Chapter 16.50
ADMINISTRATION, ENFORCEMENT AND APPEALS
Sections:
16.50.010 Authority to enforce.
16.50.050 Voluntary compliance.
16.50.060 Notice of violation.
16.50.070 Transfer of property after notice.
16.50.080 Administrative consent orders, civil and criminal complaints.
16.50.090 Violations and penalties.
16.50.110 Administrative appeal.
16.50.010 Authority to enforce.
A. The code official, as defined in Chapter 16.10, may enforce the provisions of this title by any one or more lawful means, including, but not limited to, voluntary compliance, administrative and civil consent orders, civil enforcement, including injunctive action, criminal enforcement, abatement by administrative procedure, emergency abatement and designation of slum property. The town may also require restitution. One type of enforcement neither limits nor precludes the town from pursuing any other type of enforcement.
B. The code official is authorized to make safe any structure, in whole or part, which, in the opinion of the code official, is an imminent threat to the health or safety of any person or persons due to the conditions of such structure. Such work shall be limited to the minimum work necessary to remove the hazard or secure the hazard through boarding or fencing.
C. When vegetation extends into a street, alley, or public right-of-way in such a manner that it interferes with the free and safe use of the street, alley, or right-of-way, the town may immediately trim and cut such vegetation as necessary to remove such interference without notice to the property owner and without following the abatement procedures set forth in this code. In addition, the town may immediately remove any structure or sign from any street or public place. Costs of such removal may be billed to the property owner for reimbursement.
D. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the town who is lawfully engaged in the enforcement or execution of the provisions of this title.
E. A violation of this title is in addition to any other violation of the Huachuca City Municipal Code. The authority of the code official to enforce the provisions of this title is independent of and in no way limits enforcement of any other violations of the town code or of state statutes. (Ord. 19-16 § 2, 2019)
16.50.020 Presumptions.
A. The owner of land, as recorded in the Cochise County recorder’s office, is presumed to have control over the land and buildings and accessory improvements on the land. If more than one person is recorded as the owner of land, all persons on record are presumed to have joint and several control over the land and buildings and accessory improvements on the land. The occupant residing or operating a business on land or in a building is presumed to have control over the building and land on which it is located. These presumptions shall not prevent the enforcement of this title against persons other than record owners.
B. A sign or structure is presumed to be owned by and under the control of:
1. The person whose name, address, email address or phone number appears on it; and/or
2. The person whose business, product or service appears on it; and/or
3. The person whose business benefits by it; and/or
4. The person who owns or controls the land upon which the sign or structure is placed; and/or
5. The person who installed or placed it.
C. All presumptions are rebuttable. (Ord. 19-16 § 2, 2019)
16.50.030 Inspections.
A. Right of Entry. The code official is authorized to make inspections of property to determine compliance with this title; provided, however, inspections for buildings not readily accessible to or readily visible to the public shall be conducted in conformance with ARS Section 9-833. Except in a situation presenting an imminent hazard to life, health or public safety, building interiors and screened land shall be inspected during the normal business hours of the town, unless otherwise arranged upon the owner’s or occupants’ consent, or any administrative or court order.
B. Correction of Violations Required. If, upon inspection, it is determined that violations of this title or state law exist, the owner or responsible person shall be required to correct all violations within a reasonable amount of time. In the event the building, dwelling, or dwelling unit is unoccupied or becomes unoccupied, future occupancy will be prohibited until a compliance letter is issued by the town.
C. Inspection Fees. Except as expressly provided in this title or elsewhere in the Huachuca City Municipal Code, no fee shall be charged for an initial inspection to determine the existence of a violation of this title. Any person who neglects, fails or refuses to correct the violation contained within a notice of violation issued pursuant to Section 16.50.060 may be assessed a reinspection fee for inspections that occur after the compliance date specified in the notice, where such reinspection demonstrates the failure to comply. The fee for these reinspections shall be set by resolution or ordinance adopted by the mayor and council. Failure to pay reinspection fees within 14 days of assessment is a violation of this section. Reinspection fees may be collected in any manner as provided by law, including as a lien against the real property where the violation occurred.
D. Appeal of Reinspection Fee. A person may appeal the imposition of a reinspection fee to the code official through an administrative conference in the manner provided in Section 16.50.110(B). The administrative conference shall be the only administrative appeal of a reinspection fee, and no appeal may be made to the board of adjustments. (Ord. 19-16 § 2, 2019)
16.50.040 Warrants.
A. Issuance – Supporting Affidavit.
1. An inspection warrant for residential rental property may only be issued in accordance with state law.
2. An inspection warrant for all other property may be issued upon a showing that the proposed inspection is reasonable and necessary.
3. An abatement warrant may be issued to allow entry upon private property to abate specific conditions in accordance with an abatement order issued by the court.
B. Refusal to Permit Inspection or Abatement Prohibited – Penalty. Any person who willfully refuses to permit an inspection or abatement lawfully authorized by warrant issued pursuant to this chapter is guilty of a misdemeanor.
C. Return. An inspection or abatement warrant must be returned to the judge by whom it was issued within 10 working days from its date of execution.
D. Execution of Inspection or Abatement Warrants.
1. Occupied Property. In executing an inspection or abatement warrant, the person authorized to execute the warrant shall, before entry into the occupied premises, make a reasonable effort to present the person’s credentials, authority and purpose of the warrant to an occupant or person in possession of the property. A copy of the warrant shall be left with the occupant or the person in possession.
2. Unoccupied Property. In executing an inspection warrant or abatement warrant on unoccupied property, the person authorized to execute the warrant need not inform anyone of the person’s authority and purpose, but may promptly enter the designated property if it is at the time unoccupied or not in the possession of any person or at the time reasonably believed to be in such condition. In such case, a copy of the inspection or abatement warrant shall be conspicuously posted on the property. (Ord. 19-16 § 2, 2019)
16.50.050 Voluntary compliance.
The code official may seek voluntary compliance with the provisions of this title, proactively or reactively, through warnings, letters, notices to comply, compliance orders, or other means designed to achieve compliance in the most efficient and effective manner under the circumstances. (Ord. 19-16 § 2, 2019)
16.50.060 Notice of violation.
A. Notification. If the code official finds a violation of this title, in the first instance, in any given 12-month period, other than when the violation presents an imminent hazard to life, health or public safety under Section 16.50.100(D), the code official may notify the owner or responsible person through the issuance of a notice of violation.
B. Contents of Notice. A notice of violation issued pursuant to this title shall include the following information:
1. The identification of the property in violation; street address, legal description or tax parcel identification of the property is sufficient identification of the property;
2. A statement of the violation(s) in sufficient detail to allow the owner, occupant or responsible person to identify and correct the violation(s);
3. A statement of the actions required to correct and abate the violation(s). The statement of required action shall direct the owner, occupant or responsible person to perform whatever action is reasonably necessary to correct the violation(s), including cleanup, extermination, repair, rehabilitation, vacation of the building or structure, compliance with Chapter 16.35, and/or demolition:
a. If the action required is a repair, the notice shall direct that all required permits be secured for the repair, and that the repair work shall be commenced and completed within such time, not to exceed 60 days, as the code official determines is reasonable under the circumstances;
b. If the action required includes the vacation of a building or structure, the notice shall direct that the building or structure be vacated within a certain time as the code official determines is reasonable under the circumstances;
c. If the action required includes demolition and removal of a building or structure, the notice shall direct that the building or structure be vacated within a certain time as the code official determines is reasonable under the circumstances; that all permits required for the demolition be secured within 60 days from the date of the notice; and that the demolition and removal be completed within a certain time as the code official determines is reasonable under the circumstances;
d. If the action required is the abatement of a hazardous excavation, the notice shall direct any or all of the following actions be completed within a certain time as determined to be reasonable by the code official:
i. Securing the excavation by surrounding either the excavation or the property with a fence or other enclosure that is at least five feet in height at all points;
ii. Securing the excavation by completely covering the excavation in a manner that prevents any access to the excavation and eliminates any hazard or attractive nuisance;
iii. Completely filling the excavation with clean fill;
4. The stated compliance date shall be a reasonable time period as determined by the code official;
5. The name and phone number of the code official;
6. The criminal or civil penalties for failing to correct the violation;
7. A statement describing the town’s authority to abate the violation(s) should the owner or responsible person not correct the violation(s) within the time specified in the notice, and to assess a lien against the property for the costs of abatement; and
8. A statement advising that any person having legal interest in the property may appeal from the notice in the manner specified in this title; and that failure to appeal will constitute a waiver of all rights to an administrative determination and hearing of the matter.
C. Cost to Abate. In order for the town to assess the property for the costs of abatement as provided in Section 16.50.100(B), the notice shall be given not less than 30 days before the day set for compliance and shall include the estimated cost of such abatement to the town if the owner or responsible person does not comply.
D. Service of Notice. The notice shall be served upon the record owner and/or the responsible person in the manner described in subsection E of this section. In addition, the notice shall be served on the holder of any legal interest in the property, if known to the code official and, in cases involving an order to vacate, upon any lawful tenant. Any failure to serve any person holding legal interest in the property shall not invalidate any proceedings as to any other person duly served and shall not relieve any such person from any obligation imposed by this title.
E. Method of Service. Notices given under this title shall be deemed effective:
1. On the date when written notice is hand delivered or on the date when written notice is mailed by first class mail, addressed to the property owner or responsible person, except any notice that includes an order to vacate or an order to abate by demolition. Any notice served by first class mail shall be mailed to the last known address of the owner, the owner’s authorized agent or the owner’s statutory agent and to the address to which the tax bill for the property was last mailed.
2. On the date when written notice is hand delivered or mailed by certified mail, return receipt requested, addressed to the property owner or responsible person for any order to vacate or abate by demolition.
3. Upon notification through one-time public notice published in a newspaper of general circulation and by posting on the property for a period of 30 days, if personal service or mailed service is not practicable.
F. Additional Notice – Notice Not Required. Nothing herein shall preclude the town from giving additional verbal or written notice at its discretion, but it is not obligated to notify the same person as to a second (or additional) violation(s) which has been the subject of a notice to comply within the previous 12-month period. If the town does elect to give any additional notice in any instance, it shall not thereby become obligated to give such additional notice thereafter in the same or other situations.
G. Recording a Violation. If there is not compliance with a notice of violation within the time specified in the notice, and no appeal has been properly and timely filed, the code official may record a notice of violation with the office of the Cochise County recorder. A recorded notice of violation shall describe the property and the violations and shall certify that the owner has been notified. A recorded notice of violation shall run with the land and shall constitute notice, for all purposes of this title, to all persons or entities thereafter acquiring an interest in the property. Whenever the required corrections ordered thereafter have been completed or the building demolished so that the violations described in the notice have been abated, the code official shall file a new certificate with the Cochise County recorder certifying that all required corrections have been made and that the property is no longer in violation of this title. Failure to record a notice of violation shall not affect the validity of the notice as to persons who receive the notice.
H. Civil or Criminal Violation Proceedings. Unless otherwise specifically provided, nothing in this section shall require the issuance of a notice of violation prior to the commencement of civil or criminal violation proceedings. (Ord. 19-16 § 2, 2019)
16.50.070 Transfer of property after notice.
A. Responsibility upon Transfer of Property. The transfer of any and all property interests in any manner, including but not limited to the sale, trade, lease, gift or assignment of any real property against which a notice of violation has been issued, shall not relieve the party(s) served with a notice unless the legal entity assuming an ownership interest in such property, in writing, assumes responsibility for compliance with the notice of violation and a copy of such writing is presented to the code official.
B. Fraudulent Transfer as a Misdemeanor. Any person who has been served with a notice of violation and who then transfers an ownership interest in the real property against which the notice has been served is guilty of a misdemeanor if the transfer is made without first obtaining a written acceptance of liability from the new owner for the items listed in the notice. (Ord. 19-16 § 2, 2019)
16.50.080 Administrative consent orders, civil and criminal complaints.
A. Administrative Consent Orders. The town may enter into a written administrative consent order, signed by the town manager or code official, with a person accused of violating this title. The administrative consent order may be enforced as a contract is enforced or by any other lawful means.
B. Civil Complaints. The town manager or designee, building official, code official, town attorney and Huachuca City police officers may bring civil complaints under this title.
1. The complaint shall include a written description and statutory designation of the violation(s).
2. The town shall attempt to hand deliver the civil citation to the person accused of violating this title. If the town is unable to hand deliver the civil citation, the town may serve it by certified or registered mail, return receipt requested, or by any means allowed by the Arizona Rules of Civil Procedure. If the town sends a citation via certified or registered mail, an additional copy must also be sent by regular mail.
3. The citation is deemed served on the date it is hand delivered or, if mailed, on the date it is deposited in the United States mail.
C. Civil Complaints Court Appearance or Failure to Appear.
1. On or before the date specified in the complaint, the defendant shall appear in municipal court in person or through an attorney. The defendant shall admit or deny the allegations in the complaint. If the defendant admits the allegations, the court shall enter judgement against the defendant, impose the civil penalties set forth in Section 16.50.090, require restitution and require the defendant to correct the violation(s). If the defendant denies the allegations, the court shall set the matter for hearing.
2. If a defendant serviced with a complaint fails to appear on or before the date specified in the complaint, the court shall enter judgement against the defendant and impose the civil penalties set forth in Section 16.50.090, require restitution and require the defendant to correct the violation(s).
D. Criminal Complaints. A Huachuca City police officer or the town attorney may bring criminal complaints under this title. (Ord. 19-16 § 2, 2019)
16.50.090 Violations and penalties.
Unless a penalty, remedy or sanction is otherwise specified in this title, the penalty for a violation of this title shall be as follows:
A. The remedies herein are cumulative, and the town may proceed under one or more such remedies.
B. Violations of this title may be prosecuted pursuant to the provisions of this section.
C. Each day any violation of any provision of this title or the failure to perform any act or duty required by this title exists shall constitute a separate violation or offense.
D. In addition to the various removal, abatement and cost recovery provisions contained throughout this title, as well as any other remedies allowed at law, citations for civil and criminal violations of this title may be filed in the Huachuca City magistrate court by the police department or the town attorney against any owner or responsible person who commits, causes, permits, facilitates or aids or abets any violation of any provision of this title or who fails to perform any act or duty required by this title.
E. Penalties for Title 16 Violations May Be Civil or Criminal.
1. If the violation(s) concerns property used for residential purposes, the fine for a defendant’s first citation under this title shall be $50.00 per violation. The fine for a defendant’s second violation under this title shall be $100.00 per violation. A defendant’s third and subsequent violations under this title over any time frame after the second violation shall be classified as a criminal class one misdemeanor, punishable as determined by the court, not to exceed a $2,500 fine, six months in jail and three years’ probation.
2. If the violation(s) concerns property used for nonresidential purposes, the fine for a defendant’s first citation under this title shall be $250.00 per violation. The fine for a defendant’s second violation under this title shall be $500.00 per violation. A defendant’s third and subsequent violations under this title over any time frame after the second violation shall be classified as a criminal class one misdemeanor, punishable as determined by the court, not to exceed a $2,500 fine, six months in jail and three years’ probation.
F. In addition to the penalties of subsection E of this section, the court shall impose restitution as part of its sentence to compensate the town for its costs to enforce this title and bring a building or land into compliance with this title. Restitution shall include all costs of abatement, including inspection fees, and prosecution of the case.
G. Any continuing violation of this title constitutes a public nuisance that may be abated by the town. Imposition of a fine or penalty assessment shall not relieve the owner or responsible person of the responsibility of abatement of the violation(s) or excuse him/her from liability for any and all costs incurred by the town for abatement.
H. In addition to any other abatement procedure provided in this title, the town attorney or prosecutor may petition the municipal court for an order permitting the town to abate any condition that constitutes a violation of this title. The court shall conduct an informal hearing after written notice, served by personal service or certified mail, to the owner as recorded in the office of the Cochise County recorder, and any responsible person. The rules of evidence shall not apply to the informal hearing. Each party shall have an opportunity to be heard and present evidence at the hearing. Any failure to appear after notice of the hearing may be deemed a waiver by that party to submit evidence or to be heard. The court’s determination on whether a condition or violation of this title exists shall be based on a preponderance of the evidence. Upon finding that abatement is appropriate, the court may order the town to take any action reasonably necessary to abate the condition that constitutes a violation. The reasonable costs of any abatement permitted by the court order are the responsibility of the owner and may be collected as provided by law. (Ord. 19-16 § 2, 2019)
16.50.100 Abatement.
A. Court Ordered Abatement.
1. Upon finding a person guilty or responsible for a violation of any provision of this title, the court shall order such person to perform whatever action is reasonably necessary to correct and abate the violations, including cleanup, board-up, extermination, repair, rehabilitation, vacation of the building or structure, permanently securing or filling the excavation and/or demolition. If more than one person is guilty or responsible for a violation, such persons shall be jointly and severally responsible for completing the abatement.
2. When the court orders abatement pursuant to this section, the court shall advise a violator that additional fines will be imposed for failure to abate a violation, and that the town may bring criminal charges for failure to obey an order to abate a violation.
B. Abatement by the Town.
1. In addition to ordering abatement of a violation as provided in subsection A of this section, upon finding a person guilty or responsible for a violation of any provision of this title, the court may issue an order authorizing the town to perform whatever action is reasonably necessary to correct and abate the violation, including cleanup, board-up, extermination, repair, rehabilitation, vacation of the building or structure, disconnection of utilities, permanently securing or filling an excavation, and/or demolition. Town personnel can perform the abatement work or hire appropriate persons or companies to perform such work.
a. The reasonable costs of any such abatement shall be the responsibility of the person found guilty or responsible for the violation. If more than one person is guilty or responsible for a violation, such persons shall be jointly and severally responsible for the costs of the abatement.
b. The town shall pay the cost and expense of such abatement from any appropriation made available for that purpose and shall prepare a statement of cost, plus five percent incidental cost of abating the violation. The statement shall be mailed to the owner, the owner’s statutory agent or other responsible party.
c. The statement of cost shall specify the date the payment is due to the town.
d. If payment is not made by the date specified in the statement of cost, the town shall place a lien on the land in the amount of the statement.
2. The town may make the costs of an abatement an assessment on the property that is the subject of the violation where all the following are true:
a. The case was initiated by the service of a notice of violation pursuant to Section 16.50.060;
b. The owner or responsible person failed to comply with such notice within the specified time frame; and
c. The notice included the estimated cost of such abatement to the town if the owner or responsible person did not comply.
3. Upon commencement of action on the property or after mailing the statement of account to the owner or responsible person, the town shall assess the property for the cost of work performed, including actual costs of any additional inspection and other incidental connected costs, and for associated legal costs for abatement or injunction and may pursue any or all means for recovery of cost if the assessment is not paid. If the assessment is paid, the town shall remove the assessment.
4. Prior assessment or assessments for the purposes provided for in this title shall not be a bar to subsequent assessment or assessments and any number of liens or assessments on the same parcel may be enforced in the same action.
5. An assessment made pursuant to this section is prior and superior to all other liens, obligations, mortgages or other encumbrances, except liens for general taxes.
6. Any liens or assessments filed with the Cochise County recorder pursuant to previous provisions of this chapter or any similar chapter shall remain in effect under the same terms and conditions that existed at the time of recording.
7. If the code official observes a violation(s) of Sections 16.15.020(A) through (D) or 16.15.030(A) through (E) and serves a written notice of violation(s) pursuant to Section 16.50.060 and the violation(s) has not been completely abated within the time frame specified, then the violation is presumed to constitute a health or fire hazard or a public nuisance. The town may then go upon the property and abate the violation(s), assess the owner, occupant or responsible party the cost of the abatement, and record a lien on the land for assessment. Town personnel can perform the abatement work or hire appropriate persons or companies to perform such work.
a. Following abatement, the town shall prepare a statement of the cost of abating the violation(s) of this title, plus five percent incidental cost of abating the violation.
b. The statement shall be mailed to the owner, the owner’s statutory agent or other responsible party at the address used to serve the notice of violation. If more than one person is responsible for the violation(s), such persons shall be jointly and severally responsible for the payment of the costs or expenses of the abatement.
c. The payment may be in addition to any civil or criminal penalty imposed pursuant to this town code.
d. The statement shall set forth:
i. The statement of cost is an assessment upon the land from which the town abated the violation(s).
ii. The payment of the statement of cost shall be made by the date specified in the statement of cost.
iii. If payment is not made by the date specified in the statement of cost, the town shall place a lien on the land in the amount of the statement.
iv. The appeal procedures, if any.
C. Temporary Abatement. If it is determined that a nuisance as provided in Section 16.40.030 is a hazard to the public safety and health, the code official may declare such building or structure a hazard. After notice is communicated to any owner of record or responsible person to secure the structure and the owner does not secure the building or structure to town specifications, the hazard may be summarily abated by the town through boarding. The town may also post both the building, structure and exterior premises with signs to provide reasonable notice prohibiting entry (i.e., “No Trespassing” signs). Any and all charges and costs arising from the town-taken action to secure the structure shall be charged to the owner or responsible person. If unpaid, the charges and costs shall be a lien against the real property containing such structure.
D. Emergency Abatement. Notwithstanding any other provision of this title, if, in the opinion of the code official, the conditions at a property constitute an imminent hazard, the code official may order immediate abatement of the hazard without notice. Such abatement of the imminent hazard shall be limited to the minimum work necessary to remove the hazard and may include disconnection of utilities.
1. The town shall pay the cost and expense of such abatement from any appropriation made available for that purpose.
2. A lien shall be recorded with the Cochise County recorder’s office and shall address the same costs and procedures identified in subsection B of this section, Abatement by the Town.
3. Whenever the code official finds that any building or structure contains an imminent hazard or health hazard, the code official may declare such building or structure unfit for human occupancy and order it to be vacated or to remain vacant. A structure declared unfit for human occupancy and ordered vacated or to remain vacant under the provisions of this title shall not be leased, rented or occupied and the utilities cannot be reconnected until it has been inspected and deemed fit for occupancy by the town. The town shall reinspect, for the purpose of reoccupancy, within three business days of the receipt of a written request by the owner.
4. Fire department suppression forces are responsible for emergency operations related to fire conditions. In any case involving fire conditions at a building or structure, fire suppression forces shall be responsible for fire suppression and structure control until such time as the fire is fully extinguished. After the fire conditions are fully extinguished, and after any necessary fire cause investigation, fire suppression forces shall transfer control and responsibility for the building or structure to the building official or other appropriate code official. After this transfer, all subsequent enforcement actions, such as securing the structure, restoring utilities, or ordering demolition, as well as all follow-up actions such as cost recovery, shall be the responsibility of the building official or code official. After the transfer of responsibility, fire cause investigators shall retain authority over and responsibility for investigation of the fire causation.
E. Structures Posted as Dangerous. Whenever the code official has determined that a building or structure is unfit for occupancy and orders the building or structure to be vacated, the code official shall post a written notice at or upon each exit of the building or structure. The notice shall be in substantially the following form:
DO NOT ENTER. UNSAFE TO OCCUPY. It is unlawful to occupy this building or structure, or to remove or deface this notice.
F. Abatement by Demolition. Abatement by demolition shall be ordered only where repair of the structure is unreasonable or impracticable, and demolition and removal of a structure or building is necessary to correct and abate a violation. Any action involving the demolition of a building or structure shall be commenced by issuing a notice of violation to the owner and any responsible person in accordance with the provisions of Section 16.50.060. (Ord. 19-16 § 2, 2019)
16.50.110 Administrative appeal.
A. Availability of Administrative Appeal. The provisions of this section, which permit administrative review of a notice of violation, only apply to: (1) violations of Chapter 16.20, Building Maintenance Standards; (2) violations of Chapter 16.25, Unsafe/Dilapidated Structures and Equipment; (3) designations of slum properties pursuant to Chapter 16.35; (4) imposition of a reinspection fee for the failure to comply with a notice of violation; (5) violations of this title wherein the town seeks the recovery of costs through the imposition of an assessment as provided in Section 16.50.100(B). No administrative appeal is available in a case involving a pending or adjudicated court proceeding.
B. Administrative Conference. An appeal shall be made to the code official in the following manner:
1. The applicant shall file a written appeal on the form provided by the code official and accompanied by a nonrefundable fee, as determined by separate ordinance, within 10 days after the date of service of the notice.
2. The appeal will be heard by the code official within 10 days at a regular, specified time.
3. The code official may use a hearing committee consisting of such staff as the code official deems appropriate or other technical persons to advise the code official on an administrative appeal.
4. The applicant shall provide adequate information to fully describe the conditions in question.
5. The applicant may, but is not required to, meet personally with the code official.
6. If the code official denies an appeal made under this section, the applicant must comply with the decision of the code official or may appeal to the board of adjustment according to subsection D of this section.
7. Failure to file an appeal in accordance with the provisions of this section constitutes a waiver of the right to an administrative conference. Additionally, any person who appeals directly to the board of adjustment, pursuant to subsection D of this section, waives the right to an administrative conference.
C. Modifications. The code official may grant a minor variance to the provisions specified in this title when there exists an unusual or unreasonable hardship resulting from a literal interpretation of this chapter. The code official shall first find that a special individual hardship makes the strict application of this chapter impractical, and the variance is in conformity with the intent and purpose of this title, and that the variance does not lessen health, life safety and fire safety requirements or any degree of structural integrity. The details of actions granting variances shall be recorded and maintained by the code official.
D. Appeals to the Board of Adjustment.
1. An owner or responsible person who is not or was not a party to a pending or adjudicated court proceeding involving a request for court ordered abatement of the violation (hereinafter, the “appellant”) may appeal a notice of violation or slum designation to the board of adjustment (hereinafter, the “board”), when it is claimed that:
a. Substantive errors exist in the notice of violation or the slum designation.
b. The method or schedule for correcting the violation as set forth in the notice of violation or the slum designation is unreasonable or arbitrary.
2. An owner or responsible person whose relationship with the property existed at the time of the recording of an assessment, and who is not or was not a party to a court proceeding which has established or may establish the amount of an assessment, may appeal the amount of the assessment for abatement to the board.
3. The appellant shall prepare the appeal in a written application as follows:
a. The appellant shall file a written appeal on the forms provided by the code official and accompanied by a nonrefundable fee, as determined by separate ordinance.
b. The appellant shall provide adequate information to fully describe the conditions in question.
c. The application for appeal shall contain each appellant’s signature and mailing address to which the decision of the board may be mailed.
d. The appellant shall provide a brief statement describing the legal interest of each of the appellants in the property involved in the proceeding.
e. The appellant shall verify by declaration under penalty of perjury the truth of the matters stated in the application
f. The appeal shall be filed within 30 days from the date of the service of the notice of violation or notice of designation as a slum property; provided, however, that if the building or structure is in such condition as to make it an imminent hazard and is posted and vacated in accordance with Section 16.50.100(D), an appeal shall be filed within 10 days from the date of the service of such notice.
4. Except for vacation orders made pursuant to Section 16.50.100(D), the timely filing of an appeal shall act as an automatic stay of enforcement of the notice of violation until the appeal is finally determined by the board. The filing of an appeal does not stay enforcement of any notice or order, or any provision thereof, where the notice or order includes an order to vacate.
5. As soon as practicable after receiving the written appeal, the board shall fix a date, time and place for the hearing of the appeal. Such date shall not be less than 10 days nor more than 60 days from the date the appeal was filed. Written notice of the time and place of the hearing shall be given at least 10 days prior to the date of the hearing to each appellant, either by causing a copy of the notice to be delivered personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal application.
6. Failure of any person to file an appeal in accordance with the provisions of this section shall constitute a waiver of the right to an administrative hearing of the appeal and adjudication of the notice of violation or notice of designation as a slum, and such person shall be stopped to deny the validity of any order or action of the town which could have been timely appealed.
7. The board shall decide any appeal immediately after the hearing, or within a reasonable time thereafter, but in no event shall the board keep an appeal under consideration for more than five days after the hearing. The board shall render its decision in writing, and the decision of the board shall be filed with the town clerk, with a copy to the appellant or applicant.
8. The decision of the board is final. No further appeal is available to town or county boards or officials. In cases involving the designation of a property as a slum, persons aggrieved by decisions of the board may appeal the decision pursuant to ARS Title 12, Chapter 7, Article 6 or pursuant to successor provisions relating to judicial review of administrative decisions. In all other cases, persons aggrieved by decisions of the board may apply to superior court for relief in accordance with the Arizona Rules of Procedure for Special Actions. In the absence of a court order, the filing of an appeal or special action will not stay the enforcement.
E. Powers, Duties and Responsibilities of the Board.
1. Appeals. On an appeal, the board may affirm, reverse or modify the notice of violation or notice of designation of a slum. In the event that the board modifies the notice, the following limitations and procedures shall apply:
a. If the appeal is taken on the grounds that the amount of time for correction of the violation given in the notice of violation is unreasonable, upon a showing by the appellant that the time is unreasonable, and upon a satisfactory showing by the appellant that there is a reasonable probability that the appellant will be able to correct the violation by the granting of additional time, the board may grant up to an additional 90 days to correct the violation. The board may permit town staff to grant additional time of up to 90 days if, during the initial time extension, the appellant has substantially complied with any plan or timetable approved by the board.
b. If the appeal is taken on the grounds that the method to correct the violation as specified in the notice of violation is unreasonable, the board may approve an alternate method of correction as long as the purposes of this title are fulfilled.
c. In the event the appeal is taken on the grounds that the cost of the abatement is unreasonable, the board may affirm, modify or reverse the lien or assessment amounts resulting from the abatement for good cause shown.
d. If the appeal is taken on the grounds that an order to vacate is unreasonable or arbitrary, the board may affirm, reverse or modify the order to vacate.
2. Adoption of Rules. The board may adopt rules necessary to carry out the duties and responsibilities imposed upon it by this section. Such rules shall not be inconsistent with the provisions of this title or the charter or code of the town of Huachuca City. (Ord. 19-16 § 2, 2019)