Chapter 8.5
ENVIRONMENTAL CODE
Sections:
8.5.02 Legislative findings of fact.
8.5.05 Public officer – Duties.
8.5.12 Hearing before governing body.
8.5.01 Title.
This chapter shall be known as the “Environmental Code.” (Ord. 719. Code 1996 § 8-201)
8.5.02 Legislative findings of fact.
The governing body has found that there exist within the city unsightly, unsafe or hazardous conditions due to:
(a) Dilapidation, deterioration or disrepair of walls, siding, fences, roofs or any other structure exteriors;
(b) Accumulations of debris and other matter increasing the hazards of accidents or other calamities;
(c) Uncleanliness; unsightly stored or parked material, equipment, supplies, machinery, or parts thereof;
(d) The presence of filth, excrement, or the unreasonable accumulation of lumber, rocks, dirt, cans, paper, trash, metal or any other offensive or disagreeable thing, material or substance placed, left or deposited upon any street, alley, sidewalk, park, public or private enclosure or property whether vacant or occupied;
(e) Any dead animal not removed within 24 hours after death;
(f) Any place, structure or substance which emits or causes any offensive, disagreeable or nauseous odors, or which is contaminated by dangerous substances, including from controlled substances which are illegal to possess or manufacture under Kansas law;
(g) Any stagnant pond or pool of water or other liquefied substance;
(h) Any abandoned icebox, refrigerator or deep freezer kept on the premises under the control of any person or deposited in the sanitary landfill, if any, or any icebox, refrigerator or deep freezer not used for the purposes usually associated with such appliance, unless the door, opening or lid thereof is unhinged or unfastened and removed therefrom;
(i) Any appliance, including but not limited to an icebox, refrigerator, deep freezer, dishwasher, stove, washer or dryer, which remains on any premises for greater than seven days while such appliance is not also enclosed in a structure made of completely surrounding walls and a roof sufficient to remove the appliance from the sight of neighbors and persons traveling streets adjoining the property upon which such appliance is located;
(j) Any furniture manufactured or created in a manner such that a reasonable person would conclude it was not designed or intended for use as an item of outdoor furniture, including but not limited to couches and recliners, when such furniture remains on any premises for greater than seven days while such furniture is not also enclosed in a structure made of completely surrounding walls and a roof sufficient to remove such furniture from the sight of neighbors and persons traveling streets adjoining the property upon which such furniture is located;
(k) All articles or things whatsoever caused, kept, maintained or permitted by any person to the injury, annoyance or inconvenience of the public or of any neighborhood; any fence, structure, item or substance placed upon or being upon a street, sidewalk, alley or public ground so as to obstruct the same, except as permitted by the laws of the city or any other applicable and controlling laws. (Ord. 719. Code 1996 § 8-202)
8.5.03 Purpose.
The purpose of this chapter is to protect, preserve, upgrade, and regulate the environmental quality of industrial, commercial and residential neighborhoods, in this city, by prohibiting conditions which are injurious to the health, safety, welfare or aesthetic characteristics of the neighborhoods and to provide for the administration and enforcement thereof. (Ord. 719. Code 1996 § 8-203)
8.5.04 Definitions.
The words and phrases listed below when used in this chapter shall have the following meanings:
“Accessory structure” means a secondary structure detached from the principal structure but on the same premises, including, but not limited to, garages, sheds, barns, or outbuildings.
“Commercial” or “industrial” means used or intended to be used primarily for other than residential purposes.
“Dilapidation,” “deterioration” or “disrepair” shall mean any condition characterized by, but not limited to: holes, breaks, rot, decay, crumbling, cracking, peeling or flaking paint, rusting, or other evidence of physical damage, neglect, lack of maintenance, excessive use or weathering.
“Exterior” means those parts of a structure which are exposed to the weather or subject to contact with the elements; including, but not limited to: sidings, facings, veneers, masonry, roofs, foundations, porches, screens, shutters, windows, doors or signs.
“Garbage” means without limitation any accumulation of animal, fruit or vegetable waste matter that results from the handling, preparation, cooking, serving, delivering, storage, or use of foodstuffs.
“Person” means any individual, corporation, partnership, unincorporated association, other business organization, committee, board, trustee, receiver, agent or other representative who has charge, care, control or responsibility for the maintenance of any premises, regardless of status as owner, renter, tenant, lessee, occupant, whether or not in possession.
“Premises” means any lot, plot or parcel of land including any structures thereon.
“Refuse” means garbage or trash.
“Residential” means used or intended to be used primarily for human habitation.
“Structure” means anything constructed or erected which requires location on the ground or is attached to something having a location on the ground including any appurtenances belonging thereto.
“Trash” means combustible waste consisting of, but not limited to, papers, cartons, boxes, barrels, wood, excelsior, furniture, bedding, rags, leaves, yard trimmings, or tree branches and noncombustible waste consisting of, but not limited to, metal, tin, cans, glass, crockery, plastics, mineral matter, ashes, clinkers, or street rubbish and sweepings.
“Weathered” means deterioration caused by exposure to the elements.
“Yard” means the area of the premises not occupied by any structure. (Ord. 719. Code 1996 § 8-204)
8.5.05 Public officer – Duties.
“Public officer” means the mayor of the city or the mayor’s authorized appointment or authorized representative. The public officer is hereby authorized to exercise such powers as may be necessary to carry out the purposes of this chapter, including the following:
(a) Inspection of any structure which appears to be in violation of any provisions of this chapter and to investigate matters material to the determination as to whether a violation of this chapter has occurred;
(b) Possess the authority to enter upon premises at reasonable hours for the purpose of making such inspections. Entry shall be made so as to avoid any unreasonable hardship or burden upon any person in possession of the structure. If entry is denied, the city or the public officer may seek an order for this purpose from a court of competent jurisdiction;
(c) Comply with orders of the governing body as to the regular reporting to the governing body of structures the public officer believes may be in violation of this chapter;
(d) Receive petitions as provided in this chapter. (Ord. 719; amended during 2016 recodification. Code 1996 § 8-205)
8.5.06 Procedure – Petition.
The public officer shall make inspection and investigation of premises wherein a violation hereof may be found upon receiving a complaint in writing signed by five or more persons stating that a violation hereof exists and describing the same and where it is located. The public officer may also initiate inspection and investigation whenever the public officer is informed by city employees, city officers or city appointments that a violation hereof may exist upon certain premises or when information known to the public officer causes such public officer to believe a violation may exist. Upon making any inspection and investigation if such reveals that a violation may exist the public officer shall make a report of allegations of conditions possibly constituting a nuisance. (Ord. 719. Code 1996 § 8-206)
8.5.07 Right of entry.
It shall be a violation of this chapter to deny the public officer the right of access and entry upon private property at any reasonable time for the purpose of making inspection and investigation to determine if a violation hereof exists. Such violation is punishable by a fine not to exceed $250.00 for every such denial of inspection or investigation. A separate offense of denial of inspection or investigation shall be committed for each day that expires after the denial of a request for access for inspection or investigation is made to the public officer until such time as the person or entity denying such access to the public officer communicates to the public officer, by delivery to the police department of a signed writing stating, in effect, that such access is no longer denied, said writing to be signed by the person or authorized representative of the entity that has denied such access. (Ord. 719. Code 1996 § 8-207)
8.5.08 Unlawful acts.
It shall by unlawful for any person or entity to permit or cause to exist upon the premises of property, controlled, owned or occupied by such person or entity, any of the unsightly, unsafe or hazardous conditions stated in BSMC 8.5.02(a) though (k). For the purpose of fair and efficient enforcement and administration, such unlawful conditions shall be classified as follows: exterior conditions (structure) which shall be the conditions prohibited under BSMC 8.5.02(a); and exterior conditions (yard) which shall be any of the conditions prohibited under BSMC 8.5.02(b) through (k). (Ord. 719. Code 1996 § 8-208)
8.5.09 Notice.
Any person or entity found by the public officer to be in violation of BSMC 8.5.08 shall be sent a notice of such violation by the public officer. The notice shall be sent restricted mail, postage prepaid, return receipt requested or by personal service upon the owner or occupant or such owner’s duly authorized agent. In the event the whereabouts of such person or entity are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the public officer and filed with the city clerk, and the serving of the resolution shall be made by publishing the same once in the official city newspaper and by posting a copy of the resolution on the premises where such conditions exist. The notice shall state:
(a) The condition or conditions that have caused a violation of this chapter; and
(b) That the person or entity shall have:
(1) Ten days from the date of the mailing of this notice to alleviate the exterior conditions (yard) violation; and/or
(2) Thirty days from the date of the mailing of this notice to alleviate the exterior conditions (structure) violation; or
(3) In the alternative to subsection (b)(1) or (2) of this section, 10 days from the date of the mailing of the notice to request, as provided in BSMC 8.5.12, a hearing before the governing body on the matter; and
(c) That the failure to alleviate or correct the condition or to request a hearing may result in abatement of the condition by the city according to BSMC 8.5.11 with the costs assessed against the property under BSMC 8.5.14. (Ord. 719. Code 1996 § 8-209)
8.5.10 Penalty.
The public officer or city attorney may file a complaint in the municipal court against any person believed to be in violation of BSMC 8.5.08. Upon such complaint in the municipal court, any person found to be in violation of BSMC 8.5.08 shall upon conviction be punished by a fine of not less than $50.00 nor more than $500.00, or by imprisonment for not more than 30 days, or by both such fine and imprisonment, for each offense. For the purposes of this chapter, a separate offense shall be deemed committed on each day during or on which such violation is permitted to exist. The public officer or city attorney shall not be required to have first provided notice and an opportunity to abate the condition complained of, as provided by BSMC 8.5.09, prior to filing and proceeding to trial upon a criminal complaint under this section. (Ord. 719. Code 1996 § 8-210)
8.5.11 Abatement.
In addition to, or as alternative to, prosecution as provided in BSMC 8.5.10, the public officer may seek to remedy violations of this chapter in the following manner. If a person or entity to whom notice has been sent pursuant to BSMC 8.5.09 has neither alleviated the conditions causing the alleged violation nor requested a hearing before the governing body within the time periods specified in BSMC 8.5.09, the public officer may present a resolution to the governing body for adoption authorizing the public officer or other agents of the city to abate the conditions causing the violation at the end of 20 days after passage of the resolution, but in no event shall abatement occur unless 10 days have expired after service upon the person or entity of the resolution consistent with the methods of service specified below. The resolution shall further provide that the costs incurred by the city shall be assessed against the property as provided in BSMC 8.5.14.
A copy of the resolution shall be served upon the person or entity in violation in one of the following ways within 10 days, or as soon thereafter as is reasonable under the circumstances, after passage of the said resolution above:
(a) Personal service upon the person or entity in violation, or by personal service of the resolution upon some person of suitable age and discretion found at the person’s or entity’s residence or business, as is applicable;
(b) Service by restricted mail, postage prepaid, return receipt requested; or
(c) In the event the whereabouts of such person or entity are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the public officer and filed with the city clerk, and the serving of the resolution shall be made by publishing the same once in the official city newspaper and by posting a copy of the resolution on the premises where such conditions exist. (Ord. 719. Code 1996 § 8-211)
8.5.12 Hearing before governing body.
If a hearing is requested within the 10-day period as provided in BSMC 8.5.09, such request shall be made in writing to the governing body, by delivery to the city clerk’s office within the said 10-day period. Failure to make a timely request for a hearing shall constitute a waiver of the person’s or entity’s right to contest the findings of the public officer before the governing body. The hearing shall be held by the governing body as soon as possible after the filing of the request therefor, and the person or entity shall be advised by the city of the time and place of the hearing at least five days in advance thereof. Such notice may be provided by mailing by first class mail of the notice of the time and place of the hearing to the person or entity at the last known address thereof. At any such hearing, the person or entity may be represented by counsel, and the person or entity and the city may introduce such witnesses and evidence as is deemed necessary and proper by the governing body. The hearing need not be conducted according to the formal rules of evidence. Upon conclusion of the hearing, the governing body shall record its determination of the matter by means of adopting a resolution and shall record its determination of the matter by means of adopting a resolution and serving the resolution in a manner such as those provided in BSMC 8.5.11. (Ord. 719. Code 1996 § 8-212)
8.5.13 Appeals.
Any person affected by any determination of the governing body under BSMC 8.5.11 or 8.5.12 may appeal such determination in the manner provided by K.S.A. 60-2101, and amendments thereto. (Ord. 719. Code 1996 § 8-213)
8.5.14 Costs assessed.
If the city abates the conditions in violation of this chapter pursuant to BSMC 8.5.11, the cost of abatement shall be charged against the lot or parcel of ground on which the conditions were located. The city clerk shall, at the time of certifying other taxes to the county clerk, certify the costs as provided in this section. The county clerk shall extend the same on the tax roll and it shall be collected by the county treasurer and paid to the city as other city taxes are collected and paid. (Ord. 719. Code 1996 § 8-214)
8.5.15 Construction.
Nothing in this chapter shall be construed to abrogate or impair the powers of the courts or of any department of the city to enforce any provisions of its laws nor to prevent or punish violations thereof. The powers conferred by this chapter shall be in addition to and supplemental to the powers conferred by the Kansas Constitution, by any other law or by ordinance. (Ord. 719. Code 1996 § 8-215)
8.5.16 Severability.
If any part of parts of this chapter shall be held to be invalid, such invalidity shall not affect the validity of the remaining parts of this chapter. The governing body hereby declares that it would have passed the remaining parts of this chapter if it had known that such part or parts thereof would be declared invalid. (Ord. 719. Code 1996 § 8-216)