9.14.080 Encroachments Upon Public Lands.
(a) Violation. It is unlawful for any person to install, erect, construct, maintain or permit an encroachment structure (as defined herein) or to place manmade or natural materials (as defined in Section 12.21.010 of the Olathe Municipal Code) in, upon, under or over public lands, including, but not limited to, a public street, public highway, public right-of-way, public building, public park(s) and recreational area(s), or other public property. It shall be the duty and responsibility of any person responsible for the installation, erection, construction, or maintenance of an encroachment structure to remove such structures from public lands and restore the public lands to its original condition. In addition, any encroachment that is not removed as provided by this Section is hereby declared a nuisance.
(b) Definition. “Encroachment structures” shall include but not be limited to any tower, pole, poleline, pipe, pipeline, fence, billboard stand or building, retaining wall, play court, play field, playground equipment, irrigation structure or sprinkler system, trench, storage structure, garden, landscaping, trampoline, gazebo, swimming pool, curbing, paving, or other object, structure, or personal property.
(c) Application. This Section shall not apply to any encroachment structure installed, erected, constructed or maintained with approval of the Governing Body.
(d) Right of Entry. Any authorized officer or agent of the City, pursuant to this chapter, shall be allowed to enter onto any land within the City limits to investigate violations of this chapter or for the abatement of violations pursuant to this chapter.
(e) Responsible Party. The owner, representative, tenant or occupant of real property to which the encroachment structure is appurtenant, or the person responsible for installing, erecting, constructing or maintaining encroachment structures on public lands shall be responsible for the abatement of any unlawful acts defined by Section 9.14.080 (a).
(f) Public Officer; Notice to Abate. The City Manager shall designate a public officer to be charged with the administration and enforcement of this Section. The public officer shall authorize the investigation of violations of this Section. If it is determined that a violation of this Section exists, then the officer or authorized designee shall send a notice to remove the encroachment structure to the responsible party by certified mail, return receipt requested, to the last known address of such responsible party.
(g) Notice Requirements. The notice to remove the encroachment structure shall state:
(1) A common and/or legal description of the property adjacent to the encroachment structure and aerial photo of such property and the encroachment structure;
(2) The encroachment is in violation of the provisions of this Section;
(3) A description of the nature of the violation that would reasonably allow the responsible party to determine the nature of the violation to allow for self-abatement;
(4) The responsible party [in accordance with Section 9.14.080 (e)] shall have ten (10) days from the date of the mailing of the notice to either remove and abate the violation of this Section or request a hearing before the City’s designated representative on the matter;
(5) Upon written request received prior to the expiration of the notice period, the responsible party may request a hearing before a designated hearing officer of the City;
(6) If the responsible party fails to correct the violation or request a hearing within ten (10) days of the mailing of notice, the City or its authorized agent will remove and abate the violation of this Section by reasonable means and assess the costs of removal, including reasonable administrative costs, against such person. Notice of the total cost of such abatement shall be provided to the responsible party by certified mail, return receipt requested, or personal service. Total costs include, but are not limited to boundary surveys, construction permit fees, engineering or architectural fees, contracts, City staff time, demolition, removal, restoration, two-year maintenance costs, legal fees and accrued interest if payment is not received within thirty (30) days of invoice;
(7) If the total costs of removal are not paid within thirty (30) days, the costs will be added to the property tax of the responsible party as a special assessment in accordance with Charter Ordinance No. 71; and
(8) If any special assessments levied by the City in accordance with this chapter and Charter Ordinance No. 71 remain unpaid for a period of one (1) year or more after their initial levy, the City may collect the amount due in the same manner as a personal debt of the property owner to the City by bringing an action in the Johnson County District Court. Such actions may be maintained, prosecuted and all proceedings taken, including any award of post-judgment interest, in accordance with K.S.A. 16-204, and amendments thereto, to the same effect and extent as for the enforcement of an action for debt. All provisional remedies available in such actions shall be available to the City in the enforcement of the payment of such obligations. In such actions the City also shall be entitled to recover interest at the rate provided in K.S.A. 79-2968, and amendments thereto, from and after the date a delinquency occurs in the payment of special assessments levied under this chapter. The City may pursue collection both by levying a special assessment and in the manner provided by this Section, but only until the full cost and any applicable interest has been paid in full. The City may collect the costs in the manner provided at K.S.A. 12-1,115, as amended, by bringing an action in the appropriate court as a personal debt. The City may pursue both assessment and collection at the same time until the full cost, including applicable interest, court costs, attorneys’ fees and administrative costs have been paid in full.
(h) Abatement of Immediate Threat to the Public Health, Safety, and/or Welfare. When in the opinion of the public officer an immediate threat to the public health, safety, and/or welfare exists as a result of the existence and condition of an encroachment structure such officer may erect barricades or cause the encroachment structure to be taken down or otherwise made safe without delay and such action may, under such circumstances, be taken without prior notice to or hearing of the owners, agents or lienholders. The costs of any such action shall be assessed and paid in the manner set out in this Section.
(i) Abatement Hearing. If the responsible party makes a written request for hearing within the notice period, then the City shall immediately schedule a hearing during a regular business day within ten (10) calendar days from the receipt of the written request. The hearing shall be conducted by a designated hearing officer appointed by the City Manager who shall not be a subordinate of the officer who issued the notice of removal or conducted the investigation. The hearing officer shall receive evidence, review the investigation and prepare a written order. The order shall be sent by certified mail to all relevant parties within ten (10) days of the hearing (unless otherwise stated at the hearing) and prior to the City taking any action to abate the violation. The order shall describe the relevant facts relied upon, state the specific code provisions being relied upon should a violation be found, and state any such other stipulations, methods of abatement or orders as deemed necessary by the hearing officer.
In the event that the property boundary is disputed, the property owner may, at the owner’s expense, commission a boundary survey by a licensed and qualified surveyor. If there is a bona fide dispute as to the boundary, the City shall wait a reasonable time for the survey to be completed.
(j) Abatement by City. If the responsible party fails to request a hearing and fails to remove the violations within the notice period, then the City shall go onto the property to remove the violation in a reasonable manner. The City shall not be responsible for damage to property due to reasonable methods of gaining entrance onto the property or for damages to property in the reasonable exercise of its duty to the public to remove the violations. The City may use its own employees or contract for services to abate violations of this Section.
(k) Action in Municipal Court. If an authorized public officer determines that a violation of this Section exists, the officer may file a complaint with the Olathe Municipal Court for such violation. No other procedures are required as a prerequisite to the filing of a complaint.
(l) Penalty.
(1) Violation of this Section shall be a Class B Public Offense.
(2) Prosecution of any offender under this Section does not limit the City’s right to pursue assessment or collection of costs as stated in this Section, or by other laws.
(3) Each day that any violation of this Section continues shall constitute a separate offense.
(4) The City shall further have the authority to maintain suits or actions in any court of competent jurisdiction for the purpose of enforcing any provision of this Section and to seek civil penalties, and to abate nuisances maintained in violation thereof, and in addition to other remedies, institute injunction, mandamus, or other appropriate action or proceedings to prevent such unlawful nuisance or condition. (Ord. 13-23 § 1, 2013; Ord. 88-123 § 7, 1988; Ord. 83-75 § 2, 1983.)