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HomeMy WebLinkAboutParking Resolution PC2010-02, Adoption and RecommendBOZEMAN PARKING COMMISSION RESOLUTION PC2010-02 jI '111 1111111111111111111111110 A RESOLUTION OF THE BOZEMAN PARKING COMMISSION OF THE CITY OF BOZEMAN, MONTANA, THE ADOPTION OF AND THE RECOMMENDATION FOR PASSAGE TO THE CITY COMMISSION OF THE CITY OF BOZEMAN CITY ORDINANCE 1781. WHEREAS, pursuant to city Resolution 3803, the Parking Commission of the City of Bozeman, Montana, has jurisdiction over three parking districts: the downtown B-3 Zoning District, the Montana State University Residential Parking District, and the Bozeman High School Residential Parking District; and WHEREAS, Sect. 7-14-4622(7), MCA, authorizes the Parking Commission, having been vested the authority by the City Commission, to "regulate on-street parking when it remains in use, in coordination with off-street parking, subject to traffic regulations imposed by the state;" and WHEREAS, Sect. 7-14-4628, MCA, authorizes the Parking Commission to issue regulations for on-street parking related to the determination of parking locations, variable parking durations, variable parking rate schedules, and enforcement policies and procedures; and WHEREAS, the Parking Commission resolved Resolution PC2009-01 which adopted City Ordinance 1770, authorizing the immobilization of vehicles with six or more outstanding parking citations; and WHEREAS, the Parking Commission recommended that the City Commission adopt City Ordinance 1770, authorizing the immobilization of vehicles with six or more outstanding parking citations; and NOW, THEREFORE, BE IT RESOLVED th at the Parking Commission of the City of Bozeman, Montana, adopt City Ordinance 1781; and BE IT FURTHER RESOLVED that the Parking Commission of the City of Bozeman, Montana, recommend to the City Commission of the City of Bozeman the passage of City Ordinance 1781. PASSED and adopted by the Parking Commission of the City of Bozeman, Montana, on first reading at a session held on the 14th day of April 2010. ATTEST PAUL BURNS, City of Bozeman Parking Manager Enclosure: City of Bozeman Ordinance 1781. Pain Bryan, Chair Ordinance No. 1781 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING SECTION 10.32.410 OF THE BOZEMAN MUNICIPAL. CODE (BMC) TO INCLUDE PROVISIONS REGARDING THE IMPOUNDING OF VEHICLES FOR EVIDENCIARY PURPOSES, AND TO ESTABLISH A STORAGE FEE FOR IMPOUNDED VEHICLES, AND TO CLARIFY THE USE OF A BOND POSTED ON A VEHICLE RELEASE, AND TO ESTABLISH PROCEDURES FOR THE SALE OF AN UNCLAIMED IMPOUNDED VEHICLE, AND TO ESTABLISH STATUTE OF LIMITATIONS FOR ENFORCEMENT, COLLECTION AND IMMOBILIZATION ACTIONS, AND TO RENUMBER SECTION 10.32.410,L TO SECTION 10.32.420. WHEREAS, Sect. 61- 12- 101(1), MCA, authorizes the City of Bozeman to regulate the standing and parking of vehicles; and WHEREAS, Title 7, Chapter 14, Part 46, authorizes the Bozeman City Commission to create a Parking Commission which was done and whose powers are created pursuant to Resolutions 1676, 1839, 3803, and 3976; and WHEREAS, Sect. 7 -14 -4608, MCA, states the resolutions creating a parking commission "shall clearly specify areas within the city... over which the commission and the city, respectively, are to have jurisdiction and control; and WHEREAS, pursuant to city Resolution 3803, the Bozeman Parking Commission has jurisdiction over three parking districts: the downtown B -3 Zoning District, the Montana State University Residential Parking District, and the Bozeman High School Residential Parking District; and WHEREAS, the Bozeman City Commission has jurisdiction regarding parking enforcement in all other areas of the City; and WHEREAS, Sect. 7 -14- 4622(7), MCA, authorizes the Parking Commission, having been vested the authority by the City Commission, to "regulate on- street parking when it remains in use, in coordination with off street parking, subject to traffic regulations imposed by the state:" and WHEREAS, the City of Bozeman has adopted numerous provisions included in Title 10 of the Bozeman Municipal Code to regulate parking, including the issuance of fines for violations; and WHEREAS, the Commission finds the issuance of citations to those who violate the parking ordinances of the City of Bozeman and the processing of citations must be done in a manner that affords adequate due process to alleged violators; and WHEREAS, the City Commission recognizes inequity and a lack of fundamental fairness exists when some citizens pay parking citations in a timely manner while others ignore the citations due to a perceived lack of enforcement; and WHEREAS, pursuant to Ordinance 1770, the City Commission created an enforcement program that, upon adequate due process, allows the immobilization (i.e. "booting of vehicles with an certain amount of unpaid violations of Chapter 10.32 against the vehicle or the vehicle owner and that also allows for the impoundment of vehicles under certain circumstances; and WHEREAS, the City Commission recognizes the need to establish procedures to address the impounding, storage and related disposal of vehicles seized pursuant to police investigations or court orders; and WHEREAS, the City Commission recognizes the need to establish storage fees of vehicles that fairly and adequately address the costs of storage and assess those costs to the owner of an impounded vehicle; and WHEREAS, the City Commission recognizes a bond posted by a vehicle owner or the owner's authorized agent should be used to satisfy all costs related to the immobilization, impound, storage, and administrative costs and all unpaid violations owed on the vehicle unless the owner or authorized agent specifically appeals the immobilization and related impound in wilting; and WHEREAS, the City Commission recognizes the need to establish procedures for the sale or disposal of unclaimed impounded vehicles; and WHEREAS, the City Commission recognizes the importance of clearly identifying the manner in which proceeds from the sale of a vehicle are applied in order to properly and fairly address all costs related to the immobilization, impound, storage, administrative and unpaid violations owed on the vehicle as well as to address circumstances in which either additional proceeds are received or circumstances in which all costs are not fully satisfied; and WHEREAS, the Parking Commission adopted Resolution PC2010 -02 adopting this ordinance as a parking regulation for each of its three districts and supports the adoption of this ordinance by the City Commission. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That Section 10.32.400 of the Bozeman Municipal. Code be amended to read as folio s, with additions underlined and deletions stricken: 10.32.400 Legislative Intent It is the intent of the City Commission that the violations listed in this chapter, except for a violation of 10.32.420 (tampering with or removal of an immobilization device), are offenses involving civil liability and are considered municipal infractions under Chapter 1.24 of this code. It is also the intent of the City Commission that a violation of 10.32.420 is a misdemeanor criminal offense of absolute liability and shall not require proof of any of the mental states described in subsections (33), (37) and (58) of Section 45-2-101, MCA. (Ord. 134, §6, 1992; Ord. 1140. 1 (part), 1983; Ord. 1126 2, 1983. Section 2 That the following provisions of 10.32.410 of the Bozeman Municipal Code are hereby amended as follows: H. Immobilization of Vehicle. 1. Actions to immobilize a vehicle are for the purpose of collection and are not considered a penalty. The City may immobilize using any immobilization device (i.e. a "boor) any vehicle while parked legally or illegally upon the ways of the city open to the public when: i. The vehicle is subject to six or more unpaid violations of this Chapter as determined by 10.32.H.3 regarding that vehicle; ii. An owner of the vehicle has six or more unpaid violations of this Chapter as determined by 10.32.H.3 and those violations were issued for any vehicle the person currently owns or has owned; or A Municipal Judge has ordered the vehicle immobilized or impounded. If immobilization is conducted pursuant to subsections (i) or (ii), above, a judgment or order of the municipal court is not required. 2. Prior to immobilization, the city shall send via regular mail with delivery confilluation requested a notice to the last known address of the owner of any vehicle having six or more unpaid violations of this Chapter as determined by 10.3211.3 that the vehicle may be impounded or immobilized when located upon the ways of the city open to the public. The notice must reference all the unpaid violations of this Chapter against the vehicle or the owner and allow the person ten business days from the date of mailing of the notice to pay all unpaid violations of this Chapter or contest the determination the vehicle is subject to immobilization in the Municipal Court. If the vehicle owner does not respond within ten business days of the date of the mailing, the city may immobilize or impound the vehicle, Only the following violations of this Chapter may be considered in determining the number of violations that subject a vehicle to immobilization: i. All violation(s) occurring after July 1, 2007; ii. Any violation(s) occurring prior to July 1, 2007 wherein a summons and compliant has been lawfully served on the vehicle owner; and iii. Any violation(s) of this Chapter for which a judgment has been entered by the Bozeman Municipal Court as long as the judgment occurred no more than ten years prior to the date the notice of a pending immobilization is sent pursuant to 10.32.H.2. 4. A $150 immobilization fee and costs of impoundment, will be assessed against the owner and must be paid prior to release. At the time a vehicle is immobilized, the City shall conspicuously affix to the vehicle a written notice via a highly visible sticker or other material with an adhesive backing that can be fastened to the driver -side window containing the following information: This vehicle has been immobilized for six or more unpaid violations of Title 10, Ch. 32 of the Bozeman Municipal Code or by Order of the Municipal Court. Release from immobilization may be obtained by paying all unpaid violations at City Hall, 121 N. Rouse Ave., Bozeman, or by appearing in Bozeman Municipal Court, Law Justice Center, 615 S. 16th Ave., Suite 123, to answer to the unpaid violations. All assessed fees, including a $1 50.00 fee for immobilization, must be paid prior to release of this vehicle. If the vehicle remains immobilized for more than twenty- four hours, the vehicle is subject to being towed and impounded as provided in 10.32.410.1, BMC, with additional fees assessed at that time. Removal or attempted removal of the immobilization device before a release is obtained is unlawful and may be punishable as a criminal offense as provided in Sect. 10.32.410.L, BMC. The owner may contest the action of immobilization and/or impoundment by filing a request for a hearing with the Bozeman Municipal Court within ten business days of the immobilization/impoundment. Please call 406 582 -2303 during nornzal business hours for information on how to release this vehicle. After hours, please call 406-582-2000. If the vehicle has been immobilized, and has remained immobilized for a period of twenty-four hours or longer, and a release has not been obtained from the City of Bozeman or the Municipal Court, then the City may impound the vehicle as provided for in 10.32.410.1.. 6. Nothing herein shall prohibit the City from providing alternative methods of notice that a vehicle is subject to immobilization or that a vehicle has been immobilized. 1. Removal/Impoundment of Vehicle. 1. The City, or authorized agent of the city, is authorized to remove or tow a vehicle from the ways of the city open to the public pursuant to 10.60.020 or this section to the city impound lot or to a location associated with the tow company where the vehicle will be stored until the owner of such vehicle appears and claims the same or the vehicle is sold at auction in compliance with §25 -13 -701, MCA, through §25 -13 -709, MCA, under the following circumstances: i. When any vehicle is left unattended upon any bridge /viaduct or causeway or in any tube or tunnel where such vehicle constitutes an obstruction to traffic; ii. When a vehicle is left unattended and that vehicle constitutes an obstruction to the safe and efficient removal of snow, ice, other weather caused obstructions or the vehicle must be removed to facilitate the repairs or replacement of City services; When a vehicle upon a street constitutes an obstruction to traffic and the person in charge of the vehicle fails to or is unable to provide for its custody or removal; iv. Upon issuance of a judicial order for any reason include any offenses under this Title or Title 61, Montana Code Annotated; v. In conjunction with an investigation in which the vehicle is seized pursuant to §46-5-311, MCA, or seized pursuant to a court order; or vi. Whenever any vehicle is found by the City parked or left standing in the ways of the city open to the public and: 1) The vehicle is subject to six or more unpaid violations of this Chapter as determined by 10.32.1-1.3 regarding that vehicle; 2) An owner of the vehicle has six or more unpaid violations of this Chapter as determined by 10.32.H.3 and those violations were issued for any vehicle the person currently owns or has owned; or 3) A Municipal Judge has ordered the vehicle immobilized or impounded. Prior to towing a vehicle under subsection vi, the City must have immobilized the vehicle following service upon the last known registered owner of the vehicle of a final written notice in a similar foal, to that required in 10.32.410.H. 2. Whenever a city employee authorizes the removal of a vehicle from the ways of the city open to the public as authorized in 10.32.41 and the employee removing the vehicle knows or is able to ascertain from the registration records on the vehicle the name and address of the owner thereof, and in compliance with §61 -12 -402, MCA, such officer shall send a notice by certified mail within seventy-two hours to such owner and lien holder, if applicable, of the fact of such removal and the reasons thereof and of the place to which such vehicle has been removed. If any such vehicle is stored in a public garage or other storage facility, a copy of such notice shall be given to the attendant or owner of the facility. Further, a city employee authorizing the removal of the vehicle, shall adequately update written or electronic records of the immobilization and/or tow to provide for later identification of all fees relative to the release of the vehicle to the registered owner. 3. Impound Fee. The cost of towing or removing such vehicle, administrative fees related to notification of the removal, and costs of storing the vehicle shall be chargeable against the vehicle as the impound fee and shall be paid by the owner of the vehicle before the vehicle shall be released pursuant to 10.32.410.J. 4. Storage Fee. The vehicle may be stored in a public or a private place; if a private place, the storage charges shall be the amount charged for such private storage; if stored on public property, the storage fee shall be seventy-five dollars for each month, or any part thereof. up to a maximum of two hundred twenty-five dollars. Storage fees for vehicles impounded shall not begin to accrue until five business days following mailing of a certified letter notifying the registered owner of the impoundment or the owner has been directly advised. In addition, storage fees shall not be assessed against the owner of a vehicle impounded pursuant to 10.32.410.1.1 until the vehicle has been cleared for release and five business days have passed after the owner has been advised of the release directly or by sending notice of the release by certified mail. The owner of a vehicle impounded and towed due to unpaid parking tickets must secure the release of the vehicle as required by 10.32.410.J. The City assumes no responsibility for the condition of the vehicle upon towing to impound or a facility provided by a private towing entity. J. Release of Vehicle to Owner for Immobilization or Impoundment. 1. An immobilized or impounded vehicle may be released from immobilization or impoundment only after evidence of ownership or right to possession of the vehicle is provided to the City. 2. The owner of an immobilized or impounded vehicle may secure its release: i. Prior to Impoundment: by paying all unpaid violations of this Chapter and all administrative costs, including the costs of immobilization as stated in subsection (iii) of this section with the City Finance Department; ii. Impoundment Due to Court Order: by paying the unpaid violations of this Chapter and all administrative costs, including the costs of immobilization and/or impoundment as stated in 10.32.41011.4, to the City Finance Department, or as determined by the Bozeman Municipal Court; or iii. After Impoundment: by posting a bond with the City Finance Department in an amount equal to: 1) all outstanding violations of this Chapter and all administrative costs; 2) The immobilization fee of $150.00; and 3) A sum equal to the impound fee if the vehicle was impounded. iv. After normal business hours release: by posting cash bond with the Bozeman Police Department that includes all costs listed in Section 2. iii. above for emergency exceptions, as necessary. 3. At the time the vehicle is released, the owner or the authorized agent of the owner may challenge the immobilization or impoundment in the Municipal Court. If at the time of vehicle release the owner posts a bond pursuant to 10.32.410.E.1.ii yet fails to challenge the immobilization or impoundment pursuant to 10.32.410.K, the bond shall be forfeit and considered as final payment for all debts and judgments listed in 10.32.410.J.2.iii. L. Sale of Impounded Vehicles. 1. Vehicles that are not reclaimed within 30 days after notification by certified mail or prescribed publication, in accordance with 10.32.410.1.2, or any vehicles seized and held as evidence where the vehicle no longer has any evidentiary value and for which an order for disposal for the vehicle has been signed by a judge in accordance §46 -5 -307, MCA and §46 -5 -308, MCA, may be sold at public auction in the manner provided in §2,5 13 et seq., MCA. 2. Proceeds from a sale involving vehicles seized pursuant to this chapter shall be applied first to pay for costs and charges as listed in 10.32.410.J.2.iii, with any additional balance deposited in the City of Bozeman general fund except when the City is required by law to deposit the balance or any part thereof with another party. In the event of a sale resulting in recovery of costs less than those listed in 10.32.410.J.2.iii, any unpaid violations or costs may form the basis for additional enforcement under this chapter. Statute of Limitations. Enforcement and collection actions, to include issuing a Notice of Immobilization under 10.32.410.H.2, may not be issued if the following time periods have been exceeded: Civil Citation Only: For citations issued after July I, 2007 for which a summons has not been issued in accordance with 10.32.410.0.1, one year from the date of issuance of the citation and prior to the date of notice of immobilization under 10.32.410.H.2; 2. Court Summons issued for Civil Citation: For citations issued after July 1, 2007, for which a summons has been issued in accordance with 10.32.410.G.1., but a judgment has not been entered, three years after issuance of the summons and prior to the date of notice of immobilization under 10.32.410.H.2; Court Summons issued for Criminal Citation: For any citation issued prior to July 1, 2007 that was issued as a criminal citation and where a summons and complaint had been filed with the Municipal Court, three years from the date of filing with the Court and prior to the date of notice of immobilization under 10.32.410.H.2; 4. Judgment entered: For any violation, whether occurring prior to July 1, 2007 or later, if a judgment has been entered by a court, ten years after judgment and prior to the date of notice of immobilization under 10.32.410.H.2. Repealer. Section 3 That Section 10.32.420 of the Bozeman Municipal Code be created to read as follows: 10.32.420 Tampering with or Removal of Immobilization Device Prohibited Penalty 1. A person commits the offense of tampering with or removal of an immobilization device if, before a release of the immobilization device is authorized by the City or the Municipal Court, the person: removes or attempts to remove an immobilization device from a vehicle; ii. relocates the immobilization device from its original installation position; iii. causes damage of any kind or amount to the immobilization device; or iv. removes an immobilized vehicle with or without the immobilization device attached from the vehicles location at the time the immobilization device was attached. 2. A person convicted of this offense is guilty of a misdemeanor and shall be fined not to exceed five hundred dollars or imprisoned in the county jail for a period not to exceed six months or both such fine and imprisonment. 3. As an alternative to incarceration, the person may be ordered to participate in a supervised community corrections program or community service pursuant to §46-18-20 MCA. 4. In addition, the person so convicted shall be ordered to pay restitution for the damages caused in an amount to be determined and set by the Court. The Court shall give full and due consideration to the person's ability to pay the restitution, and may modify the order upon good cause shown by the person. Restitution must be paid in full prior to release from jurisdiction of the City. Savings Provision. Section 4 All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 5 This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. Severability. Section 6 That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Codification Instruction. Section 7 The provisions of Section 1, Section 2 and Section 3 shall be codified as appropriate in Chapter 10.32 of the Bozeman Municipal Code, Effective Date. This ordinance shall be in full force and effect on day of 2010. ATTEST: STACY ULMEN City Clerk Section 8 PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the day of 2010. JEFF KRAUSS, M ayor APPROVED AS TO FORM: GREG SULLIVAN City Attorney FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the day of 2010. The effective date of this ordinance is day of 2010. ATTEST: STACY ULMEN City Clerk JEFF KRAUSS, Mayor APPROVED AS TO FORM: GREG SULLIVAN City Attorney