Chapter 9.25
DERELICT BUILDING AND PROPERTY MAINTENANCE CODE
Sections:
9.25.050 Property maintenance standards.
9.25.060 Foundations and structural members.
9.25.070 Exterior of structures.
9.25.110 Derelict buildings and property.
9.25.130 Enforcement of nuisances.
9.25.010 Purpose.
A. The purpose of this chapter is to establish a building maintenance standard for the city of South Bend and to provide for enforcement of that standard. This will address the problem of derelict, abandoned, and vacant commercial and residential buildings and property within the city in order to protect the public health, safety, and welfare. This will be accomplished through the required maintenance of unkempt, unsightly, unsafe, unsanitary, and otherwise improperly maintained premises and structures.
B. This chapter is intended to protect the city from blight, deterioration, and decay resulting from properties in a condition or state that has an adverse effect on the value, utility, and habitability of property within the city. These conditions pose obvious hazards to the public health, safety, and welfare and can also affect the value of adjoining and nearby properties. A property which is unkempt, unsightly, unsafe, unsanitary or vacant for long periods may also substantially reduce the economic development and well-being of the city.
C. The goal of this chapter is as follows:
1. To supplement the city nuisance ordinance (SBMC Title 9), to supplement the Uniform Code for Abatement of Dangerous Buildings (SBMC 15.84.010(E)) and to further define as public nuisances those conditions which constitute visual blight and which could result in conditions which are harmful or deleterious to the public health, safety and welfare; and
2. To develop regulations that will promote the sound maintenance of property, enhance the livability, community appearance, and the social, economic, and environmental conditions of the community; and
3. To establish guidelines for the correction of property maintenance violations and nuisances that afford due process and procedural guarantees to affected property owners; and
4. To encourage the repair and reuse of existing structures in lieu of demolition of buildings which are repairable. (Ord. 1439 § 1, 2011).
9.25.020 Definitions.
For the purposes of this chapter, the following definitions shall apply:
“Abandoned property” means a property that is vacant, whose owner or person in charge of the property has been cited for violations of this chapter under Chapter 9.10 SBMC for a public nuisance violation relating to property maintenance or under Chapter 15.84 SBMC for violation of the Uniform Code for the Abatement of Dangerous Buildings two or more times in any 60-day period (three or more times in any six-month period) (four or more times in any 12-month period).
“Abate” or “abatement” means actions to remove, stop, prevent, correct, reduce, or otherwise take steps necessary, in such a manner and to such an extent as the applicable city supervisor and/or designee(s) determines is necessary in the interest of the general health, safety and welfare of the community, to remove a condition deemed to constitute a violation of this chapter or that has been deemed a nuisance under Chapter 9.10 SBMC.
“Boarded building” means a vacant building or portion of a vacant building with one or more doors or windows covered with plywood or other material for the purpose of preventing entry into the vacant building by persons or animals.
“Building available for sale, lease, or rent” means a building that is in a condition ready for occupancy or renovation; and which has contact and availability information advertised or posted or is listed with a certified agent as for sale, lease, or rent.
“Chronic nuisance” means a parcel of real property on which three or more violations of Chapter 9.10 SBMC relating to property maintenance, Chapter 15.84 SBMC relating to the Uniform Code for Abatement of Dangerous Buildings or this chapter have occurred within any 60-day period of time, or upon which six or more such violations have occurred within any 12-month period of time or multiple parcels of real property under common ownership on which three or more violations of Chapter 9.10 SBMC relating to property maintenance, Chapter 15.84 SBMC relating to the Uniform Code for Abatement of Dangerous Buildings or this chapter have occurred within any 12-month period of time.
“Common ownership” means two or more parcels of real property in which one individual or legal entity shares any ownership interest.
“Demolition by neglect” means the gradual deterioration of a registered historic building as a result of insufficient routine or major maintenance.
“Derelict building” means any structure which is unsecured, boarded, or the owner or person in charge of which has been cited under Chapter 9.10 SBMC for a nuisance violation related to property maintenance, for a violation under this chapter or for a violation of Chapter 15.84 SBMC relating to the Uniform Code for Abatement of Dangerous Buildings.
“Exterior property” means the open space on the premises and/or on adjoining property under the control of owners or person in charge of such premises.
“Garbage” means animal and/or vegetable waste.
“Inoperable motor vehicle” means a vehicle which cannot be driven upon the public streets for reasons including but not limited to being unlicensed, wrecked, in a state of disrepair, or incapable of being moved under its own power.
“Nuisance” means any act or omission which intentionally causes or permits a condition to exist which injures or endangers the public health, safety or welfare.
“Owner” means any person, agent, operator, firm or corporation having a legal or equitable interest in the property; or recorded in the official records of the state, county, or city as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court.
“Person in charge,” unless otherwise required by the context, shall be deemed to include a property owner, agent, occupant, lessee, contract purchaser, or other person having possession or control of property or supervision of a construction project.
Person Responsible. The person responsible for abating a nuisance includes:
A. The owner.
B. The person in charge of property.
C. The person who caused a nuisance or code violation.
“Rubbish” means combustible and noncombustible waste materials, except garbage; the term shall include the residue from the burning of wood, coal, coke and other combustible materials, paper, rags, cartons, boxes, wood, excelsior, rubber, leather, tree branches, yard trimmings, tin cans, metals, mineral matter, glass, crockery, and dust, and other similar materials.
“Vacant building” means a structure that is empty of furnishings and/or merchandise and not otherwise legally occupied, or any condition that, on its own or combined with other conditions present, would lead a reasonable person to believe that a property or building is not occupied. Such conditions include, but are not limited to, overgrown or dead vegetation, accumulation of newspapers, circulars or flyers, disconnected utilities, accumulation of trash, junk or debris, broken or boarded-up windows or doors, the absence of merchandise consistent with retail sale, and statements by neighbors or public employees that the property or building is vacant. Portions of buildings with more than one section such as buildings with separate storefronts may be determined to be vacant even if other portions of the building are occupied.
“Weeds and noxious growth” means all grasses, annual plants, and vegetation, other than trees, shrubs, and cultivated flowers and gardens. (Ord. 1439 § 2, 2011).
9.25.030 Authority.
The city supervisor and building inspector shall administer a complaint driven program as well as identifying and monitoring the condition of buildings and properties within the city. (Ord. 1450, 2012; Ord. 1439 § 3, 2011).
9.25.040 Exceptions.
This chapter shall not apply to any building or property that is actively undergoing construction or repair. Indications that a building or property is undergoing construction or repair include, but are not limited to, obtaining a valid building permit and the appearance that the owner or person in charge is progressing diligently to complete the repair or construction. This exception does not apply to requirements relevant to public safety or health concerns. (Ord. 1439 § 4, 2011).
9.25.050 Property maintenance standards.
No owner or person in charge of a property shall maintain or permit to be maintained any property deemed to be a nuisance and detrimental to the city. All property shall be maintained to the building code requirements in effect at the time of construction, alteration, or repair, and shall meet the minimum requirements described in this chapter.
A. Accessory Structures. All accessory structures, including sheds, trellises, awnings, fences, and other similar features, that abut public or private property shall be maintained structurally safe and sound and in good repair. Exterior steps and walkways shall be maintained free of hazardous conditions.
B. Roofs. The roof shall be structurally sound and have no defects which might admit rain. Roof drainage shall be adequate to prevent rainwater from causing dampness in the walls or interior portion of the building. Roof drains, gutters, and downspouts shall be maintained in good repair, free from obstructions, and shall channel rainwater into approved receivers.
C. Chimneys and Towers. All chimneys, cooling towers, smokestacks, towers, and similar appurtenances shall be maintained structurally safe and sound and in good repair. (Ord. 1439 § 5, 2011).
9.25.060 Foundations and structural members.
Foundation elements shall adequately support the building and shall be maintained structurally safe and sound and in good repair. (Ord. 1439 § 6, 2011).
9.25.070 Exterior of structures.
A. Exterior Walls and Surfaces. Exterior walls and weather-exposed exterior surfaces or attachments shall be free of holes, breaks, loose or rotting boards or timbers and any other conditions which might admit rain or dampness to the interior portions of the walls or the occupied spaces of the building and shall be structurally safe and sound and in good repair.
B. Overhanging Structures. Overhang extensions including, but not limited to, canopies, marquees, signs, metal awnings, fire escapes, standpipes, and exhaust ducts shall be maintained in good repair and be properly anchored so as to be kept in a safe and sound condition.
C. Stairs and Porches. Any stair, porch, deck, balcony, and appurtenance attached thereto shall be constructed and maintained as to be safe to use and capable of supporting the loads to which it is subjected and shall be kept in sound condition and good repair. Good repair includes, but is not limited to, replacing flooring, treads, risers, and stringers that are broken, warped, loose, or evidence excessive wear.
D. Handrails and Guardrails. Any handrail or guardrail shall be firmly fastened, be maintained in good condition, and capable of supporting the loads to which it is subjected.
E. Windows. Each window shall be substantially weather-tight, shall be kept in sound condition and repair for its intended use, and shall be structurally safe and sound and in good repair.
F. Doors. Exterior doors, door assemblies, and hardware shall be maintained in good condition, and substantially exclude wind and rain from entering the structure.
G. Maintenance. All required facilities on the exterior of a structure shall be constructed and maintained to properly and safely perform their intended function. All nonrequired facilities or equipment on the exterior of a structure shall be maintained to prevent structural damage to the building, or health, sanitation or fire hazards. (Ord. 1439 § 7, 2011).
9.25.080 Hazardous materials.
A. Residential property shall be free of dangerous levels of hazardous materials, contamination by toxic chemicals, or other circumstances that would render the property unsafe as determined by the International Fire Code.
B. All property shall be kept free of friable asbestos per ORCAA standards. (Ord. 1439 § 8, 2011).
9.25.090 Exterior property.
All properties, including vacant properties, shall comply with the following:
A. Debris. Property shall be kept free of debris, trash, building materials, or the storage of other goods which are visible from the street or adjacent properties. Debris shall include, but not be limited to: tires, lumber, household appliances, inoperable or excess vehicles, furniture, sinks, toilets, cabinets, other household fixtures, equipment, rubbish, garbage, salvage materials, or parts thereof which constitute a fire hazard or are stored or accumulated in such a manner as to be visible from a public street, alley or adjoining property. Debris shall not include lumber or other material staged for a period no longer than 45 days and intended for use on the property where the material is staged;
B. Vegetation. Vegetation shall be cut down or destroyed, or otherwise prevented from becoming unsightly, or from becoming a fire or health hazard. Brush, trees, etc., adjacent to public easements and rights-of-way shall be trimmed and pruned to maintain adequate clearance and visibility over pedestrian and vehicular areas. (Ord. 1439 § 9, 2011).
9.25.100 Vacant buildings.
A. Maintenance and Security Requirements. The owner or person in charge of a vacant property or building shall comply with the following maintenance and security requirements:
1. The building and/or property shall be maintained to the standards identified in SBMC 9.25.050, Property maintenance standards.
2. The building or property shall be kept free of any accumulation of newspapers, circulars or flyers, graffiti, or discarded items, including but not limited to furniture, clothing, appliances, or any other items that give the appearance that the property or building is unoccupied.
3. The building shall be secure so that it is not accessible to unauthorized persons, including but not limited to the closure and locking of windows and doors (walk-through, sliding, and garage) and any other opening of such size that may allow access to the interior of a structure.
4. Broken windows or doors shall be secured by means of re-glazing with undamaged glass or other approved permanent material, and not by cardboard, plywood, or other temporary means except as necessary temporarily for not more than 30 days from receipt of notification. (Ord. 1439 § 10, 2011).
9.25.110 Derelict buildings and property.
A structure or property in violation of the standards identified in this chapter such that it is injurious or detrimental to the public health, safety, and welfare shall be declared a derelict building or property and a nuisance. Derelict buildings or properties are subject to the requirements of the 1997 Uniform Code for Abatement of Dangerous Buildings.
Determination of whether a building or property is in violation of this chapter shall be made by the city supervisor and building inspector, who may consult with the police chief, fire chief or other professionals as necessary in making this determination.
Minor infractions of this chapter may be determined by the city supervisor or building inspector to be reasonable maintenance deficiencies and as a nuisance or code violation, depending on the degree or intensity of the infraction. (Ord. 1450, 2012; Ord. 1439 § 11, 2011).
9.25.120 Chronic nuisances.
A. Determination. The mayor, city supervisor or the building inspector shall determine that a nuisance is chronic based upon personal observation by a city employee, or after an investigation by the city as a result of a written complaint filed with the city, and a determination that there are reasonable grounds to conclude that the alleged nuisance activities did, in fact, occur in violation of the city code.
Property, a property owner, or a person in charge of property shall be deemed to be maintaining a chronic nuisance if the following circumstances exist:
1. Three or more nuisance activities exist or have occurred during any consecutive 60-day period on the property; or
2. Six or more nuisance activities exist or have occurred during any consecutive 12-month period on the property; or
3. An owner or person in charge of properties where nuisances exist or have occurred on three or more separate properties during any consecutive 12-month period.
B. Procedures.
1. Notice. Once it is determined that a property, property owner, or person in charge of property is deemed to be maintaining a chronic nuisance, the mayor or his or her designee shall expedite enforcement procedures as established by city policy to abate the nuisance. The expedited process shall include notification to the person in charge of the property and the property owner.
The notice shall include the following information:
a. State that the owner or person in charge of the property shall respond within 10 days to the city supervisor with the following information:
i. A plan for abatement of the nuisance including a schedule for completion; or
ii. Good cause why the nuisance cannot be abated; or
iii. Notice of intent to contest the determination of chronic nuisance.
b. That an acceptable abatement plan must be agreed upon with the city supervisor or his or her designee(s) within 30 days from the date of the notice.
c. That if the nuisance is not abated or good cause shown that the nuisance cannot be abated, the city may abate the nuisance at the cost of the owner and the person in charge of the property, and place a lien against the property for the cost incurred by the city for the abatement. The city may also recover the cost of abatement through a cause of action against the property owner and the person in charge of the property. The costs that the city may recover include, but are not limited to, the cost of the abatement process (postage, copies, service, etc.), the cost incurred for the abatement itself, attorney fees for the abatement process, abatement and recovery of costs, filing fees, service fees, postage, and any other costs incurred by the city to obtain and satisfy a judgment or foreclose the lien.
d. That, upon determination of a chronic nuisance, fines, fees, and other costs may be doubled due to the chronic nuisance determination.
C. Enforcement.
1. In addition to any other enforcement remedies available to the city, properties or persons in charge of properties that have been deemed to be a chronic nuisance shall be subject to expedited enforcement including, but not limited to, the following:
a. No more than 14 days allowed to abate the nuisance; or
b. Any fees, fines, or costs associated with a chronic nuisance shall be double the amount established by Chapter 9.10 SBMC for the nuisance cited. All fines will be $1,000.
2. If any existing nuisance is abated by the property owner or person in charge to the satisfaction of the mayor or his or her designee within 30 days of the date of notice issued pursuant to this section, the matter shall not be referred to the city attorney and the person in charge shall not be subject to the double penalty of this section. Standard amount of penalties may still be incurred.
3. In the event the city abates any nuisance under this chapter, the city supervisor shall notify the city attorney and provide proof of the proper notifications and costs incurred. The city attorney shall file a lien against the property and may initiate a civil action in any court of competent jurisdiction to recover the costs of the abatement from the owner or person in charge of the property, or both. The costs the city shall be able to recover include, but are not limited to, the abatement process costs, the abatement costs and the costs incurred to obtain and collect a judgment, which shall include any attorney fees, filing fees, service costs, etc.
4. In an action against the owner or person in charge of property to abate a chronic nuisance or to recover penalties authorized by this chapter, the city shall have the burden of proof to show by a preponderance of the evidence that a chronic nuisance exists or existed on the property pursuant to this chapter and that the owner or person in charge failed to comply with the notice for abatement of the nuisance(s).
5. In addition to any other remedy that is authorized by this chapter or other laws, upon the finding by the mayor or his or her designee that a property is a chronic nuisance pursuant to this chapter, the person in charge of the property is subject to the suspension or revocation of any city of South Bend business license and any other city license or permit relating to such property. Permits or licenses issued to a tenant who has not caused or participated in the nuisance activity shall not be suspended or revoked as a result of the actions of the person in charge of the subject property. If a permit or license is suspended, it may be reinstated by the mayor or his or her designee once the nuisance has been abated and all related liens, fines, fees, or costs have been satisfied. A new permit or license shall not be issued to the person in charge of the subject property until the nuisance has been abated and all related liens, fines, fees, and costs have been satisfied.
D. Appeals. The owner or person in charge of property shall have the right to contest a chronic nuisance determination by responding within 10 days to the board of adjustment with a request for a review of the determination. If the board of adjustment upholds the chronic nuisance determination, that decision may be appealed to the South Bend municipal court, upon payment of the filing fee. (Ord. 1439 § 12, 2011).
9.25.130 Enforcement of nuisances.
A. Declaration of Public Nuisance. All property found to be in violation of this chapter is declared to be a public nuisance and shall be abated by rehabilitation, demolition, or repair pursuant to the procedures set forth herein. Structures designated as historic shall be repaired rather than demolished when possible, unless the historic landmarks commission has approved a demolition request or the building has been declared as “dangerous” and is an immediate threat to life and safety. The procedures for abatement set forth herein shall not be exclusive and shall not in any manner limit or restrict the city from enforcing other city ordinances or abating public nuisances in any other manner provided by law.
B. Notification of Nuisance. Whenever the building inspector or such other city official as may be designated by the city supervisor determines that any property within the city is being maintained contrary to one or more of the provisions of this chapter, a written notice shall be sent to the owner and the person in charge of said property stating the sections being violated. Such notice shall set forth a reasonable time period for correcting the violation(s) and may also recommend reasonable methods of correcting the same. Such notice shall be prepared and served upon the owner and person in charge by sending the notice by first class (and certified, return receipt requested) U.S. mail, postage prepaid.
C. Failure to Comply with Enforcement. In the event an owner or person in charge of property shall fail, neglect, or refuse to comply with the notice to correct a violation, the city supervisor may proceed with the abatement of the nuisance or may refer the violation to the city attorney for legal action, including the institution of a civil or criminal proceeding to achieve compliance. If the nuisance is not abated or good cause shown that the nuisance cannot be abated, the city may abate the nuisance at the cost of the owner and the person in charge of the property, and place a lien against the property for the cost incurred by the city for the abatement. The city may also recover the cost of abatement through a cause of action against the property owner and the person in charge of the property. The costs that the city may recover include, but are not limited to, the cost of the abatement process (postage, copies, service, etc.), the cost incurred for the abatement itself, attorney fees for the abatement process, abatement and recovery of costs, filing fees, service fees, postage, and any other costs incurred by the city to obtain and satisfy a judgment or foreclose the lien.
1. Abatement Procedure – Notice.
a. On determination by the city supervisor that a nuisance exists and abatement is required, the city supervisor shall cause a notice to be posted on the premises or at the site of the nuisance, directing the person responsible to abate the nuisance.
b. At the time of posting, the city supervisor shall cause a copy of the notice to be sent by registered or certified mail to the owner or the person in charge of the property at the person’s last known address.
c. The notice to abate shall contain:
i. The legal description of the real property, by street address and parcel number, on which the nuisance exists.
ii. A direction to abate the nuisance within 10 days from the date of the notice.
iii. A description of the nuisance.
iv. A statement that, unless the nuisance is removed, the city may abate the nuisance and the cost of abatement, including administrative costs, will be charged to the person responsible.
v. A statement that failure to abate a nuisance may warrant imposition of a fine or jail sentence.
vi. A statement that the person responsible may protest the order to abate by giving notice to the clerk/treasurer within 10 days from the date of the notice.
d. If the person responsible is not the owner, an additional notice shall be sent to the owner stating that the cost of abatement not paid by the person responsible may be assessed to and become a lien on the property.
e. Upon completion of the posting and mailing, the person posting and mailing shall execute and file a certificate stating the date and place of the mailing and posting.
f. An error in the name or address of the person responsible or owner shall not make the notice void, and in such case the posted notice shall be sufficient.
2. Joint Responsibility. If more than one person is a person responsible, they shall be jointly and severally liable for abating the nuisance or for the costs incurred by the city in abating the nuisance.
3. Assessment of Costs.
a. The clerk/treasurer shall forward to the owner and the person responsible, by registered or certified mail, a notice stating:
i. The total cost of abatement, including administrative costs, lien search fees, recording fees, and any other applicable fees or fines.
ii. That the costs as indicated will be assessed to and become a lien against the property unless paid within 10 days from the date of the notice.
iii. That if the owner or the person responsible objects to the cost of the abatement as indicated, a notice of objection may be filed with the clerk/treasurer not more than 10 days from the date of the notice.
b. No sooner than 10 days after the date of the notice, the board of adjustment, in the regular course of business, shall hear and make a decision on the objections to the costs assessed.
c. If the costs of the abatement are not paid within 10 days from the date of the notice, an assessment of the costs, as stated or as decided by the council, shall be made by resolution and shall be entered in the docket of city liens. When the entry is made, it shall constitute a lien on the property from which the nuisance was removed or abated.
d. An error in the name of the owner or the person responsible or a failure to receive the notice of the proposed assessment will not void the assessment, and it shall remain a valid lien against the property.
4. Summary Abatement. In addition to procedures provided by other parts of this chapter, the county health officer, city supervisor, fire chief, building official, or police chief may proceed summarily to abate a health or other nuisance which unmistakably exists and which imminently endangers human life or property. (Ord. 1450, 2012; Ord. 1439 § 13, 2011).