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ORDINANCE NO. 2012 - 04 AN ORDINANCE AMENDING TITLE 4, CHAPTER 3 OF THE CITY OF CODY CODE: NUISANCE ABATEMENT BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF CODY, PARK COUNTY, WYOMING: Title 4, Chapter 3, Sections 1 through 12 of the City of Cody Code shall be amended as follows: Section 1: Violation prohibited. Section 4-3-1: VIOLATION PROHIBITED It is unlawful for any person, property owner or occupant to maintain or permit the existence of any nuisance, as defined herein, on any property within the city. Any person in violation of this section shall, in addition to any penalty that may be imposed for the violation of this code, be subject to the provisions of this chapter and be required to reimburse the City for expenses incurred in the abatement of the nuisance. Section 4-3-2: NUISANCE CONDITIONS DEFINED Each of the following conditions described shall constitute a public nuisance. The various nuisances described and enumerated in this section shall not be deemed to be exclusive, but shall be in addition to all other nuisances described and prohibited by this code. A. Vegetation - Maximum Height Permitted: Any weeds, grass, or plants growing to a height exceeding twelve inches anywhere in the city, including platted lots (whether developed or undeveloped), easements and rights of ways. Weeds shall not be placed in streets, alleys, gutters, city rights of way, public property or property belonging to another. Weeds shall be placed in City garbage containers, or taken to an appropriate and lawful disposal site. The following shall be exempt from the height regulation in this chapter: planted trees, bushes, flowers, planted material growing in gardens or planting beds, including fruit or vegetable gardens, standing crops (including grass or hay grown for grazing pasture for livestock or intended to be cut and baled for livestock feed), decorative grasses that are planted as part of a xeriscaping design; naturally occurring plant life in undeveloped and un-platted areas of the city; “native areas” and the natural vegetation contained therein. “Native areas” means those areas of natural groundcover of one-half acre or larger, under single ownership. B. Derelict, Junked, etc. Vehicles: Unlicensed, derelict, or junk vehicles and parts or remains thereof parked upon private property, public property, public streets, alleys, easements, rights of ways or other ways are declared to be nuisances. The presence of an unlicensed vehicle, wrecked, dismantled, derelict or inoperative vehicle, on private or public property, is declared to constitute a public nuisance that may be abated as such in accordance with the provisions of this chapter. The tearing down, stripping or junking of such vehicles shall be permitted only where and when such use is specifically authorized, permitted or licensed under other ordinances of the city and in strict accordance therewith; or which use is conducted entirely within the confines of an accessory garage building, then only provided that such vehicle is the property of the owner or occupier of the lot and that such use is not a commercial use of the property, unless such use is authorized by other ordinances of the city. ---PAGE BREAK--- 1. Derelict Vehicles: A vehicle, or parts thereof, shall be deemed to be “derelict” if the vehicle is: a. Partially or wholly dismantled; b. In a condition that prevents legal operation; c. Junked or intended to be recycled or scrapped; or 2. For purposes of this chapter, “vehicles” shall include vehicles, motor vehicles, multipurpose vehicles, trailers and snowmobiles as defined in either W.S. 31-1-101 or W.S. 31-5-102; and watercraft as defined in W.S. 41-13-101. 3. The section defining and prohibiting derelict vehicles shall not apply to the following: a. Vehicles that are enclosed within a secure building; b. Vehicles that are kept and confined within a lot, and the area within which the vehicles are kept is fenced on all sides, and the fence is a lawful six foot fence or wall which complies with City ordinances; and the vehicles are maintained and stored in an orderly manner which does not create fire hazard, does not otherwise create a risk to the health and safety of the public, and does not devalue or detract from the use or enjoyment of property in the immediate vicinity; c. A vehicle maintained in a lawful place and manner by a governmental agency; d. An antique motor vehicle as defined in W.S. 31-2-210; e. A vehicle which is covered by an intact car cover which is securely attached to the vehicle and which covers the entire vehicle, with the exception of the wheels. Each vehicle shall have its own cover. In areas zoned as residential (AA, A, B and C zones), residents shall not have more than two covered vehicles. f. A race car that is currently actively engaged in racing and equipped for racing with roll cage, windows removed, drivers name, sponsors and number displayed. Demolition race cars shall be considered derelict vehicles two weeks after the demolition race in which they were used. g. An automobile repair shop may only have derelict vehicles on the premises for the time necessary under agreement for repair with business customers. C. Junk: Any iron, glass, weeds, metal, lumber, stumps, grass, trash, hedge trimmings, cut tree branches, paper, cloth, construction debris, refrigerator, freezer, electronic equipment or appliance which is not being utilized for its intended use, or other waste or discarded material of any nature or substance whatsoever or any scrap or salvage materials which are left or permitted to remain for a period of time in excess of thirty days upon any real property within the city or any city property within or without the corporate limits of the city or upon or within the entire width between the boundary lines of every way when any part thereof is open to the use of the public for purposes of vehicular travel, public utilities and rights of way shall constitute a nuisance. Properties within the commercial D-2, D-3, or the Industrial E zones may keep junk so long as such junk is kept, maintained, secured and stored in an orderly manner. 1. For purposes of this section, “junk” shall not include new or unused building materials, or building materials are in adequate and reasonable condition to allow them to be used, and so long as such building materials are kept, maintained, secured and stored in an orderly manner. D. Foul, Offensive or Harmful Conditions: Any cellar, vault, private drain, pool, privy, sewer, grease trap, accumulation of animal manure or fecal matter, or any other condition on a property or lot, including but not limited to uncontrolled dust, which endangers public health and safety, creates an unreasonable fire hazard, or ---PAGE BREAK--- causes hurt, harm, damage or injury to any one or more individuals, or to others property in the city or those immediately adjacent to the city shall constitute a nuisance. Section 4-3-3: NOTICE TO ABATE NUISANCE – COMPLIANCE REQUIRED A. It shall be the duty of any person receiving the notice of a public nuisance as provided in this Chapter to comply with the provision of the notice and to abate such nuisance within fifteen days after delivery of such notice, and if such person shall fail or refuse to abate such nuisance within fifteen days from receipt of such notice without just cause, such failure is declared to be unlawful and shall constitute a misdemeanor. Each day such nuisance persists shall constitute a separate violation. B. It is unlawful and shall constitute a misdemeanor for any person, after having received notice as provided in this chapter, to remove any vehicle or junk from private property to any other private property upon which storage is not permitted, or onto any public property. C. If the nuisance is not abated within the time provided, and after notice as provided by 4-3-4, the city may abate the nuisance, and the cost of abatement may be charged to the owner of the nuisance or assessed against the land upon which the nuisance exists or both. D. For purposes of this chapter, the term “delivery” shall refer to the date a notice is hand-delivered to the property owner or an occupant who is at least eighteen years at the last-known address of the property- owner; or the date of delivery as shown on a certified mailing receipt; or the last date of publication if service is by publication. Section 4-3-4: ENFORCEMENT – INITIATION OF COMPLAINT- NOTICE TO ABATE NUISANCE – CONTENTS – PROCEDURE A. Any person may initiate a complaint against a property owner or occupant if, in their opinion, a nuisance condition as defined in this title, exists on a property or lot within the City of Cody. The written complaint shall be on a form to be provided by the City of Cody, and shall be signed by the complaining party, dated and shall be delivered to the City of Cody Police Department for investigation. Nothing in this section shall be construed to prevent the initiation of an investigation by a peace officer, community service officer or other employee of the City of Cody without such a complaint. B. Whenever the City Administrator, the Chief of Police, or their respective designees, receive a written, signed complaint as described above, that any condition is a public nuisance as defined in this chapter, or in the event that a peace officer or community service officer employed by the City of Cody observes a condition which appears to be a public nuisance as defined in this chapter, the City Administrator, Chief of Police or their designee shall investigate such complaint, and if the officer determines that a nuisance exists, the officer shall attempt to give written notice to the owner of the condition, if his or her address is known, to then owner of the land where the condition is located, and to any other person or entity known by the City Administrator or Chief of Police to have a security interest in the vehicle or junk. The notice shall be attempted by certified mail, return-receipt requested, or personal service, if the address of the individual or entity is known. In the case of vehicles, where practical, the notice shall also be affixed to the windshield or some other part of the vehicle where it can be easily seen. Where affixing the notice to a vehicle is impractical, and in the case of junk, the notice shall be posted at the site or on the premises where the nuisance exists. Such notice shall be in effect for the ---PAGE BREAK--- next twelve consecutive months, and the owner of the lot, parcel or vehicle shall be responsible for controlling the vegetation or other nuisance condition as prescribed above for the duration of the twelve month period, without the need for re-notification. After the initial notice, any subsequent period of noncompliance shall also be a violation of this section. C. Such notice shall include substantially the following information: 1. A statement that a certain condition is a nuisance within the provisions of Section 4-3-2; in the case of a vehicle, the notice should include the make, year and vehicle identification number if reasonably possible; 2. A description of the real property, by street address or otherwise, on which the nuisance exists; 3. A statement that such nuisance must be abated within fifteen days from the delivery of the notice; 4. A statement that if the nuisance is not abated within the time provided, the city may abate the nuisance, and the cost of abatement may be charged to the owner of the nuisance or assessed against the land upon which the nuisance exists or both; 5. A statement that a hearing upon the allegation of a public nuisance and the assessment of costs may be requested by giving written notice to the clerk of municipal court within ten days from the date of delivery of the notice, and that a request must specify the property concerning which the request is made, the requesting party’s name and address, and the nature of the interest held by the requesting party; that upon request a hearing will be scheduled to determine if a public nuisance exists and as to the assessment of administrative costs and the costs of abatement; that if a hearing is not so requested the right to a hearing, and the issue of whether a nuisance exists shall be waived; 6. A statement that failure to abate the nuisance may result in a city abatement and / or criminal charges. D. In the event that notice cannot be served by certified mail or in person as described above, service shall be made by publication in a newspaper of general circulation in Park County. The notice publication shall contain the same information required in the notice described above. The notice shall be published at least twice, with each notice appearing at least seven days apart. Notice by publication may contain multiple listings of public nuisances. E. Proof of notice shall be made by certification of any officer or employee of the city, or affidavit of any person over eighteen years of age, naming the person to whom notice was given and specifying the time, place and manner thereof. Proof of notice shall be made in each case and maintained for a period of two years from the date of abatement of the nuisance for which notice has been given. Section 4-3-5: HEARING PROCEDURE A. A request for a hearing upon the allegation of a public nuisance and the assessment of costs shall be made in writing and delivered to the municipal court clerk within ten days from the date of delivery of the notice to abate. Such request shall specify the property concerning which the request is made, the requesting party’s name and address, and nature of the interest held by the requesting party in the vehicle or junk. B. In the event of a public nuisance as defined in section 4-3-2 of which notice has been given, and which remains unabated for more than fifteen days after delivery, the City Administrator or Chief of Police or their designee is granted authority to abate, remove or cause the removal of the nuisance; provided however, that if a proper request for hearing is filed, abatement shall only proceed upon order of the municipal court judge or hearing examiner. ---PAGE BREAK--- C. In the event a request for hearing is filed as provided, a hearing shall be held before a hearing examiner designated by the governing body. The purpose of the hearing shall be to confirm or deny the existence of a public nuisance and for taking such further action as is authorized under this chapter. Notice of the time, place and hour of the hearing shall be sent at least ten days in advance of the hearing to the requesting parties and the city attorney. D. At such hearing, all parties and the city shall be afforded an opportunity to present evidence, to cross-examine and present argument; provided that all persons testifying shall be sworn; irrelevant, immaterial or unduly repetitious evidence shall be excluded; and the decision of the hearing examiner shall be based upon the evidence submitted at the hearing. The hearing examiner shall allow evidence according to the rules generally applicable to contest case hearing under the Wyoming Administrative Procedure Act. E. At or after such hearing, and in the event of confirmation that a public nuisance exists, the hearing examiner may resolve or order that the city administrator and / or city employees or agents remove or otherwise abate the nuisance; provided, however, that if the circumstances justify, in the opinion of the hearing examiner, the time for abatement may be delayed. In the event a nuisance is confirmed, administrative removal costs may also be assessed at the hearing. If it is found that a public nuisance does not exist, abatement authority shall be denied and costs shall not be assessed. F. Appeals from adverse decisions rendered by the hearing examiner may be made to the district court in the same manner as an appeal from an adverse decision rendered by an agency in a contested case under the provisions of W.S. Section 16-3-114. Section 4-3-6: REMOVAL—VOLUNTARY CONSENT—AFFIDAVIT The owner of any vehicle or junk or the owner of real property where any junk or vehicle has been abandoned may voluntarily consent to the removal of such property by the city. In order to give such consent, all owners of the property shall execute an affidavit in a form acceptable to the city attorney, stating that there are no other owners of the property or lien holders having a security interest in the property; that the owners will reimburse the city for the actual costs of removal or such other costs as are established by the city administrator for such removal; and that such reimbursement will be made to the city within thirty days of removal. Such affidavit shall constitute a statement by the owners signing such affidavit that they will indemnify the city for any loss or expense alleged by any other party as a result of removal or disposal. The execution of such affidavit shall also release the city from any obligation to account or pay over to the owners any amount the city receives for the property. The owner’s consent to the removal of any junk or vehicle by the city, and the city’s subsequent removal of junk and /or vehicles from the owner’s property, shall not in any way be deemed a continuing obligation or responsibility on the part of the city to maintain the property, and shall not relieve the property owner of their obligation and responsibility to continue to maintain the property. Section 4-3-7: DISPOSAL – ASSESSMENT OF COSTS A. Any vehicle or junk which is impounded or removed and taken into custody, as provided in this chapter, may be disposed of according to the provisions of W.S. Section 7-2-111, or W.S. 31-13-108, 31-13-109 and 31-13-110. B. The City Administrator, or the City Administrator’s designee, shall determine the costs of removal and disposal in each case. The City Administrator shall take into account the amount of time spent by City employees, the cost and time involved for the use of city equipment and fuel, and the costs and expenses for disposing of the vehicles, junk and /or other materials constituting the nuisance. The City Administrator may contract with a company, firm or individual who is not an ---PAGE BREAK--- employee of the City to remove or abate the nuisance, and the cost of such removal shall be assessed against the property owner. The city may take any action allowed by law to collect the actual costs of removal and storage of any property constituting a public nuisance. Nothing herein shall prohibit the city from waiving the cost of removal. C. Upon the owners failure and /or refusal to comply with the written notice to remove the nuisance within the specified time period, the City Administrator or Chief of Police or their designee may, in addition to issuing the owner a citation, after the expiration of the time to request a hearing, or if a hearing is requested, after the hearing examiner or municipal judge find that a nuisance exists, authorize the removal of such nuisance, and the owner of the lot or parcel from which the nuisance is removed shall be liable for all costs of the removal. D. The City Administrator or Chief of Police or their designee may initiate legal proceedings for the collection of costs of removal against the owner of the lot or parcel, upon the owner’s failure and /or refusal to pay the costs within thirty (30) days following demand for payment by the city. Section 4-3-8: SEARCH WARRANT A. The Chief of Police or his or her designee may make application to the municipal court for authority to enter upon land to examine vehicles, junk, weeds or any other condition for the purpose of making a determination as to whether a public nuisance exists and / or securing information as to the ownership of a vehicle or junk thought to constitute a public nuisance and /or securing information as to the identity of the person or persons in control of the land where the vehicle or junk is situated. This section shall not in any way be construed to limit the authority of law enforcement to lawfully enter upon and search premises without a warrant to the extent such entry and search is authorized by and consistent with the United State and Wyoming Constitutions. B. The municipal court has authority to issue search warrants and other process necessary to enforce this chapter. C. A warrant shall issue only upon affidavit sworn to before a person authorized by law to administer oaths and establishing the grounds for issuing the warrant. If the judge is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the purpose of the search, and naming or describing the place to be searched. The warrant shall be directed to the Chief of Police or any officer authorized to enforce or assist in enforcing the laws of the city or state. The warrant shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search, within a specified period of time not to exceed 10 days, the property identified. The warrant shall direct that it be served between 6:00 am ad 10:00 pm, unless the court, upon reasonable cause shown, authorizes the execution at other times. Section 4-3-9: ABATEMENT – COURT ACTION AUTHORIZED The city attorney is authorized to institute such proceedings in the name of the city in any court having jurisdiction over such matters against any property, entity or individual for which the charge for abating a nuisance under this chapter has remained unpaid for a period of thirty days after a bill therefor has been rendered to the owner of the property involved. Section 4-3-10: TITLE TO IMPOUNDED VEHICLES ---PAGE BREAK--- Title to any impounded vehicle not reclaimed by the registered owner or any lien holder within thirty days of the date of the notice shall vest in the city. A change in the title may be obtained by the city pursuant to the authority of this chapter and the procedure established in state statutes to obtain a change in title. Section 4-3-11: NOTICE OF REMOVAL A. Upon removal of any vehicle by the city, a written report of the removal shall be sent to the last address of the owner, if known, otherwise such notice shall be sent to the Wyoming Department of Revenue and Taxation. The report shall include a description of the vehicle, the date, time and place of removal, the grounds for removal and the place of impoundment of the vehicle. B. Proof of providing the report shall be made by the certificate of any city employee involved in the impoundment of the vehicle, specifying the person to whom the report was directed and the date and manner the report was provided. C. Such report shall not be required if the retail value of the vehicle is less than six hundred dollars as reasonably determined by the chief of police or his designee. This Ordinance shall become effective at the final passage and publication in the Cody Enterprise as required by law. PASSED ON FIRST READING: _______March 6, 2012_____ PASSED ON SECOND READING: ______April 3, 2012______ PASSED ON THIRD READING: 1, 2012______ Nancy Tia Brown, Mayor ATTEST: Baker, Administrative Services Director