HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 04/04/2000 - SECOND READING OF ORDINANCE NO. 28, 2000, AMENDING AGENDA ITEM SUMMARY ITEM NUMBER: 24
DATE: April 4, 2000
FORT COLLINS CITY COUNCIL John Fischbach
STAFF: Steve Roy
SUBJECT:
Second Reading of Ordinance No. 28, 2000, Amending Chapter 20 of the City Code Relating to
Public Nuisance Violations.
RECOMMENDATION:
Staff recommends adoption of the Ordinance on Second Reading.
EXECUTIVE SUMMARY:
Over the past few years,many people have contacted the City because of nuisance properties in their
neighborhoods. These houses are usually described as chronic problems, creating an eyesore and,
in many cases,disturbing the peace of others who live nearby.The public nuisance ordinance would
add a tool to the City's resources for dealing with these problems. Though the City has existing laws
to deal with many of the individual issues which neighbors complain about, it currently has no
effective way of dealing with these chronic problems if the occupants of the properties fail to
respond to enforcement efforts.
The Council Health and Safety Committee has worked with staff and the community over the past
nine months to develop and refine a proposed public nuisance ordinance. Input has been received
from more than 500 people via community meetings, e-mail, letters and phone calls.
Staff believes this Ordinance accomplishes the goals of the Health and Safety Committee while
addressing many of the concerns expressed by members of the public. Ordinance No.28,2000,was
adopted on First Reading on March 21, 2000 by a vote of 4-3.
ORDINANCE NO. 28, 2000
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 20 OF THE CODE OF THE
CITY OF FORT COLLINS RELATING TO PUBLIC NUISANCE VIOLATIONS
WHEREAS, the City Code presently contains various provisions enacted under the police
power of the City which are intended to maintain order and promote the health, safety and welfare
of the residents of the City; and
WHEREAS, many such provisions are directed towards the conduct of persons on private
property, and are intended to ensure that neither the conduct of such persons, nor the physical
condition of such properties,constitutes a nuisance to other residents in the vicinity of the properties
or passers-by on the public rights-of-way; and
WHEREAS, many of these provisions of the City Code, such as those pertaining to
unreasonable noise,litter,disturbing the peace,disorderly conduct and harassment,are enforced by
the filing of criminal prosecutions against the persons directly responsible for violations of the same;
and
WHEREAS, notwithstanding these enforcement efforts, recurring City Code violations on
certain parcels of property in the City have resulted in the creation of public nuisances on such
properties which seriously threaten the peace and safety of neighboring residents and undermine the
quality of life of the residents of the City; and
WHEREAS,public nuisance laws exist under the state statutes,but such laws are enforceable
only in the state courts and not in the Municipal Court; and
WHEREAS,Section 31-15-401(1)(c),C.R.S.authorizes the City to declare and abate public
nuisances; and
WHEREAS.Section 16-13-302(l),C.R.S.specifically provides that the state public nuisance
laws shall not be construed to limit or preempt the powers of any court or political subdivision to
abate or control nuisances; and
WHEREAS,the City Council believes that it is necessary and desirable in the public interest
to enact a local public nuisance law in order to:eliminate local public nuisances by removing parcels
of real property in the City from a condition that consistently and repeatedly violates municipal law;
make property owners vigilant in preventing public nuisances on or in their property;make property
owners responsible for the use of their property by tenants, guests and occupants; provide locally
enforceable remedies for violations of local ordinances; and otherwise deter public nuisances; and
WHEREAS,the purpose of this Ordinance is to enact such a local public nuisance law; and
WHEREAS,premises governed by the Colorado Beer Code and Colorado Liquor Code need
not be regulated by the provisions of this Ordinance,because regulations promulgated under Articles
46, 47 and 48 of Title12 of the Colorado Revised Statutes establish adequate local remedies to
address recurring disturbances or other activities occurring on such premises which are offensive to
the residents of the neighborhood in which such licensed establishments are located; and
WHEREAS, premises owned by the State Board of Agriculture and utilized by Colorado
State University for the housing of students or faculty or for other educational purposes need not be
regulated by the provisions of this Ordinance, because the condition of such premises and the
conduct of persons occupying the same are governed by rules and regulations promulgated and
enforced by Colorado State University.
NOW, THEREFORE,BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS that Chapter 20 of the Code of the City of Fort Collins is hereby Y amended b the addition
of a new Article VII which shall read in its entirety as follows:
ARTICLE VII. ABATEMENT OF PUBLIC NUISANCES
Sec. 20-110. Legislative purpose.
The abatement of local public nuisances for the protection of public health,
safety and welfare is a matter of purely local and municipal concern. The purpose
of this Article is to eliminate public nuisances. The remedies provided in this Article
are designed to eliminate public nuisances by removing parcels of real property from
a condition that consistently and repeatedly violates municipal law;to make property
owners vigilant in preventing public nuisances on or in their property;to make them
responsible for the use of their property by tenants, guests and occupants; and to
otherwise deter public nuisances.
See. 20-111. Definitions.
The following words, terms, and phrases, when used in this Article, shall
have the meaning ascribed to them in this Section.
Abate shall mean to bring to a halt,eliminate or,where that is not possible or
feasible, to suppress, reduce and minimize.
Building shall mean a structure which has the capacity to contain, and is
designed for the shelter of, man, animals or property. Building shall include any
house,office building,store,warehouse or structure of any kind,whether or not such
structure is permanently affixed to the ground upon which it is situated, and any
trailer, semi-trailer,trailer coach,mobile home or other vehicle designed or used for
occupancy by persons for any purpose.
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Leasehold interest shall mean a lessor's or lessee's interest in real property
under a verbal or written lease agreement.
Legal or equitable interest shall mean and include every legal and equitable
interest, title, estate, tenancy and right of possession recognized by law or equity,
including but not limited to freeholds, life estates, future interests, condominium
rights, time-share rights, leaseholds, easements, licenses, liens, deeds of trust,
contractual rights, mortgages, security interests, and any right or obligation to
manage or act as agent or trustee for any person holding any of the foregoing.
Municipal Court or Court shall mean the Municipal Court of the city as
established in Article VII of the Charter.
Notice of violation shall mean a written notice advising the owner(s) and
tenant(s) or occupant(s) of a parcel that the parcel, such persons, and other affected
persons may be subject to proceedings under this Article if the remaining number
of separate violations needed to declare the parcel a public nuisance under this
Article occur in or on the parcel within the required period of time. Such written
notice shall be deemed sufficient if sent by certified mail to the parcel,addressed to
the owner(s) by name and to "all tenants and/or occupants" and to the owner(s) by
name at anv different address of the owner(s)as shown in the records of the Larimer
County Assessor or of the Latimer County Clerk and Recorder. Each notice of
. violation shall be limited to one (1) separate violation.
Nuisance Abatement Officer shall mean a person appointed by the City
Manager to coordinate the enforcement efforts of the city related to the provisions
of this Article.
Ownership interest shall mean a fee interest in title to real property.
Parcel shall mean any lot or other unit of real property, including, without
limitation,individual apartment units,or any combination of contiguous lots or units
owned by the same person or persons or entity or entities. Parcel shall not include
premises for which a license has been issued under §3-71 of this Code and shall not
include premises owned by the state Board of Agriculture and utilized by Colorado
State University for the housing of students or faculty or for other educational
purposes.
firm joint
hall mean an individual corporation, association ,
Persons y rp , J
venture, estate, trust, business trust, syndicate, fiduciary, partnership, limited
partnership,, limited liability company, and body politic and corporate,and all other
groups and combinations.
Public nuisance shall mean the condition or use of any parcel within the city
limits, on or in which three (3) or more separate violations have occurred within a
twelve(12)month period or five(5)or more separate violations have occurred with
a twenty-four (24) month period, if, during each such violation, the conduct of the
person(s) committing the violation was such as to annoy or disturb the peace of the
residents in the vicinity of (lie parcel or of the passers-by on the public streets.
sidewalks, and rights-of-way in the vicinity of the parcel; provided, however, that:
(1)within thirty (30) days of each such separate violation, except the final separate
violation needed to prove a public nuisance under this Article, the city has sent by
certified mail to the owner(s) and tenant(s) or occupant(s) of the parcel, a notice of
violation; and(2)the last separate violation needed to prove a public nuisance under
this Article occurred no less than forty-five(45)days after the date of mailing of the
last notice of violation.
Real property or property shall mean land and all improvements, buildings
and structures, and all estates, rights and interests, legal or equitable, in the same,
including but not limited to all forms of ownership and title, future interests,
condominium rights, time-share rights, easements, water rights, mineral rights, oil
and gas rights, space rights and air rights.
Relative shall mean an individual related by consanguinity within the third
degree as determined by common law,a spouse,or an individual related to a spouse
within the third degree as so determined, and includes an individual in a step or •
adoptive relationship within the third degree.
Separate violation(s) shall mean any act or omission that constitutes a
misdemeanor violation of the Code,provided that: (1)an ongoing and uninterrupted
violation shall be deemed to have been committed only on the last day during which
all the necessary elements of the violation existed; and (2) multiple violations
committed within any twenty-four(24)hour period of time on or in the same parcel
shall be considered a single separate violation,irrespective of whether the violations
are otherwise related to each other by some underlying unity of purpose or scheme.
Sec. 20-112. Nature of remedies.
Notwithstanding the provisions of§1-15 of this Code,the remedies provided
in this Article shall be civil and remedial in nature except that, if any person
knowingly fails or refuses to abide by a temporary or permanent abatement order
issued by the Municipal Court under the provisions of this Article,such person shall
be guilty of a misdemeanor and,upon conviction, shall be punished by the penalties
provided in §I-15.
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Sec. 20-113. In general.
(a) No person having an ownership or leasehold interest in any parcel, or
having a contractual obligation to manage such parcel, or occupying such parcel,
shall commit, conduct, promote, facilitate, permit, fail to prevent or otherwise let
happen, any public nuisance in or on such parcel. Such persons shall abate any
public nuisance upon the parcel and prevent any public nuisance from occurring on
the parcel.
(b) The Nuisance Abatement Officer, or any other city code enforcement
officer or police officer may, without a Court order, take reasonable steps to abate
a public nuisance and prevent it from recurring as long as the same may be
accomplished without entering any enclosed building upon the parcel.
Sec. 20-114. Procedures in general.
(a) Pursuant to Article XX, Section 6, and Article VI , Section 1 of the
Colorado Constitution,and Article VII Section 1 of the Charter,the Municipal Court
is hereby granted the jurisdiction, duties and powers to hear and decide all causes
arising under this Article, and to provide the remedies specified herein.
(b) Any civil action commenced under this Article shall be in the nature of
a special statutory proceeding. All issues of fact and law in such civil actions shall
be tried to the Court without a jury. No equitable defenses may be set up or
maintained in any such action except as provided in §20-116(a) below. Injunctive
remedies under this Article may be directed toward the parcel or toward a particular
person.
(c) Public nuisances under the provisions of this Article shall be strict
liability violations. No culpable mental state of any type or degree shall be required
to establish a public nuisance under this Article or to obtain Court approval for the
remedies provided under this Article except that,if a separate violation used by the
city to establish the existence of a public nuisance has not been previously
adjudicated, all of the elements of such separate violation(s), including any culpable
mental state required for the commission of such separate violation(s), must be
established by the city by a preponderance of the evidence at the trial on the merits
of any civil action commenced under this Article.
(d) Proceedings under this Article shall generally be governed by the
Colorado Rules of County Court Civil Procedure unless this Article provides a more
specific rule,provided,however,that with respect to the rules related to injunctions,
Rule 65 of the Colorado Rules of Civil Procedure shall control rather than Rule 365
of the Colorado Rules of County Court Civil Procedure Where this Article, the
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Colorado Rules of Civil Procedure, or the Colorado Rules of County Court Civil .
Procedure fail to state a rule of decision, the Court shall first look to the Public
Nuisance Abatement Act, Section 16-13-301 et seq., C.R.S., and the cases decided
thereunder.
(e) Actions under this Article shall be filed by the Office of the City Attorney
for the city.
(f) In the event that the city pursues any criminal penalties provided in any
other section of this Code, any other civil remedies, or the remedies of any
administrative action, the remedies in this Article shall not be delayed or held in
abeyance pending the outcome of any proceedings in the criminal, civil or
administrative action,or any action filed by any other person,unless all parties to the
action under this Article so stipulate.
(g) Actions under this Article may be consolidated with another civil action
under this Article involving the same parcel of real property. Actions under this
Article shall not be consolidated with any other civil or criminal action except upon
the stipulation of all parties. No party may file any counterclaim,cross-claim,third-
party claim or set-off of any kind in any action under this Article.
Sec. 20-115. Commencement of public nuisance actions; prior notification.
(a) Notification before filing civil actions under this Article.
(1) At least ten(10) calendar days before filing a civil action under this
Article, a notice shall be posted at some prominent place on the
parcel. A notice shall also be mailed to the owner(s) of the parcel.
The mailing of the notice shall be deemed sufficient if mailed by
certified mail to the owner(s)at the addresses shown of record relating
to the parcel for such owner(s) in the records of the Larimer County
Assessor or of the Latimer County Clerk and Recorder. The posted
and mailed notices shall state that the parcel has been identified as the
location of an alleged public nuisance and that a civil action under
this Article may be filed.
(2) Agents of the city are authorized to enter upon the parcel for the
purpose of posting these notices and to affix the notice in any
reasonable manner to buildings and structures.
(3) The city shall not be required to post or mail any notice specified
herein whenever it determines that any of the following conditions
exist:
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(I) the public nuisance poses an immediate threat to public
• safety;
(ii) notice would jeopardize a pending investigation of criminal
or public nuisance activity, confidential informants, or other
police activity; or
(iii) any other emergency circumstance exists.
(b) An action under this Article shall be commenced by the filing of a
verified complaint or a complaint verified by an affidavit, which may be
accompanied by a motion for a temporary abatement order,through the Office of the
City Attorney. No such action shall be commenced unless each of the separate
violations asserted in support of such action has resulted in the issuance of a
summons and complaint charging at least one person responsible for such separate
violation with the commission of the same.
(1) The parties-defendant to an action commenced under this Article and
the persons liable for the remedies in this Article may include the
parcel of real property itself, any person owning or claiming any
ownership or leasehold interest in the parcel, all tenants and
occupants of the parcel, all managers and agents for any person
claiming an ownership or leasehold interest in the parcel,any person
committing, conducting, promoting, facilitating or aiding in the
. commission of a public nuisance, and any other person whose
involvement may be necessary to abate the nuisance,prevent it from
recurring, or to carry into effect the Court's orders. None of these
parties shall be deemed necessary or indispensable parties. Any
person holding any legal or equitable interest in the parcel who has
not been named as a party-defendant may intervene as a party-
defendant. No other person may intervene.
(2) The parties-defendant shall be served as provided in the Colorado
Rules of County Court Civil Procedure for other civil actions except
as otherwise provided in this Article.
(3) The summons, complaint and, if applicable, temporary abatement
order shall be served upon the real property itself by posting copies
of the same in some prominent place on the parcel.
(4) The Nuisance Abatement Officer or any other city code enforcement
officer or police officer may serve the summons, complaint and, if
applicable, the motion for temporary abatement.
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Sec. 20-116. Effect of abatement efforts; defense to action.
(a) If a person named as a party-defendant is the owner of a parcel of real •
property and is leasing the parcel to one or more tenants, or the person named has
been hired by the owner of the parcel to manage and lease the parcel,and the separate
violations which constitute the alleged public nuisance were committed by one or
more of the tenants or occupants of the parcel,it shall be a defense to an action under
this Article that said person has:
(I) evicted,or attempted to evict by commencing and pursuing with due
diligence appropriate court proceedings, all of the tenants and
occupants of the parcel that committed each of the separate violations
that constitute the alleged public nuisance, and
(ii) has, considering the nature and extent of the separate violations,
undertaken and pursued with due diligence reasonable means to avoid
a recurrence of similar violations on the parcel by the present and
future tenants or occupants of the parcel.
(b) If, in the judgment of the Nuisance Abatement Officer,a person who has
received a notice of violation has established sufficient grounds to assert a defense
to an action under subsection(a)above,the separate violation which was the subject
of the notice of violation shall no longer be considered a separate violation within the
meaning of this Article. Nothing herein shall be construed to prohibit the
introduction of evidence of said separate violation at a subsequent court proceeding,
if a public nuisance action is commenced on the basis of additional separate
violations, for the purpose of determining whether the defendants named in such
action have undertaken and pursued with due diligence reasonable means to avoid
a recurrence of similar violations on the parcel of real property by the present and
future tenants or occupants of the parcel.
(c) Except as provided in subsection(a)above,the fact that a defendant took
steps to abate the public nuisance after receiving the notice specified in §20-115
above or any other notice shall not constitute a defense to an action under this
Article.
Sec. 20-117. Abatement orders.
(a) Issuance and affect oftemporary and permanent abatement or
ders. The
issuance of temporary or permanent abatement orders under this Article shall be
governed by the provisions of Rule 65 of the Colorado Rules of Civil Procedure,
pertaining to temporary restraining orders, preliminary injunctions and permanent
injunctions, except to the extent of any inconsistency with the provisions of this
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Article, in which event the provisions of this Article shall prevail. Temporary
abatement orders provided for in this Article shall go into effect immediately when
served upon the property or party against whom they are directed. Permanent
abatement orders shall go into effect as determined by the Court. No bond or other
security shall be required of the city upon the issuance of any temporary abatement
order.
(b) Form and scope of abatement orders. Every abatement order under this
Article shall set forth the reasons for its issuance; shall be reasonably specific in its
terms;shall describe in reasonable detail the acts and conditions authorized,required
or prohibited; and shall be binding upon the parcel, the parties to the action, their
attorneys, agents and employees, and any other person named as a party-defendant
in the public nuisance action and served with a copy of the order.
(c) Substance of Abatement orders. Temporary or permanent abatement
orders entered under this Article shall be narrowly tailored so as to address the
particular kinds of separate violations that form the basis of the alleged public
nuisance. Such orders may include orders:
(1) requiring any parties-defendant to take steps to abate the public
nuisance;
(2) authorizing the Nuisance Abatement Officer or any other city code
enforcement officer or police officer to take reasonable steps to abate
the public nuisance activity and prevent it from recurring,considering
the nature and extent of the separate violations;
(3) requiring certain named individuals to stay away from the parcel at
all times;
(4) reasonably necessary to access, maintain or safeguard the parcel;
and/or
(5) reasonably necessary for the purposes of abating the public nuisance
or preventing the public nuisance from occurring or recurring;
provided,however,that no such order shall require the seizure of,the
forfeiture of title to, or the temporary or permanent closure of, a
parcel, or the appointment of a special receiver to protect, possess,
maintain or operate a parcel.
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(d) Temporary abatement orders.
(1) The purpose of a temporary abatement order shall be to temporarily
abate an alleged public nuisance pending the final determination of
a public nuisance. A temporary abatement order may be issued by
the Court pursuant to the provisions of this section even if the effect
of such order is to change, rather than preserve, the status quo.
(2) At any hearing on a motion for a temporary abatement order,the city
shall have the burden of proving that there are reasonable grounds to
believe that a public nuisance occurred in or on the parcel and,in the
case of a temporary order granted without notice to the party-
defendants, that such order is reasonably necessary to avoid some
immediate, irreparable loss, damage or injury. In determining
whether there are such reasonable grounds, the Court may consider
whether an affirmative defense may exist under §20-116(a) above.
(3) At any hearing on a motion for a temporary abatement order or a
motion to vacate or modify a temporary abatement order, the Court
shall temper the rules of evidence and admit hearsay evidence unless
the Court finds that such evidence is not reasonably reliable and
trustworthy. The Court may also consider the facts alleged in the
verified complaint or in any affidavit submitted in support of the .
complaint or motion for temporary abatement order.
(e) Permanent abatement orders.
(1) At the trial on the merits of a civil action commenced under this
Article,the city shall have the burden of proving by a preponderance
of the evidence that a public nuisance occurred on or in the parcel
identified in the complaint. At such trial,the city must also prove,by
a preponderance of the evidence, any separate violations asserted as
grounds for the public nuisance action that have not been previously
adjudicated. The Colorado Rules of Evidence shall govern the
introduction of evidence at all such trials.
(2) Where the existence of a public nuisance is established in a civil
action under this Article after a trial on the merits, the Court shall
enter a permanent abatement order requiring the parties-defendant to
abate the public nuisance and take specific steps to prevent the same
and other public nuisances from occurring or recurring on the parcel
or in using the parcel.
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Sec. 20-118. Motion to vacate or modify temporary abatement orders.
• (a) General. At any time a temporary abatement order is in effect, any
party-defendant or any person holding any legal or equitable interest in any parcel
governed by such an order may file a motion to vacate or modify said order. Any
motion filed under this subsection (a) shall state specifically the factual and legal
grounds upon which it is based, and only those grounds may be considered at the
hearing.
The Court shall vacate the order if it finds by a preponderance of the evidence
that there are no reasonable grounds to believe that a public nuisance was committed
in or on the parcel. The Court may modify the order if it finds by a preponderance
of the evidence that such modification will not be detrimental to the public interest
and is appropriate, considering the nature and extent of the separate violations.
(b) Continuance ofhearing. The Court shall not grant a continuance of any
hearing set under this section unless all the parties so stipulate.
(c) Consolidation of hearing with other proceedings. If all parties so
stipulate, the Court may order the trial on the merits to be advanced and tried with
the hearing on these motions.
• Sec. 20-119. Civil judgment.
In any case in which a public nuisance is established, in addition to a
permanent abatement order,the Court may impose a separate civil judgment on every
party-defendant who committed,conducted,promoted,facilitated,permitted, failed
to prevent,or otherwise let happen any public nuisance in or on the parcel that is the
subject of the public nuisance action. This civil judgment shall be for the purpose
of compensating the city for the costs it incurs in pursuing the remedies under this
Article.
Sec. 20-120. Supplementary remedies for public nuisances.
In any action filed under the provisions of this Article, in the event that any
one of the parties fails,neglects or refuses to comply with an order of the Court,the
Court may, upon the motion of the city, in addition to or in the alternative to the
remedy of contempt and the possibility of criminal prosecution, permit the city to
enter upon the parcel of real property and abate the nuisance, take steps to prevent
public nuisances from occurring,or perform other acts required of the defendants in
the Court's orders.
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Sec. 20-121. Stipulated alternative remedies.
(a) The city and any party defendant to an action under this Article may •
voluntarily stipulate to orders and remedies, temporary or permanent, that are
different from those provided in this Article.
(b) The Court shall make such stipulations for alternative remedies an order
of the Court and they shall be enforceable as an order of the Court.
Sec. 20-122. Remedies under other laws unaffected.
Nothing in this Article shall be construed as: (a) limiting or forbidding the
city or any other person from pursuing any other remedies available at law or in
equity,or(b)requiring that evidence orproperty seized,confiscated,closed,forfeited
or destroyed under other provisions of law be subjected to the special remedies and
procedures provided in this Article.
Sec. 20-123. Limitation of actions.
Actions under this Article shall be filed no later than one (1) year after the
public nuisance or the last in a series of acts constituting the public nuisance occurs.
This limitation shall not be construed to limit the introduction of evidence of separate
violations that occurred more than one(1)year before the filing of the complaint for •
the purpose of establishing the existence of a public nuisance or when relevant for
any other purpose.
Sec. 20-124. Effect of property conveyance.
When title to a parcel is conveyed from one person to another,any separate
violation existing at the time of the conveyance which could be used under this
Article to prove that a public nuisance exists with respect to such parcel,shall not be
so used unless a reason for the conveyance was to avoid the parcel being declared a
public nuisance under this Article. It shall be a rebuttable presumption that a reason
for the conveyance of the parcel was to avoid the parcel from being declared a public
nuisance under this Article if: (1) the parcel was conveyed for less than fair market
value; (2) the parcel was conveyed to an entity or entities controlled directly or
indirectly by the person conveying the parcel; or (3) the parcel was conveyed to a
relative(s) of the person conveying the parcel.
Sec. 20-125. Severability.
In the event that any provision of this Article is declared to be
unconstitutional or invalid for any reason, the remaining provisions of this Article
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shall be upheld and enforced unless the remaining provisions would create an
unreasonable or unjust result.
Introduced and considered favorably on first reading and ordered published in summary form
this 21 st day of March,A.D.2000,and to be presented for final passage on the 4th day of April,A.D.
2000.
Mayor cE:
TTEST:
City Clerk
Passed and adopted on final reading this 4th day of April, A.D. 2000.
Mayor
ATTEST:
City Clerk
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AGENDA ITEM SUMMARY ITEM NUMBER:
21 f
DATE: March 21, 2000 4
FORT COLLINS CITY COUNCIL John Fischbach
STAFF: Steve Roy
SUBJECT: j
First Reading of Ordinance No.28,2000,Amending Chapter 20 of the City Code Relating to Public
Nuisance Violations. I
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RECOMMENDATION: i
Staff recommends adoption of the Ordinance or iFirst Reading,
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EXECUTIVE SUMMARY:
f
The Council Health and Safety Committee has worked with staff and the community over the past
nine months to develop and refines proposed u ae , or ce. Input has been received
from more than 500 people as co ` ityetixtgs,, '.-msi�, 'tters and phone calls. Several
revisions to the ordinance have been ade tosp6rn to feedback from the community. Staff
believes that the current draft:e�f�the �r mairce Nieves the goals of the Health and Safety
Committee while addressing many of the concerns expressed by members of the public. However,
the issue remains controversial, and concerns exist around the fundamental question of whether
property owners should be held responsible for the behavior of tenants and visitors to their property.
BACKGROUND:
Over the past few years,many people have contacted the City because of nuisance properties in their
neighborhoods. These houses are;,.usti4ly described.as_chrpnj.c p ems, creating an eyesore and,
in many cases,disturbing the p r ce of t ets w� ':di nea b ublic nuisance ordinance would
add a tool to the City's resourc for deal�g wih ir`oble "''Though the City has existing laws i
to deal with many of the indi��it�lal at ' s�dI 'eighbors gmplain about, it currently has no
effective way of dealing with these chronic problems if the occupants of the properties fail to
respond to enforcement efforts.
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In order to address these problems, the City Council included this issue as a priority in its Policy
Agenda over the past four years. The Council Health and Safety Committee and staff have
considered a number of alternatives during that time and staff has implemented a wide variety of
programs to attempt to resolve the issue. This ordinance would add another important tool to this
overall effort which targets the most difficult chronic problem properties where enforcement of
existing codes has not been effective. Some of the other projects that staff has undertaken during
the past 4 years include the following:
DATE: March 21, 2000 2 ITEM NUMBER: 21
♦ Education and cooperative efforts with CSU regarding students who live off campus
("Duh" advertising campaign, CSU Student Housing Fair, etc.)
♦ Publication of the "Across the Fence" brochure to provide residents with simple, concise
information about ordinances which affect neighborhoods, and what to do when problems
arise.
♦ Amendments to the Rubbish Ordinance, i.e. the "Funky Couches" ordinance prohibiting
the use of indoor furniture on lawns, roofs and in other exposed areas.
♦ Implementation of a Landlord Education'Erogram Wprovide property management
seminars to rental property owners and managersregarding best practices in managing rental
properties. :
♦ Neighborhood Resources Program: On-going program to bring neighbors together to
improve their neighborhoods by knowing each other and talking about problems when they
come up.
♦ Increased enforcement of Health and Safety codes, including increased ticketing of
offenders by deputizing officers.
♦ Analysis of violation datathropgh $ pilot7zpr(je t aluate problem and possible
solutions. Significant findings�uicluded�Xeahzin 'tha ro erty owners didn't always know
about problems,and that there are�some�ifoper-fies that eatedly violate all types of codes.
IL
♦ Commitment from the Police Department to review its enforcement practices on party and
noise calls and to look for ways to improve its effectiveness.
♦ Approval of an additional position in the Health and Safety division to work on
coordinating enforcement around the chronic problem properties, to act as a resource to
neighbors and property owners to deal with problems proactively, and if the ordinance is
passed, to coordinate the enforcement.
♦ Expansion of Community Mediation ro raip)t i;;clude landlord-tenant disputes.
SCOPE OF THE PROBLEM, o
In order to evaluate the scope of the problem of chronic problem properties, staff has conducted
research into the number of violations involving cases of the type which tend to "annoy or disturb
neighbors." Statistics were gathered from the Health and Safety Division which enforces the City's
rubbish, weeds, snow and inoperable motor vehicle ordinances, and from Police Services, which
enforces the City's ordinances dealing with parties and noise. Though there are other types of
violations that may "annoy or disturb neighbors," these categories are the most frequent types of
violations that contribute to a chronic problem property.
March 21, 2000 3 ITEM NUMBER: 21
DATE: ��xtt
i, He ac m #t„ad
`
' 6 ei cc997 1998 1pft PeT fs
t) VIQe de M,
'.
* rt
Properties Notified 4,291 5,279 5,201 21%
Properties Abated 592 747 760 28%
i
Tickets Issued 2 1'7° 82 4100%
is,
yX r
"b in/T'. rt. F5 1
��Xa Yv 9 'k" Ax.~ cn x 1L
Noise Citations 1538 1539 1590 3.4%
Issued
. iolatibns shotiVs a si tficant problem community-wide„
Though the data regarding the4"ber o�N
it does not illustrate the extent of the,problem.of clEknic proem properties (those with multiple
violations of a variety of City codes.)
In order to better understand the extent of the problem,in September 1998 the City and CSU began
a pilot project to experiment with a stepped up education and enforcement program in two
neighborhoods near CSU's campus. The task force carried out projects within the pilot area to
determine which actions and programs could be of the greatest benefit in improving the quality of
life and appearance in the targeted neighborhoods. The two pilot areas included approximately 600
properties and included a large percentage of rental housing. The area to the north of the campus
was bounded by Washington Street,nowes St eet V--,, )I� rFgtreet, and Laurel Street. East
Mulberry Street,Prospect Road' Remington Str et, Tter treet bound the pilot area east of
the campus.
Staff found that it was difficult to have effective code enforcement for the full range of nuisance
ordinances because there was not a clear picture of where chronic violations exist. Information
sharing between the various enforcement arms of the City was needed to make enforcement efforts
more effective. The data collection portion of this project was aimed at a small-scale experiment
with more detailed information sharing. During the nine month pilot project, staff developed a
temporary database that allowed the City to improve the process of notifying property owners and
managers when violations occurred. This database combined information from the Police
Department,the City's Health and Safety Inspectors,Zoning staff and the Latimer County Humane
Society. Though difficult and labor intensive to collect,the committee found that the data provided
a helpful way to quantify the frustration that many neighbors feel in dealing with these problem
properties in their neighborhood.
DATE: March 21, 2000 4 ITEM NUMBER: 21
When data from all of enforcement agencies was consolidated, it showed the following:
Pilot-Project Violation Data ,
a't 0Vi&Operti6=ohiW* r
' ,V10I8tlODS a ,_� aPI'OI1Cl�leS'9Vl"till`,:..
September 19P8 Ma.00 IV)Ciiltlple
y,.,w �ailations"�4'
2 33
3-4 18
5-7 7
8-11 2.
Total " b0
Nearly 10%ofthe 600+properties in the pil6f arealad multipleviolations of City codes during the
nine-month data collection period, with 1.5%having five or more violations. Staff is confident of
the validity of the data because of the extensive screening process that was undertaken in the project
to eliminate unfounded complaints.
Each property owner and known property manager associated with the property received a letter
from the City listing the violations that occurred and providing information about the impact on
neighbors and possible consequences for repeated violations.
Staffs conclusion from the study was ther�are aAknall n� er of chronic problem properties
(1-2% in the study area), which had a,laige nuFrib 4of violati s of various city codes. We also
found that, in many cases, the property owners involved were aware that significant problems
existed at their property and that, with the information, most were willing to address the problem.
In its June 1999 report to Council on the pilot project, staff made several recommendations, all of
which Council accepted. Recommendations included expanding the community mediation program
to include landlord/tenant disputes; continuing the cross-functional staff team to work on these
issues;adding a code enforcement case manager to the 2000-2001 Budget to coordinate enforcement
of chronic problem properties; and developing a draft public nuisance ordinance to provide an
additional tool to deal with the mosvdifficul =4e 3roblemjmo s. Beginning in January 2000
the Community Mediation Pr`gram vsexp fle � n Fpbrtary0 the code enforcement case
manager position was filled, a i now'.the,,nuis de�irdmance is efore Council for consideration.
� , J
PROVISIONS OF THE ORDINANCE:
The proposed ordinance was developed to address two goals:
1. To remedy chronic problems at properties where City Code violations occur that
annoy or disturb others.
2. To hold property owners accountable for the condition and use of their properties.
Under the ordinance, the City would consider filing a public nuisance action if a property had
received three or more separate City Code violations within 12 months or five or more within 24
months. Violations would have to be of the type that"annoy or disturb neighbors or passers by."
DATE: March 21, 2000 5 ITEM NUMBER: 21
In order to ensure that the violations included in a public nuisance action are valid, each violation
• must have resulted in the issuance of a municipal court citation to the person(s)directly responsible
for the violation. By requiring that a citation must have been issued for the violation to "count"
towards a public nuisance action, the City can be better assured that frivolous complaints will not
become part of a nuisance action. Since an enforcement officer would have verified the complaint
and citation, abuse of the system should be avoided.
The ordinance would require that written notice be sent to the property owner and where applicable,
tenants within 30 days of each violation except the last one, and that the last violation must have
occurred at least 45 days after the last notice. This 45 day waiting period would provide the property
owner with time to either resolve the problem or contact the City to begin to develop a voluntary
plan to abate the problem.
THE PUBLIC NUISANCE ORDINANCE MECHANICS:'i
There would be several steps involved in enforcing the public nuisance ordinance. The process is
illustrated in the flowchart, Exhibit A. First,the City would need to become aware that a property
might be becoming a public nuisance. This could happen in any of several ways, including
complaints from neighbors,a large number of violations which look like a pattern to a staff member,
or the police department noticing a chronic problem and calling it to the attention of the code
enforcement staff. The Code Compliance Case Manager could then collect data about a potential
nuisance property and look at the '_'big picture" to Aetem'iiRe how serious and chronic the problem
is in comparison to similar propertiesan"the City. I lth Iroperty has multiple violations, the City
.� . a.
. Attorney would also help to decide whether a pu�nhcV, alsance a tion could be proven in Court and
should be filed. Any action io'enfforce4his,oidinance woul&i e civil in nature, and could only
al if a court order were ignored.
become criminal g
Notice would be sent to the property owner(and tenants in the case of a rental)when the City begins
the process of monitoring a property as a possible public nuisance. This would be the first official
notice of the possibility of a public nuisance violation.After receiving the first notice,two additional
violations within 12 months(three total)or four additional violations within 24 months (five total)
could result in the filing of a public nuisance action. As soon as the first notice was sent to the
property owner,the City would encourage the owner to work with the City,any tenants and possibly
neighbors to develop a plan to avoid'futuie pr e ,
�r
VOLUNTARY AGREEMEWS BETIWEE TI$E CITY�X3�iD PROPERTY OWNE
RS:
The goal of the ordinance is to resolve chronic problems in the neighborhoods. The focus of the
ordinance is on working with the property owner to make improvements. A voluntary action plan
could be developed between the City and the owner to both resolve the problem and avoid the need
for court orders under the ordinance. At any time after a notice has been sent out,a property owner
could enter into a voluntary abatement plan with the City by meeting with staff and working out an
agreement. If the property owner and the City reached such an agreement and the property owner
did what he or she had agreed to do, no public nuisance action would be filed.
. REMEDIES UNDER THE ORDINANCE:
The City's goal would be to achieve compliance with City ordinances through voluntary agreements.
However,if no voluntary abatement agreement was reached,the City could ask the Municipal Court
DATE:
March 21, 2000 6 ITEM NUMBER: 21
to issue an order to the parties causing the nuisance, requiring them to do whatever is necessary to
put an end to the nuisance. If the owner was unwilling to resolve the problem through an abatement
plan,the City would have the ability to take an owner to court under the ordinance.
Remedies would then come in the form of a municipal court order.The Court could order the owner
to do whatever is appropriate to resolve the problem. This might include such things as ordering a
e roe or an order that a certain person not engage
particular tenant to be evicted, clean-up of the property,rty,
in a certain kind of behavior. In order to get a temporary order,the City would have to establish,at
a hearing, reasonable grounds to believe that a public nuisance exists. (In an emergency, the City
could get a temporary order without a court hearing,but that order could remain in effect for no more
than ten days, unless it was extended;after'a'hearing.) -1f the"City!tzbtained a temporary order, the
persons affected by the order could ask the Court to remove it at any time. To obtain a permanent
rove the existence of the ublic$,uisance, including any underlying
' would have to P
order, the City p ,:;;_
violations that had not already beemproved,in Court:-- r"°~
Even without a voluntary abatement agreement,a notice ofviolation would be stricken(not counted)
if a landlord went to court to evict a tenant that had caused the problem, and also did everything
reasonably possible to avoid more of the same kinds of problems.
The only criminal penalties that could result from the ordinance would occur if someone knowingly
ignored or disobeyed a court order. If, for example, someone was ordered by the court to clean up
a property and they did not folloxizthel order,,.that person coWd be prosecuted for a misdemeanor
violation in Municipal Court.
All previous notices of violations would be-suickerilwould t count) if the property was sold,
unless it was sold simply to avoid the public nuisance ordinance.
CITIZEN INVOLVEMENT AND COMMENTS:
The City has received numerous written comments about the proposed ordinance, and hundreds of
people attended one or more of the meetings. Staff continues to receive e-mail feedback on a daily
basis. Attached is a complete set of all the feedback received.
Several themes have emerged.z&_ffie`Fomme fts e'cbmrrAmity. The following is a brief
summary of issues that have come up quentl 1 1�I ll T�
1,For the Ordinance: kL
♦ Owning a rental property is a business and business owners are responsible for how their
business premises are used. Therefore, property owners must be held responsible for
activities at their rental properties.
♦ Property values suffer when these problem properties are allowed to exist.
♦ In the case of rental properties it is not the responsibility of neighbors to explain local codes
to every new tenant. Property owners need to take responsibility to see that this occurs.
DATE: March 21, 2000 7 ITEM NUMBER: 21
♦ In addition to the Ordinance, CSU also needs to take responsibility for problems that are
created by students.
♦ Even when neighbors try to contact the owner, they are generally not successful in getting
cooperation. This ordinance will force owners to get involved.
♦ The City also needs to be more aggressive in enforcing existing ordinances. This may make
the use of a nuisance ordinance less frequent and only necessary for worst cases.
Opposed to the Ordinance:
♦ This ordinance is too far reaching for the small number of problems that may exist.
♦ The City should enforce existing 6rdinances nstead of adding another ordinance that will be
difficult to enforce.
♦ Landlords are not responsible for the actions of the people to whom they rent their property
and shouldn't be held accountable for those actions.
♦ Unreasonable neighbors can create a problem for a landlord.
♦ It is difficult for landlords,�ta evict-problem tenants,yet the ordinance holds them strictly
liable for their bad actions Sohnetimes'lanc[lords)get ad tenants, despite their best efforts
to avoid problems. ( .
♦ Property owners should always be notified about police calls at their property so that they can
address the problem. Without that information, how can property owners be proactive in
solving problems?
♦ Real estate professionals were not consulted in drafting the ordinance. Better solutions could
have been created.
♦ Investors will need to raise rental prices and deposits to cover the risk that they will have to
assume with the ordinance
� rW��.�.
♦ The ordinance will aff e(housnigaffor abi ity. j
A full list of all public outreach conducted by staff and Council Members is attached.
ATTACHMENTS:
A. Ordinance Summary
B. Communications Program
i
C. Affordable Housing Board Recommendation
D. Most Recent Citizen Comments