of the violations.  This process simplifies the court proceeding and minimizes litigation expenses for both the County and property owner because it avoids preparation of pleadings and court appearances by the property owner and County Counsel and staff.

 

This proposed procedure requires amendment of certain Ordinance Code provisions, including the delegation of authority to the Department (through the County Executive) to enter into the compliance agreements and to reduce fines if compliance is achieved.  The procedure would also amend the Ordinance Code’s restriction on permit issuance on properties with existing Ordinance Code violations by allowing owners of property containing code violations to nevertheless obtain permits to abate the violations.

 

For the Board’s consideration and action, staff has prepared the various Ordinance Code amendments that would establish the use of Compliance Agreements, as well as the ability for staff to issue permits on properties where code violations exist in order to achieve abatement of violations through the issuance of permits.

 

Cost-Recovery Mechanisms

The Department is proposing two new cost-recovery mechanisms to reduce the overall General Fund subsidy to the department, ensure the financial sustainability of the Program during lean years, and provide incentives to increase the level of compliance with Ordinance Code.

 

The first proposed mechanism is a surcharge to the basic fees associated with permitted activities when the owner commences the work or activity in advance of securing the proper permits and is issued a stop work order or notice of violation.  Applications that are made to recognize unpermitted work on good faith, which do not have a violation or stop work order, would not be subject to this surcharge.  Jurisdictions using this mechanism typically impose surcharges ranging from a multiplier of 0.10 times the base permit fee up to 10 times the basic fee.  Many jurisdictions have applied a “double fee” (1.0 multiplier to determine the surcharge) consistent with historical provisions of the California Building Code.  This surcharge would recover Code Enforcement Program costs and create a disincentive for owners to violate the Ordinance Code.

 

If this surcharge is implemented as a fee (as opposed to a penalty), a Fee Study would be prepared to establish a reasonable relationship between the fee and the overall County costs associated with enforcement.  Staff is in the process of the researching the appropriate means and valuation of this surcharge and would present our findings and recommendation at a subsequent HLUET meeting to consider Department fees for Fiscal Year 2015.

 

The second mechanism is tracking, billing, and recovery of direct code enforcement costs for individual violations.  Using this mechanism, fully burdened staff labor charges would be billed to the owner/violator for actual time spent achieving compliance with the Ordinance Code for specific violations.  This direct billing would be imposed only after a Stop Work Order or Notice of Violation has been issued and a defined “grace” period has passed.  Procedurally, once a Stop Work Order or Notice of Violation had been issued, an owner would be advised that he had a defined period of time to resolve the violation without being assessed any staff charges by the County.  This “grace” period would be established based on the class of violation and the amount of time it would normally take to resolve the violation, assuming a commitment on the part of the owner to do so.  In addition to being advised of the grace period, owners would be advised that once the “grace” period expires, the County would impose fully burdened staff labor charges until compliance is ultimately achieved.

 

This mechanism would allow the County to recover direct costs for the most intractable code enforcement cases, but, perhaps, more importantly the mechanism establishes a significant incentive for owners to resolve Ordinance Code violations expeditiously using routine code compliance channels.

 

A variation of this fee already exists in the Department’s adopted Fee Schedule in the form of the Building and Inspection Division’s Investigative Fee for Unpermitted Structures.  The Department is proposing to expand the range of this fee to include all divisions involved in code enforcement and standardize the procedures for the application and collection of the fee.

 

Graffiti Ordinance and Neighborhood Preservation Ordinance Update

It is evident that there is a need to more effectively address graffiti and blight in the community.  On April 17, 2014, staff provided the HLUET Committee with an overview of their findings relative to the issues of graffiti abatement and Neighborhood Preservation.  On April 17, 2014, the HLUET Committee directed staff to bring back to HLUET the issue of blight and Neighborhood Preservation for further review and discussion.  Because graffiti is an integral part of neighborhood preservation, staff will also be bringing back to HLUET for discussion a status of the County’s Graffiti Ordinance.

CHILD IMPACT

The recommended action will have a positive impact on children and youth.

SENIOR IMPACT

The recommended action will have a positive impact on seniors.

SUSTAINABILITY IMPLICATIONS

The recommended actions will have positive sustainability implications, particularly as it relates to Clean Water violations.

BACKGROUND

Due to staffing constraints and by philosophy, the Department does not actively seek out violations, but responds to complaints.  The function of code enforcement has been decentralized so that each division is responsible for code compliance due to the technical expertise in each division.  However, many of the difficult and complex cases have been coordinated by the Code Enforcement Manager, which often results in these matters being referred to a Hearing Officer or to County Counsel for legal action.

 

Current Code Enforcement Process

Under the current process, when someone reports that a violation is taking place, the Department initiates the process by first checking that the location of the reported concern is within our jurisdiction.

 

Next, after determining the violation occurred within our jurisdiction, the Department routes the complaint to the appropriate division – Zoning, Building, Fire Marshal, or Land Development and Engineering.  If the nature of the complaint falls to another County program, such as, Environmental Health, the complaint is referred to that program.

 

If there is a violation, a letter is sent to the property owner with the anticipation that the property owner will come into compliance by abating the violation.  The Department sets up a time when the agency/division that performed the initial inspection can re-inspect to verify that the violation has been corrected. 

 

If permit(s) are required to resolve the violation, but the property owner or representative has filed for permit(s) or is in the process of submitting a permit application, a second letter will not be sent to the property owner.  It should be noted that building permits cannot be issued if the work does not conform to the County’s zoning, building, land use and applicable ordinances.  However, once the permit(s) is “finaled,” which means that the project has been inspected and closed as complete by the agency/division that issued the permit(s), abatement is completed and the violation will be closed.  If the department receives no cooperation to abate the violation, legal actions are pursued that include:

 

A.   The violation will be recorded against the property with the County Recorder, which is similar to a lien in that it clouds the title of the property and puts potential buyers on notice of the violation.

 

B.    Fines and Administrative fees are charged to the property owner. 

 

When a case is not resolved by abating the violation or securing the appropriate permits, and additional time is required, the matter will be referred to the Administrative Hearing process.  A fine is imposed that continues to accrue until such time as the violation is abated, unless the violation is appealed.  The matter is presented to a Hearing Officer who will issue a decision on the appeal.  At this point, the property owner is provided ample time to pay the penalty.  If this does not occur, the fine is forwarded to the Department of Revenue for collection. 

 

It should be noted that approximately 37 cases were referred to the Department of Revenue (DOR) for calendar year (2013).  Cumulatively, from the 37 cases, approximately $999,078 in penalties were forwarded to DOR for collections in 2013.   Because the Administrative Fines have not been reduced to court judgment, DOR may request compliance from the property owner, but may not commence other collection actions, such as, wage garnishment, income tax refund intercept, or assessment on the tax roll.  Thus, these cases must be referred to County Counsel to file a Nuisance Abatement lawsuit, which may result in abatement of the nuisance and collection of the Administrative Fines. 

 

Current Structure of Code Enforcement in the Department

Code enforcement is currently performed by three divisions:

 

1.     Zoning Violations and some Building Code violations are currently handled by the Code Enforcement Division.  The Code Enforcement division is currently staff by one Code Enforcement Manager and three Zoning Investigators.

2.     Building Code Violations are generally handled by the Building Office.  Currently, one Senior Building Inspector is assigned to work with the Code Enforcement Division.  The Senior Building Inspector assigns the building code violations to all inspectors.  However, priority has been given to current permit/inspection field work.  Due to the increase in the number of permits received this year, code violations are not receiving the immediate attention that they were receiving two years ago. 

3.     Grading and Clean Water violations are currently handled by the Land Development and Engineering Division (LDE).  In LDE, a Supervising Construction Inspector is responsible for reviewing the complaints and assigning them to the Senior Construction Inspector for verification and investigation.  Staffing for grading violations in LDE is a Supervising Construction Inspector who reviews the complaints.  Two Senior Construction Inspectors conduct field visits and investigate the complaint.  Once the violation is verified, the case is forwarded to a Senior Civil Engineer for processing.  However, due to the number of development applications received by LDE, the LDE staff is currently unable to address all of the grading violations and follow up appropriately to ensure violations are abated in a reasonable time frame.  LDE has never been staffed to follow up on all grading violations noticed.

 

Code Enforcement Database

Currently, each division in the Department tracks violations through its own database.  LDE relies on four separate databases.  The Building Division’s database is difficult to use for those who are not daily users.  Because the database is burdensome to use, building inspectors who are on full time inspection duty sometimes process cases to the next step without updating the database.  Case specific information is retrievable on a case by case basis in the Code Enforcement database.  However, this database is not capable of generating useful reports that provide for geographical locations (by Supervisorial District, inspector sectors, etc.), status of cases, or even aggregating the cases by violation level (i.e. severe, middle priority, or low level cases).

 

Singularly, and in combination, the databases currently utilized by the Department are woefully insufficient.  These databases were primarily designed to complete individual tasks, and not meant to be integrated.  Going forward, the functions need to be integrated and use elements of each database.

 

Current Backlog in the Department

Currently, LDE has 158 active violations in various stages.  Since 2005, a total number of 74 Notices of Grading Violation have been recorded.  Since 2011, a total of 39 cases have been fully resolved or closed.  The remaining grading violations are complex and will take additional time to resolve due to the need for engineering and geotechnical assessments to be performed, and because of current staffing levels, priority is placed on those properties that are geologically unstable and could lead to immediate dangerous or threaten health and safety.

 

To date, there are 399 active Zoning Violations.  Since 2011, a total of 636 cases were fully resolved or closed:  341 cases that were resolved or closed in 2011; 197 cases were resolved or closed in 2012; and in 2013, 98 cases were resolved or closed.

 

The Building Division has logged 2,036 cases and resolved approximately 731 cases over the last ten years.  This leaves approximately 1,305 unresolved cases.  Some of these cases may have already been resolved as property changes ownership and improvements previously constructed are removed while others cannot be closed out due to the need for permits.  Thus far, within the last three years, a total of 397 building permits have been issued to address violations allowing for resolution of the violations.  It should also be noted that these figures represent numbers that have been more accurately monitored over the last ten (10) years.  However, since 1980 it is estimated that the number of outstanding, unresolved historic violations could total as many as 2,277 which were logged in but not accurately tracked in the database.  

 

After examining the current process, staff has determined that there are a number of issues that will need to be addressed as part of the re-engineering of the current program, including creating a more innovative solution to processing the existing backlog, instituting new processes and creating a sustainable funding source for the program.

 

CONSEQUENCES OF NEGATIVE ACTION

The Department would not receive direction from the Board of Supervisor’s and the use of a Compliance Agreement and implementation of new fees will not move the code enforcement program to a more sustainable state.

STEPS FOLLOWING APPROVAL

Should the Board accept the staff recommendation to pursue proposed administrative improvements to the Code Enforcement Program, the Department will commence implementation. 

 

Meeting History

May 13, 2014 9:00 AM Video Board of Supervisors Regular Meeting
RESULT:ACCEPTED [UNANIMOUS]
MOVER:Cindy Chavez, Supervisor
SECONDER:Ken Yeager, Supervisor
AYES:Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian