CHAPTER VIII. HEALTH AND WELFARECHAPTER VIII. HEALTH AND WELFARE\ARTICLE 2. HEALTH NUISANCES

The governing body has found that there exist within the city unsightly and hazardous conditions due to: dilapidation, deterioration or disrepair of walls, siding, fences or structure exteriors; accumulations increasing the hazards of accidents or other calamities; structural defects; uncleanliness; unsightly stored or parked material, equipment, supplies, machinery, vehicles or parts thereof. Such conditions are inimical to the general welfare of the community in that they have a blighting influence on the adjoining properties, the neighborhood and the city, or are injurious to the health and safety of the residents of the city. The governing body desires to promote the public health, safety and welfare by the repair, removal, abatement, and regulation of such conditions in the manner hereafter provided.

(Code 2006)

The purpose of this article is to protect, preserve, upgrade, and regulate the environmental quality of industrial, commercial and residential neighborhoods in this city, by outlawing conditions which are injurious to the health, safety, welfare or aesthetic characteristics of the neighborhoods and to provide for the administration and enforcement thereof.

(Code 2006)

The words and phrases listed below when used in this article shall have the following meanings:

(1)   Abandoned Motor Vehicle - any motor vehicle which is not currently registered or tagged pursuant to K.S.A. 8-126 to 8-149 inclusive, as amended; or parked in violation of the code; or incapable of moving under its own power; or in a junked or wrecked condition.

(2)   Accessory Structure - a secondary structure detached from the principal structure but on the same premises, including, but not limited to, garages, sheds, barns, or outbuildings.

(3)   Commercial or Industrial - used or intended to be used primarily for other than residential purposes.

(4)   Dilapidation. Deterioration or Disrepair - shall mean any condition characterized by, but not limited to: holes, breaks, rot, decay, crumbling, cracking, peeling, or flaking paint, rusting, or other evidence of physical damage, neglect, lack of maintenance, excessive use or weathering.

(5)   Exterior - those parts of a structure which are exposed to the weather or subject to contact with the elements; including, but not limited to: sidings, facings, veneers, masonry, roofs, foundations, porches, screens, shutters, windows, doors or signs.

(6)   Garbage - without limitation any accumulation of animal, fruit or vegetable waste matter that results from the handling, preparation, cooking, serving, delivering, storage, or use of foodstuffs.

(7)   Person - any individual, individuals, corporation, partnership, unincorporated association, other business organization, committee, board, trustee, receiver, agent or other representative who has charge, care, control or responsibility for maintenance of any premises regardless of status as owner, renter, tenant or lessee, whether or not in possession.

(8)   Premises - any lot, plot or parcel of land including the structures thereon. Premises shall also mean any lot, plot or parcel of land without any structures thereon.

(9)   Refuse - garbage and trash.

(10) Residential - used or intended to be used primarily for human habitation.

(11) Structure - anything constructed or erected which requires location on the ground or is attached to something having a location on the ground including any appurtenances belonging thereto.

(12) Trash - combustible waste consisting of, but not limited to: papers, cartons, boxes, barrels, wood, excelsior, furniture, bedding, rags, eaves, yard trimmings, or tree branches and non-combustible waste consisting of, but not limited to: metal, tin, cans, glass, crockery, plastics, mineral matter, ashes, clinkers, or street rubbish and sweepings.

(13) Weathered - deterioration caused by exposure to the elements.

(14) Yard - the area of the premises not occupied by any structure.

(Code 2006)

It shall be unlawful for any person to maintain or permit any nuisance within the city as defined, without limitation, as follows:

(a)   Filth, excrement, lumber, rocks, dirt, cans, paper, trash, metal or any other offensive or disagreeable thing or substance thrown or left or deposited upon any street, avenue, alley, sidewalk, park, public or private enclosure or lot whether vacant or occupied;

(b)   All dead animals not removed within 24 hours after death;

(c)   Any place or structure or substance which emits or causes any offensive, disagreeable or nauseous odors;

(d)   All stagnant ponds or pools of water;

(e)   All grass or weeds or other unsightly vegetation not usually cultivated or grown for domestic use or to be marketed or for ornamental purposes;

(f)   Abandoned iceboxes or refrigerators kept on the premises under the control of any person, or deposited on the sanitary landfill, or any icebox or refrigerator not in actual use unless the door, opening or lid thereof is unhinged, or unfastened and removed therefrom;

(g)   All articles or things whatsoever caused, kept, maintained or permitted by any person to the injury, annoyance or inconvenience of the public or of any neighborhood;

(h)   Any fence, structure, thing or substance placed upon or being upon any street, sidewalk, alley or public ground so as to obstruct the same, except as permitted by the laws of the city.

(K.S.A. 21-4106:4107; Ord. 1262, Sec. 1; Code 2006)

The City Manager shall designate a public officer to be charged with the administration and enforcement of this Article.

(Ord. 1262, Sec. 2; Code 2006; Ord. 1453, Sec. 1)

The public officer or his or her authorized representative, shall make inquiry and inspection of premises upon receiving a complaint or complaints in writing signed by two or more persons stating that a nuisance exists and describing the same and the location. The public officer may also make inquiry after being informed that a nuisance may exist by the fire chief. The public officer may make such inquiry and inspection when he or she observes conditions which appear to constitute a nuisance. Upon making any inquiry and inspection, the public officer or designee shall make a written report of findings. These written reports may include photographs of the premise.

(Ord. 1262, Sec. 3; Code 2006; Ord. 1453, Sec. 1)

The public officer or designee shall have the right of access and entry upon private property for the purpose of making inquiry and inspection to determine if a nuisance exists.

(Ord. 1262, Sec. 4; Code 2006; Ord. 1453, Sec. 1)

Any person, corporation, partnership, or association found by the public officer to be in violation of this Article shall be served a notice of such violation. This notice shall be served upon the person, corporation, partnership, or association in violation in one of the following ways:

(a)   Personal service upon the person, corporation, partnership, or association in violation;

(b)   Service by restricted mail, postage prepaid, return receipt requested;

(c)   Service by registered mail, postage prepaid, return receipt requested; or

(d)   In the event the whereabouts of such person, corporation, partnership, or association are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the public officer. This affidavit shall be filed with the City Clerk. In such event, the notice shall be served by publishing the notice once each week for two consecutive weeks in the official City newspaper and by posting a copy of the notice on the premises where such condition exists.

(e)   If the owner or agent of the owner of the property has failed to accept delivery or otherwise failed to effectuate receipt of a notice or order sent pursuant to this section during the preceding twenty-four month period, the governing body of the City may provide notice of the issuance of any further orders to abate or remove a nuisance from such property or provide notice of the order by such methods including, but not limited to, door hangers, conspicuously posting notice of such order on the property, personal notification, telephone communication or first class mail. If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail.

(Ord. 1323; Code 2006; Ord. 1453, Sec. 1)

The notice shall state the condition(s) which is (are) in violation of this Article. The notice shall also inform the person, corporation, partnership or association that:

(a)   He, she or they shall have 15 days from the date of serving the notice to abate the condition(s) in violation of this Article; or

(b)   He, she or they have 15 days from the date of serving the notice to request a hearing before the governing body as provided by this Article.

(c)   Failure to abate the condition(s) or to request a hearing within the time allowed may result in prosecution as provided by this Article and/or abatement of the condition(s) by the City.

(Ord. 1262, Sec. 6; Code 2006)

Should the person, corporation, partnership or association fail to comply with the notice to abate the nuisance or request a hearing, the public officer may file a complaint in the municipal court of the City against such person, corporation, partnership or association and upon conviction of any violation of provisions of this Article, such person, corporation, partnership, or association shall be fined in an amount of not less than $100 nor more than $1,000 or be imprisoned for a period not to exceed 30 days or be both fined and imprisoned. Each day during or on which a violation occurs or continues after notice has been served shall constitute an additional or separate offense.

(Ord. 1262, Sec. 7; Code 2006; Ord. 1453, Sec. 1)

In addition to, or as an alternative to prosecution as provided in Section 8-210, the public officer may seek to remedy violations of this section in the following manner. If a person, corporation, partnership, or association to whom a notice has been sent pursuant to 8-208 has neither alleviated the conditions causing the alleged violation nor requested a hearing before the governing body within the time periods specified in 8-209, the public officer may present a resolution to the governing body for adoption authorizing the public officer or other agents of the City to abate the conditions causing the violation at the end of 15 days after passage of the resolution. The resolution shall further provide that the person, corporation, partnership or association shall have 30-days to pay the costs assessed by the City or the costs will be charged against the lot or parcel of ground on which the nuisance was located as provided in Section 8-213. A copy of the resolution shall be served upon the person in violation by one of the methods of service enumerated in Section 8-208.

(Ord. 1262, Sec. 8; Code 2006; Ord. 1453, Sec. 1)

If a hearing is requested within the 15 day period as provided in section 8-209, such request shall be made in writing to the governing body. Failure to make a timely request for a hearing shall constitute a waiver of the person's right to contest the findings of the public officer before the governing body. The hearing shall be held by the governing body as soon as possible after the filing of the request therefore, and the person shall be advised by the city of the time and place of the hearing at least five days in advance thereof. At any such hearing, the person may be represented by counsel, and the person and the city may introduce such witnesses and evidence as is deemed necessary and proper by the governing body. The hearing need not be conducted according to the formal rules of evidence. Upon conclusion of the hearing, the governing body shall record its determination of the matter by means of adopting a resolution and serving the resolution upon the person in the matter provided in section 8-208.

(Ord. 1262, Sec. 9; Code 2006)

If the City abates the nuisance pursuant to Section 8-211, the cost will be assessed according to the following schedule:

(a)   Trash or Refuse Removal- $100.00 per hour (one hour minimum), provided that if more than two persons are assigned to the clean-up, an additional charge of $50.00 per hour for each additional person assigned shall be charged, in addition to landfill charges and an administrative fee of $150.00.

(b)   Vehicle Removal- $100 per hour (one hour minimum), plus the towing fee charged to the City by the towing company plus a $150 administrative fee.

(c)   Mowing or Weed Abatement Fee- $125 per person per hour (one hour minimum) or $0.60 per one hundred square feet, whichever is greater, plus an administrative fee of $150. All fees are charged once each mowing or abatement.

(d)   The above fees shall be doubled for rental properties and properties with more than one violation in a 12-month period. The fees to be doubled include all of the fees listed above and the administrative fees.

These fees are subject to change and will be reviewed at least once annually by a resolution titled "A RESOLUTION CONCERNING SERVICE, LICENSE AND PERMIT FEES WITHIN THE CORPORATE LIMITS AND SERVICE AREA OF THE CITY OF HOISINGTON."

The City shall give notice of the total cost assessed for the abatement or removal by the City to the person, corporation, partnership or association by one of the methods of service outlined in Section 8-208. The notice shall also state that the payment is due within 30 days following receipt of the notice. The City also may recover the cost of providing notice including any postage or publication, required by this section.

The notice shall also state that if the cost assessed for the removal or abatement is not paid within the 30-day period, the cost of the abatement or removal shall be collected in the manner provide by K. S .A. 12-1,115, and amendments thereto, or shall be assessed as special assessments and charged against the lot or parcel of land on which the nuisance was located and the city clerk at the time of certifying other taxes to the county clerk, shall certify the unpaid portion of the costs as provided in this section. The county clerk shall extend the same on the tax roll and it shall be collected by the county treasurer and paid to the City as other city taxes are collected and paid. The City may pursue collection both by levying a special assessment and in the manner provided by K. S.A. 12-1,115, and amendments thereto, but only until the full assessed cost and applicable interest and fees have been paid in full.

(Ord. 1262, Sec. 10; Code 2006; Ord. 1453, Sec. 1)

Any person affected by any determination of the governing body under this Article may appeal such determination in the manner provided by K.S.A. 60-2101.

(Ord. 832; Code 1985)

Nothing in this article shall be construed to abrogate or impair the powers of the courts or of any department of the city to enforce any provisions of its laws nor to prevent or punish violations thereof. The powers conferred by this article shall be in addition to and supplemental to the powers conferred by the Kansas Constitution, by any other law or by ordinance.

(Code 2006)