(August 10)  The Upland City Council and three of the city’s senior staff members stepped into controversy last week when they sought to quietly push through an ordinance that gives the city manager and its development services director the authority to impose on residents and businesses administrative fines of up to $31,000 per month.
A vote on the approval of the controversial ordinance was scheduled for and made on July 30, at a city council meeting at which neither mayor Ray Musser nor city manager Stephen Dunn were in attendance. The ordinance itself and its language were not made available to the public prior to nor during the meeting and the ordinance was not publicly released until eight days after the city council voted to approve it.
While the city’s development services director publicly stated that the ordinance was not intended as a revenue generating ploy, residents chortled at that claim and no other city officials were willing to stand by that assertion. Nevertheless, the four council members present at the July 30 meeting voted unanimously to give the ordinance what is called a first reading, i.e. tentative approval. A second reading of the ordinance, which gives the law final approval, is scheduled for August 13.
The ordinance substantially intensifies City Hall’s bureaucratic power and increases the amounts of the fines that can be levied. Moreover, the ordinance also sets up a policy similar to that utilized in other municipalities that empowers the city to not only issue citations but adjudicate them and set the penalty, precluding, at least in the first three phases of the process, the individual who is cited from having the matter heard and the fine set by an independent arbiter, such as the municipal or superior court. Only upon being ajuged guilty and assessed with the fine, can a resident or business entity that is cited appeal the matter to an actual court.
The ordinance was drafted by interim city attorney Jimmy Gutierrez and development services director Jeff Zwack. Zwack said the ordinance was based upon similar administrative citation provisions contained in nearby cities’ municipal codes.
According to Zwack, who spoke to the Sentinel on August 7, “We have a 95 percent compliance rate with most of our code enforcement citations. What this is aimed at is the five percent who do not comply. Dealing with those five percent becomes extremely expensive and time consuming. We do not presently have adequate tools. If we issue a citation and there is no response after a second citation we have go to the city prosecutor and go into state or county court. That is a 60-day delay just to start the process and it can take up to a year or more before there is any action taken. A hearing can take up to half a day and that becomes very expensive. The administrative citations will save time and general fund money.
“The intent is to streamline the process and facilitate a resolution and accomplish in 60 days what in our current process could take six months,” Zwack continued. “Our current process is not efficient and wastes a lot of staff time. Our intent is to incentivize compliance with the threat of fines. No fine is attached until after the second letter [notifying the alleged offender of the ongoing violation]. The ordinance establishes fines of between $250 and $1,000, depending on the nature of the issue. At the low end would be having an inoperative vehicle parked on a lawn. At the high end would be a threat to public health or safety such as a broken sewer main that is emptying into the street and flowing into a storm drain. The ordinance gives us the ability to use a higher fine to get compliance. That is a decision of departmental policy made by the city manager and development services director.”
Zwack on July 30, told the council that the fines would range from $100 to $1,000 daily. The ordinance states that the “administrative fine for a violation shall be not less than one hundred dollars ($100.00) per day nor more than one thousand dollars ($1,000) per day for each violation. The amount of any fine imposed hereunder shall be determined by the [development services] director. The director may escalate this range of fines for repeated violations that occur within a 12-month period.”
At the July 30 meeting Zwack made clear that the amounts in the fine schedule were a “per day fee.” He went on to say that the city “is not looking to create this as a revenue source.”
Zwack emphasized that there would be two letters giving notice of violation before a fine was imposed. If the fines are not paid, a lien against the property in question is, under the terms of the ordinance, to be recorded on the county tax roll.
No members of the public addressed the issue at the July 30 meeting. A copy of the ordinance was not included with the agenda for the meeting and no copy of the ordinance was on hand for public perusal at the meeting. Efforts initiated by the Sentinel to obtain a copy of the ordinance were unsuccessful until August 7.
During a previous public hearing the evening of August 7 related to the city’s action to record liens against property owners whose properties had undergone weed abatement at the city’s expense, two of those property owners, Bill Kimble and Christopher Scarzo, told the city council, and presented documentation to the effect that, they had themselves performed weed abatement on their properties prior to the city’s contractor’s action and that notification of their right to make an appeal of the lien had come after the deadline for making the appeal.
On July 30, Zwack told the council that he had made sure that they and members of the fire and police committee had received copies of the ordinance. When asked on August 7 by the Sentinel why a copy of the ordinance had not been made available to the public before or during the July 30 meeting, Zwack said, “That question is best answered by the city attorney.” The council waived full reading of the ordinance before voting on it.
Some members of the public in attendance at the meeting said they were caught flatfooted by the item, which was given only a sketchy description on the agenda. One such individual was Albert Pattison, a landowner in Upland. Pattison told the Sentinel Zwack’s presentation of the ordinance and the council’s brief discussion of it elicited his interest but that he felt reluctant to weigh in on it because he did not have a copy of the ordinance before him and did not want to make uninformed statements or ask poorly sourced questions on the public record. Pattison said he initiated an attempt to obtain a copy of the ordinance at the city clerk’s office the following day, and was referred to the library but succeeded only in obtaining a DVD of the council meeting he had attended. “They were very courteous to me at the city clerk’s office,” Pattison told the Sentinel, “but I never did obtain the language of the ordinance, which was what I was looking for.”
Other Upland residents and business owners have since expressed concern about the ordinance, including the way in which it places all of the citing, adjudicating and fining authority in the hands of city officials, as well as the steep fines it would impose. Others have said they are concerned that the liens on the properties in question will do nothing to alleviate the code violations and will be punitive to those who will eventually acquire the properties rather than those responsible for the violations.
Zwack insisted that the ordinance did not create a kangaroo court by violating constitutional due process protections. “This doesn’t make us judge and jury,” Zwack said. He said that the panel appointed by the city manager and him to hear the cases for the most part would not be city employees but “made up by community residents knowledgeable in building codes and other relevant issues. The outcome is appealable to a county judge.” He said the liens on the property would not prove to be a major factor in Upland and would not be likely to discourage prospective buyers from purchasing the distressed properties.
While Zwack said the ordinance was based on similar processes used in other cities, he did not address recent court rulings that have held that municipalities’ use of administrative hearing officers employed by those cities create a conflict in which the fundamental fairness of the hearing process is compromised and the right to due process and other constitutional protections are violated. In one such case out of Hesperia, that city’s imposition of a total of $129,000 in fines against Esther Duran and  her daughter, Janet, for maintaining three too many animals on their agricultural/residential zoned property imposed through the administrative hearing process was reversed by U.S. District Court Judge John E. McDermott. McDermott ruled that the city’s action against the Durans in seizing their animals and imposing the punitive fines was improper and that their animals would have to be returned to them, the fines, which were recorded against their property as tax liens would have to be expunged and that the city would instead need to pay them $200,000 in damages plus attorney fees. The Durans were represented by Upland-based attorney Louis Fazzi.
A calculation many cities make in using the administrative citation process against their citizens is that most do not have the financial wherewithal to fight City Hall. On those occasions where those citizens do have the means or in such cases where a lawyer like Fazzi is willing to represent them pro bono, the outcome can prove financially prohibitive for those cities.
City manager Steve Dunn, who was vacationing the week of the July 30 council meeting, told the Sentinel “The thing driving this [the administrative citation ordinance] was the expense of pursuing some code enforcement cases. If we cite someone and they give us the finger, we have to take them to court. The amount of dollars we then have to use can become excessive. That ordinance creates a mechanism to ensure less costly compliance. Could it be abused? Without a doubt, it could. It isn’t our intent to go after small cases with this. We consider it as something that would be useful against the [Dineen Trucking] dirt pile and the medical marijuana clinic. If we had this ordinance before, we would not have needed to go to court and spend hundreds of thousands of dollars. We could have done it administratively. But it can be abused. It needs checks and balances put in there. Right now, it [the ordinance] lacks checks and balances.”
Zwack said he stood by the ordinance as it is written and as it was tentatively approved by the city council last week.
“My opinion is this is what everyone wants,” he said. “We will see whatever the community wants and it is up to the city council to make that decision.”