A judicial reminder to check your mail, avoid red tags, and appeal them in a timely fashion if you're looking to sue...
Rasooly v. City of Oakley: The Court reminds property owners to check their mail and their (nuisance) properties regularly because the exhaustion doctrine applies to “red tags.”
Mr. Rasooly owns an industrial building that the City red-tagged in 2015 because of “structural deterioration” that made the building unsafe. The City Council affirmed the red-tag and Rasooly challenged that decision via writ petition. The parties attempted to settle the dispute when Rasooly agreed to submit plans and complete necessary construction work. This work never happened, and Rasooly “went dark” in communications with the City.
The City then issued a second red tag in 2017. After negotiations between Mr. Rasooly and the City fell apart, the City issued a second red-tag in 2017. It posted the order on the property and also sent it by certified mail to Mr. Rasooly’s post office box. The mailed notice was ultimately returned undelivered.
After the City’s 20-day appeal window expired, the City notified Mr. Rasooly’s attorney of the red tag and the attorney amended the original petition to challenge the second red tag. The City moved for judgment on the basis that Rasooly failed to exhaust administrative remedies because he did not appeal the second red tag within the appeal window.
The trial and appellate courts both agreed with the City: Rasooly had failed to exhaust administrative remedies. Confirming that the normal rules of statutory interpretation apply to ordinances as to statutes, the court relied on the plain meaning of the municipal code. The municipal code permitted posting and mail service, so the City’s use of the “nail and mail” approach provided adequate notice of the red tag.
When the petitioner has not exhausted administrative remedies, the court lacks jurisdiction to hear the dispute and dismissal is appropriate.
The court included what could be considered snarky rebukes to both petitioner and the City. For petitioner, the court admonished that he had chosen not to check mail for more than 30 days, despite two advisories that uncollected certified mail awaited. The court further noted that petitioner “was unaware of the posted notice…only because he chose not to visit a location he knew was subject to unresolved code enforcement issues.” The court implied that a reasonable property owner would both check its mail more than once a month and would visit its property, particularly if there were unresolved safety problems.
The City was not immune from rebuke. In a footnote, the court noted that the City could have extended “simple professional courtesy” and called Rasooly’s attorney to advise him of the red tag. No record evidence showed malfeasance, though, and the court held that simple statutory notice was acceptable even if not courteous.
This case provides a reminder for both property owners and cities to be diligent and thorough. However, this came with a lot of expense and delay. And ultimately, none of the effort went to addressing the straightforward underlying problem: simply fixing an unsafe building to eliminate hazards.