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 Mariposa County Proposed Code Enforcement Ordinances

The County has a long-standing problem. One of our key priorities is to protect the health and safety of our citizens. We do this by requiring compliance with our County codes, building, marijuana and otherwise. The problem is that we have no cost-effective or timely manner of enforcing these codes, and right now there are over 500 code compliance violations cases some of which have gone on for years without resolution. Everyone, including the illegal marijuana growers, seems to know that the County has no effective code enforcement mechanism and they basically thumb their nose at the County. Current County code basically defines code compliance violations as misdemeanors and enforcement means using the criminal justice system and the Superior Court which is both costly and takes a long time for resolution. This mechanism is so draconian that it does not make sense to use it for any but the most egregious cases.

County staff have been working on a code compliance ordinance for years that allows the County to use a series of non-criminal fines to encourage code compliance, rather than the court system. This matter came before the Board on October 20 and the first reading was approved by the Board.

This issue will come before the Board again for discussion and a second vote.  Until then I remain open minded and will listen to further input from County staff and the public.  However, given the incorrect information currently circulating, I decided to share my understanding of the issues in the form of an FAQ (below) based on information available to date. 

I am not expert on this subject, but I have pulled together the  information in the FAQ. Please submit substantive questions or recommended modifications to the code to René LaRoche, Clerk of the Boardto René LaRoche, Clerk of the Board to René LaRoche, Clerk of the Board, rlaroche@mariposacounty.org, (copy me or your Supervisor if you like) and we will do our best to respond as quickly as possible. Facebook is not a good means of communication because the County can’t capture it as part of the public record and because of blocking (see question below on public comments.) 

How to use this FAQ? Click on a question below to see the answer; click on the question again to hide to answer. Questions are underlined and answers are not underlined.

What are County Codes?

Mariposa County Codes are some of the rules under which the County operates and under which Mariposa citizens, through their elected representatives, have agreed to live. County Codes govern everything from who can use the solid waste facility to where can people build houses or grow crops. The current discussion includes primarily the County’s building codes, growing marijuana, and what is a nuisance. It is also about the County’s ability to enforce those rules. Many of these codes exist to protect personal and public safety. The County’s building codes are derived from State codes and are updated every few years. The marijuana ordinance was written locally.

Why are standards needed?

Very few would argue against the need to build homes to certain agreed upon standards. Think of the electrical outlets in your home. There are standards as to which of the three “holes” are the “hot” and “neutral” wires carrying the voltage and the current, and which is the “ground” which is there strictly for safety. It is one of the things that a Building Department Inspector will check when doing a final inspection before issuing an Occupancy Permit. Some people may argue that they should have the freedom to wire their own home any way they want, but compliance to standards becomes particularly important, in this case when you plug in the toaster, or in general when others are involved, e.g. you sell your home or rent it out.

What is the problem with building a house or a remodel without a permit and not going by the standards?

There are many issues here. The first and most obvious issue is that a permit and the associated inspections assure that the house or remodel is done in a way to make the home safe for occupancy. Construction to standards is important. See above. If you pay a contractor to build your home, wouldn’t you want to know it’s safe to live in? The second issue is fairness. If your neighbors built their home with a permit then they also paid the County for that permit and more significantly, the school fee. We all benefit from living in a community with good schools and we all need to pay our fair share in that regard. The third issue arises that when you sell the house built without a permit or with a non-permitted addition or remodel. At the October 20th Board meeting there were several stories shared about couples, young and old, who bought what they thought was a 3-bedroom house, only to find out that the house was only permitted for 2 bedrooms, that a garage had been converted to a bedroom without permit, that the septic system was sized and permitted for 2 bedrooms, and that bringing things up to code would cost tens of thousand dollars. Ouch! Who is to blame? Of course, the seller should have disclosed all of this, but is it worth the time and cost of a lawsuit to resolve this? What about the banks and the mortgage? Insurance? One thing is clear, if your 3-bedroom house burns down and the insurance company finds that it was only permitted for 2 bedrooms, they will only pay to replace a 2-bedroom house. And if it was non-code compliant wiring that started the fire, well that is your problem not theirs.

Yes, Caveat Emptor, or let the buyer beware, goes back a long way, and is certainly good advice, but the County also has a responsibility to see to it that all the homes in the county are safe and legal dwelling places and people can safely buy a home here without worrying about being scammed.

Are you going to take grandma’s home away for a missing outlet cover or some other minor infraction if she can’t pay the fines?

No! Minor infractions can be easily fixed and grandma can get a hardship waiver for the fines if needed. Or, more likely, the County will assist her in finding a non-profit organization to install her outlet cover and avoid the fine in the first place.

What about truly dangerous homes?



Look at the picture above. Do those stairs meet standards? How about the wiring or plumbing or, you name it? This sort of situation is obviously the most difficult to solve. Fines are probably not going to bring this home up to standards, and yet the County has an obligation to see to it that everyone live in a safe and sanitary situation. Ways to remedy his type of situation is what we really need to be discussing.

What can the County do now about a code compliance violation?

So, then the question is what the County can do if they become aware of a code compliance issue, especially if the responsible party refuses to cooperate, which currently happens about 45% of the time. It seems pretty widely known that “the County does not enforce their codes” and thus illegal marijuana growers in particular find our County a good place to do their business, despite our Sheriff’s best efforts. The problem is that there is currently no timely or cost-effective way to encourage code compliance with anyone! As mentioned above, if the owner won’t cooperate, the County’s only option is to take them to Court, either criminal or civil.

OK, what is the current enforcement situation? Why can’t the County require people to fix problems? What does County code prescribe for code violations?

The current County Code, adopted in 1977, 1.20.010 Violation Of Ordinance A Misdemeanor (see appendix below) states that ANY violation of a County Code is a misdemeanor or criminal offence, unless County Code says it’s an infraction. That’s right, the current situation is draconian in that the code prescribed pathway for the County to enforce code compliance is through the criminal justice system. Our only other path is through the civil court system. Both approaches mean taking matters to the Superior Court system – that is very costly and can take years to complete.

(Note that although County Code defines code violations as criminal, in the last 10 years or so, the County has chosen not to pursue the criminal prosecution route for code violations, but rather has used civil suits as the remedy. Unfortunately, the civil court process is also costly and can also take years to resolve. One such local case is in its ninth year in the court system and is not yet decided.)

Under current County code, if the County becomes aware of a code infraction it attempts to talk with the landowner and sends letters to make them aware of the infraction. Eventually the letters will threaten to take them to court if they fail to correct the infraction. Over half of our citizens who receive such a letter choose to work with County to correct the issue, and even if it takes time, sometimes years, the County takes no further action as long as progress is being made. If people choose not to comply, right now about 45% of the cases, then they receive other letters, which may be no more effective than the earlier ones. Some people know the County is not going to use the expensive and time-consuming Superior Court process to go after their non-code compliant addition.

So, how does the proposed code compliance ordinance make the situation better?

Mariposa County Code 1.20.010, referenced above and included below, states that if specified elsewhere in the code, certain violations can be considered non-criminal infractions rather than criminal misdemeanors. The problem is there is no code that defines a non-criminal remedy. So, right now, all infractions or violations of code are criminal misdemeanors by definition. Most other counties (we are collecting the statistics now) have a non-criminal civil pathway that does not involve the Superior Court system to encourage compliance with their codes, typically involving a series of fines that increase if there isn’t a willingness to comply. That is exactly what the proposed code compliance ordinance seeks to achieve for Mariposa County – providing a non-criminal framework in which the County can incentivize and work with responsible parties who have projects that are not code compliant and achieve personal and public safety quickly and with minimal cost.

It seems the County wants to take people’s homes. Does the County really want to make more people homeless?

No. The last thing this County wants is for more people to be homeless! The County does not want to throw people out of their homes. Quite the contrary. A good example is the Detwiler Fire victims who, three years later, are still living in non-code compliant RVs. There are about 6 cases, but rather than throw people out after several missed deadlines, County staff is working with them to find solutions to make sure these people have safe affordable housing.

My home was built many years ago. Do I have to comply with new codes?

The County monitors building code compliance by requiring new construction or remodeling to be done under a permit that includes inspections for compliance by County Building Department inspectors. When a home or building is permitted and constructed, it should comply with the building codes that apply at that time, but there is no need for older homes to comply with new codes. Although a new home today requires sprinklers for fire safety, there is no requirement to add them to homes that were built before that requirement was added to the building code.

It should also be noted that the proposed code compliance ordinance does not change that, nor add any new building codes or requirements. It does address, however, the mechanisms via which the County can enforce, or assure compliance with those codes.

Why is nuisance abatement important, and what is a nuisance anyway?

Current County code often refers to “nuisance” without defining it. “Barking dogs” is about the only nuisance that is defined and there is actually quite a bit of code on barking dogs! But what about a neighbor who never goes to the dump and just lets piles of garbage pile up on their property. Or has many barrels of unknown chemicals leaking into the ground. Or piles of old tires that make very noxious smoke when they catch on fire. These are nuisances. This is a tricky area, but there is no doubt that if your neighbor’s yard looks like a junk yard, it likely affects not only your property value, but also public safety as many of the defined nuisances are also potential fire hazards. One thing is for sure, such nuisances need to be dealt with, and in most current cases, they are not. Again, that is why we need a non-criminal remedy that does not involve going to court and will lead to a timely and cost-effective resolution. Taking someone to court over junk in their front yard, does not make sense, but currently that is the County’s only option. Fines that incentivize removal of the material makes much more sense.

Will the County pursue private nuisances or only public nuisances?

It is the responsibility of the County to assure public safety. According to County Counsel, the County does not get involved in disputes between landowners or in the resolution of private nuisances.

Is Muir Lodge a nuisance?


I'll let you decide. Muir Lodge on Highway is on HWY 140 in Midpines. From the highway, it does not look so bad with windows boarded up with OSB.



However, if you go to the back and look inside, the rooms are a mess with people sleeping next to a room filled with junk.


Wiring and plumbing has been torn out of the walls and when I was there the electricity to the lodge was live or “on”. I called PG&E and fixed that as I was very concerned about how a fire there would quickly affect the whole Midpines community and beyond! Muir lodge may be a public nuisance because of the fire danger and is likely what is referred to as an “attractive nuisance” in that it attracts vagrants and vandals. The County has been after the owner for years to get him to either clean up or tear down the structures so that they no longer attract those who are vandalizing this property. But so far, the owner has just ignored us. It is a real tragedy all around – for the owner, the neighbors and the County. There has to be a way of keeping this sort of thing from happening.

 

What are some examples of potential nuisances in our community?





How would you feel if these pictures were of your neighbor’s yard and you had to look at it every day? Can the County help? That depends on the risk to public safety. If there are chemicals leaching into the ground or a significant fire risk or the junk piles in question are visible from a public road or especially a scenic highway, then it is likely a public nuisance and the County may need to be involved.

Right now, the County does not have the tools to incentivize people to clean up these nuisances. The new ordinance not only defines nuisances, it provides a way for the County to deal with public nuisances in a timely and cost-effective way.



What are the current restrictions on marijuana cultivation?  What are some of the dangers associated with these grows?





Current code limits cultivation of marijuana (either indoor or outdoor) to 12 plants where there is one “qualified patient or primary caregiver” residing on the parcel and to 24 plants where there are two or more qualified patients or primary caregivers residing on the parcel. Unfortunately, larger grows are not uncommon and sometimes are found with other code violations such as electrical power theft and other illegal power connections. Such connections have caused three fires this year alone. The grows like the ones in these photos are not uncommon in Mariposa and clearly violate County Code. These grows cause stress for neighbors. Please download a report in pdf format from the Director of our Building Department on the fire dangers associated with such grows.



Some critics of this ordinance admit that there is a problem that needs a remedy, but say this particular ordinance is not the answer. Is there a way they can help?

County staff and Board members always welcome questions and constructive criticism of any proposed ordinance and other items brought to the Board. I have also found that some who have complained about the ordinance have not read it. Fortunately, some individuals have studied the ordinance carefully and seem willing to work with us in a constructive manner. That is very much appreciated. In other cases, the situation is more difficult, commutation has been poor, and the claim is that the County is not open to public comment.

Why does it seem that the County is not open to public comment?

The County is open to public comment; it’s critical to our ability to serve our community. Email or letters that we receive are included in the Board packet or, if received after the cut-off date, made available in the meeting room and included in meeting minutes. Our experience on social media has lead us to conclude it is not a reliable communication channel for two reasons: (1) Facebook page site administrators can and do delete comments so we can’t assume that information will be received by those who’ve asked for it. (2) Facebook users can and do block communications, even with County staff, and we are unable to see what is said by some posters and therefore can’t respond. We have therefore found that Facebook is not a reliable means of discussion of this important issue and request that all comments be in emails or letters to the County Clerk or the Planning Director. The County also encourages communication via telephone calls and face-to-face meetings; not many have acted on that, even when invited.

Staff distributed the draft code compliance material to the Board and members of the public who had requested it (e.g., CL Rhodes and Ken Melton) on October 2, 2020. We received no substantive written comments in reply.

Is the purpose of this ordinance to raise revenue to cover the TOT shortfall?

No. Some people think that this ordinance is a recently hatched scheme to raise revenue in an attempt to cover our current shortfall due to the low Transient Occupancy Tax revenues caused by the COVID-19 pandemic. I have been in office for more than 5 years now and the discussion about our inability to enforce our County codes was going on before I came into office. This ordinance is being brought forward now to solve a long-standing problem, not a short-term revenue shortfall. The goal of this ordinance is compliance and public safety, and we would be glad if not a single dollar in fines was ever collected. This is not about revenue. It is about compliance and public safety.

How will the monies collected from the fees or fines be used? Will the monies go into the General Fund?

No. Fines and fees that are collected would be deposited into the county’s code compliance account to fund cleanups, compliance and abatement actions, and the cost of the code compliance program. Fines and fees could also be used to fund costs for approved hardship cases. They will not go into the General Fund.

In the proposed code, 1.40.050 Authority; Fines and Fees, section I states:

“The fines and fees shall be collected by the department issuing the citation and deposited into the county’s code compliance account. Monies deposited into the county’s code compliance account shall be used to fund cleanups, other compliance and abatement actions, and the costs of the code compliance program.”

There are other sections in the proposed code where this is less clearly stated and those sections need to be updated to reflect the language above.

I understand I can appeal a code compliance violation finding, but I hear that I must pay the fine first before the appeal can be heard. Is that true?

Basically, yes. However, a fine can be avoided entirely if you agree to resolve the issue. If you do want to appeal and can’t afford the fine, a hardship waiver is available.

I hear that people will only have 10 days to fix a problem before the fines kick in. Is that true?

Not really. The code calls for a grace period of 10-days, and the code official can postpone fines and fees for a “reasonable amount of time” to fix the problem if the landowner cooperates. On the other hand, if you tell the Code Enforcement Technician to get off my property and never come back, perhaps with more colorful language, then perhaps you should expect the fine to be imposed 10 days later. Again, the idea of the ordinance is to achieve compliance for reasons of public safety, not to raise revenue via fines. Work with the County and the County will work with you.

If I Code Compliance Technician visits your home multiple days in a row, do each of those visits generate a new case and a new fine?

No, absolutely not. While the above idea ignores the 10-day minimum grace period, the fundamental assumption is wrong. County staff has confirmed that one case is one case, no matter how many times the County has to go out to the site. Furthermore, there can be multiple violations in one “case”. The County’s practice is to roll additional violations into existing cases. According to our Code Compliance Technician, if we had a case number per complaint, the total number of cases would triple or more.

I hear that the proposed fines or fees can escalate and become tens of thousands of dollars. That seems draconian. Is this true?

Much has been made of a hypothetical case involving an illegal marijuana grow with a non-permitted greenhouse. In this narrative, with the proposed ordinance an initial fine of $300 for the non-permitted greenhouse(s) will grow over time to more than $17,000 if there is no compliance! Wow, draconian, you might think. But, as Supervisor Menetrey suggested in the October 20th Board Meeting in which this scenario was discussed, that does not make sense. Anyone in their right mind would take down that non-permitted greenhouse ASAP, thus avoiding the fine and/or its escalation, and hopefully move their operations elsewhere. That made sense to me. The fines can be avoided by compliance, which is the whole point of the new proposed ordinance.

Testimony by County staff at that same meeting suggested that as long as people were making progress on resolving the outstanding issue, they would not impose fines or escalate the fine amount under this ordinance. That is the same policy as is in practice today with regards to not pursuing criminal prosecution or civil court if people are making their best effort to resolve the outstanding problem even if it takes years.

I do agree that using a reasonable fine to encourage code compliance is preferable to criminal prosecution or taking people to court, but why do the fines need to escalate over time if people don’t comply?

The idea is to start with a fairly small fine, but the problem is that if that is all there is, some people will simply pay the fine and not actually fix the problem that caused the code compliance violation in the first place. The object is to get people to comply with the code in a timely and cost-efficient manner. If we use fines as a tool to encourage code compliance, they have to be significant enough to achieve that compliance. A slap on the wrist isn’t enough for some people, but we can start there with a reasonable fine and hope that the prospect of increasing fines encourages people to work with the County to fix the problem.

Can the Code Compliance Technician enter your property without out your permission?

The answer to that question has to do with expectation of privacy. The rule of thumb seems to be that an inspector can go anywhere “brown” (UPS) goes, i.e. they can enter the property and come up to your front door as you have no expectation of privacy there. Beyond that, the answer, unless you allow them to come in, they cannot unless and until the court issues a warrant.

Does the proposed code compliance ordinance allow an inspector to enter my home without my permission?

No. If a County Code Compliance Technician knocks on your door and asks to come in, you may certainly say, “No”, or you can invite them in. If you say “No”, and the County has some evidence that a code violation may exist, the County may choose to go to a Judge and get an Inspection Warrant and then return to your house and do their inspection with you present.

Does this ordinance violate due process?

No. People have been rightly concerned that a system of fines violates due process and they want their day in court. The proposed ordinances define appeals processes. Under the proposed ordinance, for violations of County Code the appeal is to a hearing officer and their verdict is final. For a violation of the nuisance abatement code, the appeals process starts at the hearing officer, but a resident can also appeal to the Board of Supervisors. In both cases, the matter can be taken to the Superior Court if the landowner wishes.

Who will the hearing officer be that hears appeals of compliance violations? What are the qualifications for the hearing officer?

Hearing officers are professionals, typically with a law degree although some may have a bachelor’s degree and related experience. Since I don’t believe the County employs a hearing officer, the CAO will need to contract for their services when needed. Hearing officers are not judges but they do act in a quasi-judicial capacity. They hear testimony, consider evidence, and interpret and apply administrative law to resolve disputes and settle claims involving government agencies or executive departments and the public.

Who will make the decisions about which cases to pursue?

County staff, your friends and neighbors, will decide how to pursue the various violations, not some outside law firm. And the whole point of this ordinance is to resolve these issues without involving the courts or law firms.

What is Silver and Wright’s role in code compliance in Mariposa County?

I can’t speak in behalf of Silver and Wright, but I do know that the County chose to contract with them based on referrals by credible professionals that work in that area of expertise. I’ll emphasize that the County, like other jurisdictions, contracted with them for specific and, therefore limited, services. We asked that they review the proposed codes for compliance with State law and suggest changes that might make the administrative processes fairer and more efficient, increase voluntary compliance and reduce costs to taxpayers. Silver and Wright did not write the proposed code ordinance. IF Mariposa County were to decide it was in the public’s interest to file suit against a code violator, we would contract with a law firm with appropriate expertise, which might or might not be Silver and Wright.

My understanding of the cases described in the Desert Sun articles is that the cities of Indio and Coachella contracted with Silver and Wright to recover the cities’ costs on certain particularly costly nuisance abatement cases. In those cases, the cities had successfully pursued criminal cases against the violators and wished to recover expenses they incurred using taxpayer dollars. The cities paid Silver and Wright in accordance with the terms of their contract and that contract did not include compensation on a contingency basis. That is, Silver and Wright did not receive additional compensation if they won or lost a case. When those two cities instructed Silver and Wright to collect the costs the cities had incurred, Silver and Wright remitted all funds they collected back to the cities as instructed. California State law was changed in 2018 to preclude local jurisdictions from collecting such costs from violators. Silver and Wright told me that they discontinued that service to local jurisdictions in 2017 before the case in question was filed and the law was changed.

Some critics say the new ordinance is “draconian”. What do you say?

How creating a system to allow the County to use civil fines rather than criminal prosecution to resolve code compliance issues is “draconian” is beyond me. The current County code only prescribes criminal prosecution of code violations is draconian, but that is what we are trying to fix. There are literally hundreds of cases of code noncompliance in the County without resolution, waiting for the County to find an effective way to enforce compliance. We can’t do that with our current remedy, which is costly and takes years, and frankly is so draconian it is not used. It is far better is use the remedy in the proposed ordinance as it provides a civil pathway to potentially resolve issues in a much more time and cost-effective manner, via fines that can be avoided via a request for a waiver or a compliance agreement.

It should also be noted that the proposed ordinance does not preclude criminal prosecution for what are really criminal offences, e.g. an illegal marijuana grow, but while that process is taking place, or in place of that process, the proposed system of fines in the proposed ordinance can help mitigate the negative effect on the neighborhood in a much more time and cost-effective manner.

What would be the consequence of this ordinance not going through?

Illegal marijuana growers have admitted that they set up their grows here because it is known that Mariposa County usually does not go after code compliance violations, thus making our County a “sanctuary” county for illegal activities. If our attempts to establish a better way of enforcing code compliance does not move forward, or is undone by the initiative process, that will likely send an open invitation to criminal elements or people who want to build shoddy houses that Mariposa is a good place to locate their “businesses”. Is that how we want our County to be known? And if the ordinance were to pass, but was undone by the initiative process, that would poison the water for moving this matter forward for quite some time. Want more illegal marijuana grows or meth labs in the County? Or junk yards next door? This is not about grandma’s missing outlet cover. It is about serious matters of public safety and law and order. We need to think carefully about the importance of this ordinance.

How can I help?

First of all, read the ordinance. If you have questions or concerns, let me know and I’ll get you answers. And please educate your friends if you find they misunderstand the issues at hand. We have a problem with our current inability to enforce our County codes in a timely and cost-effective manner. Something must be done to allow the County to fulfill its responsibly to preserve public safety, while protecting everyone’s rights. Your informed input and participation in this process is welcome. You are welcome to contact me by phone at the Government Center (209-742-1242) or by email at rsmallcombe@mariposacounty.org.



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Appendix  Download County Code 1.20 in pdf format