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HomeMy WebLinkAbout028 - 04/04/2000 - AMENDING CITY CODE RELATING TO PUBLIC NUISANCE VIOLATIONS 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(1),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 Titlel2 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 amended by the addition of a new Article VII which shall read in its entirety as follows: ARTICLE VIL ABATEMENT OF PUBLIC NUISANCES See. 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. 2 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 any different address of the owner(s)as shown in the records of the Larimer County Assessor or of the Larimer 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. Person shall mean any individual, corporation, association, firm, joint venture, estate, trust, business trust, syndicate, fiduciary, partnership, limited partnership, limited liability company, and body politic and corporate, and all other groups and combinations. 3 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 within 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 the 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 §1-15. 4 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 5 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 Larimer 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: 6 (I) the public nuisance poses an immediate threat to public safety; 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. 7 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: (1) 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. See. 20-117. Abatement orders. (a) Issuance and effect of temporary and permanent abatement orders. 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 8 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: (1) orders requiring any parties-defendant to take steps to abate the public nuisance; (2) orders 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) orders requiring certain named individuals to stay away from the parcel at all times; (4) orders reasonably necessary to access, maintain or safeguard the parcel; and/or (5) orders 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. 9 (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. 10 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 of hearing. 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. 11 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 or property 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. See. 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 12 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 TTEST: City Cl erk v Passed and adopted on final reading this 4th day of April, A.D. 2000. Mayor ATTEST: City Clerk 13