Loading...
9. Discussion on enforcement of development code and ordinances{ SCANDIA Staff Report Date of Meeting: August 2, 2017 To: City Council From: Neil Soltis, Administrator Re: Ordinance / Development Code Enforcement Background: At the June 2017 City Council work session Joe Van Thomme from Eckberg Lammers made a presentation regarding Code Enforcement for Cities. A copy of his presentation is included for reference. One of the issues emphasized at the presentation was the need to have a process to ensure compliance with the keys to compliance including designating a code enforcement official and identifying and maintaining a record system. At the time there was discussion of the current process which is based on a 2014 Council resolution adopting a complaint form to establish a process to respond to citizen concerns and complaints. One of the issues in enforcement relates to the responsibility for zoning code enforcement. For example in Chapters 1 and 2 of the Development Code there are 154 reference to the Zoning Administrator; however, the City does not have an appointed Zoning Administrator who, under the Development Code, is responsible for code enforcement. As a bit of history the job description for the Administrator until revised in 2015 had the following duty: • Responds to questions from residents and developers regarding zoning and land use regulations. The job description for the Building and Code Enforcement Official and subsequent 2010 update for the Building and Maintenance Supervisor had the following duties which essentially established the person in that position as Zoning Administrator: • Receive, investigate and document complaints regarding property maintenance, construction and other land -use activities. • Coordinate enforcement actions with city staff (administrator, attorney, engineer, police department) and other agencies. • Testify in criminal and civil matters as needed. • Prepare reports regarding permitting, inspection and enforcement functions When the Building and Maintenance Supervisor position was transitioned to the Public Works Director that language was removed from the job description. The 2015 update of the Administrator position partially aligned with the process for handling citizen concerns and complaints with the addition of the following language that was in the previous Building and Maintenance Supervisor job description: • Receive, investigate and document complaints regarding property maintenance, construction and other land -use activities. Significant here is that the enforcement responsibilities and follow-up that were previously included in a job description were no included. Also significant is the current process only provides for the City to seek a criminal remedy to the issue through the issuance of a citation and does not provide for a civil process that would typically outline an abatement process. Beyond the development code there is a lack of clarity as to the roles, responsibilities and action to address with other ordinance violations and nuisances. In most cities the Code of Ordinance contains a section on Public Nuisance that identifies those nuisances, the duties of city officers, and the abatement of the nuisances. As an example I've included the code section from the League of Municipalities model code that addresses public nuisances. I'm looking for direction from the Council on the direction it wished to take with regard to the administration and enforcement of the zoning code and City ordinances. CITY OF SCANDIA RESOLUTION NO.: 01-15-13-04 RESOLUTION APPROVING USE OF CITIZEN COMPLAINT FORM WHEREAS, the City Council wants to remain responsive to citizen concerns; and WHEREAS, the City Council wants to make an efficient use of city resources in responding to citizen concerns and complaints; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCANDIA, WASHINGTON COUNTY, MINNESOTA, that it approves the attached Citizen Complaint Form and requires it to be used for all non -emergency concerns, including but not limited to code enforcement and permitting issues, raised by Scandia property owners. Adopted by the Scandia City Council this 15th day of January, 2013. Randall Simonson, Mayor ATTEST: Kristina Handt, Administrator/ City Clerk *4 SCANDIA City of Scandia Citizen Complaint Form (To be completed by Citizen) Complainant's Name Phone Complainant's Address Signature of Complainant Given to (Name of City Staff Member) Nature of Complaint Date FOR OFFICE USE ONLY -Date and Initial 1. Method used to verify non-compliance: On-site inspection Photographs taken Deputy verifies expired vehicle registration (For Junk Cars Only) 3. Clerk prepares & mails complaint report 4. Deadlines & Verifying Corrections Property owner to comply by: On that date, the Clerk re -inspects to verify that non-compliance has been corrected. If possible, photograph any continued non-compliance. Deputies verify vehicle registration is current if a junk car issue. 5. If property owner has not corrected the non-compliance: Clerk provides Deputy or City Attorney with packet of information on this non-compliance. Date Deputy issues citation — if applicable. Date City Attorney issues citation — if applicable. What is scheduled court date? (Check with Clerk of Courts) Results of hearing Comments Date File Closed ECI<BERG CANNERS ATTORNEYS AT LAW Code Enforcement for Cities Joe Van Thomme, City Prosecutor ECIGERG LAMMERS ATTORNEYS AT LAW WHAT WE'LL COVER • Types of Code Violations • Keys to Compliance • Tools for Enforcement ECIGERG LANIMERS ATTORNEYS AT LAW Goal of Every Municipality COMPLIANCE ECIGERG LAMMERS ATTORNEYS AT LAW Types of Code Violations Nuisances • Animals • Trash Piles • Junk Cars • Landscaping Buildin • Condition of Property • Uniform Development Code • 1 nfestations Zoning • Home Occupation • Use Violations • Signage • Crime -Free Multi - Housing 11 ECIGERG LAMMERS ATTORNEYS AT LAW ECIGERG LAMMERS ATTORNEYS AT LAW Why Cities Take Action Code Violations of all types impact: • Quality of life for residents • Property values • Public health and safety • Community acceptance of ordinances 9 ECIGERG LAMMERS ATTORNEYS AT LAW t'. �-, ft .. 1� "I -_ 11 ECIGERG LAMMERS ATTORNEYS AT LAW Keys to Compliance • Process le Documentation Notice and Action ECIGERG LAMMERS ATTORNEYS AT LAW Keys to Compliance Process 1. Designate a Code Enforcement Official ("CEO") who will: --Take complaints, observe violations --Identify specific code(s) violated --Document violations Include: Photographs, written descriptions, dates, names --Sign complaints, affidavits, warning letters, violation letters 2. Identify and maintain record system ECIGERG LAMMERS ATTORNEYS AT LAW Keys to Compliance Documentation 1. CEO will document/record --Specific violations and sections violated: Include: Property location, owner (with proof), dates, specific violations observed, person making observations --Any communications with owner/violator --Identify and maintain record system ECIGERG LAMMERS ATTORNEYS AT LAW Keys to Compliance Notice and Action 1. Notify property owner/violator of violations, in person and/or in writing of: --Specific violations observed, along with code section and dates --Time line for compliance (e.g. 1-14 days, 15-30 days etc) --City's enforcement action if violations continue 2. Take Action: --Review property on predetermined date, ensure "next step" is taken --Follow the same process for every violator every time! ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement • Civil Remedies -Abatements -Injunctions -Temporary Restraining Orders -Attorney's Fees/Costs? • Criminal Prosecution -Complaints or citation ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Civil Remedies • Abatements -Timeline: 90 days to one year or more -Process: -Civil complaint and pleadings -Trial -Order and/or stipulation permitting city's action -Costs assessed to property ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Civil Remedies • Injunctions/Temporary Restraining Orders (TROs) -Timeline: 90 days to one year or more -Process: -Civil complaint and pleadings -Temporary Order (usually), followed by trial -Order granting relief -Costs/attorney's fees can be imposed ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Civil Remedies • What To Expect -Time -Cost -Comprehensive result ECIGERG LANIMERS ATTORNEYS AT LAW Tools for Enforcement Criminal Prosecution • State law allows cities to designate ordinance violations as misdemeanors (most do) • Misdemeanor penalty: 90 days in jail, $1,000 fine or both • Criminal prosecution initiated by complaint or citation ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Criminal Prosecution • Process -Complaint or citation -Arraignment -Pretrial -Trial • Requirements for Prosecution -Documents ("reports") -Photographs ("evidence") -Witnesses ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Criminal Prosecution • What to EXDect -Control "issues" -A trip to court (maybe) -Success can vary ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Civil Remedies vs. Criminal Prosecution • Civil -Comprehensive -Can be costly -Focus is on the property • Criminal Prosecution -Quicker to initiate -Can be less costly, but less effective -Focus is on the person ECIGERG LANIMERS ATTORNEYS AT LAW Tools for Enforcement Civil Case Example • December 2014 — March 2015: complaints from neighbors, confirmation of failing septic system on residential property - "...emission from subsurface... raw septic effluent..." • April 16, 2015: Motion for TRO/complaint filed against property owner and resident • April 24, 2015: Served upon all parties (5 total) • April 24, 2015: Temporary Order granted, hearing scheduled • May 4, 2015: Hearing — judge issues Order suspending all septic use until further notice • May 5, 2015: multiple site visits by CEO, reviewing septic replacement work etc. • July 31, 2015: confirmation of new septic installed and compliance • August 4, 2015: stipulated dismissal by city/owner/resident, signed by judge ECIGERG LAMMERS ATTORNEYS AT LAW Tools for Enforcement Criminal Prosecution Case Example • October 12, 2015: multiple building code violations observed during inspection after complaints • October 29, 2015: complaint filed in district court • December 9, 2015: Arraignment hearing • April 11, 2015: pretrial hearing • April 25, 2015: pretrial hearing • August 1, 2015: plea hearing; plea of guilty entered, pending sentencing • August 30, 2015: re -inspection, compliance confirmed • September 12, 2016: Sentencing ECIGERG LAMMERS ATTORNEYS AT LAW Successful Code Enforcement • Process • Documentation • Notice and Action ECIGERG LAMMERS ATTORNEYS AT LAW Can It Work? 0 r ECIGERG LAMMERS ATTORNEYS AT LAW Can It Work? ECIGERG LAMMERS ATTORNEYS AT LAW Joe Van Thomme City Prosecutor jvanthomme@eckberglammers.com Stillwater Office 1809 Northwestern Avenue Stillwater, MN 55082 Phone: 651-439-2878 Fax: 651-439-2923 Hudson Office 430 Second Street Hudson, WI 54016 Phone: 715-386-3733 Fax: 715-386-6456 www.eckberglammers.com EFFECTIVE NOVEMBER 3, 2010 amended through January 17, 2017 (Ordinance 182) Chapter One 0 Administration (5) Agricultural Building: A structure on agricultural land designed, constructed, and used to house farm implements, livestock or agricultural produce or products used by the owner, lessee or sublessee of the building and members of their immediate families, their employees and persons engaged in the pickup or delivery of agricultural produce or products. (6) Agricultural Direct -Market Business: A commercial enterprise in which agricultural products are produced on a site and marketed and sold directly to consumers without an intermediate wholesaler or distributor other than a farm co-op organization. Direct market business may include enterprises such as pick -your -own operations, and operations in which delivery of products is made directly to consumers. (7) Agricultural -Business, Seasonal: A seasonal business not exceeding six (6) months in any calendar year operated on a rural farm as defined offering for sale to the general public, produce or any derivative thereof, grown or raised on the property. (8) Agricultural Processing_ Processing on the farm of horticulture, forestry, dairy, egg, or apiary products grown on the farm in the course of preparing the product for market. Agricultural processing shall not include animal slaughtering or meat/animal processing. Agricultural processing is subordinate and incidental to the farm operation. Agricultural processing includes activities such as cutting, drying, packaging, canning, milling, grinding, freezing, heating and fermenting of product. (9) Agricultural Production: Land uses including the production of horticulture and nursery stock, fruit of all kinds, vegetables, forage, grains, bees and apiary products and raising domestic farm animals. This activity does not need to be the principal source of income. (10) Agritourism Use: A commercial or nonprofit use on a working farm or plant nursery in which the public or invited groups participate in public recreational or educational activities. These activities must be related to agriculture and incidental to the farm or nursery operation. This term includes farm tours, hay rides, corn mazes, field trips or educational experiences or classes related to agricultural products or skills, or similar uses. Campgrounds or overnight camping shall not be considered an Agritourism Use. (11) Alteration: To change or make different; to remodel or modify. (12) Animal Unit: A unit of measure used to compare differences in the production of animal wastes which has a standard as the amount of waste produced on a regular basis by a slaughter steer or heifer. (13) Animals, Domestic Farm: Cattle, hogs, bees, sheep, goats, llamas, chickens, turkeys, bison, horses (including miniatures) and other animals generally kept for commercial food or fiber production purposes and commonly accepted as farm animals in the State of Minnesota. (14) Animals, Domestic Pets: House pets such as dogs, cats, ferrets and birds (except those defined as farm animals or wild animals) that can be contained within a principal structure throughout the entire year, provided that containment can be accomplished without special modification to the structure requiring a building permit from the City. Includes rabbits normally sheltered outside the home. (15) Animals, Wild or Exotic_ Any animal that is wild, ferocious, or vicious by nature, habit, disposition or character. Animals in this category include any ape (including chimpanzee, City of Scandia Development Code, Chapter 1 EFFECTIVE NOVEMBER 3, 2010 amended through January 17, 2017 (Ordinance 182) Chapter One 0 Administration gibbon, gorilla, orangutan, or siamang), baboon, bear, bobcat, cheetah, crocodile, coyote, deer (including members of the deer family such as elk, antelope and moose), elephant, fox, hippopotamus, hyena, jaguar, leopard, lion, lynx, monkey, puma, also known as cougar, mountain lion or panther, rhinoceros, a snake which is poisonous, snow leopard, tiger, wolf, or hybrid mix of any of the wild animals such as wolf/dog mixes. (16) Antenna: That portion of any equipment used to radiate or receive radio frequency energy for transmitting or receiving radio or television waves. Antennas may consist of metal, carbon fiber, or other electromagnetically conductive rods or elements. Antennas are regulated to the extent the regulations are not preempted by the Federal Communications Commission. (17) Antenna, Amateur Radio: That portion of any equipment used to radiate or receive radio frequency energy or electromagnetic signals for "Amateur Radio Service" communications as defined in 47 C.F.R. Part 97 3(4) and used in 47 C.F. R. Part 97.15(a). (from margin notes) (18) Antenna, Household Radio, Television and Short -Wave Radio Receiving: A wire, set of wires or any device consisting of metal, carbon fiber or other electromagnetically conductive surfaces, rods, elements or open mesh, including television, receive only (TVROs) satellite dishes two meters or less in diameter, used in conjunction with the reception of household radio, television and short-wave radio receiving equipment. (from margin notes) (19) Antenna, Satellite Dish: A device consisting of metal, carbon fiber or other electromagnetically conductive surfaces, rods, elements or open mesh and in the shape of a shallow dish, cone, horn or cornucopia. Such device is used to transmit and/or receive radio, television or electromagnetic waves between terrestrially and/or orbitally based uses. This definition shall include, but not be limited to, what are commonly referred to as satellite earth stations, television receive -only (TVROs) and satellite microwave antennas. (20) Apartment: A room or suite of rooms with cooking facilities designed to be occupied as a residency by a single family. (21) Applicant: Any person or entity that is required to submit an application for a permit or approval required by this Development Code. (22) Appraised Valuation: The market value of a structure as determined by the current records of the County Assessor. (23) Architectural Design Guidelines. The Architectural Design Guidelines of the City of Scandia dated September, 2009 as may be amended from time to time. (24) Area, Net Developable: Those lands within a development parcel remaining after the deletion of flood plains, wetlands, slopes greater than 25%, unbuildable easements or rights-of-way, and required building setbacks. (25) Assisted Living Facility or Assisted Living Residence: Housing establishment with services that is registered with the State of Minnesota and provides sleeping accommodations to more than 12 adult residents, at least 80% of whom are 55 years of age or older, and at a minimum provides or makes available health-related services under a class A or class F home care license issued by the State of Minnesota, whether offered or provided directly by the establishment or another entity. City of Scandia Development Code, Chapter 1 7 PROHIBITING PUBLIC NUISANCES The purpose of this ordinance is to create a lawful process by which public nuisances are dealt with in the City of. This ordinance is modeled to comply with MN Statutory Codes regarding public nuisances and legal remedies provided for there in. Section 1. Public nuisance defined. Whoever by his or her act or failure to perform a legal duty intentionally does any of the following is guilty of maintaining a public nuisance, which is a misdemeanor: 1) Maintains or permits a condition which unreasonably annoys, injures, or endangers the safety, health, comfort, or repose of any considerable number of members of the public; or 2) Interferes with, obstructs, or renders dangerous for passage, any public highway or right-of-way, or waters used by the public, or 3) Is guilty of any other act or omission declared by law or this ordinance to be a public nuisance and for which no sentence is specifically provided. Section 2. Public nuisances affecting health. The following are hereby declared to be nuisances affecting health: 1) Exposed accumulation of decayed or unwholesome food or vegetable matter; 2) All diseased animals; 3) All ponds or pools of stagnant water; 4) Carcasses of animals not buried or destroyed within 24 hours after death; 5) Accumulation of manure, refuse, or other debris; 6) Privy vaults and garbage cans which are not rodent -free or fly -tight or which are so maintained as to constitute a health hazard or to emit foul and disagreeable odors; 7) The pollution of any public well or cistern, stream or lake, canal or body of water by sewage, industrial waste, or other substances; 8) All noxious weeds and other rank growths of vegetation upon public or private property: 9) Dense smoke, noxious fumes, gas and soot, or cinders, in unreasonable quantities; 10) All public exposure of peoples having contagious disease; 11) Any offensive trade or business as defined by statute not operating under local license. Section 3. Public nuisances affecting peace and safety. The following are declared to be nuisances affecting public peace and safety: 1) All snow and ice not removed from public sidewalks in areas zoned commercial, 12 hours after the snow or other precipitation causing the condition has ceased to fall; 2) All trees, hedges, billboards, or other obstructions which prevent people from having a clear view of all traffic approaching an intersection; 3) All wires and limbs of trees which are so close to the surface of a sidewalk or street as to constitute a danger to pedestrians or vehicles; 4) All noises and vibrations which unreasonably annoy or endanger the comfort or repose of any considerable number of members of the public; 5) Obstructions and excavations affecting the ordinary public use of streets, alleys, sidewalks, or public grounds except under such conditions as are permitted by this code or other applicable law; 6) Radio aerials or television antennae erected or maintained in a dangerous manner; 7) Any use of property abutting on a public street or sidewalk or any use of a public street or sidewalk which causes large crowds of people to gather, obstructing traffic and the free use of the street or sidewalk; 8) All hanging signs, awnings and other similar structures over streets and sidewalks, or so situated so as to endanger public safety, or not constructed and maintained as provided by ordinance; 9) The allowing of rainwater, ice or snow to fall from any building or structure upon any street or sidewalk or to flow across any sidewalk; 10) All dangerous, unguarded machinery in any public place, or so situated or operated on private property as to attract the public; 11) Waste water cast upon or permitted to flow upon streets or other public properties; 12) Accumulation in the open of discarded or disused machinery, household appliances, automobile bodies, or other material, in a manner conducive to the harboring of rats, mice, snakes, or vermin, or the rank growth of vegetation 13) the items so accumulated, or in a manner creating fire, health, or safety hazards from such accumulation; 14) Any well, hole, or similar excavation which is left uncovered or in such other condition as to constitute a hazard to any child or other person coming on the premises where it is located; 15) Obstruction to the free flow of water in a natural waterway or public street drain, gutter, or ditch with trash or other materials; 16) The placing or throwing on any street, sidewalk, or other public property of any glass, tacks, nails, bottles, or other substance which may injure any person or animal or damage any pneumatic tire when passing over such substance; 17) The depositing of garbage or refuse on a public right-of-way or on adjacent private property; 18) All other conditions or things which are likely to cause injury to the person or property of anyone. Section 4. Duties of city officers. The city zoning officer; and the police department chief of police; shall enforce the provisions of this ordinance relating to nuisances affecting public safety. The police department shall enforce provisions relating to other nuisances and shall assist the other designated officer in the enforcement of provisions relating to nuisances affecting public safety. Such officers shall have the power to inspect private premises and take all reasonable precautions to prevent the commission and maintenance of public nuisances. Section 5. Abatement. Subd. 1. Notice. Written notice of violation; notice of the time, date, place and subject of any hearing before the city council; notice of city council order; and notice of motion for summary enforcement hearing shall be given as set forth in this subdivision. 1) Notice of violation. Written notice of violation shall be served by the officer charged with enforcement on the owner of record or occupant of the premises either in person or by certified or registered mail. If the premises are not occupied, the owner of record is unknown, or the owner of record or occupant refuses to accept notice of violation, notice of violation shall be served by posting it on the premises. 2) Notice of council hearing. Written notice of any city council hearing to determine or abate nuisance shall be served on the owner of record and occupant of the premises either in person or by certified or registered mail. If the premises are not occupied, the owner of record is unknown, or the owner of record or occupant refuses to accept notice of council hearing, notice of council hearing shall be served by posting it on the premises. 3) Notice of city council order. Except for those cases determined by the city to require summary enforcement, written notice of any city council order shall be made as provided in Minn. Stat. 463.17 (Hazardous and Substandard Building Act). 4) Notice of motion for summary enforcement. Written notice of any motion for summary enforcement shall be made as provided for in Minn. Stat. 463.17 (Hazardous and Substandard Building Act). Subd. 2. Procedure. Whenever the officer charged with enforcement determines that a public nuisance is being maintained or exists on premises in the city, the officer shall notify in writing the owner or record or occupant of the premises of such fact and order that such nuisance be terminated or abated. The notice of violation shall specify the steps to be taken to abate the nuisance and the time within which the nuisance is to be abated. If the notice of violation is not complied with within the time specified, the enforcing officer shall report that fact forthwith to the council. Thereafter, the council may, after notice to the owner or occupant and an opportunity to be heard, determine that the condition identified in the notice of violation is a nuisance and further order that if the nuisance is not abated within the time prescribed by the council the city may seek injunctive relief by serving a copy of the city council order and notice of motion for summary enforcement. Subd. 3. Emergency procedure; summary enforcement. In cases of emergency, where delay in abatement required to complete the notice and procedure requirements set forth in subdivision 1 and 2 above will permit a continuing nuisance to unreasonably endanger public health, safety, or welfare, the city council may order summary enforcement and abate the nuisance. To proceed with summary enforcement, the officer charged with enforcement shall determine that a public nuisance exists or is being maintained on premises in the city and that delay in abatement of the nuisance will unreasonably endanger public health, safety, or welfare. The enforcement officer shall notify in writing the occupant or owner of the premises of the nature of the nuisance and of the city's intention to seek summary enforcement. The city council shall determine whether or not the condition identified in the notice to the owner or occupant is a nuisance, whether public health, safety, or welfare will be unreasonably endangered by delay in abatement required to complete the procedure set forth in subdivision 1 above, and may order that such nuisance be immediately terminated or abated. If the nuisance is not immediately terminated or abated, the city council may order summary enforcement and abate the nuisance. Subd. 4. Immediate abatement. Nothing in this ordinance shall prevent the city, without notice or other process, from immediately abating any condition which poses an imminent and serious hazard to human life or safety. Section 5. Recovery of cost. Subd. 1. Personal liability. The owner of premises on which a nuisance has been abated by the city shall be personally liable for the cost to the city of the abatement, including administrative costs. As soon as the work has been completed and the cost determined, the city clerk or other official designated by the council shall prepare a bill for the cost and mail it to the owner. Thereupon the amount shall be immediately due and payable at the office of the city clerk. Subd. 2. Assessment. If the nuisance is a public health or safety hazard on private property, the accumulation of snow and ice on public sidewalks, the growth of weeds on private property or outside the traveled portion of streets, or unsound or insect -infested trees, the clerk shall, on or before September 1 next following abatement of the nuisance, list the total unpaid charges along with all other such charges as well as other charges for current services to be assessed under Minn. Stat. 429.101 against each separate lot or parcel to which the charges are attributable. The council may then spread the charges against such property under that statute and other pertinent statutes for certification to the county auditor and collection along with current taxes the following year or in annual installments, not exceeding 10, as the council may determine in each case. Section 6. Penalty. Any person convicted of violating any provision of this ordinance is guilty of a misdemeanor with fines not to exceed 900.00 and/or incarceration not to exceed 90 days. Section 7. Validity. Subd. 1. This Ordinance shall be in full force and take effect from and after its passage and approval and publication as provided by law. Subd. 2. All other ordinances and parts of other Ordinances inconsistent or in conflict with any part of this Ordinance are hereby repealed to the extent of such inconsistency or conflict. Adopted by the City Council o