HomeMy WebLinkAbout020 - 02/15/2005 - AMENDING CHAPTER 20, ARTICLE VII OF THE CITY CODE RELATING TO ABATEMENT OF PUBLIC NUISANCESFAILED ON FIRST READING - FEBRUARY 15, 2005
Changes made per direction given at
Study Session are shown in BOLD
Staff-initiated changes are shown in italics
ORDINANCE NO. 020, 2005
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 20, ARTICLE VIII
OF THE CODE OF THE CITY OF FORT COLLINS
RELATING TO ABATEMENT OF PUBLIC NUISANCES
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, the Public Nuisance Ordinance (PNO) has proven to be an effective tool in
reducing repeat nuisance violations at specific properties; and
WHEREAS, the proposed amendments will improve current processes and allow for
revocation of the ability to rent a property under certain circumstances; and
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the definitions of “Notice of violation” and “Separate violations” as
contained in Section 20-111 of the Code of the City of Fort Collins are hereby amended to read as
follows:
Sec. 20-111. Definitions.
. . . . .
Notice of violation shall mean a written notice advising the owner(s), property
manager(s), if any, 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
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parcel, addressed to the owner(s) by name and to "all tenants and/or occupants" and
to the owner(s) by nameand property manager(s), if any, at any different address of
the owner(s) as shown in the records of the city, including utility, rental registration,
and/or licensing records or as shown in the records of the Larimer County Assessor
or of the county Clerk and Recorder. Each notice of violation shall be limited to one
(1) separate violation.
Property manager shall mean any person, group of persons, company, firm
or corporation charged with the overall care and control of a building, dwelling or
rental dwelling unit under a contract with the owner of such unit.
. . . . .
Separate violation(s) shall mean any act or omission that constitutes a
misdemeanor violation of the Code, provided that: (1) if the act or omission occurs
under any of the following circumstances:
(1) the conduct of the persons committing the violation was such as to annoy
or disturb the peace of the residents in the vicinity of the parcel or of
passersby on the public streets, sidewalks and rights-of-way in the vicinity
of the parcel; or
(2) the violation constitutes a public nuisance under any section of this
Chapter 20 or this Code; or
(3) the condition of the parcel upon which the violation occurred was, at the
time of the violation, injurious or harmful to the health, safety or welfare
of the occupants, neighbors thereof, or citizens of the city.
aAn 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-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.
Section 2. That Section 20-113 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 20-113. In general.
. . . . .
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(c) Except as provided below, a 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-month period or five (5) or more separate
violations have occurred within a twenty-four-month period, if, during each such
violation, the conduct of the persons committing the violation was such as to annoy
or disturb the peace of the residents in the vicinity of the parcel or of the passersby
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 owners, property manager(s) and
tenants or occupants of the parcel, a notice of violation; provided however, that if
an owner or property manager of a parcel has filed an eviction action in a court of
competent jurisdiction after receiving notice of a second violation seeking to evict
from the parcel those persons whom the owner reasonably believes have been
responsible for the most recent previous separate violation(s) on the parcel, then the
last separate violation; and (2) the last separate violationmust have 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.
(d) Notwithstanding the foregoing, a public nuisance may also be considered
to exist on a parcel if:
(1) Two (2) or more separate violations of the same section of the Code have
occurred on the parcel within a six-month period;
(2) The Nuisance Abatement Officer, in his or her discretion, has requested
a hearing before thea Public Nuisance Hearing Officer designated by the
City Manager and has so notified the owner, occupant and/or property
manager of such parcel (if known to the city) of the hearing and of the
separate violations to be considered at the hearing; and
(3) Any owner, tenant or occupant and/or property manager appearing at such
hearing has failed to demonstrate, to the satisfaction of the City
ManagerPublic Nuisance Hearing Officer, that he or she has contacted the
Nuisance Abatement Officer after the first notice of violation and has
undertaken and proceeded with due diligence to use reasonable means to
avoid a recurrence of similar violations on the parcel by the present or
future tenants or occupants of the parcel; and,
(4) tThe City ManagerPublic Nuisance Hearing Officer has determinesd that
a public nuisance exists on such parcel. In makingdetermining whether a
public nuisance exists under this determination, the City Manager
provision, the Public Nuisance Officer shall be guided by, but not limited
to, the criteria contained in § 20-116(a)(1) and (2).
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a. The City Manager shall adopt administrative regulations establishing
standards to be used by the Nuisance Abatement Officer in
determining whether to request such a hearing, as well as procedures
for scheduling and conducting the same, which procedures shall
afford the affected property owners, tenants, occupants and/or
property managers reasonable notice and an opportunity to be heard.
The standards to be used by the Nuisance Abatement Officer in
determining whether to request a hearing shall include, but need not
be limited to, the period of time between the separate violations, the
owner's or property manager's response to the first notice of violation,
and any aggravating circumstances related to either violation. If the
owner, property manager, tenant and occupantsproperty manager all
fail to appear at such hearing, after reasonable notice, or if the City
Manager determines, after such hearing, that a public nuisance exists
on a parcel pursuant to the provisions of this paragraph, the city may
commence a public nuisance action under § 20-115 on the basis of
the two (2) separate violations and no additional separate violations.
Nothing herein shall be construed to relieve the city of the obligation
to send, by certified mail, notices of the two (2) violations as required
above.
b. If any owner, property manager, occupant or tenant has pled guilty or
no contest to, or has been found guilty of, any of the separate
violations cited in a notice sent under subsection (d)(2) above, such
plea or finding shall be deemed to establish all the elements of such
separate violation(s), including any culpable mental state required for
the commission of such separate violation(s), and no further evidence
shall be required with regard to the commission of such separate
violation(s) at the hearing.
c. The fact that a respondent took steps to abate the public nuisance
after receiving such A notice SENT UNDER SUBSECTION (D)(2)
ABOVE, shall not preclude a determination that a public nuisance
exists on the parcel under this subsection (d).
Section 3. That Section 20-114(c) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 20-114. Procedures in general.
. . . . .
(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
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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 violations, including any culpable
mental state required for the commission of such separate violations, 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. If any owner, property manager,
occupant or tenant has pled guilty or no contest to, or has been found guilty of, any
of the separate violations cited in the notice required under § 20-115, such plea or
finding shall be deemed to establish all the elements of such separate violation(s),
including any culpable mental state required for the commission of such separate
violation(s), and no further evidence shall be required with regard to the commission
of such separate violation(s) at the trial on the merits of any civil action commenced
under this Article.
Section 4. That Section 20-115 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 20-115. Posting of notice of Ccommencement of public nuisance actions;
prior notification.
(a) Notification before filing civil actions under this ArticlePosting of notice.
(1) At least ten (10) calendar days before filing a civil action under this
Article,Upon service of the verified complaint or complaint by affidavit
referred to below, the Nuisance Abatement Officer shall post 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 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 behas been 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:
a. The public nuisance poses an immediate threat to public safety;
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b. Notice would jeopardize a pending investigation of criminal or public
nuisance activity, confidential informants or other police activity; or
c. Any other emergency circumstance exists.
(b) Filing the civil action. 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 (1) 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.
(43) 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.
Section 5. That Section 20-116 of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 20-116. Effect of abatement efforts; defense to action.
. . . . .
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(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 (1) 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 (1) 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
(2) 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 or Public Nuisance
Hearing 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 either the notice specified in § 20-
115 above or the notice of Request for Hearing in § 20-113 above or any other notice
shall not constitute a defense to an action under this Article.
Section 6. That Section 20-117(c) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 20-117. Abatement orders.
. . . . .
(c) Substance of abatement orders. Temporary or permanent abatement
orders entered under this Article shall be narrowly tailored so as to address the
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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 requiringrestraining certain named individuals to stay away from
entering the parcel at all times;
(4) Orders restricting the number occupants and/or of guests allowed on the
premises or restricting the types of activities upon the premises;
(45) Orders reasonably necessary to access, maintain or safeguard the parcel;
and/or
(6) Orders prohibiting the rental of the parcel for a period not to exceed
six (6) months;
(56) Orders reasonably necessary for the purposes of abating the public
nuisance or preventing the public nuisance from occurring or recurring
including the revocation or suspension of any license or permit pertaining
to the use of the premises; provided, however, that: (I) 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; AND (OPTION A) (II) NO
ORDER SHALL PROHIBIT THE RENTAL OF A PARCEL (OPTION B) UNLESS
THE OWNER THEREOF HAS FAILED TO ABIDE BY A PREVIOUS ORDER OF
ABATEMENT pertaining to the same parcel.
Section 7. That Section 20-119 of the Code of the City of Fort Collins is hereby amended
to read as follows:
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
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compensating the city for the costs it incurs in pursuing the remedies under this
Article, including but not limited to costs of service of process, staff time, and/or
attorney's fees.
Section 8. That Section 20-121 of the Code of the City of Fort Collins is hereby amended
to read as follows:
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 Public Hearing Officer may accept such stipulations for alternative
remedies and may order compliance therewith only when the responding parties
admit to the existence of a public nuisance upon the parcel.
(bc) The Court shall makemay accept such stipulations for alternative remedies
and make such stipulations an order of the Court, and they shall be enforceable as an
order of the Court.
Section 9. That Section 20-123 of the Code of the City of Fort Collins is hereby amended
to read as follows:
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 to
show a pattern of conduct or for any other purpose.
Introduced and considered favorably on first reading and ordered published in summary form
this 15th day of February, A.D. 2005, and to be presented for final passage on the 1st day of March,
A.D. 2005.
Mayor
ATTEST:
City Clerk
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Passed and adopted on final reading this 1st day of March, A.D. 2005.
Mayor
ATTEST:
City Clerk