1. H OT TOPICS IN LAND USE SPECIAL ASSESSMENTS, INJUNCTIONS & F ORFEITURES Craig E. Leen City Attorney City of Coral Gables

2. I DENTIFY THE I SSUES Difficulty Obtaining Compliance with Code Orders; Foreclosure Process Delaying and Interfering with Code Enforcement Procedures; Mortgage Holders not Complying with Legal Requirements and Code Enforcement Orders; and Squatters Entering Properties and Not Complying with Code Enforcement Orders.

3. L EGAL A UTHORITY

4. M UNICIPAL H OME R ULE P OWERS A CT Florida Statutes Chapter 166 “As provided in s. 2(b), Art. VIII of the State Constitution, municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law.” Fla. Stat. § 166.021

5. Code Enforcement Statutory Authority Florida Statute Chapter 162 “It is the intent of this part to promote, protect, and improve the health, safety, and welfare of the citizens of the counties and municipalities of this state by authorizing the creation of administrative boards with authority to impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective, and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities, where a pending or repeated violation continues to exist.” Fla. Stat. Ann. § 162.02

6. Florida Contraband Forfeiture Act Florida Statutes §§932.701-932.706 “Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.” Fla. Stat. § 932.703 (emphasis added)

7. Special Assessment Statutory Authority Florida Statute § 170.09 “The special assessments shall be payable at the time and in the manner stipulated in the resolution providing for the improvement; shall remain liens, coequal with the lien of all state, county, district, and municipal taxes, superior in dignity to all other liens, titles, and claims, until paid ; shall bear interest, at a rate not to exceed 8 percent per year, or, if bonds are issued pursuant to this chapter, at a rate not to exceed 1 percent above the rate of interest at which the improvement bonds authorized pursuant to this chapter and used for the improvement are sold, from the date of the acceptance of the improvement; and may, by the resolution aforesaid and only for capital outlay projects, be made payable in equal installments over a period not to exceed 30 years notwithstanding any special act to the contrary, to which, if not paid when due, there shall be added a penalty at the rate of 1 percent per month, until paid. However, the assessments may be paid without interest at any time within 30 days after the improvement is completed and a resolution accepting the same has been adopted by the governing authority.” Fla. Stat. § 170.09. (emphasis added).

8. Additional Authority to Consider Restatement of Property and Common Law; City of Palm Bay v. Wells Fargo Bank, 61 So. 3d 410 (Fla. 2011); U.S. v. Morris, 477 F. 2d 657 (5th Cir. 1973); Christiansen v. City of Orlando, No. 6: 10-cv-1630- Orl-28GJK, 2012 WL 3025160 (M.D. Fla. 2012)

9. City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924 (Fla. 2013)  Whether under Article VIII, section 2(b), Florida Constitution, section 166.021, Florida Statutes and Chapter 162, Florida Statutes, a municipality has the authority to enact an ordinance stating that its code enforcement liens, created pursuant to a code enforcement board order and recorded in the public records of the applicable county, shall be superior in dignity to prior recorded mortgages?  Home rule authority does not provide the authority to enact an ordinance providing code enforcement liens superior priority over prior recorded mortgages.  Section 162.09(3) contains no provision expressly authorizing municipalities to establish special priority for code enforcement liens. Section 162.09(3)  The case does not address situations where the mortgage holder itself commits unlawful conduct relating to the property.  The case also recognizes that special assessment liens would have superpriority status.

10. A BANDONED R EAL P ROPERTY O RDINANCE Chapter 34, Article VI, Coral Gables City Code

11. A BANDONED R EAL P ROPERTY O RDINANCE Chapter 34, Article VI, Coral Gables City Code  Abandoned Real Property:  The City enhanced its Abandoned Real Property Ordinance in 2014 to include additional obligations for property owners and mortgage holders, and additional authority for the City to enforce obligations.  “All abandoned real property is hereby declared to be a public nuisance, the abatement of which pursuant to the police power is hereby declared to be necessary for the health, welfare and safety of the residents of the city.” (emphasis added)  “[I]t is unlawful for an owner or mortgagee to fail to register a vacant property on the abandoned property registry or to fail to maintain said vacant property, which shall be punished by a fine not exceeding $500.00 for each offense, or imprisonment of the responsible individual(s) for a term not exceeding 60 days, or by both such fine and imprisonment in the discretion of the judge. There is a rebuttable presumption of a violation of this provision if a vacant property has two or more violations of the city's minimum housing code or the registration and maintenance provisions of this article for a period of 60 days or more after the city notifies the owner or mortgagee.” (emphasis added)

12. A BANDONED R EAL P ROPERTY O RDINANCE  Abandoned Real Property:  “The city attorney, with the approval of the city manager or designee, is authorized to initiate court action, including seeking injunctive relief before a court of competent jurisdiction, or to initiate foreclosure or forfeiture proceedings, in order to enforce this article. If a violation of this article exists, the city shall be entitled to an injunction requiring the mortgagee or owner to correct the violation on an expedited basis and at the mortgagee or owner's expense.” (emphasis added)

13. A BANDONED R EAL P ROPERTY O RDINANCE  Prior Ordinance Amended to provide Additional Measures:  §34-165 (k) requires that registration includes authority to issue trespass warning;  §34-165(l) places the duty on an owner to comply with City Codes;  §34-168 (b) grants the City Attorney, with the approval of the City Manager, the authority to initiate foreclosure/forfeiture proceedings;  §34-168(d) imposes on the mortgagee and owner of a property declared a public nuisance the affirmative duty to abate the nuisance; and  §34-174 imposes penalties for failing to register property.

14. F ORFEITURE O RDINANCE  Chapter 34, City of Coral Gables City Code  § 34-178 grants the City the power to seize forfeitable property:  All rights to, interest in, and title to the forfeitable property shall immediately vest in the City of Coral Gables upon seizure by the City of Coral Gables Police Department in accordance with this code.  “’Forfeitable Property’ shall be any non-homestead, real property, which qualifies for registration as abandoned real property under Chapter 34, Article VI, ‘Abandoned Real Property,’ of the City Code, and which has, at the time of the seizure pursuant to this ordinance, two or more violations of sections 34-166 (Abandoned Real Property Maintenance Requirements) and/or 105-146 through 105-342 (Minimum Housing Code) of the City Code for a period in excess of six (6) months.” § 34-1786(b)  “Any forfeitable property, as defined in Sec. 34-176, may be seized and shall be forfeited subject to the provisions of this code. The City will not initiate the seizure or forfeiture until the City Commission or the City Manager, in consultation with the City Attorney, makes a finding that such seizure or forfeiture substantially promotes or protects the health, safety, and welfare of the community. ” (emphasis added)

15. Forfeiture Ordinance  § 34-179 grants an Adversarial Preliminary Hearing, which should take place within 10 days of the filing of a lis pendens  § 34-183 provides for procedure consistent with Florida Contraband Forfeiture Act, including jury trial

16. F ORFEITURE O RDINANCE  § 34-181 would allow for the return of seized property by bringing property into Code compliance:  Any owner of forfeitable property may halt the forfeiture action and obtain the return of said property by bringing the forfeitable property into compliance with the code after satisfying all outstanding code violations and making such changes as are necessary to bring the property into compliance. The owner is also responsible for paying the fees and costs incurred by the city while instituting the forfeiture action, including but not limited to attorney’s fees and costs for the prosecution of the forfeiture action.

17. Squatting Ordinance Chapter 34, Article I, Coral Gables City Code  Squatting : The occupation of private property without authorization from the owner or lessee.  Squatters : Occupants of private property without authorization from the owner or lessee.  Squatting is a public nuisance, and is prohibited in the City of Coral Gables.

18. Squatting Ordinance Chapter 34, Article I, Coral Gables City Code  “Squatting may be presumed where the occupant of the property is unable to produce a written document, such as a lease, license, or other written proof of authorization from the property owner or lessee, demonstrating that the occupant has permission to be on the property. Squatting may also be presumed where a property is listed as vacant on the abandoned property registry, and yet is occupied.” (emphasis added)  “The city shall post a notice at the property indicating its intent to remove squatters and secure the property at least five days in advance of any such action. The city shall also make reasonable efforts to separately notify the property owner or lessee. The city may provide shorter notice, or act immediately without prior notice, where warranted by an emergency, such as a danger to the occupants (i.e. unfit dwelling) or threat to public safety.” (emphasis added)  “The city is authorized to remove squatters from private property and to secure the property.” (emphasis added)

19. Squatting Ordinance Chapter 34, Article I, Coral Gables City Code  Christiansen v. City of Orlando, No. 6:10–cv–1630–Orl– 28GJK, 2012 WL 3025160, at *4 (M.D. Fla. 2012).  “Although the Fourth Amendment does afford ‘special protection to an individual in his home,’ trespassers, squatters, and others who occupy premises without consent of the owner of the property do not have a reasonable expectation of privacy in that property for Fourth Amendment purposes”  U.S. v. Morris, 477 F. 2d 657, 663 (5th Cir. 1973)  “When the owner of a dwelling charges its occupants with trespass, it is not unreasonable for prudent police officers to at least suspect that there is some truth in the charges.”

20. Special Assessment Ordinance  City recently adopted ordinance providing for process that allows unpaid garbage collection charges, and other property maintenance costs born by the City, to be placed on the tax bill as a special assessment related to the property  Where City is providing service or value, should look to special assessments to ensure that obligation is enforceable