CHAPTER 3
NUISANCES
SECTION:
4-3-1: Excretion Of Human Waste
4-3-2: Obstruction Or Pollution Of Waterways Prohibited
4-3-4: Premises Kept In Unsightly Condition
4-3-5: Operation Of Lumberyards
4-3-6: Nuisance Declared; Abatement
4-3-6-2: Abatement Of Nuisance
4-3-6-4: Remedies And Sanctions Not Exclusive
4-3-7: Chronic Nuisance Property
4-3-8-2: Graffiti Removal Required
4-3-8-3: Notice To Remove Graffiti
4-3-8-4: City Abatement Option
4-3-1 EXCRETION OF HUMAN WASTE:
A. Definitions: For the purposes of this section, the following definitions shall apply:
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EXCRETION: |
The discharge of human waste from the body, including the acts of defecation and urination. |
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GROUND: |
The surface of the earth and anything attached to or setting upon said surface except toilet facilities used as receptacles for human waste. |
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HUMAN WASTE: |
Human feces or human urine. |
B. Nuisance Declared: To protect and promote the public health of the inhabitants of the city, it shall be unlawful for any person to excrete human waste upon the ground within the corporate limits of the city. Any person found guilty of excreting human waste as herein provided shall be guilty of a misdemeanor and shall be punished as provided in section 1-4-1 of this code. (Ord. 401, 11-10-1980; amd. 1988 Code)
4-3-2 OBSTRUCTION OR POLLUTION OF WATERWAYS PROHIBITED:
A. Any person who throws, deposits, injects or causes to be thrown, deposited, or injected upon or into the surface of the ground, or upon the banks of or into any irrigation lateral, ditch, river, stream, lake, pond, canal or any other body of water within the city, any glass, metal, cans, dead fowl or animals or parts of the same, or any refuse or hazardous material of any kind, junk, automobiles or any parts thereof, directly or indirectly, so as to in any manner obstruct the flow of or contaminate the watercourse, or the ground water beneath the surface of the ground, or obstruct the banks of a watercourse, shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided by the statutes of the state of Idaho and the ordinances of the city. It shall be the duty of the city police officers to make complaint before the proper court for violations of this section whenever probable cause exists to believe that such a violation has occurred. (Ord. 167, 5-7-1962; amd. Ord. 599, 10-13-1992; Ord. 609, 7-13-1993)
B. It shall be unlawful for any person to contribute, or permit to be contributed any pollutants to a municipal storm sewer system by stormwater discharges associated with industrial activity.
C. Any person who contributes or permits to be contributed a discharge of stormwater, from sites of industrial activity, which the owner or operator of a municipal separate storm sewer system finds to have adversely affected the water quality of any municipal separate storm sewer system discharge to waters of the United States shall be deemed to have violated subsection A of this section.
D. No person shall permit the discharge, dumping or disposal of spills or materials, other than stormwater, to a municipal separate storm sewer system.
E. Each separate day upon which any person is found to be in violation of this section shall be deemed to be a separate violation.
F. Any person convicted of a violation of this section shall be deemed guilty of a misdemeanor and may be fined in a sum not to exceed three hundred dollars ($300.00) and may be confined in jail for a period of not more than six (6) months. Either or both such fine or imprisonment may be imposed. Any person so convicted shall, in addition thereto, pay any costs as the court may assess. Notwithstanding, the person so convicted may be assessed a fine of up to one thousand dollars ($1,000.00) for a violation of this section where permitted or required by federal law.
G. The director of public works, or his or her designee shall be responsible for the enforcement of this section and shall conduct periodic surveillance and off site inspections to ensure compliance with this section. Whenever the owner or operator of a municipal separate storm sewer system provides information to the Garden City prosecuting attorney, based upon inspection, surveillance or monitoring data sufficient to sustain prosecution of an action under this section, said prosecutor shall pursue such action in the name of Garden City and on behalf of the owner or operator of the municipal separate storm sewer system. Nothing herein shall be deemed to preclude the city attorney from pursuing any civil action, at law or in equity, to prevent degradation of storm water quality.
H. The definition of any term used in this section shall be governed by the definition and use of said term in section 402 of the federal water pollution control act (clean water act, 33 USC 1342) and section 40, part 122.26 et seq., of the code of federal regulations. (Ord. 609, 7-13-1993)
4-3-3 LITTERING:
It shall be unlawful for any person to place, or cause to be placed any refuse or hazardous material in or upon any property container not owned or leased by such person. The city may authorize storage of refuse on streets and alleys for spring and fall cleanup. The city shall designate such places and times where such accumulation is allowed by resolution. Any person violating the terms of this section shall be guilty of a misdemeanor and shall be subject to a fine as provided in section 1-4-1 of this code. (Ord. 493, 4-9-1985; amd. 1988 Code; Ord. 599, 10-13-1992)
4-3-4 PREMISES KEPT IN UNSIGHTLY CONDITION:
It shall be unlawful for any person to keep or store any unsightly collection of building materials, trash, rubbish, garbage, brush or weeds or new or used appliances or furniture or wrecked, unregistered or partially dismantled autos, or parts thereof, within the view of the general public anywhere within the corporate limits of the city. Upon being notified of an existing violation of this section, the code enforcement officer or his designee shall advise the occupant and/or owner of the property of such violation and request that immediate action be taken to remove the unsightly condition. In the event any person fails to remove the violation within ten (10) days after notice provided for herein, the chief of police or prosecuting attorney, or their designees, are hereby authorized to issue a citation. Any violation of this section shall be deemed a misdemeanor, and each twenty four (24) hour period that such activity continues shall be deemed a separate offense. (Ord. 818, 11-22-2004)
4-3-5 OPERATION OF LUMBERYARDS:
A. It shall be unlawful for any person to maintain any lumberyard or stacks of lumber or to stack lumber in the city in such a manner as to create a fire hazard or a nuisance or in such a manner as to endanger the life or well being of any persons.
B. All lumberyards or stacks of lumber shall be so maintained as to minimize the possibility of fire spreading from such yards to any nearby buildings or improvements.
C. All lumberyards and stacks of lumber shall be enclosed by a building or fence so that persons other than those having business interests in connection therewith shall not have access thereto unless permitted to have such access by the person in charge of such lumberyard or stacked lumber.
D. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor. (Ord. 14, 9-19-1949)
4-3-6: NUISANCE DECLARED; ABATEMENT:
4-3-6-1 NUISANCE DEFINED:
For the purpose of this chapter, the term "nuisance" is defined to mean any condition or use of property which is detrimental to the health or safety of persons or the property of others or which is declared to be a nuisance by this section, any other provision of this code, or by any other state or federal law. Nuisances shall specifically include, but are not limited to, the following:
A. Maintaining upon property junk, trash, garbage, refuse or other similar matter as defined by this section.
B. Keeping unsanitary matter on premises. It shall be unlawful for any person to keep, or permit another to keep, upon any premises deleterious or septic material, unless such material is retained in containers or vessels which deny access to humans, flies, insects, rodents or other animals.
C. Permitting any premises to become unsanitary or a fire menace by allowing any unsafe matter to grow, accumulate or otherwise occupy and remain on such premises.
D. Permitting pools of water to accumulate and remain upon any premises thereby becoming stagnant and foul.
E. Any other use of property which is specifically declared by resolution of the council to be a nuisance, after compliance with the notice and hearing requirements of this chapter. (Ord. 554, 11-13-1990)
4-3-6-2 ABATEMENT OF NUISANCE:
Whenever a written statement that a "nuisance", as defined by section 4-3-6-1 of this chapter, exists or is being maintained within the jurisdictional limits provided by Idaho Code, is received by the city attorney or designee stating that the same is a menace to the public health or dangerous to the health or safety of the inhabitants of the city, the city attorney or designee shall issue a notice requiring the owner or agent of the owner of the premises to remove and abate the nuisance from said premises within a time, not exceeding ten (10) days, to be specified in the notice. Said notice shall be served by the Garden City police, by delivering a copy thereof to the owner, agent or occupant of the said property; or if the same is unoccupied and the owner is a nonresident, then by mailing the notice to the owner’s last known address.
If the owner, agent, or occupant of the property shall fail to comply with the requirements of the notice within the period specified therein, the city shall proceed to have the things described in the notice removed and abated from the property and the costs of abatement assessed in the manner provided for in the Idaho Code. (Ord. 554, 11-13-1990)
4-3-6-3 NOTICE AND HEARING:
A. In the event that the activity or use of the property is not a specified nuisance as declared in subsections 4-3-6-1A through D of this chapter, the city attorney or designee shall set the matter for a hearing before the city council by personal service, certified mail, or substituted service by notifying the owner or agent of the owner or occupant of the property of the grounds for declaring the use of the property a nuisance and the date of the hearing before the city council, which date shall in no event be less than ten (10) days from the receipt of notice of intent to seek a declaration of nuisance. Failure to receive a notice sent or served shall not invalidate the nuisance declaration resolution.
B. At the hearing before the city council the property owner, or agent of the owner or occupant of the property, may present evidence, call witnesses and be represented by counsel.
C. In the event the city council resolves that the specific use of property is a nuisance, the city council shall by resolution order the abatement or removal of the nuisance within a time period specified in the resolution.
Should the owner, agent or occupant of the property fail to abate or remove the nuisance within the time period set by the city council, the city shall proceed to abate the same and cause the costs of abatement to be assessed to the property in the manner prescribed by Idaho Code. (Ord. 554, 11-13-1990)
4-3-6-4 REMEDIES AND SANCTIONS NOT EXCLUSIVE:
The remedies and sanctions set forth in this chapter shall not be construed so as to exclude any other remedies or sanctions, either criminal or civil, elsewhere provided in this code. (Ord. 554, 11-13-1990)
4-3-6-5 SEVERABILITY:
The provisions of this chapter are severable, and if any sentence, section or other part of this chapter should be found to be invalid, such invalidity shall not affect the remaining provisions, and the remaining provisions shall continue in full force and effect. (Ord. 554, 11-13-1990)
4-3-7 CHRONIC NUISANCE PROPERTY:
A. Purpose: Chronic nuisance properties present grave health, safety and welfare concerns, and occur when the property owners or persons in charge of such properties have failed to take corrective action to abate the nuisance conditions. Chronic nuisance properties have a tremendous negative impact upon the quality of life, safety and health of the neighborhoods where they are located. Additionally, chronic nuisance properties are a financial burden to the city due to the repeated calls for service to the properties because of the nuisance activities that repeatedly occur or exist on such properties.
This section of the Garden City code is a means to ameliorate those conditions by providing a process for abatement and hold responsible the owners or persons in charge of such properties. This remedy is not an exclusive remedy available under any state or local laws and may be used in conjunction with such other laws.
B. Chronic Nuisance Property Violation:
1. Any property within the city of Garden City which becomes chronic nuisance property is in violation of this section and subject to its remedies.
2. Any person who permits property under his or her ownership or control to be a chronic nuisance property shall be in violation of this section and subject to its remedies.
C. Definitions: For purposes of this section, the following words or phrases shall have the meanings prescribed below:
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ABATE: |
To repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this section by such means and in such a manner and to such an extent as the applicable city department director or designee determines is necessary in the interest of the general health, safety and welfare of the community. |
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CHRONIC NUISANCE PROPERTY: |
Any property upon which three (3) or more of the below listed behaviors occur during any sixty (60) day period as a result of three (3) separate factual incidents that have been independently investigated by the Garden City police department. |
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CONTROL: |
The ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on a property. |
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NUISANCE ACTIVITY: |
Means and includes: |
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1. Any nuisance as defined by Idaho Code or this code occurring around or near the property, or; |
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2. Any of the following activities, behaviors or criminal conduct: |
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a. Any felony; |
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b. Domestic battery, Idaho Code section 18-918; |
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c. Stalking, Idaho Code section 18-7905; |
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d. Battery, Idaho Code section 18-903; |
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e. Assault, Idaho Code section 18-901; |
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f. Violation of a protection order, Idaho Code section 39-6312; |
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g. Violation of a no contact order, Idaho Code section 18-920; |
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h. Disturbing the peace, Idaho Code section 18-6409; |
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i. Refusal to disperse, Idaho Code section 18-6410; |
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j. Indecent exposure, Idaho Code section 18-4116; |
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k. Any firearms violation listed in Idaho Code sections 18-3301 through 3324; |
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l. Any drug related activity listed in Idaho Code sections 37-2701 through 2751; |
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m. False alarms, Idaho Code section 18-6711A; |
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n. Fighting, section 4-12-5 of this title; |
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o. Resisting and obstructing officers, Idaho Code section 18-705, and; |
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p. Any attempt to commit and/or conspiracy to commit any of the above activities, behaviors or conduct. |
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OWNER: |
Any person having any interest in the real estate in question, as indicated in the records of the office of the Ada County assessor. "Owner" further means any tenant, renter or lessee, or any person, agent, firm, or corporation having a legal or equitable interest in a property. |
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PERSON: |
Natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them. |
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PERSON ASSOCIATED WITH A PROPERTY: |
Any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize or visit, or waited to enter, patronize or visit a property or a person present on property, including, without limitation, any officer, director, customer, agent, employee, or any independent contractor of a property, or a person in charge of or owner of a property. |
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PERSON IN CHARGE OF A PROPERTY: |
Any person, in actual or constructive possession of a property, including, but not limited to, an owner, occupant, agent, or property manager of a property under his or her control. |
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PREMISES AND PROPERTY: |
May be used by this section interchangeably and means any building, lot, parcel, dwelling, rental unit or units, real estate or land, or portion thereof, including property used as residential or commercial property. |
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RENTAL UNIT: |
Any structure or that part of a structure, including, but not limited to, single-family home, trailer, mobile home, room or apartment, which is rented to another and used as a home, residence, or sleeping place by one or more persons, or for commercial purposes. |
D. Procedure:
1. When the chief of police, or his designee, receives police documentation confirming the occurrence of three (3) or more nuisance activities within a sixty (60) day period on the property, the chief of police, or his designee, may review such reports to determine whether they describe the nuisance activities enumerated above. For the purposes of this section, an arrest or conviction of an individual for the above described nuisance activities shall not be necessary to qualify said activity as a nuisance. Upon a finding of the occurrence of three or more nuisance activities within a sixty (60) day period on the property, the chief of police, or his designee, shall notify a property owner at the address shown on the Ada County assessor records and shall notify the person in charge of the property in writing that the property is in danger of being declared a chronic nuisance property.
2. The notice shall contain:
a. The street address or a legal description sufficient for identification of the property;
b. A concise description of the nuisance activities that exist, or that have occurred on the property;
c. A demand that the owner or person in charge respond to the chief of police, or his designee, within fifteen (15) days of service of the notice to discuss the nuisance activities and create a plan to abate the chronic nuisance;
d. Offer the person in charge an opportunity to abate the nuisance activities giving rise to the violation; and
e. A statement describing that if legal action is sought, the property could be subject to closure, civil penalties and costs assessed up to one hundred dollars ($100.00) per day after the notice of the chronic nuisance property is received.
3. Such notice shall be either: a) personally served; or b) delivered by first class mail to the person in charge of the property, with a copy mailed to the owner at the address indicated by the Ada County assessor, if different than the person in charge of the property.
4. If the person in charge fails to respond to the notice within the time prescribed, the chief of police, or his designee, shall post such notice at the property. If the person in charge fails to respond to the notice of chronic nuisance, the matter shall be referred to the office of the city attorney for further action.
5. If the person in charge responds as required by the notice and agrees to abate the nuisance activity, the chief of police, or his designee, and the person in charge and/or property owner, may work out an agreed upon course of action which would abate the nuisance activity. If an agreed course of action does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the matter shall be forwarded to the office of the city attorney for enforcement action.
6. It is a defense to an action for chronic nuisance property that the person in charge at all material times could not, in the exercise of reasonable care or diligence, determine that the property had become chronic nuisance property, or could not in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that the property is chronic nuisance property.
E. Commencement Of Action; Enforcement:
1. Once the matter is referred to the city attorney, the city attorney shall immediately review and make a determination whether to initiate legal action authorized under this section or state statute, or may seek alternative forms of abatement of the nuisance activity. The city attorney may initiate legal action on the chronic nuisance property and seek civil penalties and costs in district court for the abatement of the nuisance.
2. In determining whether a property shall be deemed a chronic nuisance property and subject to the court’s jurisdiction, the city shall have the initial burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property. The city may submit official police reports and other affidavits outlining the information that led to the investigation of nuisance activities occurring or existing at the property. The failure to prosecute an individual, or the fact no one has been convicted of a crime is not a defense to a chronic nuisance action.
3. Once a district court determines the property to be a chronic nuisance under this section the court may impose a civil penalty against any or all of the persons in charge of the property and/or the owner of the property, and may order any other relief deemed appropriate. A civil penalty may be assessed for up to one hundred dollars ($100.00) per day for each day the nuisance activity continues to occur following the date of the original notice by the chief of police, or his designee, as described above. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable:
a. The actions taken by the person in charge and/or owner to mitigate or correct the nuisance activity;
b. The financial condition of the persons in charge;
c. The repeated or continuous nature of the nuisance activity;
d. The cost to the city of investigating and correcting or attempting to correct the condition;
e. The statements of the neighbors or those affected by the nuisance activity; and
f. Any other factor deemed relevant by the court.
4. The district court which determines the property to be a chronic nuisance property shall also assess costs against the person in charge and/or owner in the amount it costs the city to abate, or attempt to abate, the nuisance activity.
5. If the district court determines the property to be a chronic nuisance property, the district court may order the property closed and secured against all unauthorized access, use and occupancy for a period up to six (6) months, and may impose a civil penalty and costs.
6. Once a determination has been made by the district court that the chronic nuisance property shall be subject to closure, the court may authorize the city to physically secure the premises and initiate such closure. Costs for such closure shall be submitted to the court for review. Any civil penalty and/or costs awarded to the city may be filed with the city treasurer, who shall cause the same to be filed as a lien on the property with the Ada County assessor.
7. The district court shall retain jurisdiction during any period of closure or abatement of the property. (Ord. 802, 5-13-2003)
4-3-8: GRAFFITI:
4-3-8-1 GRAFFITI PROHIBITED:
It is hereby declared to be a nuisance and to be unlawful for any person to place or put, by any means, any drawing, inscription, figure, symbol, or mark of any type commonly known as graffiti on any public or private property without the permission of the owner of the premises on which the surface is located, or upon any natural surfaces such as rocks or trees, or any other surface whatsoever. (Ord. 895-08, 10-13-2008)
4-3-8-2 GRAFFITI REMOVAL REQUIRED:
Any person found to be in violation of section 4-3-8-1 of this chapter shall be required to remove or cause to be removed the graffiti from the surface on which it was placed. Inasmuch as it is often not possible to determine the identity of the person who applied the graffiti, it shall be the duty of the owner or person in control of the premises on which the graffiti has been applied to promptly remove the graffiti after notice as hereinafter set forth. If, after notice as hereinafter provided, the graffiti nuisance is not abated, the city shall proceed to abate the graffiti nuisance and the costs of same shall be assessable against the property. (Ord. 895-08, 10-13-2008)
4-3-8-3 NOTICE TO REMOVE GRAFFITI:
A. Whenever the chief of police or his designated representative discovers graffiti on any public or private property or any surfaces visible to persons utilizing public rights of way within the city, he shall, whenever seasonal temperatures permit the painting of exterior surfaces, cause a notice to be issued to the owner or person in control of the premises to abate the nuisance and remove the graffiti or cover it with paint or other suitable substance.
B. Said notice shall be served upon the owner(s) of the affected premises, as shown on the last property tax assessment rolls of Ada County, Idaho, with a copy to the occupant of the premises. If there is no known address for the owner, the notice shall be served at the property address. Service of the notice may be accomplished through personal service on the owner, occupant, or person in charge or control of the property or by certified mail.
C. Notice shall be in writing and shall clearly state that the owner or person in charge or control of the property is required by this section 4-3-8 to remove from public view or paint over the graffiti within fifteen (15) days of receipt of the notice; that failure to so abate will cause the city to abate the nuisance and to assess the costs to the owner; that failure to pay said costs within thirty (30) days of receipt of billing shall result in an assessment against the property, collectable with the property taxes; that the owner or person served may, within ten (10) days of receipt of the notice, deliver in writing to the chief of police his objections to the removal requirement and request a hearing before the city council. (Ord. 895-08, 10-13-2008)
4-3-8-4 CITY ABATEMENT OPTION:
Nuisances which remain unabated after notice, may, at the option of the city, be removed, abated or destroyed by the city or its agents, after the following steps have been taken:
A. If after fifteen (15) calendar days from the date a written notice is personally delivered to the property owner, or mailed to the property owner’s address as shown in current official Ada County assessor records, no abatement of the nuisance has occurred, the designated enforcement officer shall provide a second ten (10) day notice to be delivered to the property owner by certified mail or personal service, which shall indicate the following:
1. That if the property owner fails to abate the nuisance, the city shall take steps to abate the same.
2. That the property owner may contract with the city to abate the nuisance and pay costs of the same.
3. That if the city abates the nuisance, all costs and expenses of abatement shall be billed and assessed against the property owner, and if unpaid, shall become collectable as a special assessment with property taxes.
4. That the property owner has a right to appear before the city council to show cause as to why he or she should not be forced to abate or pay for abatement of the nuisance; furthermore, that if the property owner desires such a hearing, a request for hearing, in writing, shall be given to the designated enforcement officer prior to expiration of the ten (10) day notice, and that abatement by the city will proceed if the property owner has not exercised this option to request a hearing.
5. If said certified notice is returned as undeliverable, or is unclaimed by the property owner, nothing shall preclude the city from exercising its abatement option as specified herein.
B. When the ten (10) day notice has expired without a request for hearing, the mayor’s designated enforcement officer is authorized to remove, abate or destroy the nuisance. The designated enforcement officer is authorized to utilize city personnel to abate the nuisance or to contact the mayor or chief of police in regard to contracting for an outside party to abate the nuisance.
C. If the city abates any nuisance under the provisions of this section, a statement of charges billed to the property owner shall be mailed or personally delivered to the property owner.
D. If payment is not received from the property owner within thirty (30) days, the amount billed shall, in accordance with state law, be assessed as a special assessment collectable against the subject property as other state, county and municipal taxes.
E. If the property owner requests a hearing to show cause before the city council, the hearing shall, if feasible, be placed on the agenda of the next regularly scheduled city council meeting. The decision of the city council shall be final. A ten (10) day period shall be given the property owner after the council decision so that the property owner shall have additional opportunity to abate the nuisance or to pursue any legal remedies or defenses at the district court level. (Ord. 895-08, 10-13-2008)
4-3-8-5 PENALTY:
A violation of any provision of this section 4-3-8 shall be a general misdemeanor punishable by a fine not to exceed one hundred dollars ($100.00). (Ord. 895-08, 10-13-2008)