Sections:
11.21.01 Definitions
11.21.02 Summary abatement
11.21.03 Abatement in other cases; notices, etc.
11.21.04 Abatement by owner
11.21.05 Appeal procedures; hearing
11.21.06 Abatement by city
11.21.07 Notice of assessment; appeal of charges
11.21.08 Personal liability of owner
11.21.09 Cost of abatement; low income, elderly persons
11.21.10 Overhead charge; civil penalties
11.21.11 Severability
11.21.01 Definitions
Abatement means the removal, stoppage, prostration, or destruction of that which causes or constitutes a nuisance, whether by breaking or pulling it down, or otherwise destroying, or effacing it.
Owner means the owner of record based on the Faulkner County Assessor’s record or any person with legal, financial or equitable interest in the property on which the alleged public nuisance exists at the time of the violation.
Property means any real property, premises, structure or location on which a public nuisance is alleged to exist.
Public nuisance means any fence, wall, shed, deck, house, garage, building, structure or any part of aforesaid; or any tree, pole, smokestack; or any excavation, hole, pit, basement, cellar, sidewalk subspace, dock, wharf or landing dock; or any lot, land, yard, premises or location which in its entirety, or any part thereof, by reason of the condition in which the same is found or permitted to be or remain, shall or may endanger the health, safety, life, limb or property, or cause any hurt, harm, inconvenience, discomfort, damage or injury to any 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 exist.
Summary abatement means abatement of the nuisance by the city, or a contractor employed by the city, by removal, repair, or other acts without notice to the owner, agent, or occupant of the property except from the notice required by this ordinance.
(Ord. No. 2005-4, Sec. 1.)
11.21.02 Summary abatement
A. Whenever a complaint is made to the Police Department/Code Enforcement Officer of a public nuisance as defined in 11.21.01, the Police Department/Code Enforcement Officer shall promptly cause to be inspected the property on which it is alleged that the public nuisance exists. Should the Police Department/Code Enforcement Officer find that a public nuisance exists, and that the public health,
safety or welfare may be in immediate danger, then summary abatement procedures shall be implemented and the Police Department/Code Enforcement Officer may cause the nuisance to be removed or abated. The Police Department/Code Enforcement Officer may notify the Building Inspector if the public nuisance involves a building that appears structurally unsafe. The Building Inspector, upon being notified by the Police Department/Code Enforcement Officer shall cause the building on which it is alleged such public nuisance exist to be inspected and submit a written report of such inspection and the findings to the Police Department/Code Enforcement Officer.
B. When summary abatement is authorized, notice to the owner, agent or occupant of the property is not required. Following summary abatement, the Police Department/Code Enforcement Officer shall cause to be posted on the property liable for the abatement a notice describing the action taken to abate the nuisance.
(Ord. No. 2005-4, Sec. 2.)
11.21.03 Abatement in other cases: notice. etc.
A. If, after inspecting the property on which the nuisance is reported, the Police Department/Code Enforcement Officer declares the existence of a public nuisance, but the nature thereof is not such as to require the summary abatement of such nuisance, the, regular abatement procedures shall be followed.
Photographs and reports of the findings and inspections shall be made and filed with the Police Department/Code Enforcement Officer.
B. The Police Department/Code Enforcement Officer shall determine the individual, firm or corporation who, from the records in the Faulkner County Recorder’s office, appears to be the titled owner of the aforesaid property and immediately cause a written notice to be served on such individual, firm or corporation by personal service or by leaving a copy of the notice at the usual place of residence or business of such owner, or address of such owner shown in the Faulkner County Recorder’s records, or by copy mailed to such owner at such place or address by United States certified mail return receipt. If service of such written notice is unable to be perfected by any of the methods described above, the Police Department/Code Enforcement Officer shall cause a copy of the aforesaid notice to published in a newspaper of general circulation in the city, once a week for two consecutive weeks, and shall further cause a copy of the aforesaid notice to be left with the individual, if any, in possession of such property on which it is alleged such public nuisance exists, or if there is no individual in possession thereof, the Police Department/Code Enforcement Officer shall cause a copy of the notice to be posted at such structure, location or premises. The Police Department/Code Enforcement Officer shall also determine from the Faulkner County Recorder’s office who the lienholder of the property, if any, as documented therein, is and cause a written notice to be served on such lienholder by United States mail return receipt.
C. The aforesaid notice to the owner, and lien holder, if any, of the property shall state clearly and concisely the findings of the Police Department/Code Enforcement Officer with respect to the existence of a public nuisance. The notice shall further state that unless the owner thereof shall cause the abatement of the public nuisance, pursuant to the order contained in the Police Department/Code Enforcement Officer’s notice, the public nuisance shall be abated by the city at the expense of the owner.
D. Any person who is the record owner of the premises, location or structure at the time an order pursuant to this ordinance is issued and served upon him, shall be responsible for complying with that order, and liable for any costs incurred by the city therewith, notwithstanding the fact that he conveys his interests in the property to another after such order was issued and served.
E. It shall not be a defense to the determination that a public nuisance exists that the property is boarded up or otherwise enclosed.
(Ord. No. 2005-4, Sec. 3.)
11.21.04 Abatement by owner
A. Within thirty (30) days after the posting and mailing of a notice to abate a nuisance, the owner, agent of the owner, or individual in possession of the affected property shall remove and abate such nuisance or show that no nuisance in fact exists. Such showing shall be made by filing a written statement that no
nuisance exists. The statement shall be filed with the Police Department/Code Enforcement Officer.
B. The Police Department/Code Enforcement Officer, upon written application by the owner within the thirty (30) day period after the notice has been served, may grant additional time for the owner to effect the abatement of the public nuisance, provided that such extension is limited to a specific time period.
(Ord. No. 2005-4, Sec. 4.)
11.21.05 Appeal procedures: hearing
A. The owner or occupant of the property who has been served with a notice pursuant to this ordinance that a public nuisance exists and that it must be abated within thirty (30) days, may, within seven (7) calendar days after receipt of such a notice, make a written demand to the Police Department/Code Enforcement Officer for a hearing on the question of whether a public nuisance in fact exists. The hearing shall be held within seven (7) calendar days following receipt by the Police Department/Code Enforcement Officer of the written demand and at least two (2) days’ notice of the hearing shall be given to the individual who made the written demand for the hearing.
B. The hearing shall be conducted by the Nuisance Appeals Board. Such Appeals Board may amend or modify the notice and/or order, or extend the time for compliance with the Police Department/Code Enforcement Officer’s order by the owner by such date as the majority of the Appeals Board may determine.
C. The owner, agent of the owner, occupant and lienholder, if any, of the subject property shall be given the opportunity to present evidence to the Appeals board in the course of the hearing.
D. In those instances where the nuisance has been abated by the city, the Appeals Board shall have discretion to waive the cost of abating a nuisance, in whole or in part, if, in the course of the hearing reviewing the decision, the Appeals Board finds that any of the following did not conform to the provisions of this ordinance:
1. The notice to remove the nuisance;
2. The work performed in abating the nuisance; or
3. The computation of charges.
(Ord. No. 2005-4, Sec. 5.)
11.21.06 Abatement by citv
A. Should any public nuisance not be abated at the expiration of time stated in the notice/order or within such additional time as the Department of Public Health and Safety or (Board) may grant, the Police Department/Code Enforcement Officer shall have the authority to enter upon the property and abate the public nuisance found thereon. In abating such nuisance, the Police Department/Code Enforcement Officer may go to whatever extent may be necessary to complete the abatement of the public nuisance and should it be practicable to salvage any material derived in the aforesaid abatement, the Police Department/Code Enforcement Officer may sell the salvaged material at private or public sale at the best price obtainable and shall keep an accounting of the proceeds thereof.
B. The proceeds, if any, obtained from the sale of material salvaged as a result of an abatement of a public nuisance by the Police Department/Code Enforcement Officer shall be deposited to the General Fund of the city and any deficit between the amount so received and the cost of the abatement may be levied as an assessment against the property in question by the City Council and collected as any other assessment by the city; however, any other alternative collection method may be utilized by the city to recoup the deficit. Should the proceeds of the sale of such salvaged material exceed the cost of the abatement, the surplus, if any shall be paid to the owner of the property from which the public nuisance was abated when a proper claim to the excess is established.
C. In abating a public nuisance, the Police Department/Code Enforcement Officer may call upon any of the city departments or divisions for whatever assistance shall be deemed necessary or may be private contract cause the abatement of the public nuisance.
D. The Police Department/Code Enforcement Officer shall, after completing the removal and abatement, file a statement of costs with the City Auditor.
(Ord. No. 2005-41, Sec. 6.)
11.21.07 Notice of assessment: appeal of charges
A. Upon receipt of the statement of costs from the Police Department/Code Enforcement Officer, the Auditor shall mail to the owner of the property upon which the public nuisance has been abated notice of the amounts set forth in the statement plus an additional amount sufficient to defray the costs of the notice and stating that the city proposes to assess against the property the amount set forth in the notice and that objections to the proposed assessment must be made in writing and received by the Auditor within twenty (20) days from the date of mailing such notice. Upon the expiration of the twenty (20) day period, if no objections have been received by the Auditor, the Auditor shall enter that amount in the city liens docket which shall therefore constitute a lien against the property.
B. If objections of either the property owner or their representatives are received by the Auditor prior to the expiration of the twenty (20) day period the Auditor shall refer the matter to the Police Department/Code Enforcement Officer for administrative review.
C. Upon conclusion of administrative review, the Police Department/Code Enforcement Officer shall make a written determination that the amount of the charges shall be canceled, reduced, or remain the same. A copy of this determination shall be furnished to the person making the objections together with a notice of such person’s right to appeal to the Nuisance Appeals Board.
D. If no appeal of a determination by the Police Department/Code Enforcement Officer is filed within the time period allowed, a copy of the determination will be furnished to the Auditor who shall ten enter a lien in the amount determined by the Police Department/Code Enforcement Officer in the city liens docket as provided in subsection (A).
E. If a timely appeal is received by the Appeals Board, a hearing shall be scheduled and held on the matter. If, after the hearing, the Appeals Board determines that the proposed assessment does not comply with subsection (G) herein, the Appeals board shall so certify to the Auditor and the proposed assessment shall be canceled. If, after the hearing, it is determined that the proposed assessment or any part of it is proper and authorized, the Appeals Board shall so certify to the Auditor who shall enter a lien in such amount as determined appropriate by the Appeals Board, in the lien docket as provided in subsection (A).
F. The determination of the Appeals Board is a final administrative decision and is not appealable to the City Council.
G.
1. The Police Department/Code Enforcement Officer, in administrative review, or the Appeals Board, on appeal, may reduce or cancel a proposed assessment if it is determined that:
a. Any of the following did not conform to the provisions of this ordinance:
(1) The notice to remove the nuisance; or
(2) The work performed in abating the nuisance; or
(3) The computation of charges; or
b. The owner of the property was eligible for a waiver of costs under 11.21.09.
2. The Police Department/Code Enforcement Officer, in administrative review, or the Appeals Board, on appeal, may reduce a proposed assessment by eliminating the civil penalty portion of the invoice if it is determined that:
a. The current owner was not in possession of the property at the time the notice required in 11.21.03 was posted; or
b. The owner did not receive the notice to remove the nuisance, did not have knowledge of the nuisance and could not, with the exercise of reasonable diligence, have had such knowledge.
H. If, after a lien has been entered in the docket of city liens, there is a written request of an owner who alleges that the owner did not receive notice of the proposed assessment, the Auditor shall refer the matter for review pursuant to subsection (B).
I. The lien may be canceled or reduced by the review, or the Police Department/Code Enforcement Officer, in administrative review, or the Appeals Board, on appeal, if it is determined that the owner did not receive notice of the proposed assessment, did not previously have knowledge of the lien or of the nuisance abatement work constituting the basis of the lien, could not, in the exercise of reasonable care of diligence, have had such knowledge, and in addition that the circumstances are such that a reduction or cancellation of the charges would have been appropriate had the matter been reviewed pursuant to this section prior to assessment. Upon receipt of a certification from the Appeals Board, pursuant to subsection (E), the Auditor shall cancel or reduce the lien if required by the determination of the Police Department/Code Enforcement Officer and/or Appeals Board.
(Ord. No. 2005-4, Sec. 7.)
11.21.08 Personal liability of owner. The person who is the owner of the property at the time at which the notice required under 11.21.03 of this ordinance is posted shall be personally liable for the amount of the assessment including all interest, civil penalties, and other charges.
(Ord. No. 2005-4, Sec. 8.)
11.21.09 Cost of abatement: low income. elderly persons
A. Notwithstanding the other provisions of this ordinance, the cost of abating a nuisance shall be waived for low income and elderly persons, if upon application it appears to the Police Department/Code Enforcement Officer that the conditions set forth in subsection (B) are met.
B. To be eligible for waiver of nuisance abatement costs a person must be classified as low income, as defined by the Police Department/Code Enforcement Officer, or
C. Be more than 65 years of age and:
1. A person living alone, whose total income for the preceding calendar year that did not exceed two and one-quarter (2 ¼) times the maximum amount a Social Security recipient at age 65 may have earned in that year without having any benefits withheld.
2. The head of a household which household received a total income for the preceding calendar year that did not exceed two and one-quarter (2 ¼) times the maximum amount a Social Security recipient at age 65 may have earned in that year without having any benefits withheld.
D. Additionally, all persons wishing to qualify for waiver of nuisance abatement costs must:
1. Furnish proof of the age and/or income requirements as set forth above in the manner and form designated by the Police Department/Code Enforcement Officer;
2. Must own, or be in the process of purchasing the property from which the nuisance is abated; and
3. Be living on the property from which the nuisance is abated.
E. The removal of the nuisance in question must have been required by the Police Department/Code Enforcement Officer and the person requesting waiver of costs must have been officially notified by the Police Department/Code Enforcement Officer to remove the nuisance.
F. Applications for waiver of nuisance abatement costs shall be filed with the Police Department/Code Enforcement Officer, on forms supplied by the city, within ten (10) days after receipt of a notice to remove a nuisance or a work order notice unless the Police Department/Code Enforcement Officer extends the time for good cause shown. All information required to be given on such form shall be supplied and verified by the applicant.
G. The maximum amount that may be waived under this section for any one parcel of real property or any one person shall be Five Hundred Dollars ($500.00) per calendar year.
H. No overhead charge of civil penalty shall be imposed for any real property for which a waiver pursuant to this section shall have been approved.
(Ord. No. 2005-4, Sec. 9.)
11.21.10 Overhead charge; civil penalties
A. Whenever a nuisance is abated by the city, the Police Department/Code Enforcement Officer shall keep an accurate account of all expenses incurred including an overhead charge of twenty-five percent (25%) for administration and civil penalty of Two Hundred Dollars ($200.00) for each nuisance abated.
B. When the city has abated a nuisance maintained by any owner of real property, for each subsequent nuisance that is abated by the city within two (2) consecutive calendar years concerning real property, owned by the same person, an additional civil penalty of fifty percent (50%), minimum of Fifty Dollars ($50.00), of the cost of abatement shall be added to the costs, charges and civil penalties provided for in subsection (A). The civil penalty shall be imposed without regard to whether the nuisances abated by the city involve the same real property or are of the same character.
(Ord. No. 2005-4, Sec. 10.)
