HOMER,
City Manager
ORDINANCE
07-37(A)
AN ORDINANCE OF THE
WHEREAS,
Chapters 5.12 and 5.16 both address the abatement of public nuisances; and
WHEREAS,
Chapter 5.16 is in need of revision to provide proper notice and appeal rights
for the property owner and to specify the authority of the City to abate public
nuisances; and
WHEREAS, The subject matter of Chapters 5.12 and 5.16
can and should be combined into one chapter for efficiency and clarity.
Section
1. Homer City Code Chapter 5.12, entitled
"Dangerous Structures," is repealed.
Section
2. Homer City Code Chapter 5.16, entitled
"Public Nuisances," is repealed and reenacted as Chapter 5.16,
entitled "Public Nuisance Abatement," to read as follows:
SECTION
5.16.010. Definitions.
(a) Abatement means the removal, stoppage,
prostration, or destruction of that which causes or constitutes a nuisance,
whether by breaking or pulling it down, or otherwise destroying, or effacing
it, or by any other method or means.
(b) Appeals Board means the City Council or
another commission, board, or person designated or appointed by resolution of
the City Council with authority to conduct appeals under this Chapter.
(c) Building Inspector means the person
designated in writing who has been adequately trained and is determined to be a
qualified inspector for the purposes of determining the structural safety of a
structure.
(d) Department means the Department of Public
Safety or another department or division of the City designated in writing by
the City Manager to have the authority, in whole or in part, to enforce this
chapter.
(e) Owner means the owner of record based on
the Kenai Peninsula Borough assessor's record or any person with legal,
financial or equitable interest in the property on which the alleged public
nuisance exists at the time of the violation.
(f) Property means any real
property, premises, structure or location on which a public nuisance is alleged
to exist.
(g) Public nuisance means any fence, wall,
shed, deck, house, garage, building, structure or any part of any of the
aforesaid; or any tree, pole, smokestack; or any excavation, hole, pit,
basement, cellar, sidewalk subspace, dock, wharf or landing dock; or any lot,
land, yard, premises or location which in its entirety, or in any part thereof,
by reason of the condition in which the same is found or permitted to be or
remain, shall or may endanger the health, safety, life, limb or property, or
cause any hurt, harm, damage or injury to any one or more persons in the City,
in any one or more of the following particulars:
(1) By reason of being a
menace, threat or hazard to the general health and safety of the community.
(2) By reason of being a
fire hazard.
(3) By reason of being
unsafe for occupancy, or use on, in, upon, about or around the aforesaid
property.
(4) By reason of lack of
sufficient or adequate maintenance of the property, or being vacant, or the
accumulation of junk or waste material of any kind or description, any of which
depreciates the appraised value of the property in the immediate vicinity to
such an extent that it is harmful to the community in which such property is
situated or such condition exists.
(h) Summary abatement means abatement of the
nuisance by the City, or a contractor employed by the City, by removal, repair,
or other acts without notice to the owner, agent, or occupant of the property
except for the notice required by this chapter.
SECTION
5.16.020. Summary Abatement.
(a) Whenever the existence of a public nuisance, as
defined in this chapter, comes to the attention of the Department, the
Department may promptly cause to be inspected the property on which it is
alleged that such public nuisance exists. Should the Department find that a
public nuisance exists, and that the public health, safety or welfare may be in
immediate danger, then summary abatement procedures shall be implemented and
the Department may cause the nuisance to be removed or abated. The Department
may notify the Building Inspector if the public nuisance involves a building
that appears structurally unsafe. The Building Inspector, upon being notified
by the Department shall cause the building on which it is alleged such public
nuisance exists to be inspected and submit a written report of such inspection
and the findings to the Department.
(b)
When summary abatement is authorized, prior notice to the owner, agent or
occupant of the property is not required, but will be attempted. Following
summary abatement, the Department shall cause to be posted on the property
liable for the abatement a notice describing the action taken to abate the
nuisance.
SECTION
5.16.030. Abatement in Other Cases; Notice, etc.
(a) If, after inspecting the property on which the
nuisance is reported, the Department declares the existence of a public
nuisance, but the nature thereof is not such as to require the summary
abatement of such nuisance, then, regular abatement procedures shall be
followed. Photographs and reports of the findings and inspections shall be made
and filed with the Department.
(b) The Department shall determine the person who,
from the records in the Recorder's office, appears to be the titled owner of
the property and immediately cause a written notice to be served on such person
by personal service or by leaving a copy of the notice at the usual place of
residence or business of such owner, or address of such owner shown in the
Recorder's records, or by copy mailed to such owner at such place or address by
United States certified mail return receipt. If service of such written notice
is unable to be accomplished by any of the methods described above, the
Department shall cause a copy of the notice to be published in a newspaper of
general circulation in the City, once a week for two consecutive weeks, and
shall further cause a copy of the notice to be left with the person, if any, in
possession of such property on which it is alleged such public nuisance exists,
or if there is no person in possession thereof, the Department shall cause a
copy of the notice to be to be posted at such structure, location or premises.
The Department shall also determine from the Recorder's office who the
lienholder of the property, if any, as documented therein, is and cause a
written notice to be served on such lienholder by United States mail return
receipt.
(c) The aforesaid notice to the owner, and lienholder,
if any, of the property shall state clearly and concisely the findings of the
Department with respect to the existence of a public nuisance. The notice shall
further state that unless the owner thereof shall cause the abatement of the
public nuisance, pursuant to the orders contained in the Department's notice,
the public nuisance shall be abated by the City at the expense of the owner.
(d) Any person who is the recorded owner of the
premises, location or structure at the time an order pursuant to this chapter
is issued and served upon him, is responsible for complying with that order,
and liable for any costs incurred by the City therewith, notwithstanding the
conveyance of the person's interests in the property to another after such
order was issued and served.
(e) The fact that the property is boarded up or
otherwise enclosed is not a defense to the determination that a public nuisance
exists.
SECTION
5.16.040. Abatement by Owner.
(a) Within thirty days after the posting and mailing
of a notice to abate a nuisance, the owner, agent of the owner, or person in
possession of the affected property shall remove and abate such nuisance or
show that no nuisance in fact exists. Such showing shall be made by filing a
written statement, under oath or affirmation, describing in detail the facts
and circumstances that show that no nuisance exists. The statement shall be
filed with the Department.
(b) The Department, upon written application by the
owner within the thirty day period after the notice has been served, may grant
additional time for the owner to effect the abatement of the public nuisance,
provided that such extension is limited to a specific time period.
SECTION 5.16.050. Appeal Procedures; Hearing.
(a) The owner or occupant of the property who has been
served with a notice pursuant to this Chapter that a public nuisance exists and
that it must be abated within thirty days may within seven calendar days after
receipt of such notice make a written demand to the Department for a hearing on
the question of whether a public nuisance in fact exists. The hearing shall be
held within 14 calendar days following receipt by the Department of the written
demand and at least two days' notice of the hearing shall be given to the
person who made the written demand for the hearing. The date of the hearing may be postponed for
good cause.
(b) The hearing shall be conducted by the Appeals
Board. Such Appeals Board may amend or modify the notice or order, or extend the
time for compliance with the Department's order by the owner by such date as
the majority of the Appeals Board may determine.
(c) The owner, agent of the owner, occupant and
lienholder, if any, of the subject property shall be given the opportunity to
present evidence to the Appeals Board in the course of the hearing.
(d) In those instances where the nuisance has been
abated by the City, the Appeals Board shall have discretion to waive the cost
of abating a nuisance, in whole or in part, if, in the course of the hearing
reviewing the decision, the Appeals Board finds that any of the following did
not conform to the provisions of this Chapter:
(1) The notice to remove the nuisance;
(2) The work performed in abating the nuisance; or
(3) The computation of charges.
SECTION
5.16.060. Abatement by City.
(a) If any public nuisance is not abated at the
expiration of time stated in the notice or order, or within such additional
time as the Department or Appeals Board may grant, the Department shall have the
authority to enter upon the property and abate the public nuisance found
thereon. In abating such nuisance, the Department may go to whatever extent may
be necessary to complete the abatement of the public nuisance and if it is
practicable to salvage any material derived in the abatement, the Department
may sell the salvaged material at private or public sale at the best price
obtainable and shall keep an accounting of the proceeds thereof.
(b) The proceeds, if any, obtained from the sale of
any material salvaged as a result of an abatement of a public nuisance by the
Department shall be deposited to the General Fund of the City and any deficit
between the amount so received and the cost of the abatement, plus overhead
charges, penalties, and interest is a special assessment and lien against the
property in question. Such deficit shall be collected as any other assessment
by the City; however, any other alternative collection method may be utilized
by the City to recoup the deficit. Should the proceeds of the sale of such
salvaged material exceed the cost of abatement, the surplus, if any, shall be
paid to the owner of the property from which the public nuisance was abated
when a proper claim to the excess is established.
(c) In abating a public nuisance, the Department may
call upon any of the City departments or divisions for whatever assistance
shall be deemed necessary or may by private contract cause the abatement of the
public nuisance.
(d) The Department shall, after completing the removal
and abatement, file a statement of costs with the Finance Director.
SECTION 5.16.070. Notice of Assessment; Appeal of
Charges.
(a) Upon receipt of the statement of costs from the
Department, the Finance Director shall mail to the owner of the property upon
which the public nuisance has been abated notice of the amounts set forth in
the statement plus an additional amount for overhead charges and penalty, as
provided in this chapter, and stating that the City proposes to assess against
the property the amount set forth in the notice and that objections to the
proposed assessment must be made in writing and received by the Finance
Director within twenty days from the date of mailing such notice. Upon the
expiration of the twenty day period, if no objections have been received by the
Finance Director, the Finance Director shall
cause a notice of the lien to be recorded against the property.
(b) If objections of either the property owner or
their representative are received by the Finance Director prior to the expiration
of the twenty day period, the Finance Director shall refer the matter to the
Department for administrative review.
(c) Upon conclusion of its administrative review, the
Department shall make a written determination that the amount of the charges
shall be canceled, reduced, or remain the same. A copy of this determination
shall be furnished to the person making the objections together with a notice
of such person's right to appeal to the Appeals Board.
(d) If no appeal of a determination by the Department
is filed within the time period allowed, a copy of the determination will be
furnished to the Finance Director who shall then cause a notice of the lien to
be recorded as provided in subsection (a).
(e) If a timely appeal is received by the Appeals Board,
a hearing shall be scheduled and held on the matter. If, after the hearing, the
Appeals Board determines that the proposed assessment does not comply with
subsection (g) herein, the Appeals Board shall so certify to the Finance
Director and the proposed assessment shall be canceled. If, after the hearing,
it is determined that the proposed assessment or any part of it is proper and
authorized, the Appeals Board shall so certify to the Finance Director who
shall record a notice of the lien in the amount as determined appropriate by
the Appeals Board, as provided in subsection (a).
(f) The determination of the Appeals Board is a final
administrative decision. It is
appealable to superior court and is not appealable to the City Council.
(g) (1) The Department, in administrative review, or
the Appeals Board, on appeal, may reduce or cancel a proposed assessment if it
is determined that:
(i) Any of the following did not conform
to the provisions of this Chapter:
(A) The notice to remove the nuisance; or
(B) The work performed in abating the
nuisance; or
(C) The computation of charges; or
(ii) The owner of the property was
eligible for a waiver of costs under Section 5.16.090.
(2) The Department, in
administrative review, or the Appeals Board, on appeal, may reduce a proposed
assessment by eliminating the civil penalty portion if it is determined that:
(i) The current owner was not in
possession of the property at the time the notice required in Section 5.16.030
was posted; or
(ii) The owner did not receive the
notice to remove the nuisance, did not have knowledge of the nuisance and could
not, with the exercise of reasonable diligence, have had such knowledge.
(h) If, after a notice of lien has been recorded,
there is a written request of an owner who alleges that the owner did not
receive notice of the proposed assessment, the Finance Director shall refer the
matter for review pursuant to subsection (b).
(i) The lien may be canceled or reduced by the
Department, in administrative review, or the Appeals Board, on appeal, if it is
determined that the owner did not receive notice of the proposed assessment,
did not previously have knowledge of the lien or of the nuisance abatement work
constituting the basis of the lien, could not, in the exercise of reasonable
care or diligence, have had such knowledge, and in addition, that the
circumstances are such that a reduction or cancellation of the charges would
have been appropriate had the matter been reviewed pursuant to this Section
prior to assessment. Upon receipt of a certification from the Appeals Board,
pursuant to subsection (e), the Finance Director shall cancel or reduce the
lien if required by the determination of the Department or the Appeals Board.
SECTION 5.16.080. Personal Liability of Owner.
The person or
persons who own the property at the time at which the notice required under
Section 5.16.030 is posted shall be
personally liable, jointly and severally, for the amount of the assessment
including all interest, civil penalties, and other charges.
SECTION 5.16.090. Cost of Abatement; Low Income,
Elderly Persons.
(a) Notwithstanding the other provisions of this
Chapter, the cost of abating a nuisance shall be waived for low income and
elderly persons, if upon application it appears to the Department that the
conditions set forth in subsection (b) are met.
(b) To be eligible for waiver of nuisance abatement
costs a person must be classified as "low income," as defined by the
Department, or
(c) Be more than 65 years of age and:
(1) A person living alone,
whose total income for the preceding calendar year did not exceed one and
one-half (1-1/2) times the maximum amount a Social Security recipient at age 65
may have earned in that year without having any benefits withheld; or
(2) The head of a household
which household received a total income for the preceding calendar year that
did not exceed two and one-quarter (2-1/4) times the maximum amount a Social
Security recipient at age 65 may have earned in that year without having any
benefits withheld.
(d) Additionally, all persons wishing to qualify for
waiver of nuisance abatement costs must:
(1) Furnish proof of the age
and income requirements as set forth above in the manner and form designated by
the Department;
(2) Must own, or be in the
process of purchasing the property from which the nuisance is abated; and
(3) Be living on the
property from which the nuisance is abated.
(e) The removal of the nuisance in question must have
been required by the Department and the person requesting the waiver of costs
must have been officially notified by the Department to remove the nuisance.
(f) Applications for waiver of nuisance abatement
costs shall be filed with the Department. on forms supplied by the City within
ten days after receipt of a notice to remove a nuisance or a work order notice
unless the Department extends the time for good cause shown. All information
required to be given on such form shall be supplied and verified by the
applicant.
(g) The maximum amount that may be waived under this
Section for any one parcel of real property or any one person shall be $500 per
calendar year.
(h) No overhead charge or civil penalty shall be
imposed for any real property for which a waiver, pursuant to this Section,
shall have been approved.
SECTION 5.16.100. Overhead Charge, Civil Penalties.
(a) Whenever a nuisance is abated by the City, the
owner of the property in question shall pay the actual costs of the abatement
plus an overhead charge of 15 percent of the actual costs for administration. The Department shall keep an accurate account
of all expenses of abatement and calculate the applicable overhead charge.
(b) Whenever a nuisance is abated by the City, the
owner of the property in question shall pay a civil penalty in addition to the
actual costs and overhead charge. The
civil penalty for abating a nuisance is $300 for the first nuisance
abated. For each subsequent nuisance
that is abated by the City within two consecutive calendar years concerning
property owned by the same person, the civil penalty shall be fifty percent of
the cost of abatement or $500, whichever is more. The civil penalty shall be
imposed without regard to whether the nuisances abated by the City involve the
same real property or are of the same character.
Section
3. Severability. If any
section, subsection, sentence, clause, phrase or portion of this Ordinance is
for any reason held to be invalid or unconstitutional by the final decision of
any court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this Ordinance. The City Council declares
that it would have adopted this Ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof, despite the fact that anyone or
more section, subsection, sentence, clause, phrase, or portion would be
declared invalid or unconstitutional.
Section
4. This ordinance is of a permanent and general character
and shall be codified in the City code.
ENACTED
BY THE
_____________________________
JAMES C. HORNADAY, MAYOR
ATTEST:
______________________________
JO
JOHNSON,
AYES:
NOES:
ABSTAIN:
ABSENT:
First
Public
Hearing:
Second
Effective
Date:
Reviewed
and approved as to form and content:
___________________________ __________________________
Walt
E. Wrede, City Manager Gordon
J. Tans, City Attorney
Date:
______________________ Date:
_____________________