To: Board of Supervisors
From: Planning and Building Department
Agenda Section: Departmental
SUBJECT:
title
Summarily Approve Administrative Civil Penalty Assessment on Various Properties
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end
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RECOMMENDATION(S):
Recommendation
That the Board of Supervisors:
1. Approve the proposed Administrative Civil Penalty Assessments on property owners who are in violation of various Humboldt County Codes including violation of Commercial Cannabis Land Use Ordinance (CCLUO) (formerly Commercial Medical Marijuana Ordinance) in the amount of $900,000 plus administrative costs incurred in accordance with Title III, Division 5, Chapter 2, section 352-20 Summary Approval of Proposed Administrative Civil Penalty Assessments.
2. Provide direction to the Planning and Building Department regarding additional enforcement of Administrative Civil Penalty Liens.
Body
SOURCE OF FUNDING:
Property Owner
DISCUSSION:
I. Executive Summary
The Board is being asked to approve the proposed Administrative Civil Penalty Assessments against nine properties which have been unresponsive/non-compliant to notices from the county requiring abatement of nuisances and correction of code violations related to cannabis cultivation. Your Board is also being asked to give direction on how to treat these civil penalty assessments. Historically they remain on the property until the property is sold, but questions have been raised whether it is good to leave a $900,000 assessment sitting on a property for an indefinite period of time. Your Board is being asked to give direction on how to address these assessments.
II. Administrative Civil Penalty Assessments
Attachments A-I include a record of key noticing documents for each violation, including the name of the property owner, the name of the violator, the Assessor Parcel Number (APN), and notification documents.
Humboldt County Code Section 352-20 states “If an objection to the proposed assessment is not filed by a Responsible Party within ten (10) calendar days after service of the Notice of Administrative Civil Penalty Assessment, the Humboldt County Board of Supervisors shall summarily approve the proposed assessment without holding an Administrative Civil Penalty Assessment Hearing.
These assessments are the result of active code enforcement on unpermitted cannabis operations as directed by your Board. Utilizing a combination of satellite imagery, on-site inspections, and in some cases collaboration with law enforcement, the department issued Notices to Abate Nuisance and Notices of Violation and Proposed Administrative Civil Penalty (“Notices of Violation”) on each of the properties listed below for unpermitted cannabis operations, and in some cases unpermitted structures, unpermitted grading and other violations of Humboldt County Code.
A. Bryce Gess CE20-0471 APN 315-082-004 TOTAL: $901,572.13
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
• Development within a Streamside Management Area
• Unapproved sewage disposal system
• Improper storage & removal of solid waste
Bryce Gess was issued a Notice of Violation with a proposed daily administrative civil penalty of $43,000 per day on March 10, 2020. The proposed administrative civil penalty accrued for 90 days, totaling $3,780,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment A.
|
Action |
Date |
|
Bryce Gess is Deeded Property |
10/18/2018 |
|
HCSO warrant served |
2/20/2020 |
|
NTA and NOV Served |
3/10/2020 |
|
Mr. Gess makes contact with CEU |
3/18/2020 |
|
10 Days Expired |
3/21/2020 |
|
90 Days Expired |
6/19/2020 |
|
“Notice of Administrative Civil Penalty Assessment” Served |
8/24/2021 |
B. Wheeler Lumber Co Inc CE19-0225 APN 211-375-011 TOTAL: $901,444.67
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
|
Action |
Date |
|
Satellite Review - Active Enforcement for Unpermitted Cannabis Cultivation |
9/16 - 9/17/2019 |
|
NTA and NOV Served |
9/18/2019 |
|
Property Owner Makes Contact with P&B Dept. |
9/26/2019 |
|
10 Days Expired - No Appeal Requested |
9/29/2019 |
|
90 Days Expired - Penalties Accrue to $2,700,000 |
12/28/2019 |
|
“Over 90 Days Unresolved Warning” letter sent |
3/10/2020 |
|
Assisted HCSO Search Warrant |
5/11/2020 |
|
“Notice of Administrative Civil Penalty Assessment” Served |
4/30/2021 |
Wheeler Lumber Co Inc was issued a Notice of Violation with a proposed daily administrative civil penalty of $24,000 per day on September 18, 2019. The proposed administrative civil penalty accrued for 90 days, totaling $2,160,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment B.
C. Wheeler Lumber Co CE19-0226 APN 211-376-027 TOTAL: $901,444.67
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
|
Action |
Date |
|
Satellite Review - Active Enforcement for Unpermitted Cannabis Cultivation |
9/16 - 9/17/2019 |
|
NTA and NOV Served |
9/18/2019 |
|
Property Owner Makes Contact with P&B Dept. |
9/26/2019 |
|
10 Days Expired - No Appeal Requested |
9/29/2019 |
|
90 Days Expired - Penalties Accrue to $2,700,000 |
12/28/2019 |
|
“Over 90 Days Unresolved Warning” letter sent |
3/10/2020 |
|
Assisted HCSO Search Warrant |
5/11/2020 |
|
“Notice of Administrative Civil Penalty Assessment” Served |
4/30/2021 |
Wheeler Lumber Co Inc was issued a Notice of Violation with a proposed daily administrative civil penalty of $30,000 per day on Sept. 18, 2019. The proposed administrative civil penalty accrued for 90 days, totaling $2,700,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment C.
D. Wild Berry Investments 18CEU-710 APN 212-022-013 TOTAL: $900,285.47
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
• Development within a Streamside Management Area
• Improper storage & removal of solid waste
• Hazardous materials violations
• Junk and/or inoperable vehicles
• Non-approved water supply system
|
Current Owner Case Actions |
Date |
|
Wild Berry Investments LLC is Deeded Property |
8/8/2022 |
|
Review Property’s Current Ownership |
8/11/2022 |
|
NTA and NOV Served |
1/19/2023 |
|
10-Days Expired (NTA NOV) |
1/31/2023 |
|
Notice of Admin Penalty Assessment Served |
3/10/2023 |
|
10-Day Period to Appeal Assessment Expires |
3/20/2023 |
|
90 Days Expired (NOV) |
5/1/2023 |
|
Prior Owner Case Actions |
Date |
|
Intrex Enterprises LLC is formed as LLC in AZ; Blagovest Kalinov is sole member listed |
10/18/2006 |
|
Intrex Enterprises LLC is Deeded Property |
10/7/2014 |
|
App #11997 for 1.0 pre-existing cultivation submitted |
12/19/2016 |
|
App #11997 Closed Due to Inactivity |
9/27/2017 |
|
Satellite Review - Active Enforcement for Illegal Cannabis Cultivation |
12/4 - 12/6/2018 |
|
NTA and NOV Served |
12/7/2018 |
|
10 Days Expired |
12/18/2018 |
|
CDFW inspects property with Water Board and County Hazmat; multiple violations found including active indoor cultivation |
12/20/2018 |
|
90 Days Expired |
3/19/2019 |
|
“Notice of Administrative Civil Penalty Assessment” Served |
3/19/2020 |
|
Hearing Request submitted re: Admin Civil Penalty Assessment |
3/24/2020 |
|
Property transfers to Shawn Waddell (unknown to CEU at time) |
12/29/2020 |
|
NTA and NOV Served to New Owner Shawn Waddell |
7/6/2021 |
|
Law Enforcement Warrant Assisted |
1/10/2022 |
|
Notice of Admin Penalty Assessment Served |
1/20/2022 |
|
Additional NTA and NOV Served with additional violations added from search warrant inspection |
1/20/2022 |
Wild Berry Investments (new property owner) was issued a Notice of Violation with a proposed daily administrative civil penalty of $51,000 per day on Jan. 19, 2023. The proposed administrative civil penalty accrued for 50 days, totaling $2,550,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment D.
E. Moises Roman CE20-0759 APN 530-151-001 TOTAL: $900,252.88
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
|
Action |
Date |
|
CCLUO 1.0 Application Submitted (#12000 CUP16-493) for Pre-Existing Cultivation |
12/19/2016 |
|
Immediate Action Letter for Expansion of Pre-Existing Cultivation Area Sent |
10/18/2018 |
|
CCLUO 1.0 Application (PLN-12000-CUP) Denied by Planning Commission |
6/6/2019 |
|
Prior Owner Actions (CE19-0054); |
|
|
NTA and NOV Served |
6/14/2019 |
|
10 Days Expired - No Appeal Requested |
6/25/2019 |
|
Property Owner makes contact with P&B Dept. |
7/12/2019 |
|
Assisted HCSO Search Warrant |
9/5/2019 |
|
90 Days Expired |
9/22/2019 |
|
“Notice of Administrative Civil Penalty Assessment” Served |
10/18/2019 |
|
Property transferred to Moises Roman; Mr. Roman’s mail address identical to prior owner |
10/30/2019 |
|
Current Owner Actions (CE20-0759) |
|
|
NTA and NOV Served |
9/30/2020 |
|
10 Days Expired - No Appeal Requested |
10/11/2020 |
|
90 Days Expired - Penalties Accrue to $2,700,000 |
1/9/2021 |
|
“No Contact” Warning Letter Sent |
4/6/2021 |
|
“Notice of Administrative Civil Penalty Assessment” Served |
7/2/2021 |
Moises Roman was issued a Notice of Violation with a proposed daily administrative civil penalty of $30,000 per day on Sept. 30, 2020. The proposed administrative civil penalty accrued for 90 days, totaling $2,700,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment E.
F. Aldrew Crowe CE21-1101 APN 216-381-028 TOTAL: $901,253.32
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
• Development within a Streamside Management Area
• Improper storage & removal of solid waste
• Unapproved sewage disposal system
|
Action |
Date |
|
Property purchased by Andrew D Crowe |
7/29/2019 |
|
Large tree removal/grading site development occurs on property |
2019-2020 |
|
CEU assists HCSO search warrant; active outdoor cultivation operation |
5/25/2021 |
|
NTA and NOV served |
5/28/2021 |
|
CEU assists 2nd HCSO search warrant; active outdoor cultivation operation |
8/10/2021 |
|
Notice of Admin Civil Penalty Assessment served |
9/21/2021 |
Aldrew Crowe was issued a Notice of Violation with a proposed daily administrative civil penalty of $42,000 per day on June 1, 2021. The proposed administrative civil penalty accrued for 90 days, totaling $3,360,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment F.
G. Kim Shafer 18CEU-349 APN 210-162-010 TOTAL: $900,824.56
• Violation of Commercial Medical Marijuana Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
|
Action |
Date |
|
Kim Shafer, et. al is Deeded Property |
10/30/2007 |
|
Satellite Review for Active Enforcement |
8/3/2018 |
|
NTA and NOV Served |
8/10/2018 |
|
No Contact Warning Letter |
11/26/2018 |
|
Abandoned cultivation 2018 - 2019; cultivation restarts 2020 |
2018-2020 |
|
Satellite Review for Active Enforcement |
7/12/2021 |
|
NTA and NOV Served |
8/19/2021 |
|
Notice of Administrative Civil Penalty Assessment Served |
11/1/2021 |
Kim Shafer was issued a Notice of Violation with a proposed daily administrative civil penalty of $10,000 per day on Aug. 13, 2018. The proposed administrative civil penalty accrued for 90 days, totaling $900,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment G.
H. Kim Shafer 18CEU-350 APN 210-163-018 TOTAL: $900,824.56
• Violation of Commercial Medical Marijuana Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
|
ActionDate |
|
|
Kim Shafer, et. al is Deeded Property |
10/30/2007 |
|
Satellite Review for Active Enforcement |
8/3/2018 |
|
NTA and NOV Served |
8/10/2018 |
|
No Contact Warning Letter |
11/26/2018 |
|
Abandoned cultivation 2018 - 2019; cultivation restarts 2020 |
2018-2020 |
|
Satellite Review for Active Enforcement |
7/12/2021 |
|
NTA and NOV Served |
8/19/2021 |
|
Notice of Administrative Civil Penalty Assessment Served |
11/1/2021 |
Kim Shafer was issued a Notice of Violation with a proposed daily administrative civil penalty of $10,000 per day on Aug. 13, 2018. The proposed administrative civil penalty accrued for 90 days, totaling $900,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment H.
I. Jose MC Amezcua CE20-0684 APN: 531-074-005 TOTAL: $901,096.98
• Violation of Commercial Cannabis Land Use Ordinance
• Construction of building/structure in violation of building, plumbing and/or electrical codes
• Grading without permits
• Development withing a Streamside Management Area
• Improper storage and removal of solid waste
|
ActionDate |
|
|
Jose MC Amezcua is Deeded Property |
4/12/2019 |
|
Law Enforcement Warrant Assisted |
8/19/2020 |
|
NTA and NOV Served |
9/30/2020 |
|
10-Days Expired (NTA NOV) |
10/11/2020 |
|
Initial Contact Made |
11/10/2020 |
|
90 Days Expired (NOV) |
1/9/2021 |
|
90 Days Unresolved Letter Sent |
10/8/2021 |
|
Notice of Admin Penalty Assessment Served |
4/26/2022 |
Jose MC Amezcua was issued a Notice of Violation with a proposed daily administrative civil penalty of $41,000 per day on Sept. 30, 2020. The proposed administrative civil penalty accrued for 90 days, totaling $2,790,000. The department is requesting $900,000 plus administrative costs, which is consistent with previous administrative civil penalty assessments. See Attachment I.
Each entity has received proper notices in accordance with Title III, Division 5 which included notification by first class certified mail, posting to the property, and/or legal notices published in the local newspaper. The first contact was a Notice to Abate Nuisance in accordance with County Code section 351-7 and Notice of Violation and Proposed Administrative Civil Penalty County Code in accordance with section 352-7 that were served upon the listed property owner(s) via first class certified mail and posting on the properties. Those who responded to the notification were offered compliance agreements. None of the listed property owners responded to or signed the compliance agreement and letters were sent withdrawing the compliance agreement offer. As a final attempt in the communication process to the property owner(s) the issuance of the Administrative Civil Penalty Assessment, County Code Section 352-15 was served via first class certified mail and posted to the properties. None of the listed property owners have responded to this notification in a timely manner.
Attempts to compel the property owners to respond to the notices, abate the nuisances and correct the code violations, and comply with Humboldt County Code section 314-55.4 and other applicable code sections have been unsuccessful. As a result, the proposed Administrative Civil Penalty Assessments are now before your Board to be approved. The next steps prescribed in Humboldt County Code section 352-21, et seq. include:
a) Issuance of Notice of Administrative Civil Penalty Lien to each Responsible Party.
b) Imposition of Administrative Civil Penalty Lien. The lien will be recorded 45 days after the service of the Notice of Administrative Civil Penalty Lien is served on the Responsible Party. Once the lien is recorded, interest begins to accrue on the lien.
III. Disposition of Properties
Humboldt County Code section 352-23(d) states the “Administrative Civil Penalty Lien may be foreclosed and the real property subject to such lien sold, by the filing a complaint for foreclosure in a court of competent jurisdiction, and the issuance of a judgement to foreclose.”
There are 21 previously recorded Administrative Penalty Liens. The Planning and Building Department has not taken further enforcement action beyond recording the liens. It has been the department’s position that it does not want to acquire property and thus have not pursued foreclosure. This may be a cause for concern as there are advantages and disadvantages to the current practice. The Planning and Building Department is seeking direction whether to fully implement the code as written or to pursue other alternatives.
Allowing the lien to remain on title until the property transfers ownership is a way to ensure payment or partial payment of the lien, even if not for many years. It is a low investment of staff time compared to filing for a foreclosure and the county does not become the property owner assuming the responsibilities that come with taking title of the property. The primary responsibility is many of these properties have simply been abandoned and have not been cleaned up. The disadvantages are that the property does not get cleaned-up and the lien serves as a deterrent to the property selling.
Initiating a foreclosure process would involve a higher investment of staff time and likely result in the county owning the properties. It would expedite the payment or partial payment of the liens, and which could provide funding for the remediation and abatement of the violations on the involved parcels.
Many of the properties with recorded Administrative Penalty Liens have been essentially abandoned and have defaulted on their property taxes. It is important to note that these are not properties that are occupied, they have been abandoned. If these properties are auctioned by the county to collect defaulted taxes, the Administrative Penalty Lien is not necessarily included or collected as part of that sale because the lien is not a high priority lien. However, any amount bid over the minimum bid could result in a partial lien payoff. The lien would remain on title after the property is transferred to a new owner, and Code Enforcement would work with the new owner to come into compliance and abate the remaining violations.
If there were a land trust or other entity interested in purchasing these properties and cleaning them up, that would be a desirable outcome. There is no way of predicting which properties may be desirable to such an entity. It is likely that the properties in the greatest need of clean up would be those least desirable from a cost standpoint. The county could engage with organizations to find out if any are interested in purchasing and cleaning up properties. The only systematic way of ensuring these properties are cleaned up is through the foreclosure process. It has never been the county’s desire to become a property owner of delinquent properties, but it is the county’s objective to see that properties are cleaned up and without encumbrance for future owners.
The range of opportunities available to the Board of Supervisors include:
1. Continue to lien properties without follow up action until properties sell
2. Solicit proposals from organizations interested in purchasing and cleaning up properties
3. Begin foreclosing on properties that have no action for a period of 3 years.
FINANCIAL IMPACT:
The cost of preparing the case and serving the notices has been billed to the property owner in accordance with established policies and code sections. This is initially a General Fund cost, expenses for which are reflected in the Planning & Building Department - Code Enforcement budget unit (1100-269).
The General Fund will be reimbursed when the property owner pays the administrative cost, or after the property is held in lien and costs recovered through that process.
STRATEGIC FRAMEWORK:
This action supports your Board’s Strategic Framework by enforcing laws and regulations to protect residents.
OTHER AGENCY INVOLVEMENT:
The Sheriff’s Department, California Department of Fish and Wildlife, Department of Health and Human Services Environmental Health, may also be involved when necessary.
ALTERNATIVES TO STAFF RECOMMENDATIONS:
The Board could approve issuance of Administrative Civil Penalty Assessment for all, some or none of the properties listed.
ATTACHMENTS:
Attachment A: Bryce Gess - APN 315-082-004
Attachment B: Wheeler Lumber Co Inc - APN 211-375-011
Attachment C: Wheeler Lumber Co - APN 211-376-027
Attachment D: Wild Berry Investments - APN 212-022-013
Attachment E: Moises Roman - APN 530-151-001
Attachment F: Aldrew Crowe - APN 216-381-028
Attachment G: Kim Shafer - APN 210-162-010
Attachment H: Kim Shafer - APN 210-163-018
Attachment I: Jose MC Amezcua - APN 531-074-005
PREVIOUS ACTION/REFERRAL:
Board Order No.: N/A
Meeting of: N/A
File No.: N/A