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HomeMy WebLinkAboutOrdinance 98- 1452, Adds Ch. 8.28, nuisances ORDINANCE NO. 1452 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONT ANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY REPEALING CHAPTER 8.28 OF THE BOZEMAN MUNICIPAL CODE AND ADDING A NEW CHAPTER TO BE NUMBERED CHAPTER 8.28, PROVIDING FOR NEW REGULATIONS PERTAINING TO NUISANCES. . BE IT ORDAINED by the City Commission of the City of Bozeman, Montana, that: Section 1 Chapter 8.28 of the Bozeman Municipal Code is hereby repealed and declared null and void and of no effect. Section 2 The Bozeman Municipal Code is hereby amended by adding a new chapter, to be numbered Chapter 8.28, to read as follows: "CHAPTER 8.28 NUISANCES 8.28.010 Purpose. A. The intent of this Chapter is to provide a comprehensive mechanism for the identification and abatement of public nuisances within the City. . B. The remedies provided for in this Chapter are supplemental and complementary to all of the provisions of this Code, and State and Federal law, and nothing herein shall be read, interpreted or construed in any manner to limit any existing right or power of the City to abate any and all public nuisances. 8.28.020 Application. The provisions of this Chapter shall apply to all property throughout the City wherein any of the conditions hereinafter specified are found to exist; provided, however, that any condition which would constitute a violation of this Chapter but which is duly authorized under any other City, State or Federal law , shall not constitute a violation. 8.28.030 Responsibility for maintenance. Every owner, occupant, lessee or holder of any possessory interest of real property within . the City is required to maintain such property so as not to violate the provisions of this Chapter. The owner of the property shall remain liable for violations hereof regardless of any contract or agreement with any third party regarding such property or the occupation of the property by any third party. 8.28.040 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. B. Owner means the owner of 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. . C. Property means any real property, premises, structure or location on which a public nuisance is alleged to exist. D. 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; 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, inconvenience, discomfort, damage or injury to anyone or more individuals in the City, in anyone or more of the following particulars: 1. By reason of being a menace, threat andlor 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, andlor being vacant, any of which depreciates the enjoyment and use 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. The term public nuisance shall mean any nuisance designated in Section 8.28.050 of this Title. E. 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. 8.28.050 Public nuisances. . A. The following are hereby declared to be public nuisances: 1. Any building or structure which meets the definition of an unsafe building or structure as provided in Section 102 of the Uniform Building Code, or any successor provision, adopted pursuant to Bozeman Municipal Code Section 15.01.010. 2. Any building or structure which meets the definition of a dangerous building as provided in Section 302 of the Uniform Code for the Abatement of Dangerous Buildings, or any successor provision, adopted pursuant to Bozeman Municipal Code Section 15.01.010. - 2 - -----... __..n 3. Any building or structure which meets the definition of a substandard building as provided in Section 1001 of the Uniform Housing Code, or any successor provision, adopted pursuant to Bozeman Municipal Code Section 15.01.010. 4. Any violation of Title 18 of the Bozeman Municipal Code relating to the City's planning and zoning laws and regulations. 5. Any imminent life safety hazard which creates a present and immediate danger to life, property, health or public safety. . B. The following may be declared to be public nuisances: 1. Any condition which constitutes an attractive nuisance whether within a structure or on the premises. 2. Any building or place which has been operated or maintained in a manner that has resulted in repeated disruptive activities including, but not limited to, disturbances of the peace, public drunkenness, drinking in public, harassment of passerby, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, illegal parking, loud noises (particularly in late night or early morning hours), traffic violations, or police detentions and arrests. 3. Any condition which renders air, food or drink unwholesome, unsanitary or detrimental to health. 4. Any condition which poses a fire hazard. 5. Any condition in violation of Title 6 of this Code (Animals). . 6. The ownership, maintenance or operation of a dog or animal kennel without proper provisions for the protection of the surrounding properties from odor and sound generated by the kennel. 7. The keeping, storage, depositing or accumulation on the premises for an unreasonable period of time of any personal property or wastes, including, but not limited to, abandoned, wrecked, dismantled or inoperative vehicles, abandoned, wrecked, or dismantled boats or vessels, automotive parts and equipment, appliances, furniture, containers, packing materials, scrap metal, wood, building materials, junk, rubbish, debris, dirt, sand, gravel, concrete or other similar materials which is within the view of persons on adjacent or nearby real property or the public right-of-way and which is detrimental to the public health, safety and general welfare. However, building materials being used or to be used for a project of repair or renovation for which a building permit has been obtained may be stored for such period of time as is necessary expeditiously to complete the project. 8. Any public nuisance as defined in Montana Code Annotated Section 45-8-111 or otherwise recognized in law as constituting a public nuisance. 8.28.060 Enforcement. . The Planning and Zoning Department shall have primary responsibility for the abatement of a public nuisance under this Chapter. 8.28.070 Summary Abatement. A. Whenever a complaint is made to the Planning Department of the existence of a public nuisance, as defined in Section 8.28.040 or Section 8.28.050, the Planning Department shall promptly cause to be inspected the property on which it is alleged - 3 - -..--.-.-..-..-.----.-.- -...-------- -- --.-----. .. -. .~. that such public nuisance exists. Should the Planning 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 Planning Department may cause the nuisance to be removed or abated. The Planning 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 Planning 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 Planning Department. B. When summary abatement is authorized, notice to the owner, agent or occupant of the property is not required. Following summary abatement, the Planning Department shall cause to be posted on the property liable for the abatement a notice describing the action taken to abate the nuisance. 8.28.080 Abatement in Other Cases; Notice. A. If, after inspecting the property on which the nuisance is reported, the Planning 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 Planning Department. B. The Planning Department shall determine the individual, firm or corporation who, from the records in the Clerk and Recorder's office, appears to be the titled owner of the aforesaid property and immediately cause a written notice to be served on such individual, firm or corporation 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 Clerk and 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 perfected by any of the methods described above, the Planning Department shall cause a copy of the aforesaid 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 aforesaid notice to be left with the individual, if any, in possession of such property on which it is alleged such public nuisance exists, or if there is no individual in possession thereof, the Planning Department shall cause a copy of the notice to be to be posted at such structure, location or premises. The Planning Department shall also determine from the Clerk .4. , and 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 Planning 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 Planning Department's notice, the public nuisance shall be abated by the City at the expense of the owner. D. Any person who is the record owner of the premises, location or structure at the time an order pursuant to this Chapter is issued and served upon him, shall be responsible for complying with that order, and liable for any costs incurred by the City therewith, notwithstanding the fact that he conveys his interests in the property to another after such order was issued and served. E. It shall not be a defense to the determination that a public nuisance exists that the property is boarded up or otherwise enclosed. 8.28.090 Abatement by Owner. . A. Within thirty (30) days after the posting and mailing of a notice to abate a nuisance, the owner. agent of the owner, or individual 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 that no nuisance exists. The statement shall be filed with the Planning Department. B. The Planning Department, upon written application by the owner within the thirty (30) 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. 8.28.100 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 (30) days, may, within seven (7) calendar days after receipt of such notice, make a written demand to the Planning Department for a hearing on the Question of whether a public nuisance in fact exists. The hearing shall be held at the next scheduled regular meeting of the City Commission following receipt by the Planning - 5 - _. 'u_..___ Department of the written demand and at least two (2) days' notice of the hearing shall be given to the individual who made the written demand for the hearing. B. The hearing shall be conducted by the City Commission. The Commission may amend or modify the notice and/or order, or extend the time for compliance with the Planning Department's order by the owner by such date as the majority of the . Commission 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 Commission in the course of the hearing. D. In those instances where the nuisance has been abated by the City, the Commission 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 Commission 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. 8.28.110 Abatement by City. . A. Should any public nuisance not be abated at the expiration of time stated in the notice/order or within such additional time as the Planning Department or Commission may grant, the Planning Department shall have the authority to enter upon the property and abate the public nuisance found thereon. In abating such nuisance, the Planning Department may go to whatever extent may be necessary to complete the abatement of the public nuisance and should it be practicable to salvage any material derived in the aforesaid abatement, the Planning 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 Planning 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 may be levied as an assessment against the property in question by the City Commission and 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 - 6 - --..-... ..--..--. ~--_._.__.- from which the public nuisance was abated when a proper claim to the excess is established. C. In abating a public nuisance, the Planning 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 Planning Department shall, after completing the removal and abatement, file a . statement of costs with the Finance Department. 8.28.120 Notice of Assessment; Appeal of Charges. A. Upon receipt of the statement of costs from the Planning Department, the Finance Department 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 sufficient to defray the costs of the notice 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 Department within twenty (20) days from the date of mailing such notice. Upon the expiration of the twenty (20) day period, if no objections have been received by the . Finance Department, the Finance Department shall enter that amount in the City liens docket which shall therefore constitute a lien against the property. B. If objections of either the property owner or their representative are received by the Finance Department prior to the expiration of the twenty (20) day period, the Finance Department shall refer the matter to the Planning Department for administrative review. C. Upon conclusion of administrative review, the Planning 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 City Commission. D. If no appeal of a determination by the Planning Department is filed within the time . period allowed, a copy of the determination will be furnished to the Finance Department who shall then enter a lien in the amount determined by the Planning Department in the City liens docket as provided in Subsection A. E. If a timely appeal is received by the City Commission, a hearing shall be scheduled and held on the matter. If, after the hearing, the City Commission determines that the proposed assessment does not comply with Subsection G herein, the City - 7 ~ ----------.-- Commission shall so certify to the Finance Department 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 City Commission shall so certify to the Finance Department who shall enter a lien in such amount as determined appropriate by the City Commission, in the lien docket as provided in Subsection A. . F. The determination of the City Commission is a final administrative decision. G. The Planning Department, in administrative review, or the City Commission, on appeal, may reduce or cancel a proposed assessment if it is determined that: 1. 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 2. The owner of the property was eligible for a waiver of costs under Section 8.28.140. H. The Planning Department, in administrative review, or the City Commission, on . appeal, may reduce a proposed assessment by eliminating the civil penalty portion of the invoice if it is determined that: 1. The current owner was not in possession of the property at the time the notice required in Section 8.28.080 was posted; or 2. 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. I. If, after a lien has been entered in the docket of City liens, there is a written request of an owner who alleges that the owner did not receive notice of the proposed assessment, the Finance Department shall refer the matter for review pursuant to Subsection B. J. The lien may be canceled or reduced by the Planning Department, in administrative review, or the City Commission, 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 City - 8 - Commission, pursuant to Subsection E, the Finance Department shall cancel or reduce the lien if required by the determination of the Planning Department and/or City Commission. 8,28.130 Personal Liability of Owner. The person who is the owner of the property at the time at which the notice required under . Section 8.28.080 is posted shall be personally liable for the amount of the assessment including all interest, civil penalties, and other charges. 8.28.1 ~O Cost of Abatement; Lew Ineome, Elderly Persons. ^ Notwithstanding the other provisions of this ChaPter, tho oost of abating a nuisanoo ' ... shall 130 waivod for low inoome and elderl'l parsons, if upon applioation it appears to the Planninlil Del3artmont that the conditions sot forth in Subsootion B are met. B. To be elililible for .....aiver €If nuisance abatement oests a pemon must be classified as " low income," as aefined by tho Planning Department, or C. Be more than 66 yoars of a~e and: 1. A person living aleno, whose total income for the preoeding calendar year did not o>cooed ana anB ane half (1 1/2) times the maximum amount a Sooial Seeurity fcoipient at age 86 ma', have oarned in that )'oar witheut ha'J'ing any Benefits withhola; or . 2. The head of a heusehold whioh househeld received 0 total ineeme fer tho prcoodint'J oalendar year that did Rot e>meod two and one quartor (2 1/4) times the maximum amount a Social Seeurit" rocipicnt at ago 66 may ha'.'o eamed in that year without ha'J'ing any benefits withheld. D. Additionally, 011 persens wish;n€! to Elualif', fer 'Naiver of nuisanee abatement casts ffitt5t:- 1. Fumish proof of tRo age andlor inoome requiroments as sot forth abovo in tho manner and form designated by the Pbnning Department; 2. Must own, or bo in the prooess of purohasing the propert'l from whie~ the nuisonoe is aeated; and 2. 80 living on tho property from whieh tho nuisanoe is abated. E. The rem O',tO I of tho nuisance in quostion must ~a\'e bccn rOEluired by tho Planning Deportment and the person requesting the waivor of costs FAust hove Been officially . notified by the Planning Department to removo tho nuisonco. F. ^pplieations for waiver of nuisaneo abatement costs shallee tilee with the P/annH1g Deportment, on forms suppliod b'J' the City, within ton (10) days of tor roeoipt of a notioe to romove a nuisance or a worle ofecr notieo unless the Planning Department extends the time for good cause shown. All information required to be gi',{en on such form shall be 5upplioa and 'Jerified by the applioant. - 9 - ----..._-- --.. G. The maximum amount that may bo waived under tAi3 Scotian for any OAe paroel of roel proporty or any ono person shall be five hunared dollars ($600) per oalondar ye.ar.- H. No overhead eharge or oivil ponalty shall be imposed for any roal property for whieh a 'Naiver, pursuant to this Seotion, shall have beoR approved. . 8.28.:lftII :he:::::, :h:~::n:~:: :::::e:~ the City, the Planning Department shall keep an accurate account of all expenses incurred, including an overhead charge of twenty- five percent (25%) for administration and a civil penalty of two hundred dollars ($200) for each nuisance abated. B. When the City has abated a nuisance maintained by any owner of real property, for each subsequent nuisance that is abated by the City within two (2) consecutive calendar years concerning real property, owned by the same person, an additional civil penalty of fifty percent (50%), minimum of fifty dollars ($50), of the cost of abatement shall be added to the costs, charges and civil penalties provided for in Subsection A. 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 Repealer. All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in conflict herewith are hereby repealed. Section 4 Severability. If any provisions of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions of this ordinance which may be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are declared to be severable. . Section 5 Savings Provision. This ordinance does not affect the rights or duties that matured, penalties and assessments that were incurred or proceedings that begun before the effective date of this ordinance. - 10 - --------- Section 6 Effective Date. This ordinance shall be in full force and effect on February 15, 1997. PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a . regular session thereof held on the 15th day of December 1997. DON E. STUECK, Mayor ATTEST: ROBIN L. SULLIVAN Clerk of the Commission 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 20th day of January 1998. . ATTEST: ~oI~ ROBIN L. SULLIVAN Clerk of the Commission APPROVED AS TO FORM: . - 11 -