Chapter 8.20
ADMINISTRATION AND ENFORCEMENT

Sections:

8.20.010    Public Officer – Duties.

8.20.020    Inspections – Right of entry – Unlawful interference.

8.20.030    Enforcement process for code violations.

8.20.010 Public Officer – Duties.

The City Administrator shall designate the Public Officer for purposes of exercising the powers relating to the administration and enforcement of property maintenance and nuisance provisions contained in this title. The Public Officer shall have the authority to exercise the powers necessary or convenient to investigate, administer and enforce said provisions, including but not limited to the following:

A. Investigate the conditions of structures in the City to determine which structures are unfit for human use or habitation or are detrimental to the public health, safety, and welfare.

B. Enter upon premises for the purpose of making inspections or for abatement of violations of this title; provided, that such entries shall be made in such manner as to cause minimal inconvenience to the person(s) in possession of the property, if any. In the event entry is denied or resisted, the Public Officer may obtain an order permitting entry from a court of competent jurisdiction.

C. The Public Officer may assign and fix the duties of such officer(s), agent(s) and employee(s) as the Public Officer deems necessary to carry out the purposes of this title and may delegate any of the aforementioned functions or powers to such officer(s), agent(s) or employee(s).

D. The Public Officer is authorized, subject to any adopted policies or administrative rules or regulations, to take the following actions to bring the subject property into compliance with this code or other ordinances of the City. Those actions include, without being limited to:

1. Abatement of the violation;

2. Vacation of the premises until the violation is corrected;

3. Prohibition of occupancy of the premises until the violation is corrected;

4. Issuance of a notice to appear in Municipal Court;

5. Injunctive or other relief in the District Court of Johnson County; and

6. Any other necessary or appropriate actions authorized by any applicable law, ordinance, statute, rule or regulation.

7. If no public necessity is found for the immediate demolition of the structure or premises, the Public Officer may take such other action, including, without limitation, causing the property to be cleaned, cleared, vacated, secured or otherwise repaired or any other action deemed necessary to promote the public health, safety or general welfare. (Ord. 2366 § 2)

8.20.020 Inspections – Right of entry – Unlawful interference.

Any Public Officer shall be allowed to enter onto any land within the City limits to investigate or abate violations of this title.

A. Right of Entry. Whenever necessary to make an inspection to enforce any of the provisions of this title, or whenever the Public Officer has reasonable cause to believe that there exists upon any land any condition in violation of this title, the Public Officer and any independent contractor(s) employed by the City and directed by the Public Officer are hereby authorized to enter upon any such land at reasonable hours to inspect the same or to perform any duty imposed upon the Public Officer by this title, including abatement of violations; provided, that if such structure or land is occupied, they shall first be presented proper credentials, and if such structure or land be unoccupied, they shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or land. If such entry is refused, the Public Officer shall have recourse to every remedy provided by law to secure entry.

B. Any authorized officer or agent or employee of the City pursuant to this title shall be allowed to enter onto any land within the City limits to abate violations of this title under the direction of the Public Officer.

C. Unlawful Interference. It shall be unlawful for any person to interfere with or to attempt to prevent the Public Officer, agents, such as City employees, or any independent contractor(s) employed by the City from entering any such structures or upon private property or from proceeding with such duties imposed upon the Public Officer by this title, including enforcement or abatement of violations of this title. (Ord. 2366 § 2)

8.20.030 Enforcement process for code violations.

A. Purpose. The purpose of this section is to establish a fair and efficient system to enforce the property maintenance and nuisance regulations of the City as established in this code; to provide fair warning and assistance to persons responsible for first-time violations of the code; to protect the health and safety of the public and the value of neighboring properties; to establish penalties for violations; and to establish the ability to cause the repair, alteration, improvement, removal or demolition (otherwise referred to as abatement or correction) of any affected structure or property.

B. Notice of Violation. Upon a determination by the Public Officer that a code violation exists or that a structure or property is unfit for human use or habitation or is detrimental to the public health, safety, and welfare, the Public Officer may issue a notice of violation to the code offender. Once a property, parcel, tract or lot has been found in violation and a notice sent by first class mail for this section, the notification shall be deemed a one-time yearly notification and no other violation notices shall be sent if the property falls back into violation. The original violation notice shall contain the information that this is a one-time only notice in order for this requirement to be valid. Notification of future abatements during the calendar year shall not be required if the one-time yearly notice has been sent. Any notice of violation issued shall include the following:

1. The name and address of the code offender, unless reasonable efforts fail to produce this information;

2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the alleged violation has occurred or is occurring;

3. A description of the alleged violation and a reference to the provision(s) of the code that has allegedly been violated;

4. The required corrective action as detailed in subsection (C) of this section and a date by which the correction must be completed, after which the City may prosecute and/or abate the unlawful condition in accordance with subsection (F) of this section;

5. The ability of the City to prosecute said code violation in Municipal Court, which may result in the assessment of a monetary penalty and/or imprisonment for each violation;

6. The ability of the City to abate such violations and assess the costs and expenses of such enforcement and abatement against the code offender;

7. That the Public Officer or any independent contractor(s) employed by the City are expressly authorized to enter upon private property at all reasonable hours to cause the repair, alteration, improvement, removal or demolition of any affected structure or property;

8. That it shall be unlawful for any person to interfere with or to attempt to prevent the Public Officer or any independent contractor(s) employed by the City from entering any such structures or upon private property or from proceeding with such abatement of violations of this title;

9. That a violation of any provisions of this title shall be handled as set out in subsection (G) of this section, General Penalty, unless otherwise specifically stated;

10. That if all code violations are corrected by the time set forth in the notice of violation, no notice to appear shall be issued. The Public Officer may grant a request for an extension of time or a modification of the notice of violation. If an extension is granted, the Public Officer shall document in writing the basis for the extension in a voluntary agreement as defined in subsection (E) of this section. Such request for extension or modification may be based on any reasonable factors that in the opinion of the Public Officer would warrant an extension of time or a modification of the required corrective action;

11. That upon written request received prior to the expiration of the corrective action date set forth in the notice of violation, the owner, occupant, or agent in charge of the property may request a hearing before the City Administrator or designee to be held within seven business days of the City’s receipt of the written request. The written request shall include the reason(s) that the owner, occupant or agent is relying upon to support its belief that no violation has occurred.

C. Specific Order to Abate Requirements by Type of Violation.

1. Chapter 8.80 GMC, Vegetation and Health Nuisances. Such order shall include the following:

a. That the owner, occupant, or agent in charge of the property is in violation of this title;

b. That the owner, occupant, or agent in charge of the property is ordered to cut the weeds, noxious weeds, rank vegetation, trees and shrubbery and eliminate by an appropriate sanitation method the accumulation of refuse and/or nuisance within seven days of the Public Officer sending a notice of violation to the property owner by first class mail, or in cases where the owner, representative or tenant is unknown, within 10 days after the order has been published by the City in a newspaper of general circulation in the County;

c. That upon written request received prior to the expiration of the order to abate period by the City Administrator or designee, the owner, occupant or agent in charge of the property may request a hearing before the Building Code Board of Appeals.

d. That if the owner, occupant, or agent in charge of the property does not cut the weeds, noxious weeds, rank vegetation, trees and shrubbery or eliminate by an appropriate sanitation method the accumulation of refuse and/or nuisance or fails to request a hearing, the City or its authorized agent may cut the weeds or eliminate the refuse and/or nuisance and assess the cost of cutting the weeds or the elimination of refuse and/or nuisance, including a reasonable administrative fee, against the owner, occupant, or agent in charge of the property;

e. That the owner, occupant, or agent in charge of the property will be given an opportunity to pay the assessment for 30 days after the abatement; and if it is not paid, it will be added to the property tax as a special assessment;

f. That the Public Officer should be contacted if there are any questions regarding the order;

g. That the Public Officer or authorized assistants are expressly authorized to enter upon private property at all reasonable hours for the purpose of cutting, destroying, and/or removing such weeds, noxious weed, rank vegetation, trees and shrubbery and accumulation of refuse or elimination of nuisance;

h. That if the property is used for agricultural purposes, the owner, occupant, or agent in charge of the property must provide evidence of the agricultural use pursuant to GMC 8.80.070 within seven days of the receipt of the order; and

i. Penalty. Any person violating any of the provisions of this title is guilty of a public offense and, upon conviction thereof, shall be punished as provided in subsection (G) of this section.

2. Chapter 8.90 GMC, Inoperable Vehicles. Such order shall include the following:

a. The notice of violation will require the inoperable vehicle to be removed or made operable within 14 days of the date on the violation notice. Failure to comply will result in removal of the inoperable vehicle to abate the blight and issuance of a notice to appear.

b. If the Public Officer or authorized assistant does enter a property to abate the inoperable vehicle violation by removing the vehicle, the City shall give notice to the owner, occupant, or agent in charge of the premises by restricted, certified mail, return receipt requested, of the costs of abatement of the nuisance. The notice shall state the payment of the costs is due and payable within 30 days following mailing of the notice.

D. Following issuance of a notice of violation, the owner, occupant or agent in charge of the property may request a hearing. Said request must be in writing, and must be received by the City prior to the expiration of the corrective action date in the notice of violation. The hearing shall be held before the City Administrator or designee within seven business days of the City’s receipt of the written request. The written request for hearing shall include the reason(s) that the owner, occupant or agent is relying upon to support its belief that no violation has occurred.

E. Voluntary Agreement. Once a notice of violation has been issued, the Public Officer may, but shall not be required to, attempt to secure voluntary correction of the code violation utilizing a voluntary agreement form signed by the code offender. A voluntary agreement is available, at the discretion of the Public Officer, prior to any initiation of prosecution in Municipal Court or abatement by the City.

1. The code offender’s signature on the voluntary agreement shall represent the following:

a. An agreement by the code offender to remediate all code violation(s) existing on the property;

b. An agreement that if the voluntary agreement is properly executed, any penalty associated with the violation shall be waived; provided, that the terms of said agreement are met;

c. An agreement by the code offender that the City may inspect the premises as may be necessary to determine compliance with the voluntary agreement;

d. An agreement by the code offender that the City may abate the violation and recover its costs and expenses (including attorneys’ fees, expert witness fees, and court costs) and/or a monetary penalty pursuant to this title;

e. An agreement by the code offender that satisfactory progress toward remediation of the violation(s) shall be required and any failure to so progress shall immediately terminate the voluntary agreement;

f. A stipulation that the voluntary agreement may be admitted as evidence in any legal proceeding relating to said code violation(s); and

g. An acknowledgement that if the terms of the voluntary agreement are not fulfilled, the City may issue a notice to appear and commence Municipal Court prosecution, which may result in the assessment of a monetary penalty commencing on the date set for correction and thereafter, plus all costs and expenses of abatement, as well as those associated with administration related to the correction of the code violation.

h. An extension of the corrective action date in the notice of violation or a modification of the required corrective action may be granted by the Public Officer if the code offender has shown due diligence and/or substantial progress in attempting to correct the violation, but unforeseen circumstances outside of the control of the code offender have delayed correction under the original conditions.

F. Notice to Appear. If the code violation is not corrected within the specified period after service of a notice of violation, or within any period of extension granted by the Public Officer, the Public Officer shall issue a notice to appear, setting a date and time for appearance in Municipal Court. For second and subsequent violations of the same code provision by the same code offender within the calendar year, the issuance of a notice of violation prior to the issuance of a notice to appear shall not be required.

1. It shall not be a defense to prosecution under this title that the code offender did not personally receive the notice of violation; provided, that it was served in compliance with subsections (B) and (G) of this section. Further, it shall not be a defense if the notice of violation does not include all information listed in subsections (B) and (G) of this section, so long as it included all material provisions and is in substantial compliance with subsections (B) and (G) of this section.

G. General Penalty. Whenever any offense is declared by any provision of this title, absent a specific or unique punishment prescribed, the offender shall be punished in accord with this section:

1. A fine of not more than $2,500; or

2. Imprisonment for not more than one year; or

3. Both such fine and imprisonment not to exceed subsections (G)(1) and (2) of this section.

4. Those found guilty of violating any provision of this code may have all licenses and permits issued by the City revoked.

5. Each day that a violation continues is deemed to be a separate offense.

H. Service Order to Abate.

1. The Public Officer or authorized assistants shall notify in writing the owner, occupant, or agent in charge of any premises in the City upon which a violation(s) of this title exist, by restricted, certified mail, return receipt requested, or by personal service, once per calendar year. If property is unoccupied and the owner is a nonresident, such notice shall be sent by certified mail, return receipt requested, to the last known address. Where the owner, representative or tenant is unknown and there is no resident agent, the City Clerk may publish the order of abatement in the official City newspaper.

2. Failure to sign for the certified mail, return receipt requested, notice from the City or failure to pick up said notice from the post office within 15 days shall not be deemed a lack of notice under this title where delivery was attempted and a record of this attempt was provided as required by procedures for restricted mail.

3. If there is a change in the record owner of title to property subsequent to the giving of notice pursuant to this subsection, the City may not recover any costs or levy an assessment for the costs incurred from an abatement on such property unless the new record owner of title for such property is provided notice as required by this section.

4. Exception for Chapter 8.80 GMC, Vegetation and Health Nuisances. If the owner, occupant, or agent in charge of the property has been ordered to remove or abate weeds, noxious weeds, rank vegetation, trees and shrubbery or accumulation of refuse and/or nuisance from the same property for two or more times within a calendar year, notice of the issuance of any further orders may be provided by such methods including, but not limited to, door hangers, conspicuous posting on the property, personal notification, telephone communication or first class mail. If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail.

I. Abatement by City – Cost – Lien.

1. Abatement by City. Under the following circumstances, the City may initiate abatement activities for code violations:

a. If the code offender fails to comply with a notice of violation, the Public Officer may cause the violation to be abated.

b. If the Public Officer makes a reasonable determination that an emergency situation exists in violation of this title, the City may immediately use the enforcement and abatement powers and remedies available pursuant to this section including, but not limited to, immediate abatement and/or the issuance of a notice to appear in Municipal Court. No other notification procedures are required as a prerequisite to any action taken in an emergency situation.

J. Abatement – Cost – Lien (K.S.A. 12-1617(f)).

1. The Public Officer or designee shall give notice to the owner, occupant, or agent in charge of the premises by restricted, certified mail, return receipt requested, of the costs of abatement to the property and/or structure. The notice shall state the payment of the costs is due and payable within 30 days following mailing of the notice.

2. Cost for abatement of any violation of this title shall be the actual costs of the abatement, plus an administrative fee of 25 percent or a minimum of $30.00.

3. If the costs of removal or abatement remain unpaid after 30 days following mailing of the notice, a record of the costs for the abatement shall be certified to the City Clerk who shall cause such costs to be assessed against the particular lot or piece of land on which such nuisance(s) were so removed, and against such lots or pieces of land in front of or abutting on such street or alley on which such nuisance(s) were so removed. The City Clerk shall certify the assessment to the County Clerk at the time other special assessments are certified for spreading on the tax rolls of the County. (Ord. 2519 §§ 1 – 3; Ord. 2366 § 2)