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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 05/19/2009 - SECOND READING OF ORDINANCE NO. 051, 2009, AMENDIN ITEM NUMBER: 22 AGENDA ITEM SUMMARY DATE: May 19, 2009 FORT COLLINS CITY COUNCIL STAFF: Beth Sowder Felix Lee Mike Gebo SUBJECT Second Reading of Ordinance No. 051, 2009,Amending the City Code Relating to Enforcement of Occupancy Limits. RECOMMENDATION Staff recommends adoption of the Ordinance on Second Reading. EXECUTIVE SUMMARY This Ordinance,adopted on First Reading on May 5,2009 by a vote of 5-2(nays:Kottwitz,Troxell), amends the City Code to eliminate the existing requirement that an opportunity be given to property owners to cure occupancy violations prior to the issuance of a citation. City Code Section 19-65(a) (1) sets forth the procedures to be used by the City's Code enforcement officers in enforcing civil infractions,including the occupancy regulation. The proposed amendment to this Section authorizes enforcement staff to serve civil citations on violators of the occupancy limit regulation without first serving a notice of violation. Elimination of the notice requirement will apply to all violators of the occupancy regulation, both first-time offenses and repeat offenses. ATTACHMENTS I. Copy of First Reading Agenda Item Summary - May 5, 2009. (w/o original attachments) ATTACHMENT 1 ITEM NUMBER: 28 AGENDA ITEM SUMMARY DATE: May s, 2009 FORT COLLINS CITY COUNCIL SAFF: Beth Sowder P717, Felix Lee Mike Gebo SUBJECT First Reading of Ordinance No. 051, 2009, Amending the City Code Relating to Enforcement of Occupancy Limits. RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. FINANCIAL IMPACT There are no anticipated additional=colts associated-with the-(proposed code revisions. EXECUTIVE SUMMARY { / . , [ y Since the last Code revisions to the occupancy regulation went into effect in 2007, staff has identified an additional Code change and some administrative changes that would enhance their ability to more effectively enforce the regulation. These mid-course changes are separate from the comprehensive two-year review currently scheduled for Council work session on October 27,2009. The Ordinance would amend the City Code to eliminate the existing requirement that an opportunity be given'to property owners to cure occupancy violations prior to the issuance of a citation. City Code Section 19-65(a) (1) sets forth the procedures to be used by the City's Code enforcement officers in enforcing civil infractions,including the occupancy regulation. The proposed amendment to this Section would authorize enforcement staff to serve civil citations on violators of the occupancy limit regulation without first serving a notice of violation. Two options are presented • for Council consideration: / , Option 1: elimination of the nquirel+ ld apply to all violators of the occupancy regulation; or . , \� E Option 2: elimination of the notice requirement would apply only to violators who previously have been issued a notice of violation or citation for violation of the occupancy regulation regardless of the location of the earlier violation. Staff recommends adopting Option 1. May 5, 2009 -2- Item No. 28 BACKGROUND The City's Land Use Code relating to the occupancy limit regulation was last updated in late 2005 ` �" N. -tom TT and became effective in 2007 The most significant revision decriminalized violations of this regulation, that is, it reduced(the violations from) criminal misdemeanors to civil infractions. Violations of this Code provision.,occcur lien more than the allowed number of people live together in a dwelling unit. With two years of experience enforcing the occupancy limit regulation,staff has identified a Code revision and some administrative changes that would improve enforcement effectiveness. In 2007, there were 147 occupancy cases processed; in 2008 there were 59. A two-year history of cases for 2007-2008 is attached. (See attachment 1.) By making the Code revision and administrative changes, the occupancy regulation is expected to be more effective. Eliminating the preliminary notice of violation Current Code provisions require staff to first serve a"notice of violation" for all civil infractions. This allows the responsible party a reasonable amount of time to correct the violation before the City can serve a citation on the offenders(property owners and/or tenants),unless the violation is a repeat violation. This provision has proven to be i roblematic. Some property owners (including those with no past violation history) are aware thaMo ctioaicanfbe tzken again' until they have been given notice and an opportunity to cure the violation, so they put four or more unrelated tenants in a dwelling unit until they are served with a notice of violation. They then"cure"the problem,at least temporarily, by removing enough tenants within the timeframe to prevent a citation from being issued. In essence, some owners know that they can over-occupy their property until they get caught, and that they then have seven days to correct the violation without any consequences or threat of receiving a citation. This requirement is even more problematic when a civil infraction case involves an owner of multiple properties. In such cases, the Municipal Judge has ruled that to qualify as a "repeat offense"the violation must not only be repeated by the same property owner, but also be repeated at the same property. This interpretation allows property owners of multiple properties to repeatedly violate occupancy limits at different properties with no significant consequences because the City must first serve a violation notice/order to correct before issuing a citation for any one property. Owners of multiple rental properties rep`t the le f"violation/notice/cure" indefinitely unless a repeat violation of the�occupanoYlimit is discovered\at the same property. Only then will the owner receive a citation with the possibility of a jfi V While the vast majority of owners of rental properties comply with the occupancy limit,staff is often unable to achieve corrective actions against repeat offenders based on the current interpretation of the existing Code language. Staff believes that more property owners would proactively comply with the regulation if there was a threat of a citation when found in violation,rather than waiting for the violation notice and then complying. May 5, 2009 -3- Item No. 28 To deal with this problem of enforcement, staff is recommending that Council eliminate the requirement that property owners be notified and allowed time to cure this kind of violation prior to the issuance of a citation. Staff believes that any mitigating circumstances relating to an alleged violation can be taken into consideration}when-the,-investiY gating officer exercises his or her discretion in deciding whether to issue Aitatiot\ Options Staff has developed two options for amending City Code Section 19-65(a)(1)as it relates to serving citations: Option 1: Applies to both first-time offenses and repeat offenses. Staff recommends this option. Option 2: Applies only to repeat offenses by the same person regardless of the location of the violation. Administrative Changes In addition to the Code revision proposed above, staff is making the following changes administratively to improve effectiveness of-enforcement. Absent,Council direction to the contrary, N // \\ II 11 �� // staff intends to immediately begin implem�entatJi�on of these adlm�nistrative enforcement changes: 1. Continue to request_or/se�ek`licen'se_ila' to numbers of occupants. Vehicle logs from neighbors have proven to be ineffective as evidence, while license plate numbers have been helpful for investigations. 2. Require disclosure statements to be provided within four days of staffs request. This will increase the accountability of property owners in providing Disclosure Statements to their tenants at the time of lease signing. 3. Actively investigate cases prior to requesting the Disclosure Statement. Rather than sending the"Request for Disclosure Statement"notice before the investigation,staff will gather information and evidence first so that the violation is substantiated prior to sending the notice. 4. Contact residents prior to issuing notices or citations. Other communities report success using this-practice,-and-it has been•successful in Fort Collins as well. 5. Cite those persons that the`evidence shows are most responsible for the violation. Rather than just citing all_tenantsland the property owner, staff will gather information from tenants, landlord and others in order to hold the appropriate persons accountable. 6. Issue multiple counts for knowing violations. Multiple counts add up to more of a financial liability and are therefore a greater deterrent. May 5, 2009 -4- Item No. 28 Public Outreach a. 1/21/09—ASCSU Senate meeting The ASCSU Senate representat Ive requei ted�f present this item to the Senate before Council makes a determination on the proposed revision. Students are concerned about getting evicted for exceeding-the maxirrium.allowed"three unrelated"occupants in a single- family dwelling unit and having to absorb the increased rent for housing complying with the occupancy-limit provisions. The general message from students was that they don't understand why more than three unrelated individuals shouldn't be allowed to occupy a house that has more than three bedrooms. (See Attachment 2). b. The housing industry(Fort Collins Board of Realtors,and Colorado Apartment Association) has been provided with detailed written materials. Staff has not received any comments from the housing industry. C. Article in the Coloradoan on March 23, 2009. d. Article in April/May edition of Neighborhood News Newsletter. e. Occupancy Ordinance Stakeholder,@ommittee�(consistingof representatives from ASCSU, Fort Collins Board of Realtors Colorado�Apartm�ent\Association, CSU student/staff, LDS church, and several different neighborhoods)�discuss on. This committee was concerned with the "time to correct�pefiodlbeing only seven days if there's the possibility that no Notice of Violation is given prior to the issuance of a citation. f. 4/16/09 - On Campus CSU Occupancy Ordinance Forum. Feedback received from CSU students regarding this proposed Code change was that students are concerned about these mid-course changes to enforcement of the Occupancy Ordinance occurring prior to the 2-year comprehensive review. They do not think that any enforcement changes should be made prior to the Council review of the overall effectiveness of the Ordinance. ATTACHMENTS 1. Occupancy limit case his�pda e. 2. ASCSU meeting agenda(. (UJ 3. Powerpoint presentation P Y ORDINANCE NO. 051, 2009 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING THE CITY CODE RELATING TO OCCUPANCY LIMITS WHEREAS, Section 3.8.16 of the City's Land Use Code(the"LUC"),which establishes the maximum occupancy for dwelling units in the City, was last updated in late 2005 by the adoption of revisions that became effective in 2007; and WHEREAS, violations of LUC Section 3.8.16 are classified as civil infractions under LUC Section 2.14.4(B); and WHEREAS, the enforcement of the occupancy limit established in the LUC is complicated by the fact that Section 19-65 of the City Code currently requires the City's Code enforcement officers to serve a "notice of violation" upon any party who is suspected of committing a civil infraction, including occupancy violations, and allow that person a reasonable period of time to correct the violation before issuing a citation to the violator; and WHEREAS, the only exceptions to this notice requirement are if: (1) there is reason to believe that the violation presents a threat to the public health,safety or welfare;or(2)if the damage done by the violation is unrepairable or irreversible; or (3) the violation is a second or subsequent violation by the responsible party; and WHEREAS, the Municipal Judge has ruled that the "second or subsequent violation'' referenced in this provision of the Code must have occurred at the same location as the new violation; and WHEREAS, this interpretation allows property owners of multiple properties to repeatedly violate occupancy limits at different properties with no significant consequences because the City must first serve a violation notice/order to correct before issuing a citation for any one property;and WHEREAS, irresponsible owners of multiple rental properties can repeat this cycle of ;violation/notice/cure"indefinitely unless a repeat violation of the occupancy limit is discovered at the same property; and WHEREAS, while the vast majority of rental property owners comply with the occupancy regulation, some do not,and those who take advantage of the foregoing notice requirement to avoid the issuance of a citation gain an unfair competitive advantage over those who comply with the regulation; and WHEREAS, the City Council believes that revising this Code provision would allow for more effective enforcement of the occupancy limits and would be in the best interests of the residents of the City. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS that Section 19-65 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 19-65. Commencement of action; citation procedure. (a) Officers shall have the authority to initiate enforcement proceedings as provided below. (1) An officer who has reasonable grounds to believe that a responsible party has committed a civil infraction under this Code is authorized to serve a notice of violation' to the responsible party. Except as otherwise provided in this Code, the officer shall set a reasonable time period within which the responsible party must correct the violation. This determination shall be based on considerations of fairness, practicality, ease of correction, the nature, extent and probability of danger or damage to the public or property, and any other relevant factor relating to the reasonableness of the time period prescribed. An officer may immediately serve a civil citation to a responsible party, without prior notice, if there is reason to believe that the violation presents a threat to the public health, safety or welfare, if the damage done by the violation is irreparable or irreversible, or if the alleged violation is of Land Use Code Section 3.8.16 pertaining to occupancy limits. (2) The citation form shall include, but need not be limited to, the following: a. Date and time of issuance. b. Name and signature of officer. C. Name and address of the responsible party. d. Code section for violation charged. e. Brief description of the nature of the violation, including location, date and time of violation and description of the actions required to correct the violation. f. Amount of the applicable civil penalty and costs,assessments and fees. g. Procedure for the defendant to follow in paying the civil penalty,costs,assessments and fees or contesting the citation. h. Notice that additional citations may be served for each day that the applicable violation is found to exist. i. Notice that failure to pay the civil penalty,costs,assessments and fees within the time allowed and failure to request a hearing within ten (10) days of service of the citation shall constitute a waiver of the responsible party's opportunity for -2- a hearing,and that,in such case,judgment may be entered up to the amount stated on the citation together with any court, abatement or removal costs, as applicable. (3) The officer may require that a responsible party or any person receiving a citation provide proof of identity and residential or work address. (4) The officer shall attempt to serve the citation to a responsible party at the site of the violation. If no responsible party can be located at the site of the violation, a copy of the citation shall be served by mail to the responsible party via first class mail at any last known address of said party in the records of the City or County and a copy shall also be left with any adult person residing or working at the site of the violation. If no adult person is found at the site and the violation occurred on private property or on property for which a responsible party has responsibility under any other ordinance or the violation involves a vehicle or trailer as the nuisance, then a copy of the citation shall be posted in a conspicuous place on the property or attached to the vehicle or trailer, whichever is applicable. (5) The officer or inspector shall attempt to obtain the signature of the person to whom he or she served the citation; however, if the citation is mailed or posted or if the person fails or refuses to sign the citation, such failure or refusal shall not affect the validity of the citation or any subsequent proceedings. (6) Proper notice shall be deemed served on the date of receipt by the responsible party if personally served, or upon the fifth day after mailing, attaching or posting of the citation. Introduced,considered favorably on first reading,and ordered published this 5th day of May, A.D. 2009, and to be presented for final passage on the 19th day of May, A.D. 2009. Mayor ATTEST: City Clerk -3- Passed and adopted on final reading on the 19th day of May, A.D. 2009. Mayor ATTEST: City Clerk -4-