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HomeMy WebLinkAboutO-22-11 Lien Reduction and AppealORDINANCE NO.O-22-I1 AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AMENDING THE CITY OF SEBASTIAN CODE OF ORDINANCES, CHAPTER 2 — ADMINISTRATION, ARTICLE VI — BOARDS COMMISSIONS COMMITTEES, DIVISION 2 - CODE OF ORDINANCES; ADOPTING SECTION 2-178 — SPECIAL MAGISTRATE — ADDITIONAL JURISDICTION, PERTAINING TO LIEN REDUCTION AND APPEAL; PROVIDING FOR SEVERABILITY, PROVIDING FOR CODIFICATION, PROVIDING FOR CONFLICTS, PROVIDING FOR SCRIVENERS ERRORS, AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Sebastian, Indian River County, Florida, is a municipal corporation duly created and existing pursuant to the Constitution and laws of the State of Florida; and WHEREAS, the city has designated a Special Magistrate process to perform the functions of the Code Enforcement Board; and WHEREAS, the Special Magistrate has been granted the authority to impose administrative fines and other noncriminal penalties to promote, protect. and improve the health, safety, moral s and welfare of the city; and WHEREAS, the Special Magistrate provides an equitable, expeditious, and effective method of' enforcing the C'ity's Codes where a pending, or repeated violation exists or continues to exist, while assessing fines, costs and liens against property owners within the City of Sebastian that in noncompliance with the codes; and WHEREAS, Florida Statutes Section 162.09 (3) provides, in part, that "[a] lien arising from a fine imposed pursuant to this section runs in favor of the local governing body, and the local governing body may execute a satisfaction or release of lien pursuant to this section.'; and WHEREAS, Florida Statutes Section 162.09 (2) (c) provides, in part that "[an] enforcement board may reduce a fine imposed pursuant to this section." And WHEREAS, Florida Statutes Section 162.03 (2) provides. in part that "[a] special magistrate shall have the same status as an enforcement board under this chapter:'; and WHEREAS, there are over 170 liens currently recorded by the City of Sebastian in the 1 Indian River County Clerk's Oft -ice dating from 2007 to 2021. WHEREAS, the City of Sebastian currently has no set policy or procedure to determine any reduction or forgiveness of code enforcement liens. WHEREAS, the City of Sebastian has determined that it is in the city's best interest to delegate requests for lien reduction to the Special Magistrate before whom a property owner can present any and all evidence and extenuating circumstances in support of the request in a single proceeding. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, AS FOLLOWS: Section 1. CODE OF ORDINANCE. The Code of Ordinances, City of Sebastian, Florida is hereby adopted as follows: Chapter 2 —ADMINISTRATION Article VI — Boards, Commissions, Committees, Division 2 — Code Enforcement Sec. 2-178. SPECIAL MAGISTRATE —ADDITIONAL JURISDICTION. 1. Lien Reduction. The Special Magistrate is authorized to reduce liens whether issued by the City's Special Magistrate or previously by the Code Enforcement Board. A lien reduction request shall not be used for the purpose of rehearing the code case or as an appeal of the original order imposing the lien. The policies and procedures for making a lien reduction reouest are as follow: a. Aootleation. A signed application for lien reduction from any order imposing a lien by a special magistrate or previously by the Code Enforcement Board must be filed with the Code Enforcement Department. Fine reduction by this section is strictly discretionary by the City Council or Special Magistrate. The application shall include a waiver of the right, if any, to seek iudicial review of any decision whether to reduce the lien or not and if so, by how much. The application most include: i. Name. address and signature of the applicant. ii. If represented by an attorney, the name and address of the attorney must also be included and the attorney must either file a Notice of Appearance with the application. iii. Address. parcel number, or brief legal description of the property where the violation(s) occurred. iv. Addrese narcel number. or brief legal description of all real _monerty owned by the applicant located in the State of Florida v. A $250.00 non-refundable fee to offset the administrative costs associated_ with the lien reduction. vi. Hard costs. including. not limited to. lot clearing expense, moving expenses. board no expenses. demolition expenses. and anv legal. prosecution and administrative costs incurred as a result of a code enforcement case or action (collectively. "Hard Costs") are not eligible for a lien reduction and must be naid in full prior to any Release or Satisfaction of Lien(s). vii. Brief explanation of the reduction sought. along with any supporting documentation and evidence. viii. If the reduction request is based noon the actual cost of repairs to the propertv to correct the violations(s). written documentation to support repair costs. including. but not limited to. city issued nermits(s). ohotoaranhs. video. and descriptions of work performed on the orooertv. ix. If the reduction reauest is based upon financial hardship, a financial affidavit must be filed with the city. notarized with any su000rting documents. x. If the lien amount exceeds the equity in the subiect orooertv, written .kcuracmation to sunnort this contention. Such information should include a current avmraisal or the latest valuation by the Indian River County Proncrtv Appraiser. c. Initial Consideration. No aoolication shall be accented or processed unless the following eligibility remurrement are met: i. A notice of comnliance has been received for the subiect propertv and there are no other outstanding violations. Further. all vrooerties within the city that are owned or managed by the aoolicant have no outstanding violations. ii. Other than the subiect lien. the orooertv owner does not have anv vast due monies owed to the city. iii. The subiect orooertv is not part of anv vending foreclosure or sale proceedings. iv. All comnliance costs incurred by the city, including administrative. inspection. hearing. and abatement costs (Hard Costs) must be naid in full. v. There is a non-refundable $250.00 aoolication fee that must be paid no front with the application. d. Hearing. The application will be set for the next available hearing date after all eligibility remuirements me met. and the aoolication is deemed complete. The city shall notify the aoolicant or their attorney by U.S. Certified Mail and/or email. if available. not less than seven (7) days prior to the scheduled hearing. 3 e. Burden of Proof. The applicant for a lien reduction must present clear and convincing evidence, which is determined by the Special Magistrate; otherwise, it shall be denied. f. Determination. The Special Magistrate shall, after conducting a Quasi -Judicial Public Hearing, enter a Final Order granting or denying the requested relief for up to 25% of the lien amount or less. The ADDlicant will be afforded Due Process with proper notice, an opportunity to be heard, through him/her or by an attorney, present evidence and provide witnesses (including cross-examination). The Special Magistrate shall consider all relevant factors to determine what relief, if any, is appropriate including, but not limited to: i. The nature and gravity of the violation(s); ii. Any action taken by the owner to cure the violation(s), iii. The length of time between the ordered compliance date and the date the violation(s) was cured; iv. Any actual costs expended by the owner to cure the violation(s) as provided by supporting documentation, including payment of city licensing or permit fees;, v. Any other prior to current violation(s) committed by the owner on the subiect property or upon any other Propertv owned by the owner within the city; vi. Repeat violation(s) committed by the same owner regardless of whether it is on the same property; vii. Cost incurred by the city to abate the violation(s) and prosecute the case, including administrative and overhead exp_ enditures (hard costs). g. Transfer of Ownership. Transfer of ownership after recordation of the city's lien shall not be considered as a factor in the lien or fine reduction; nor shall a lapse of time before seeking enforcement be considered. h. Administrative Costs. The Special Magistrate shall not have the authority to reduce administrative costs, including but not limited to, inspection costs, postage fees, recording fees, advertising costs, hard cost or any cost of enforcement or abatement, incurred by the city. i. Pavment. Any reduction granted, up to twentv-five percent (25%) or less shall be paid within thirty (30) days of the Order unless timely appealed. If timely appealed to Council, then within 30 days of the City Council's final decision. Each Order shall include language that failure to remit Pavment to the city by the date ordered shall cancel the lien reduction settlement and cause the original lien amount to remain. No lien shall be released until Pavment in full is received by the city. j. Decision. If relief is denied based upon the merits of the claim, such denial shall be final and with preiudice. If denied. the matter will not be appealed to the City Council. The reduction amount, if any, shall be paid within 30 days of the order. 4 2. Appeal a. A denial based anon the merits of the case by the Special Magistrate is with ureiudice. final and not appealable to the Citv Council. b. The Special Magistrate's decision to reduce a Lien no to 25% or less must be annealed in writing to the. City Council through Citv Manager within 10 days of the Order alone with a $500.00 filing fee. c. Anvthine above 25% Lien Reduction reouires Citv Council approval and will be set at the earliest possible Council Meeting. d. Only the nercentaee amount of the reduction is annealable to Citv Council. not the merits of the case. In other words, this is not a "de novo" review of the case. After considering the matter. Citv Council will make one of the following determinations: i. The appeal is denied: or ii. The anneal is granted. if so. the new Dercentage amount of reduction. e. The Citv Council's decision is strictly discretionary: therefore, it is final, binding and not subiect to iudicial review. * s e Section 2. SEVERABILITY. In the event a court of competent jurisdiction shall determine that any pan of this Ordinance is invalid, the remainder of the Ordinance shall not be affected and it shall be presumed that the City Council of the City of Sebastian did not intend to enact such invalid provision. It shall further be assumed that the City Council would have enacted the remainder of this Ordinance without said invalid provision, thereby causing said remainder to remain in full force and effect. Section 3. INCLUSION INTO THE CODE OF ORDINANCES. It is the intent of the Sebastian City Council that the provisions of this ordinance shall become and be made a part of the City of Sebastian's Code of Ordinances, and that the sections of this ordinance may be renumbered or re -lettered and the word `ordinance" may be changed to "section," "article," "regulation," or such other appropriate word or phrase in order to accomplish such intentions. Section 4. CONFLICT. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 5. SCRIVENER'S ERRORS. Sections of this ordinance may be renumbered or re - lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager, or the City Manager's designee, without need of public hearing, by filing a corrected or re -codified copy of same with the City Clerk. Section 6. EFFECTIVE DATE. This Ordinance shall take effect upon approval at second reading by the City Council and siymature of the Mayor. The foregoing Ordinance was moved for adoption by Council Member Jones The motion was seconded by Council Member Nurm and, upon being put to a vote, the vote was as follows: Mayor Jim Hill aye Vice Mayor Fred Jones aye Council Member Christopher Nunn aye Council Member Ed Dodd aye Council Member Bob McPartlan aye The Mayor thereupon declared this Ordinance duly passed and adopted on this 13th day of July 2022 W 6anette Williams, City Clerk CITY OF SEBASTIAN, FLORIDA By: Jim 1 0 IMayor Approved as to form and legality for . brCity only: —yctir.,L --4ds C 3