Chapter 8.15
NUISANCES

Sections:

8.15.010    Purpose.

8.15.020    Definitions.

8.15.030    Nuisance – Definition.

8.15.040    Exceptions.

8.15.050    Responsibility for nuisances.

8.15.060    Nuisance abatement – Administration.

8.15.070    Finding of nuisance.

8.15.080    Voluntary correction.

8.15.090    Administrative citation.

8.15.100    Other remedies.

8.15.110    Appeals.

8.15.010 Purpose.

The purpose of this chapter is to provide a means for the city and individuals to identify nuisances within the city and to provide a means for correcting or abating the nuisances. The city needs the ability to abate nuisances in order to protect the health and safety of the public to foster neighborhood stability, to preserve the appearance, character and beauty of neighborhoods, to encourage community pride, to preserve the value of property, and to protect the general welfare of the city and its citizens, businesses and visitors. This chapter provides for progressive enforcement measures to abate nuisances; the most aggressive forms of enforcement are generally reserved for the most recalcitrant violators of this chapter. [Code 2000 § 20-1-1].

8.15.020 Definitions.

“Abate” means to repair, replace, remove, destroy, correct or otherwise remedy a condition which constitutes a nuisance by such means, in such a manner and to such an extent as the enforcement officer determines is necessary in the interest of the general health, safety and welfare of the community.

“Completion date” means the date by which the responsible person must abate a nuisance. The completion date is originally set by the enforcement officer in the voluntary correction agreement or in the administrative citation. The completion date may be modified by the hearing officer.

“Emergency” means a situation which, in the opinion of the enforcement office, requires immediate action to prevent or eliminate an immediate threat to the health or safety of a person or property.

“Enforcement officer” means a code enforcement officer(s) hired by the city to enforce this chapter.

“Hearing officer” means the person(s) designated to hear appeals pursuant to this chapter. The hearing officer shall be the West Point city manager or his or her designee. The designee need not be a city employee. The city manager may also appoint a committee to function as the hearing officer.

“Owner” means any person who, alone or with others, has title or interest in any building or premises, with or without accompanying actual possession thereof. For the purpose of giving notice, the term “owner” also includes any person in physical possession.

“Premises” means a plot of ground, whether occupied or not.

“Property” means a building or structure, or the premises on which the building or structure is located, or undeveloped land.

“Public place” means an area generally visible to public view and includes alleys, bridges, driveways, parking lots, parks, plazas, sidewalks, streets, and buildings open to the general public, including those that serve food or drink or provide entertainment, and the doorways and entrances to buildings or dwellings and the grounds enclosing them.

“Responsible person” means the person(s) responsible for correcting or abating a nuisance pursuant to this chapter. The responsible person includes the property owner and any person who causes or permits a nuisance to occur or remain upon property in the city, and includes but is not limited to the owner(s), lessor(s), or other person(s) entitled to control, use and/or occupy property where a nuisance occurs. In cases where there are more than one responsible persons, the city may proceed against one, some or all of them. [Code 2000 § 20-1-2].

8.15.030 Nuisance – Definition.

This section defines “nuisance” by providing five general definitions of what constitutes a nuisance (subsection (A) of this section), and then providing specific examples of situations, conduct or activities that constitute nuisances (subsection (B) of this section). The purpose of the general definitions is to allow the city to classify an offending situation, conduct or activity as a nuisance, even though the situation, conduct or activity may not be listed as a nuisance in the specific examples. The first three general definitions are taken directly from Utah State law. The purpose of listing the specific examples is to identify some of the specific situations, conduct, and activities that the city intends to abate as nuisances. All encompassing is Chapter 18.10 WPCC, Right to Agricultural Activities. Chapter 18.10 WPCC will be an exception to the definitions of this chapter.

A. General Definitions of Nuisance. Any activity that meets any one or more of the five definitions set forth below shall constitute a nuisance if it occurs within the city of West Point:

1. “Nuisance,” as defined in Section 78-38-1(1), Utah Code Annotated 1953, means anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.

2. “Nuisance,” as defined in Section 76-1-801, Utah Code Annotated 1953, means any item, thing, manner, or condition whatsoever that is dangerous to human life or health or renders soil, air, water, or food impure or unwholesome.

3. “Nuisance,” as defined in Section 76-10-803, Utah Code Annotated 1953, means unlawfully doing any act or omitting to perform any duty, which act or omission:

a. Annoys, injures, or endangers the comfort, repose, health, or safety of three or more persons;

b. Offends public decency;

c. Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, stream, canal, or basin, or any public park, square, street, or highway; or

d. In any way renders three or more persons insecure in life or the use of property.

An act which affects three or more persons in any of the ways specified in this subsection is still a nuisance regardless of the extent to which the annoyance or damage inflicted on individuals is unequal.

4. “Nuisance” means a condition which:

a. Wrongfully annoys, injures, or endangers the comfort, repose, health or safety of others; or

b. Unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any public park, square, street or highway, or any other public place; or

c. In any way renders other persons insecure in life, or in the use of property, and which affects the rights of an entire community or neighborhood, although the extent of the damage may be unequal.

5. Anything specifically listed as a nuisance in subsection (B) of this section.

B. Nuisances Enumerated. Every situation, conduct or activity listed below constitutes a nuisance and may be abated pursuant to this chapter. The listed examples are not exhaustive; a situation, conduct or activity not listed below, but coming within one of the general definitions of nuisance listed above, shall also constitute a nuisance. The first six listed nuisances are also listed as nuisances pursuant to Section 78-38-9, Utah Code Annotated 1953:

1. Drug Houses. Every building or premises where the unlawful sale, manufacture, service, storage, distribution, dispensing, or acquisition of any controlled substance, procurer, or analog specified in Title 57, Chapter 37, Utah Code Annotated 1953 (Utah Controlled Substances Act), occurs.

2. Gambling. Every building or premises where gambling is permitted to be played, conducted, or dealt upon as prohibited in Title 76, Chapter 10, Part 11, Utah Code Annotated 1953 (Gambling), which creates the conditions of a nuisance as defined in subsection (A)(1) of this section.

3. Gangs. Every building or premises wherein criminal activity is committed in concert with two or more persons as provided in Section 76-3-203.1, Utah Code Annotated 1953.

4. Party House. Every building or premises where parties occur frequently which create the condition of a nuisance as defined in subsection (A)(1) of this section.

5. Prostitution. Every building or premises where prostitution or the promotion of prostitution is regularly carried on by one or more persons as provided in Title 76, Chapter 10, Part 13, Utah Code Annotated 1953 (Prostitution).

6. Weapons. Every building or premises where a violation of Title 76, Chapter 10, Part 5, Utah Code Annotated 1953 (Weapons), occurs on the premises.

7. Unsafe Condition. A condition that unreasonably or unlawfully affects the health or safety of one or more persons.

8. Fire Hazard. A fire hazard.

9. Noxious Emanations. Emanations of noxious or unreasonable odors, fumes, gas, smoke, soot or cinders.

10. Noxious Weeds. Noxious weeds located on vacant lots or other property, along public sidewalks or the outer edge of any public street, or weeds in any other location which constitute a fire hazard.

11. Refuse. Keeping or storing of any refuse or waste matter which interferes with the reasonable enjoyment of nearby property.

12. Stagnant Water. Polluted or stagnant water which constitutes an unhealthy or unsafe condition.

13. Improper Accumulations. Accumulation or soil, litter, debris, plant trimmings, or trash, visible from the street or an adjoining property.

14. Accumulation of Junk. Accumulation of used or damaged lumber; junk; salvage materials; abandoned, discarded or unused furniture; stoves, sinks, toilets, cabinets, or other fixtures or equipment stored so as to be visible from a public street, alley, or adjoining property. However, nothing herein shall preclude the placement of stacked firewood for personal noncommercial use on the premises.

15. Attractive Nuisances. Any attractive nuisance dangerous to children and other persons including, but not limited to, abandoned, broken, or neglected household appliances, equipment and machinery, abandoned foundations or excavations, or improperly maintained or secured pools.

16. Vegetation. Dead, decayed, diseased, or hazardous trees, weeds, hedges, and overgrown or uncultivated vegetation which is in a hazardous condition, is an obstruction to pedestrian or vehicular traffic, or which is likely to harbor rats, vermin or other pests.

17. Dust. Any premises which causes excessive dust due to lack of landscaping, nonmaintenance or other cause.

18. Improper Storage. The keeping, storing, depositing or accumulation on the premises or in the public right-of-way for an unreasonable period of time of dirt, sand, gravel, concrete, or other similar materials, or maintenance of such material on public right-of-way. Material stored as part of an active construction project shall not be considered a nuisance.

19. Garbage Can. The leaving of any garbage can or refuse container in the street, other than on collection day, for more than 72 hours after the collection day.

20. Construction Equipment. Construction equipment or machinery of any type or description parked or stored on property when it is readily visible from a public street, alley or adjoining property, except while excavation, construction or demolition operations covered by an active building permit are in process on the subject property or an adjoining property, or where the property is zoned for the storage of construction equipment and/or machinery.

21. Improper Sign. Improper maintenance of a sign, or signs which advertise a business that is no longer existing on the property.

22. Improper Parking or Storage.

a. “Inoperable vehicles” shall be defined in this section as:

i. Unregistered vehicle for operation on public roads by the state of Utah or any other state that has expired for over a period of four months; or

ii. Wrecked, damaged, or otherwise lacking in essential parts or equipment for safe and lawful travel on public roads.

b. It shall be unlawful for a person to cause or permit any inoperable vehicles, boats, trailers or vehicle parts, including recreational vehicles, on a premises or in the public right-of-way unless in connection with a licensed and lawfully situated business, or as otherwise excepted or permitted by the provisions of this or other chapters.

c. Inoperable vehicles or vehicle parts may be kept within an enclosed structure, such as a garage or barn; provided, that such building does not impose a threat to safety or nuisance, and complies with all city and state ordinances, building codes, and zoning codes at the time of the building’s original construction. Carports are not considered “enclosed” for the purpose of this section.

d. Despite any other provision, it shall be permissible for any person to keep one inoperable vehicle on his or her property, so long as:

i. The vehicle is kept behind at least a six-foot opaque fence or structure which has the effect of blocking the view of the vehicle from public or private property;

ii. The vehicle’s placement does not constitute a health or environmental hazard.

23. Hazardous Conditions. Any wall, sign, fence, gate, hedge, or structure maintained in such condition of deterioration or disrepair as to constitute a hazard to persons or property.

24. Graffiti. Graffiti which remains on the exterior of any building, fence, sign, or other structures and is visible from a public street.

25. Improper Maintenance. Maintenance of buildings and/or structures in such condition as to be deemed defective or in a condition of deterioration or disrepair including, but not limited to:

a. Any building or structure which is unfit for human habitation, or which is an unreasonable hazard to the health of people residing in the vicinity thereof, or which presents an unreasonable fire hazard in the vicinity where it is located;

b. Any building or structure set up, erected, constructed, altered, enlarged, converted, moved or maintained contrary to the provisions of city ordinances, or any use of land, building or premises in violation of city ordinances;

c. Buildings which are abandoned, partially destroyed, or left in an unreasonable state of partial construction for a period of six months or longer. An “unreasonable state of partial construction” is defined as any unfinished building or structure where the appearance or condition of the building or structure does not meet the requirements for finished buildings or structures as required by applicable city ordinances or building codes. The building or structure shall not be considered to be a nuisance if it is under construction;

d. Buildings having dry rot, warping, termite infestation, decay, excessive cracking, peeling, or chalking, as to render the building unsightly and/or in a state of disrepair;

e. Buildings with missing doors and/or windows containing broken glass and/or no glass at all where the window is of a type which normally contains glass;

f. Building exteriors, walls, fences, gates, driveways, sidewalks, walkways, signs, ornamentation, or alleys maintained in such condition as to render them unsightly and/or in a state of disrepair; and

g. Buildings or conditions that violate any building, electrical, plumbing, fire, housing, or other codes adopted by the city.

26. City Code Nuisances. Any violation of a West Point City Code section that expressly declares a specific situation, conduct or activity to be a nuisance.

27. Alcohol. Every property or premises not licensed under applicable state law or city ordinances where any intoxicating liquors or alcohol are kept for unlawful use, sale or distribution.

28. Inappropriate Conduct. Every property or premises where there exists an environment which causes, encourages or allows individuals or groups of individuals to commit one or more of the following acts on the property, premises or adjacent public place, including, but not limited to:

a. Illegally consuming intoxicating liquor or alcohol;

b. Publicly urinating or defecating;

c. By physical action, intentionally causing or attempting to cause another person to reasonably fear imminent bodily injury or the commission of a criminal act upon their person or upon property in their immediate possession;

d. Engaging in acts of violence, including fighting amongst themselves;

e. Discharging a firearm or explosive in violation of city ordinance or state law;

f. Creating unreasonable noise which disturbs others;

g. Intentionally obstructing pedestrian, equestrian or vehicular traffic; or

h. Soliciting acts of prostitution.

29. Dangerous Conditions. Any fence, wall, shed, deck, house, garage, building, structure or any part of any of the aforesaid; or any tree, poles, smokestack; or any excavation, hole, pit, basement, cellar, sidewalk, subspace, dock, or loading dock; or any lot, land, yard, premises or location which in its entirety, or in any part thereof, by reason of the condition in which the same is found or permitted to be or remain, will or may endanger the health, safety, life, limb or property, or cause any hurt, harm, inconvenience, discomfort, damage or injury to one or more individuals in the city, in any one or more of the following particulars:

a. By reason of being a menace, threat and/or hazard to the general health and safety of the community;

b. By reason of being a fire hazard;

c. By reason of being unsafe for occupancy, or use on, in, upon, about or around the aforesaid property;

d. By reason of lack of sufficient or adequate maintenance of the property, and/or being vacant, any of which depreciates the enjoyment and use of the property in the immediate vicinity to such an extent that it is harmful to the community in which such property is situated or such condition exists.

30. Illegal Accessory Apartments. Any violation of Chapter 17.75 WPCC, Accessory Apartment Conditional Use.

31. Family. Keeping or allowing people at a premises in violation of the city’s single-family residence requirements.

32. Parking on Landscaping. Parking in an area required to be landscaped by city ordinance.

33. Banner Signs. Keeping or allowing banner signs in violation of city ordinance.

34. Required Landscaping. Failure to install or maintain landscaping required by city ordinance.

35. Trees Overhanging the Sidewalk or Street. Trees and bushes must be cut and maintained seven feet above the sidewalk and 13 feet, six inches above the street. [Ord. 12-05-2017A § 1; Ord. 12-06-2016A § 1; Code 2000 § 20-1-3].

8.15.040 Exceptions.

No act which is done or maintained under the express authority of an authoritative statute, ordinance or court ruling shall be declared a nuisance. [Code 2000 § 20-1-4].

8.15.050 Responsibility for nuisances.

The responsible person(s) is responsible for abating nuisances pursuant to this chapter. Any person, whether as owner, agent, or occupant, who creates, aids in creating, or contributes to a nuisance, or who supports, continues, or retains a nuisance, is responsible for the nuisance and is therefore a responsible person pursuant to this chapter. Every successive owner or tenant of a property or premises who fails to abate a continuing nuisance upon or in the use of such property or premises caused by a former owner or tenant is responsible therefor in the same manner as the one who first created it. [Code 2000 § 20-1-5].

8.15.060 Nuisance abatement – Administration.

This chapter shall be administered and enforced by the planning department. In case of nuisances involving dangerous buildings or violations of codes typically administered and enforced by the planning department, this chapter may also be administered and enforced by the planning department. [Code 2000 § 20-1-6].

8.15.070 Finding of nuisance.

If an enforcement officer finds that a nuisance exists, the enforcement officer shall attempt to have the responsible person abate the nuisance. Although the enforcement office’s first step in correcting or abating the nuisance will always be to obtain voluntary compliance, the enforcement office may pursue any remedy or combination of remedies available pursuant to this chapter, state law or common law in order to abate the nuisance. Nothing in this section shall be interpreted to prohibit the city from engaging in its standard prosecution practices. Therefore, the city may prosecute violators of city ordinances or state laws without first having to comply with the provisions of this chapter, even though the activity or conduct prosecuted may also constitute a nuisance under this chapter. Nothing in this chapter shall be interpreted to prevent the city from enforcing applicable city ordinances, building codes, or the Abatement of Dangerous Buildings Code without first treating the offending conduct, situation or activity as a nuisance pursuant to this chapter. [Code 2000 § 20-1-7].

8.15.080 Voluntary correction.

This section applies wherever the enforcement office determines that a nuisance exists.

A. Contact. Before taking other steps to abate the nuisance, the enforcement officer shall make a reasonable attempt to secure voluntary correction or abatement of the nuisance by:

1. Contacting the responsible person, where possible;

2. Explaining the nuisance;

3. Requesting the responsible person to abate the nuisance; and

4. Agreeing to terms with the responsible person to abate the nuisance.

B. No Agreement. If the enforcement officer and the responsible person cannot agree to terms for correcting or abating the nuisance, the enforcement officer may still abate the nuisance using one of more of the procedures set forth in this chapter, state law, or common law.

C. Voluntary Correction Agreement. If the enforcement officer and the responsible person agree to terms for abating the nuisance, they shall enter into a signed voluntary correction agreement. The voluntary correction agreement is a contract between the city and the responsible person in which the responsible person agrees to abate the nuisance within a specified time and according to specified conditions. The voluntary correction agreement shall include the following terms:

1. The name and address of the responsible person;

2. The street address of the nuisance, or a description sufficient to identify the building, structure, premises, or land upon or within which the nuisance is occurring;

3. A description of the nuisance;

4. The necessary corrective action to be taken, and a date or time by which correction must be complete;

5. An agreement by the responsible person that the city may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement;

6. An agreement by the responsible person that the city may abate the nuisance and recover its costs and expenses to abate the nuisance, as well as a monetary fine pursuant to this chapter from the responsible person, if terms of the voluntary correction agreement are not met;

7. An agreement by the responsible person acknowledging that he/she waives the right to appeal the enforcement officer’s finding that the nuisance exists and waives the right to appeal the specific correction action required in the voluntary correction agreement; and

8. An agreement by the responsible person that failure to comply with the voluntary correction agreement may be grounds for criminal prosecution.

The enforcement officer may grant an extension of the time limit for correcting or abating the nuisance if the responsible person has shown due diligence and/or substantial progress in correcting or abating the nuisance but unforeseen circumstances render abatement under the original conditions unattainable. If the responsible person complies with the terms of the voluntary correction agreement, the city shall take no further action against the responsible person related to the nuisance described in the voluntary correction agreement unless the nuisance recurs. [Code 2000 § 20-1-8].

8.15.090 Administrative citation.

A. Administrative Citation. When the enforcement officer determines that a nuisance exists, and is unable to secure voluntary correction pursuant to WPCC 8.15.080, the enforcement officer may issue an administrative citation to the responsible person. The enforcement officer may issue an administrative citation without having attempted to secure voluntary correction as provided in WPCC 8.15.080 under the following circumstances:

1. When an emergency exists; or

2. When the enforcement officer is unable to locate or determine the identity of the responsible person.

B. Content of Administrative Citation. The administrative citation shall include the following:

1. The name and address of the responsible person; and

2. The street address of the nuisance or a description sufficient for identifying the building, structure, premises, or land upon or within which the nuisance is occurring; and

3. A description of the nuisance; and

4. The required corrective action; and

5. The completion date and a notice that the city may abate the nuisance and charge the responsible person for all abatement costs if the responsible person does not correct the nuisance before the completion date; and

6. The time for appealing the administrative citation to the hearing officer and the procedure for filing an appeal; and

7. A statement indicating that no monetary fine will be assessed if the enforcement officer approves the completed required corrective action prior to the completion date; and

8. A statement that the city may abate the nuisance and assess costs and expenses of abatement and a monetary fine against the responsible person if the correction is not completed by the responsible person and approved by the enforcement officer before the completion date.

C. Service of Administrative Citation. The enforcement officer shall serve the administrative citation upon the responsible person, either personally or by mailing, certified, return receipt requested, a copy of the administrative citation to the responsible person at his/her last known address. If the responsible person cannot after due diligence be personally served within Davis County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the administrative citation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail.

D. No Extension. No extension of the time specified in the administrative citation for correction of the nuisance may be granted, except by the hearing officer. [Code 2000 § 20-1-9].

8.15.100 Other remedies.

The city may take one or more of the following actions against any responsible person who fails to comply with the terms of a voluntary correction agreement, an administrative citation, or an order of the hearing officer:

A. Abatement by the City.

1. The city may abate a nuisance when:

a. The terms of a voluntary correction agreement have not been met; or

b. The requirements of an administrative citation have not been complied with, or, if the administrative citation is appealed to a hearing officer and the terms of the administrative citation are amended by the hearing officer, the terms of the hearing officer’s order have not been complied with; or

c. The condition is subject to summary abatement as provided for in subsection (A)(2) of this section.

2. Whenever a nuisance is occurring which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the responsible person as soon as reasonably possible after the abatement.

3. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek, but is not required to seek, such judicial process as it deems necessary to effect the removal or correction of such condition.

4. The costs, including incidental expenses, of correcting or abating the violation shall be billed to the responsible person and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the city within 10 days of actual receipt of the bill (within 15 days of the mailing date if the bill is mailed). The term “incidental expenses” includes, but is not limited to:

a. Personnel costs, both direct and indirect, including attorney’s fees and costs;

b. Costs incurred in documenting the violation;

c. Hauling, storage and disposal expenses;

d. Actual expenses and costs for the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and

e. The costs of any required printing and mailing.

B. Monetary Fine. The responsible person shall pay the city a monetary fine for each day the nuisance continues after the completion date. The nuisance shall be considered to continue until the enforcement officer approves the responsible person’s actions to correct or abate the nuisance. The amount of the monetary fine shall be as follows:

1. One hundred dollars per day for each day during the first week that the nuisance remains uncorrected or unabated after the completion date;

2. Two hundred dollars per day for each day thereafter until the nuisance is corrected or abated to a maximum of $10,000 according to the terms set forth in the administrative citation.

C. Civil Actions. Either the city or any private person directly affected by a nuisance may bring a civil action to abate or enjoin the nuisance, or for damages for causing or maintaining the nuisance (including the cost, if any, of cleaning the subject property). The civil action may be brought pursuant to this chapter or pursuant to state law.

D. Criminal Actions. Criminal actions may be initiated by criminal citation from the enforcement office or by long form information.

1. Any person who maintains or assists in maintaining a nuisance is guilty of a Class C misdemeanor. No person shall be prosecuted under this subsection (D)(1) unless the enforcement officer first attempted to obtain voluntary correction as provided in WPCC 8.15.080.

2. If the alleged nuisance is also a violation of a provision of the West Point City Code (other than this nuisance chapter) or state law, the responsible person may be charged under the specific provision of the West Point City Code or state law, even if the enforcement officer did not first attempt to obtain voluntary correction as provided in WPCC 8.15.080.

3. Any person who knowingly obstructs, impedes, or interferes with the city or its agents, or with the responsible person, in the performance of duties imposed by this chapter, or a decision and order issued by the hearing officer, or a voluntary correction agreement, is guilty of a Class B misdemeanor.

E. Abatement by Eviction. Whenever there is reason to believe that a nuisance under WPCC 8.15.030(B)(1) through (6) is kept, maintained, or exists in the city, the city attorney or any citizen(s) residing in the city, or any person or entity doing business in the city, in his or their own names, may maintain an action in a court of competent jurisdiction to abate the nuisance and obtain an order for the automatic eviction of the tenant of the property harboring the nuisance. The eviction shall take place as specified in Utah law.

F. Nonexclusive Remedies. The city may take any or all of the above-mentioned remedies (administrative, civil or criminal) to abate a nuisance and/or punish any person or entity who creates, causes or allows a nuisance to exist. The abatement of a nuisance does not prejudice the right of the city or any person to recover penalties for its past existence. [Code 2000 § 20-1-10].

8.15.110 Appeals.

A. Grounds. Any person receiving an administrative citation may appeal the administrative citation to the hearing officer. Only the following issues may be appealed to the hearing officer:

1. The person charged in the administrative citation as the responsible person is not the responsible person as defined by this chapter.

2. The condition described as a nuisance in the administrative citation is not a nuisance as defined by this chapter.

3. The method required by the administrative citation to abate the nuisance is inappropriate or is not the most cost-effective method of effectively correcting or abating the nuisance.

4. The time period given to abate the nuisance in the administrative citation is unreasonable.

5. The monetary fine set forth in the administrative citation is unreasonable.

6. The enforcement officer refused to approve a corrective action that met the requirements of the administrative citation.

7. The responsible person claims that the requirement(s) of the administrative citation violates his/her constitutional rights.

B. Filing. The person desiring to appeal must file a notice of appeal at the city’s public safety building within 10 days of receipt of the administrative citation (within 15 days of the mailing date) if the administrative citation is mailed.

C. Hearing. The hearing before the hearing officer will be informal according to rules and procedures established by the hearing officer. The appellant may, but is not required to, bring an attorney to assist him or her. The appellant and the enforcement officer may each call witnesses at the hearing. The hearing officer may, with or without the parties present, visit the site of the alleged nuisance. If the hearing officer allows the parties at the site visit, both parties must be given the opportunity to be present. The hearing will be scheduled by the hearing officer within 30 days of when the notice of appeal is filed with the city.

D. Burden of Proof. The appellant shall have the burden of proof to demonstrate by a preponderance of evidence that he/she had legitimate grounds for an appeal. The determination of the enforcement office as to the need for the required corrective action shall be accorded substantial weight by the hearing officer in determining the reasonableness of the corrective action.

E. Authority of Hearing Officer. The hearing officer shall have authority to affirm or vacate the administrative citation, or to modify or waive specific provisions of the administrative citation. If the appellant fails to attend the hearing, the hearing officer shall affirm the administrative citation. The hearing officer shall not vacate the administrative citation unless he/she finds that no nuisance exists. The hearing officer shall modify the administrative citation if he/she finds that a nuisance exists, but that one or more of the requirements of the administrative citation is improper or inappropriate. A requirement is improper if it is contrary to this chapter. A requirement is inappropriate if the hearing officer finds that there is a better means of resolving the problem or that the proposed solution is inappropriate given the nature or severity of the problem. When determining whether to waive or modify a requirement of the administrative citation, the hearing officer may also consider:

1. Whether the appellant responded to the enforcement officer’s attempts to contact the appellant and cooperated with efforts to correct the nuisance;

2. Whether the appellant has shown due diligence and/or substantial progress in correcting the nuisance;

3. The financial ability of the appellant and the amount, if any, that the appellant has benefited financially by maintaining the nuisance; and

4. Any other relevant factors.

If the appellant appeals the enforcement officer’s refusal to approve appellant’s corrective action, the hearing officer shall visit the site and determine if the appellant complied with the requirements of the administrative citation.

F. Order. The hearing officer shall issue a written order to the appellant and the city notifying them of his/her decision. The order shall include the hearing officer’s findings of fact and ultimate decision. If the hearing officer modifies or waives provisions of the administrative citation, the order shall specify which portions are modified and how they are modified. The hearing officer shall mail a copy of the order to the appellant and the city within five working days of the close of the hearing.

G. Appeal to District Court. Either the city or the appellant may appeal the hearing officer’s order by filing a petition for review of the order. The petition must be filed in the district court of jurisdiction, within 30 calendar days from the date the hearing officer’s order was mailed to the appellant. In the petition, the plaintiff may only allege that the hearing officer’s order was arbitrary, capricious, or illegal. The hearing officer shall transmit to the reviewing court the record of its proceedings, including any minutes, findings, orders and, if available, a true and correct transcript of its proceedings. If, in the opinion of the district court, there is sufficient record to review the hearing officer’s order, the court’s review is limited to the record provided by the hearing officer. The district court may not accept or consider any evidence outside of the hearing officer’s record unless the evidence was offered to the hearing officer and the court determines that it was improperly excluded by the hearing officer. If, in the opinion of the district court, there is not a sufficient record to review the hearing officer’s order, the court may call witnesses and take evidence. No petition or appeal may be filed in district court unless the responsible person first appeals to the hearing officer pursuant to the terms set forth in this chapter. [Code 2000 § 20-1-11].