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HomeMy WebLinkAbout970 Amending Chapter 8.06 of Municipal Code Nuisances 02-26-2020ORDINANCE NO. 970 AN ORDINANCE OF THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO, AMENDING CHAPTER 8.06 OF THE FIRESTONE MUNICIPAL CODE WOW WHEREAS, the Town's nuisance abatement procedures are outdated and must be amended to ensure compliance with current legal standards and procedures. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO: Section l . Section 8.06.010, Definitions, subsection B. 6., "public nuisance or nuisance," of the Firestone Municipal Code is repealed in its entirety and reenacted to read as Follows: 6. Nuisance means a thing, act, failure to act, occupation, activity, condition or use of any building, land, substance or property, which: l . The continuous use or condition of which presents a substantial danger or hazard to the health, safety or welfare of the community; 2. The continuous use or condition of which violates any ordinance of the town; 3. Shall otherwise constitute or be known or declared a nuisance by virtue of common law, state statutes or the ordinances of the town; 4. Any activity, operation or condition which, after being ordered abated, corrected or discontinued by a lawful order of any department or officer of the town, continues to be conducted or continues to exist in violation of any statute or this Code or in violation of any regulation of the town, the county, or the state; or 5. Any activity, operation, condition, building, structure, place, premises or thing which is indecent or offensive to the senses so as to interfere with the comfortable enjoyment of life or property. Section 2. Chapter 8.18, Abatement of nuisances, of the Firestone Municipal Code, is repealed in its entirety and reenacted to read as follows: 8.18.010 -Abatement of nuisances, notice and procedure. A. Except as otherwise specified within this chapter in all cases where a nuisance shall be found to exist, notice of the nuisance together with a demand directing the removal or discontinuance of the nuisance, shall be sewed by the town upon any and all offending parties. Service shall be upon the individual in person, by certified mail, or by leaving a copy of the notice: 1. At such person's residence, with an individual 18 years of age or older being a member of 1 the family or cohabitant; 2. At such person's place of business with an employee or owner of the business; 3. If personal service cannot be effected, notice shall be given by posting the premises, if possible, or if not possible, by posting such notice at the Firestone Municipal Building (Town Hall). A copy of the notice shall also be mailed to such person's last known address. B. The notice shall advise of the nature of the nuisance and demand elimination or discontinuance thereof within 72 hours, or such other period of time, as may be stated therein from the time of service. The notice shall also advise that if elimination or discontinuance is not accomplished within the stated time, the town may proceed to abate the same charging the expenses thereof to the person refusing to eliminate or discontinue the nuisance and/or may proceed with civil or criminal proceedings. C. Service of the notice and demand shall be a prerequisite to the commencement of civil proceedings by the town, except for situations involving emergency abatement. The fact that the person or entity against whom legal action is initiated does not actually receive such notice shall not preclude such litigation, provided the town has acted in good faith and in a manner reasonably calculated to give notice to the owner, occupant, or person having control or agent thereof. D. When a nuisance has not been voluntarily abated within the time specified in the notice and demand to abate, the town may, pursuant to the municipal court rules of procedure, bring a civil action in the municipal court to have the nuisance declared as such by the court and for an order enjoining the nuisance or authorizing its restraint, removal, termination or abatement by the owner or the person who caused the nuisance or the person who allowed the nuisance to be caused or to continue, or by such person's authorized agent, or a code enforcement officer or any authorized town employee, or any person under contract with the town to perform such service. E. The action to declare and abate a nuisance shall be brought by the town by the filing of a complaint which shall be verified by an affidavit. The summons shall be issued and served in accordance with the municipal court rules of procedure. Trial shall be to the municipal court and the town shall have the burden of proving, by a preponderance of the evidence, that a nuisance exists or occurred on/or within the property identified in the complaint. 1. A notice of appearance shall be served with the summons and complaint. The appearance date shall be not less than 14 days from the date of service of the summons. The trial shall be held upon the appearance date, unless the court grants, for a period not to exceed ten days, a continuance for good cause shown. 2. The defendant shall file a response on or before the appearance date set forth in the notice of appearance. 3. Upon the date and at the time set for appearance and trial, if the defendant or property owner has not filed a response and fails to appear and if the town shows that proper service was made on the defendant at least 14 days prior to the appearance date, the court may grant such orders as are requested by the town; except that the court shall order that enforcement by the town be stayed for ten days and that a copy of the court's order be mailed to the defendant's last known address. Failure to appear on any other date set for trial shall be grounds for entering a default and judgment thereon against a non appearing party. For good cause shown, and prior to enforcement, the court may set aside an entry 2 of default and the judgment entered thereon. 4. The judgment of the municipal court may be appealed to the county district court. 5. The defendants to an action commenced under this chapter, and the person liable for and subject to the remedies may include any person owning or claiming any ownership or leasehold interest in the subject property, all tenants and occupants of the subject property, all managers and agents for any person claiming an ownership or leasehold interest in such property, any person committing, conducting, promoting, facilitating or aiding in the commission of a nuisance and any person necessary to carry into effect the court's orders. None of these parties shall be deemed necessary or indispensable parties. Any person holding any legal or equitable interest in the parcel who has not been named as a party- defendant may intervene as a party- defendant. No other person may intervene. 8.18.020 -Abatement orders. A. Issuance and effect of temporary and permanent abatement orders. The issuance of temporary or permanent abatement orders under this chapter shall be governed by the municipal court's rules of procedure, pertaining to temporary restraining orders, preliminary injunctions and permanent injunctions, except to the extent of any inconsistency with the provisions of this chapter, in which event the provisions of this chapter shall prevail. Temporary abatement orders provided for in this chapter shall go into effect immediately when served upon the property owner or party against whom they are directed. Permanent abatement orders shall go into effect as determined by the municipal court. No bond or other security shall be required of the town upon the issuance of any temporary abatement order. Be Form and scope. Every abatement order under this chapter shall set forth the reasons for its issuance; shall be reasonably specific in its terms; shall describe in reasonable detail the acts and conditions authorized, required or prohibited; and shall be binding upon the subject property, the parties to the action, their attorneys, agents and employees, and any other person named as a defendant in the nuisance action and served with a copy of the order. Co Substance of abatement orders. Temporary or permanent abatement orders entered under this chapter shall be narrowly tailored so as to address the particular kinds of separate violations that form the basis of the alleged nuisance. Such orders may include: 1. Orders requiring any defendant to take steps to abate the nuisance; 2. Orders authorizing town personnel to talce reasonable steps to abate the nuisance activity and prevent it from recurring, considering the nature and extent of the separate violations; 3. Orders prohibiting certain named individuals from entering the property; 4. Orders reasonably necessary to access, maintain or safeguard the property; and/or 5. Orders reasonably necessary for the purposes of abating the nuisance or preventing the nuisance from occurring or recurring; provided, however, that no such order shall require the seizure of, the forfeiture of title to, or the appointment of a special receiver to protect, possess, maintain or operate any property. I Temporary abatement orders. 1. The purpose of a temporary abatement order shall be to temporarily abate an alleged 3 nuisance pending the outcome of the matter's judicial proceeding. A temporary abatement order may be issued by the court, even if the effect of such order is to change, rather than preserve, the status quo. 2. At any hearing on a motion for a temporary abatement order, the town shall have the burden of proving that there are reasonable grounds to believe that a nuisance occurred in or on the subject property and, in the case of a temporary order granted without notice to the defendant, that such order is reasonably necessary to avoid immediate, irreparable loss, damage or injury. E. Permanent abatement orders. Where the existence of a nuisance is established in a civil action under this chapter, the court shall enter a permanent abatement order requiring the defendant to abate the nuisance and take specific steps to prevent the same and other nuisances from occurring or recurring on the property. F. Motion to vacate or modify temporary abatement orders. 1. General. At any time a temporary abatement order is in effect, any defendant or any person holding any legal or equitable interest in any property governed by such an order may file a motion to vacate or modify said order. Any motion filed under this subsection shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing. The court shall vacate the order if it finds by a preponderance of the evidence that there are no reasonable grounds to believe that a nuisance was committed in or on the property. The court may modify the order if it finds by a preponderance of the evidence that such modification will not be detrimental to the public interest and is appropriate, considering the nature and extent of the violations. 2. Consolidation of hearing with other proceedings. If all parties so stipulate, the court may order the trial on the merits to be advanced and tried with the hearing on such motions. G. Noncompliance to court issued order. It shall be unlawful for any person to fail to comply or refuse to abide by any of the terms and conditions of a temporary or permanent order issued by the court. 8.18.030 -Remedies. A. The town and any defendant to an action under• this chapter may, upon the court's approval, voluntarily stipulate to orders and remedies, temporary or permanent, that are in addition to those provided in this chapter. Be In any case in which the town prevails in a civil action initiated pursuant to this chapter, the town may recover its reasonable costs and expenses of declaring and abating the nuisance, including reasonable attorney fees and costs of litigation; such costs may be assessed against the defendant and become a lien against the subject property pursuant to the procedure set forth herein in this chapter. C. The remedies set forth herein are cumulative. The initiation of any action or the imposition of any penalty hereunder shall not preclude the town or any town official from instituting any other proceeding to require compliance with the provisions of the Code and with any administrative orders and determinations made hereunder. No provision herein shall be construed to limit or abrogate the right of any person to bring a private action to abate a private nuisance. :l 8.18.040 - Summary abatement. Where, in the opinion of the town manager, or such person's designee, a nuisance exists and constitutes an immediate and serious danger to the public health, safety or welfare or, in the case of any nuisance in or upon any public street or public property, such may be summarily abated by the town without notice of any kind. 8.18.050 -Unlawful interference. It is unlawful for any person to interfere with or prevent, or attempt to interfere with or prevent, the abatement of any nuisance by any employee or agent of the town pursuant to the provisions of this chapter. 8.18.060 -Recovery of expenses; lien. A. All costs and expenses incurred by the town in abating any nuisance shall be paid by the property owner to the town clerk in full within 30 days after mailing by the town clerk to the property owner, by certified mail, a notice of and the assessment of such cost. Such notice shall include a statement of the work performed to abate the nuisance, the date of performance and the costs and expenses. B. If the property owner desires to object to the assessment, the owner shall have 30 days fiom the date of certified mailing of the assessment to file a written objection with the town clerk. The town clerk shall then schedule the matter for hearing before the town manager. The owner shall be given at least 14 days written notice of the date, time and place of the hearing. The decision of the town manager shall be final and provided in writing to the property owner within seven days of completion of the hearing. C. Failure to pay the assessment within 30 days shall cause the assessment to become a lien with penalty and interest, upon the real property subject to abatement by the town. The penalty and interest shall be assessed at a rate equivalent to that which is assessed by state law upon delinquent general property taxes. Such lien shall have priority over all other liens except general taxes and shall, upon the town's certification and filing with the county, be collected and paid to the town by the county treasurer in the same manner as delinquent general property taxes. 8.18.070 —Inspection of property. A. Right of entry; notice. Whenever necessary to make an inspection to enforce this chapter, or whenever a police, code enforcement officer or authorized town official has probable cause to believe there exists in any building, or upon any premises, any condition which constitutes a nuisance, such person shall first present proper credentials and request entry. If the responsible party cannot be located after a reasonable effort, the authorized town personnel shall post a notice of intent to inspect upon the premises in a conspicuous place. The notice shall state that the responsible party has the right to refuse entry. If entry is refused or 24 hours after posting of the property the authorized town official may appear before the municipal court judge and request an administrative search warrant to inspect the premises. B. Search warrants. A police, code enforcement officer or authorized town official may 5 appear before the municipal judge and upon a showing of probable cause shall obtain a search warrant entitling such officer to enter the building or upon the premises, using such reasonable force as may be necessary to gain entry. The person applying for such warrant shall not be required to demonstrate specific knowledge of the condition of the particular structure or premises at issue in order to obtain a search warrant, but must show factual or practical circumstances that would lead an ordinary prudent person to conclude that a nuisance exists and to act upon the condition of the property. Any municipal judge of the municipal court of the town shall have power to issue search warrants. C. Emergencies. Whenever an emergency situation exists in relation to the enforcement of any of the provisions of this chapter, a police or code enforcement officer, or fire department, or emergency personnel in service to the town, may enter into any building or upon any premises using such reasonable force as may be necessary. An emergency situation includes any situation of imminent danger of loss of, or injury or damage to, life, limb, property or threat to public safety. It is unlawful for any owner or occupant of the building or premises to deny entry to any such officer or to resist reasonable force used by the officer acting pursuant to this subsection. Section 2. If any article, section, paragraph, sentence, clause, or phrase of this ordinance is held to be unconstitutional or invalid for any reason, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The Board of Trustees hereby declare it would have passed this ordinance and each part or parts hereof irrespective of the fact that any one part or parts be declared unconstitutional or invalid. �' Section 3. Violations of this ordinance shall be punishable in accordance with Section 1.16.010 of the Municipal Code of the Town of Firestone, Colorado. Section 4. All other ordinances or portions thereof inconsistent or conflicting with this ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. INTRODUCED, READ, ADOPTED, APPROVED, AND ORDERED PUBLISHED IN FULL this 26th day of February, 2020. ATTEST: 4,� OWN NF �.UNtY, i� fa OF Si William ,COLORAnn AS TO FORM: i, Town Attorney