The facts appear largely undisputed. Rasooly owns a vacant industrial building at 150 Acme Street in Oakley (Property).
On March 1, 2017, the City issued a new notice and order that the Property be repaired or demolished (the 2017 Notice). The City physically posted the 2017 Notice on the Property. The City also sent the 2017 Notice by certified mail to a post office box listed as Rasooly's address on county tax rolls for the Property. The mailing was returned undelivered. After the 20-day period provided under the Oakley Municipal Code for administrative appeal of the 2017 Notice lapsed,
II. DISCUSSION
A. Standard of Review
A motion for judgment under Code of Civil Procedure section 1094 is the proper (and exclusive) procedural means for seeking a streamlined review of an agency's decision.
B. Administrative Exhaustion Requirement
It is undisputed that Rasooly did not seek administrative review of the 2017 Notice. The requirement of exhaustion of available administrative remedies is a jurisdictional prerequisite and not a matter of judicial discretion. ( Environmental Law Fund, Inc. v. Town of Corte Madera (1975)
C. Notice
It is undisputed Rasooly did not actually receive the 2017 Notice. Rasooly contends the City failed to comply with IPMC notice requirements, and the City's failure to provide actual notice deprived him of due process.
IPMC section 106.2 provides that a notice of violation of its provisions shall be served by a code official "in accordance with Section 107." (See IPMC, § 110.2 [demolition notices and orders "shall comply with Section 107"].) IPMC section 107.3 states that a notice of code violation is properly served if a copy is: "1. Delivered personally; 2. Sent by certified or first-class mail addressed to the [owner's] last known address; or 3. If the notice is returned showing that the letter was not delivered, a copy thereof shall be posted in a conspicuous place in or about the structure affected by such notice." (Italics added.) The City concurrently posted the 2017 Notice on the Property and sent a copy by certified mail to Rasooly's post office box address of record. Rasooly argues the IPMC requires a sequential procedure, with physical posting only appropriate if a certified mailing is first returned undelivered. He cites a commentary to IPMC section 107.3 observing that "[d]elivery by certified or registered mail addressed to the owner or the owner's designated agent at the last known address, with a return receipt requested ... is a valid method of service, but sometimes is not reliable. ... [¶] ... If the certified or registered letter is returned as undeliverable, posting a copy in an easy to see place in or about the structure will suffice. Since the code official must wait until the post office returns undeliverable certified letters before they can be posted, this form of service is very time consuming ." (International Code Council, Inc. (2015) International Property Maintenance Code Commentary, p. 1-9, italics added; hereafter IPMC Commentary.) Rasooly posits that compliance with the later posting procedure would have provided him with 20 days from the March 31, 2017 return date of the certified letter to perfect an appeal. He contends failure to comply with this serial process renders service ineffective.
We apply established rules of statutory to interpretation of municipal ordinances. (See Metromedia, Inc. v. City of San Diego (1982)
Rasooly's proposed interpretation of IPMC section 107.3 is that the ordinance imposes sequential requirements for mailing and posting, and the City's failure to observe the temporal sequence creates a fatal defect in service. We disagree.
As noted by the City and trial court's order granting the motion for judgment, we observe that posting the 2017 Notice on the Property after unsuccessful attempted service by certified mail, as Rasooly contends is
We think a more reasonable, and internally consistent, reading of IPMC section 107.3 is that it provides a hierarchy of acceptable means of providing notice to the owner of property subject to enforcement action, any one of which can constitute "service" of the notice. (See IPMC Commentary, supra , at p. 1-9 ["[p]roper service requires one of the following methods ..." (italics added) ].) Personal delivery is "[t]he most effective form of service"; delivery by certified or registered mail is "a valid method of service, but sometimes ... not reliable"; if service by certified mail is not successful "posting a copy in an easy to see place in or about the structure will suffice." (Ibid .) In other words, posting on the property alone, while perhaps constituting sufficient service, is not preferred without attempted certified mailing.
Moreover, reading the ordinance to preclude concurrent posting and mailing would make little sense. Simultaneous mailing and posting would be more likely to provide timely notification to a property owner of a pending City action, rather than less. Certainly, in this instance, nothing in the record suggests Rasooly would have learned of the 2017 Notice had it been posted on April 1, rather than earlier, when he avers he had no occasion to visit the Property at all during this period and only became aware of the 2017 Notice through his attorney.
2. Due Process
Rasooly argues that "nail & mail" procedures are, in any event, constitutionally deficient in the absence of efforts at personal service. We find no support for that proposition.
Rasooly's arguments assume actual notice is the constitutional touchstone. But due process of law does not require actual notice, only a method reasonably certain to accomplish that end. ( Evans v. Department of Motor Vehicles (1994)
The 2017 Notice was sent by certified mail, as provided in IPMC section 107.3, to the post office box that was Rasooly's address of record, and it was delivered to that address. Rasooly did not actually receive it, not because the address was incorrect, but because he elected not to check for his mail at this address for a period of at least 30 days-despite being advised at least twice that he had uncollected certified mail waiting. Similarly, Rasooly was unaware of the posted notice on the Property only because he chose not to visit a location he knew was subject to unresolved code enforcement issues. The City suggests Rasooly's failure to receive actual notice was the consequence of his "deliberate ignorance" or "careless indifference." We need not make such a determination.
The judgment of dismissal is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR:
JONES, P. J.
SIMONS, J.
Notes
A report by a City-retained engineer indicates two buildings are located at 150 Acme Street, and the structure at issue is identified as "Building 2."
The City Attorney averred the City received a notice of acknowledgement and receipt for the original petition by e-mail on the date it was filed, but the City never executed this notice and was not otherwise served with the original petition.
The trial court granted the City's unopposed request to take judicial notice of the relevant provisions of the Oakley Municipal Code and 2012 International Property Maintenance Code (IPMC). The Oakley Municipal Code has adopted the IPMC by reference. (Oakley Mun. Code, § 7.1.102.) IPMC section 111.1 provides for a 20-day period for administrative appeal. (Cf. Oakley Mun. Code, § 1.8.004 [time for administrative appeal when not otherwise specified no longer than 20 calendar days].)
Rasooly averred he had no occasion to visit the Property, had not checked his post office box, and never actually received the 2017 Notice during this period. The City does not contend Rasooly received actual notice of the administrative proceedings.
Code of Civil Procedure section 1094 provides in pertinent part that "[i]f a petition for a writ of mandate ... presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ."
"Any person directly affected by a decision of the code official or a notice or order issued under this code shall have the right to appeal to the board of appeals, provided that a written application for appeal is filed within 20 days after the day the decision, notice or order was served." (IPMC, § 111.1; see Oakley Mun. Code, §§ 7.2.112, subd. (b)(5) & 1.8.002 et seq. [appeal procedures].)
The trial court's conclusion that Rasooly had "only himself to blame" for failure to actually receive the 2017 Notice appears apt. However, we also observe that, while not constitutionally mandated, the City could have obviated the issues presented in this appeal and avoided the associated expense and extended delay through the simple professional courtesy of a telephone call to Rasooly's counsel of record in the then pending mandamus petition. However, absent evidence (and any trial court finding) of a calculated effort by the City to avoid giving actual notice to Rasooly, we find no authority imposing a legal obligation to do so.