ORDINANCE NO. 2004-04-04-01

 

AN ORDINANCE DEFINING NUISANCES,

ESTABLISHING A PROCEDURE FOR THE ABATEMENT OF NUISANCES AND PROVIDING PENALTIES FOR VIOLATIONS OF ITS PROVISIONS

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BE IT ORDAINED BY THE CITY COUNCIL OF ASHLAND, ALABAMA AS FOLLOWS:

 

 

Section 1: PURPOSE.  This ordinance establishes the definitions of nuisances, establishes a procedure for the abatement of nuisances and provides for penalties for violations of its provisions.

Section 1.2: AREA OF ENFORCEMENT.  This ordinance shall apply and be enforced within the city limits of Ashland, Alabama and its Police Jurisdiction.

Section 1.3: NUISANCES-DEFINITION.  For the purposes of this chapter the term “nuisance” shall mean anything that unlawfully causes hurt, inconvenience or damage; that class of wrongs that arises from the unreasonable, unwarrantable or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, unsightly, or unlawful personal conduct, working an obstruction of or injury to the right of another or of the public, and producing material annoyance, inconvenience, discomfort or hurt to another person or to the general public; anything which is injurious to health, or is indecent or 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 of another. 

Section 1.4: NUISANCE UNLAWFUL.  It shall be unlawful for any person to permit or maintain the existence of any nuisance on any property under his control.

Section 1.5: DANGEROUS BUILDINGS, STRUCTURES AND CONDITIONS.   All buildings, structures or conditions which are (1) unsafe, as defined in the 1982 Standard Code for the Elimination or Repair of Unsafe Buildings, (2) not provided with adequate egress, or (3) which constitute a fire hazard, or (4) are otherwise dangerous to human life, or (5) which in relation to existing use constitute a hazard to safety or health by reason of inadequate maintenance, dilapidation, obsolescence, abandonment, or accumulation of rubbish and debris are hereby declared to be dangerous buildings, structures and conditions.  All such dangerous buildings, structures or conditions are hereby declared to be a nuisance.  It shall be unlawful to permit any such dangerous building, structure or condition to remain or continue in existence in any place after receiving an order from the Council to abate the same by repair, rehabilitation, demolition or removal.  It shall be unlawful to occupy any building or structure or permit it to be occupied while it is or remains a nuisance.

Section 1.6: VEGETATION, GRASS, PLANTS AND WEEDS.

(a).  Any vegetation, weeds, grass or plants (other than trees, bushes, flowers or other ornamental plants under proper care and cultivation) which have grown to a height of twenty-four (24) inches or more on any lot or tract of land in the City or its Police Jurisdiction are hereby declared to be a nuisance.  It shall be unlawful to permit any such weed, grass, or plants to grow or remain in any place after receiving an order from the Council to remove the same.

(b).  In the case of a large tract of land on which no structure is situated, the provisions of this section shall apply only to those portions of said tract which are within three hundred (300) feet of a structure or a public road, street, avenue, highway or other public right-of-way.  The Council may for good cause reduce the area subject to this section to a lesser distance.  All portions of such tracts shall be subject to all other provisions of this chapter.

Section 1.7: DEBRIS, RUBBISH, ETC.  An accumulation of debris, trash, bush, used building materials, refuse, remains from a building demolition, remains from a fire, parts of  buildings or parts of untenable structures on any lot or tract of land in the City or its Police Jurisdiction, is hereby declared to be a nuisance.  It shall be unlawful to permit any such accumulation to remain or continue in existence in any place after receiving an order from the Council to remove the same.

Section 1.8: MACHINERY, VEHICLES, ETC. IN RESIDENTIAL AREA.  Storage of used building material, machinery, vehicles, parts of vehicles or any other materials which may provide a breeding place for mosquitoes, harmful insects or rodents, or is so unsightly as to be offensive to the neighborhood, is hereby declared to be a nuisance.  Is shall be unlawful to permit such storage to continue after receiving an order from the Council to remove the same.

Section 1.9: AREA OF RESPONSIBILITY.  It shall be the responsibility of the owners, agents, occupants and lessees to keep their property free of nuisances.  Owners, agents, occupants and lessees whose properties face on municipal streets or right-of-ways shall be responsible for keeping the property free of nuisances to the municipal street or other right-of-way.  Owners, agents, occupants and lessees whose properties face on municipal alleys shall be responsible for keeping the area from their property to the center line of the alley free of nuisances.

Section 1.10: NOTICE AND ORDER TO ABATE NUISANCE.

(a).  The term “appropriate municipal official” as used herein shall mean any municipal building official or deputy and any other municipal official or municipal employee designated by the mayor as the person to exercise the authority and perform the duties delegated by this article.

(b).  Whenever the appropriate municipal official finds that a nuisance exists as defined in this chapter or ordinance, said official shall order the owner, agent, occupant, mortgagee or lessee of the property (to be determined by the City’s attorney by conducting title search of records in the Clay County Probate Office, if necessary) on which the nuisance is located to abate the same.  Abatement shall mean full and complete removal of any nuisance declared under sections 1.5, 1.6, 1.7 or 1.8 of this chapter.  Abatement shall mean either repair, rehabilitation, demolition or removal, as shall be determined by said official.  The notice shall further provide that a hearing may be requested objecting to the order,  upon written request to the Clerk of the City of Ashland,  made within fourteen (14) days of receipt of the order.

(c).  The appropriate municipal official shall also give written notice to the Council of the inspection and findings of the existence of the nuisance and that notice of the nuisance has been provided pursuant to paragraph (b) above to the owner, agent, occupant, mortgagee or lessee of the nuisance and the manner in which the nuisance is ordered to be abated.

(d).  Notice shall also be posted on any unsafe building stating “THIS STRUCTURE IS UNSAFE.  ITS USE OR OCCUPANCY HAVE BEEN PROHIBITED BY THE COUNCIL OF THE CITY OF ASHLAND” and shall be signed and dated by said official on behalf of the City of Ashland, Alabama.  Said sign shall not be removed without permission of the Council.  No person shall enter the structure except for the purpose of making the required repairs or demolishing the structure.

Section 1.11: FAILURE TO COMPLY WITH NOTICE TO ABATE.

(a).  In case the owner, agent, occupant, mortgagee or lessee shall fail, neglect or refuse to comply with the order to abate the nuisance, and/or request a hearing to object to the municipal official’s order within fourteen (14) days from the date thereof, the Council shall hold a public hearing to consider authorizing the abatement of the nuisance by the Council and levying an assessment on the  property. (b).  Notice of the public hearing to determine whether the Council should abate the nuisance shall be given by causing a notice of such hearing to be sent by certified mail to the owner, agent, occupant, mortgagee or lessee at least ten (10) days before the date of such hearing.  The hearing shall be held within sixty (60) days from the date the appropriate municipal official issues the order to abate.  Such notice shall also be posted in three (3) public places in the City, one (1) place being the U. S. Post Office, at least five (5) days prior to the hearing, and shall be published in a general publication newspaper one (1) time, not less than ten (10) days prior to the hearing.

(c).  After the public hearing the Council may by resolution, order such nuisance demolished or removed, or the Council may contract with persons, firms, partnerships, corporations or other legal entities to correct, repair,  or abate the nuisance.  Nothing contained herein shall require any repairs to be made.  The City may elect to abate by demolishing any nuisance.  If the owner, agent, occupant, mortgagee or lessee of the property shall appear at the public hearing, no further notice of the order of the Council shall be required.  If the owner, agent, occupant, mortgagee or lessee fails to appear, notice of the order of the Council shall be mailed to the last known address and shall be posted for five (5) days in three (3) public places, one (1) of which is the U. S. Post Office, in the City of Ashland.

(d).  Upon the expiration of seven (7) days following the date of posting under subsection (c), or seven (7) days from the date of the order if notice by posting is not required, the Council or its designated representative or agent shall proceed to carry out the order of the Council.

Section 1.12: ADMINISTRATIVE HEARING, APPEAL.

(a).  Any owner, agent, occupant, mortgagee or lessee receiving notice of the nuisance and the appropriate municipal official’s order of  abatement may, not later than fourteen (14) days after the date of the notice, request an administrative hearing and/or object to the findings of the appropriate municipal official by mailing a request for a hearing and/or objection, in writing, to the Clerk of the City of Ashland.  Failure of any owner, agent, occupant, mortgagee or lessee to notify the clerk in writing requesting a hearing and/or objection to the findings of nuisance and order to abate by said official within fourteen (14) days from the date of the order waives any and all rights to an administrative hearing.

(b).  When an owner, agent, occupant, mortgagee or lessee notifies the Clerk of the City of Ashland in writing of the request for a hearing and/or objection to the appropriate municipal official’s  findings of nuisance and order to abate, the Clerk shall notify the Mayor and Council forthwith of said request for hearing and/or objection and the Mayor and Council shall set a date for an administrative hearing not less than ten (10) nor more than sixty (60) days after the date that the request is received.

Notice of the hearing before the Council shall be published one (1) time in a newspaper of general circulation in the City not less than ten (10) days prior to the hearing.  Additionally, the City Clerk shall cause notice of the hearing to be posted in three (3) public places, one (1) of which shall be the U. S. Post Office, in the City of Ashland, no later than ten (10) days prior to the hearing.

(c).  At said hearing, the owner, agent, occupant, mortgagee or lessee shall present its reasons as to why the decision of the appropriate municipal official should not be followed.

The Council shall then, after presentation of the evidence and argument of the owner, agent, occupant, mortgagee or lessee of the property, as well as evidence from the appropriate municipal official, make a decision to uphold said official’s findings and determine that the building or structure is unsafe to the extent that it creates a public nuisance OR  find in favor of the owner, agent, occupant, mortgagee or lessee that the building is not unsafe and does not create a public nuisance, in the case of a violation for which notice was given under 1.5.  Should the Council make a finding that the building or structure is unsafe and should be demolished and removed, notice of such shall be given to the owner, agent, occupant, mortgagee or lessee of the property within thirty (30) days following the date of the Council’s determination.  If the order to abate so appealed pertains to Sections 1.6, 1.7, 1.8, then the Council may order the nuisance abated, removed, cut or take such other action consistent with this article to otherwise remedy the nuisance.

(d).  If any owner, agent, occupant, mortgagee or lessee is in disagreement with the determination of the Council, said person may appeal the decision of the  Council within thirty (30) days after the date of the determination by appealing to the Circuit Court of Clay County, Alabama by filing with the Clerk of the Circuit Court of Clay County, Alabama, notice of the appeal and a bond for security of costs in the form and amount approved by the Circuit Clerk.  Upon filing of the notice of appeal and bond for security of costs, the Council shall suspend its order providing for the abatement of the nuisance, demolition and/or removal of the same, pending the appeal and outcome of the same in Circuit Court.

 

Section 1.13: ASSESSMENT OF COSTS. 

(a).  The City will keep accurate records of all costs associated with demolishing the building including any contract work for the demolition, attorney fees, recording fees, certified mail fees, title search fees, and other costs and expenses incurred in connection with abatement of the nuisance.

(b).  Once the building is destroyed or demolished, the City shall pass a resolution fixing the cost of demolition and removal, as well as for all costs, expenses and fees associated with demolishing said building after deduction and/or crediting the value of any salvaged materials after the sale of said salvaged materials.

The City Clerk shall notify the owner, agent, occupant, mortgagee or lessee of the costs so established, as well as provide in said notice a date for a hearing to establish a lien for special assessments based upon the fixed costs so established.  The notice shall be provided at least ten (10) days prior to the date set for the hearing by publishing the notice in a newspaper of general publication one (1) time  prior to the hearing.  In the event no objection is made at the hearing, the fixed costs shall become a special assessment by finding and resolution made thereof by the Council, and shall constitute a lien on the real property being the subject of the assessment.  A certified copy of the resolution shall be sent by certified mail to the last address listed and assessed for ad valorem taxes and a certified copy shall be published in a manner as prescribed for municipal ordinances.

(c).  In the event the owner, agent, occupant or lessee shall fail or refuse for a period of twenty-eight (28) days to pay off and discharge the expenses, the City Clerk shall report such to the Council at the next regular meeting following the expiration of that period and a resolution shall be passed to record the lien so established and provide the owner, agent, occupant, mortgagee or lessee with notice thereof.

Section 1.14:  COLLECTION OF ASSESSMENT; REMEDY OF CITY.

(a).  In the event the owner, agent, occupant or lessee shall fail or refuse to discharge the assessment after a period of twenty-eight (28) days from the date the assessment was made final, the town may commence an action in any court of competent jurisdiction to recover said expenses.

(b).  In addition to remedies otherwise provided for herein, the Council may cause an action to be instituted to enjoin or abate any nuisance.

Section 1.15: CONTINUING OFFENSES.  In all cases the person whose duty it is to abate any nuisance shall be liable for separate and distinct offenses for each day the nuisance is allowed to remain after it has become his duty to abate it.