ORDINANCE NO. 7802

                                    AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS

CONCERNING HEALTH AND SANITATION AMENDING CHAPTER 9, ARTICLES 2, 4, AND 6 OF THE CODE OF THE CITY OF LAWRENCE, KANSAS, 2003 EDITION; AND AMENDMENTS THERETO

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:

Section 1.        Chapter 9, Article 2, Section 9-201 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-203                ABATEMENT; NOTICE. 

Whenever it comes to the attention of the Health Officer that any nuisance as herein defined exists on any premises within the City, it shall be the duty of the Health Officer to notify in writing the owner or occupant thereof of the existence of such nuisance, specifying the measures necessary to abate such nuisance and requiring its abatement.  The notice to abate such nuisance must be served on the occupant of such premises personally, or if there is no such occupant, then the notice must be sent to the owner or agent of the owner of such premises by United States mail, postage prepaid, to the address of such owner or agent.  (Code 1979, 9-203)

ABATEMENT OF NUISANCES; NOTICE; ASSESSMENT AND COLLECTION OF COSTS; PROCEDURE

(a) The governing body of the City may have removed or abated from any lot or parcel of ground within the City any and all nuisances.  The governing body may have drained any pond or ponds of water, at the cost and expense of the owner of the property on which the nuisance is located, whenever the City, county or joint board of health or other agency as may be designated by the governing body of the City files with the city clerk its statement in writing that such nuisance or pond of water, describing the same and where located, is a menace and dangerous to the health of the inhabitants of the City, or of any neighborhood, family or resident of the City. The governing body, by resolution, also may make such determination.

(b)   Except as provided by subsection (c), the governing body shall order the owner or agent of the owner of the property to remove and abate from the property the thing or things therein described as a nuisance within a time, not exceeding 10 days, to be specified in the order. The governing body shall grant extensions of such ten-day time period if the owner or agent of the property demonstrates that due diligence is being exercised in abating the nuisance.  The order shall state that before the expiration of the waiting period or any extension thereof, the recipient thereof may request a hearing before the governing body or its designated representative. The order shall be served on the owner or agent of such property by certified mail, return receipt requested, or by personal service. If the property is unoccupied and the owner is a nonresident, then by mailing the order by certified mail, return receipt requested, to the last known address of the owner.

(c)   If the owner or agent of the owner of the property has failed to accept delivery or otherwise failed to effectuate receipt of a notice sent pursuant to this section during the preceding twenty-four month period, the governing body may provide notice of the issuance of any further orders to abate or remove a nuisance from such property in the manner provided by subsection (b) or as provided in this subsection. Except as specifically provided in this subsection, the governing body may provide notice of the order by such methods including, but not limited to, door hangers, conspicuously posting notice of such order on the property, personal notification, telephone communication or first class mail. If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail.

Section 2.        Chapter 9, Article 2, Section 9-204 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-204                ABATEMENT; DUTY OF OWNER; FAILURE TO COMPLY; COLLECTION OF COSTS

Upon receipt of the notice specified by Section 9-203, it shall be the duty of owner or occupant receiving notice to abate the nuisance within the time specified in the notice and it shall be unlawful for any such occupant or owner to fail to take remedial action.  In the event such occupant, owner or agent shall fail, neglect or refuse to comply with the terms of the notice, or in case the Health Officer after having used due diligence, is unable to locate any occupant, owner or agent, the Health Officer shall have the authority to take remedial action.  The Health Officer shall keep an account of the cost of abating such nuisances, including administrative costs and shall report the costs to the City Clerk who shall assess the costs against the property in the manner provided by law under K.S.A. 13-436.  (Code 1979, 9-204)

If the owner or agent fails to comply with the requirement of the order for a period longer than that named in the order, the City shall proceed to have the things described in the order removed and abated from the lot or parcel of ground. If the City abates or removes the nuisance, the City shall give notice to the owner or agent by certified mail, return receipt requested, of the total cost of such abatement or removal incurred by the City,  Such notice also shall state that payment of such cost is due and payable within 30 days following receipt of such notice. The City also may recover the cost of providing notice, including any postage, required by this section. If the cost of such removal or abatement and notice is not paid within the thirty-day period, the cost shall be collected in the manner provided by K.S.A. 12-1,115, and amendments thereto, or shall be assessed and charged against the lot or parcel of ground on which the nuisance was located. If the cost is to be assessed, the city clerk, at the time of certifying other city taxes to the county clerk, shall certify such costs, and the county clerk shall extend the same on the tax roll of the county against the lot or parcel of ground, and it shall be collected by the county treasurer and paid to the city as other city taxes are collected and paid. The City may pursue collection both by levying a special assessment and in the manner provided by K.S.A. 12-1,115, and amendments thereto, but only until the full cost and any applicable interest has been paid in full.

Section 3.  Chapter 9, Article 4, Section 9-407 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-407                PLACEMENT OF CONTAINERS FOR COLLECTION; DUTY TO REMOVE EMPTY RECEPTACLES FROM DESIGNATED COLLECTION POINT.   

(A)        Unless another pickup point has been approved by the Director of Public Works, all portable containers containing refuse, upon days of collection thereof, shall be placed by the occupant outside of any existing yard fence and within six (6) feet of the alley in all blocks where alley pickup service is provided or within six (6) feet of the curb in those blocks in the City where curb pickup service is provided.

(B)        Collection at the door or other agreed location may be authorized by the Director of Public Works for hardship cases arising from physical impairment upon written application.  Such special collection service shall be provided for a specified period, subject to renewal.

(C)        Containers shall be placed in a clearly accessible and uncluttered area to minimize risk of injury to the collector.  Dogs tethered near refuse containers must be where they cannot interfere with the collection of refuse.

(D)        To ensure collection on the scheduled day, containers and other properly packaged refuse must be placed at the designated point of collection before 7:00 a.m. on the scheduled day of collection, but not earlier than 24 hours before that time

(E)        After collection, the crew shall return the reusable containers trash receptacles to the spot where they were set out and the removable container lid shall be placed on the ground near the container.  Containers and refuse left by the collection crew due to improper packaging must be removed from the curb as promptly as possible after the collection crew has departed, but not later than 24 hours after the collection crew has departed.  The City shall not be responsible for the security of lids or containers after the collection crew has departed.

(F)        The owner or occupant shall remove the trash receptacles from the designated collection point and/or the right-of-way within 24 hours of the trash pickup.  Failure to comply with this section may result in the condition being declared an environmental code violation and subject to the enforcement measures set forth in Article 6 of this chapter.

Section 4.        Chapter 9, Article 6, Section 9-603.2 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-603.2             Definitions:

(A) Abandoned Motor Vehicle shall mean any motor vehicle which is:

1. Not currently registered or tagged pursuant to K.S.A. 8- 126 to 8- 149 inclusive, as amended; or

2. parked in violation of the Code, including in a location other than on an approved driveway as defined in this Section; or

3. incapable of moving under its own power; or

4. in a junked or wrecked condition, including but not limited to one having broken window(s), flat tire(s) or missing body part(s).

(B)        Accessory Structure shall mean a secondary structure detached from the principal structure but on the same premises, including, but not limited to, garages, sheds, barns or outbuildings.

(C)        City shall mean the City of Lawrence, Kansas.

(D)        Code shall mean the Code of the City of Lawrence, Kansas.

(E)        Commercial or Industrial shall mean used or intended to be used primarily for other than residential purposes.

(F) Dilapidation, Deterioration or Disrepair shall mean any condition characterized by, but not limited to: holes, breaks, rot, decay, crumbling, cracking, peeling or flaking paint, rusting, or other evidence of physical damage, neglect, lack of maintenance, excessive use or weathering.

(G) Driveway, approved shall mean an improved driveway surface that is constructed and maintained in accordance with City driveway requirements set forth in Chapter 16, Article 3 of the City Code, and amendments thereto and  which directly accesses a street or alley.  An isolated improved surface, such as a concrete pad or gravel pad, not directly connected to a street or alley is not an approved driveway for the purpose of parking vehicles.

(H) Driveway surface (excluding the driveway apron) shall mean a surface constructed of one of the following improved surfaces:

1. Four (4) inches of reinforced Portland cement concrete;

2. Five (5) inches of granular rock base with two (2) inches of asphaltic concrete

3. Seven (7) inches of granular rock with a double asphaltic prime and seal;

4. Five (5) inches of full depth asphaltic conrete

5. Surface approved by the City Driveway Committee pursuant to Section 16-302 of the Code of the City of Lawrence, Kansas, and amendments thereto.

6. Gravel, if the gravel surface has existed continuously since 1985.  Gravel is not an approved driveway surface for new driveways or for expanding existing driveways constructed of asphalt or concrete.  Existing asphalt or concrete driveways must be expanded with asphalt or concrete, not gravel.

(I) Exterior shall mean those parts of a structure which are exposed to the weather or subject to contact with the elements; including, but not limited to: sidings, facings, veneers, masonry, roofs, foundations, porches, screens, shutters, windows, doors or signs.

(J) Furniture, outdoor shall mean weather-resistant furniture designed and manufactured for outdoor use

(K) Garbage shall mean without limitation any accumulation of animal, fruit or vegetable waste matter that results from the handling, preparation, cooking, serving, delivering, storage, or use of foodstuffs all kitchen and table refuse and every accumulation of animal, vegetable and other material that attends the preparation, consumption, decay or dealing in or storage of meat, fish, fowl, birds, grain, fruits, vegetables or other types of foods of whatever character, and shall include all animal and vegetable refuse from kitchens, and all household wastes that shall have resulted from the preparation of food including tin cans and bottles.  Dead animals, dishwater and wastewater are not included under garbage.

(L) Governing Body shall mean the City Commission of the City of Lawrence, Kansas.

(M) House numbers shall mean those numbers assigned by the City identifying each building and dwelling.

(N) Neighborhood Resources Advisory Committee shall mean the City board appointed by the Governing Body to conduct hearings pursuant to this article.

(O) Person shall mean any individual, individuals, corporation, partnership, unincorporated association, other business organization, committee, board, trustee, receiver, agent or other representative who has charge, care, control or responsibility for maintenance of any premises, regardless of status as owner, renter, tenant or lessee, whether or not in possession.

(P) Porch shall mean a structure adjoining an entrance to a building which is not fully enclosed by permanent walls and/or windows.

(Q) Premises shall mean any lot, plot or parcel of land including the structures thereon.  The term shall also mean any lot, plot or parcel of land without any structures thereon.

(R) Protective Treatment, Structural, shall mean paint or other protective application for exposed wood surfaces, other than decay-resistent wood surfaces, applied to prevent rotting and deterioration.

(S) Refuse shall mean garbage and trash any and all accumulations of waste material, garbage, trash, rubbish, paper, packing material, pasteboard, cinders, metal, small tree limbs under five (5) inches in diameter when cut to a length of not to exceed five (5) feet and tied in bundles.  The term refuse shall include waste products from the construction, remodeling, demolition, or repair of any building, or resulting from any construction or building operation.  The term refuse shall not include:

(1)  Sod, dirt, sand, rocks, bricks or other masonry unless packaged in accordance with Sections 9-403 and 9-405 of the City Code, and amendments thereto, or placed in roll-off containers designated for such purpose.

(2)  Any item posing unusual risk of injury to personnel or damage to the collection vehicle.

(3)  Tires, except as provided in Section 9-412.9 of the City Code, and amendments thereto.

(4) Materials which have been set out for recycling.

(5) Hazardous waste or non-regulated materials, such as motor oil, antifreeze, car batteries

(T) Residential shall mean used or intended to be used primarily for human habitation.

(U) Structure shall mean anything constructed or erected which requires location on the ground or is attached to something having a location on the ground including any appurtenances belonging thereto.

(V) Trash shall mean combustible waste consisting of, but not limited to: papers, cartons, boxes, barrels, wood, excelsior, furniture, bedding, rags, leaves, yard trimmings or tree branches and non-combustible waste consisting of, but not limited to: metal, tin, cans, glass, crockery, plastics, mineral matter, ashes, clinkers or street rubbish and sweepings.

(W) Trash receptacles shall mean such watertight containers constructed of metal, plastic or other durable materials approved by the Director of Public Works, having a capacity of not more than thirty-five (35) gallons, two (2) handles on the outside, a tight-fitting cover, and maintained in a state of good repair.  For single-family residences only, disposable plastic bags of sufficient thickness and strength to avoid rupture, secured tightly, may be used.  Trash receptacles shall not include ordinary paper bags such as grocery bags, shopping bags, or similar containers, cardboard boxes, paper boxes, pasteboard and fiberboard barrels, or wicker baskets.  Yard waste shall be placed in containers as approved by the Director of Public Works or as authorized by City Code.

(X) Weathered shall mean deterioration caused by exposure to the elements.

(Y) Yard shall mean the area of the premises not occupied by any structure. 

Section 5.        Chapter 9, Article 6, Section 9-605 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-605                ENFORCEMENT STANDARDS. 

No person shall be found in violation of this Article unless the public officer, after a reasonable inquiry and inspection of the premises, believes that conditions exist of a quality and appearance not commensurate with the character of the neighborhood immediately surrounding properties.  Such evidence shall include conditions declared unlawful under Section 9-606 of this Article, but shall not include conditions which are not readily visible from any public place or from any surrounding private property. 

Section 6. Chapter 9, Article 6, Section 9-606 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-606                UNLAWFUL ACTS.

It shall be unlawful for any person to allow to exist on any residential, commercial or industrial premises, conditions which are injurious to the health, safety or general welfare of the residents of the community or conditions which are detrimental to the structural integrity of our built environment including those conditions affecting the adjoining property, the neighborhood or the City.  For the purpose of fair and efficient enforcement and administration, such unlawful conditions shall be classified as follows:

9-606.1             Exterior Conditions (Yard/Porches) shall include, but not be limited to, the scattering over or the parking, leaving, depositing or accumulation on the yard and/or porches of any of the following:

(A)        Lumber, wire, metal, tires, concrete, masonry products, plastic products, supplies, equipment, machinery, auto parts, junk or refuse;

(B)        Abandoned motor vehicles; or

(C)        Furniture in the yard, other than outdoor furniture as defined in Section 9-603.2(J),  stoves, refrigerators, televisions, sinks, bicycles, lawn mowers or other such items of personal property.

(D) Dead or substantially dead trees, (other than trees with Dutch Elm Disease which shall be governed by Chapter 18, Sections 18-113 through 18-118 of this Code, and amendments thereto), as determined by the City Parks and Recreation Director or his or her designee,

9-606.2             Exterior Conditions (Structure) shall include, but not be limited to, deteriorated, dilapidated or dangerous:

(A)        Exteriors of any structure;

(B)        Exteriors of any accessory structure; or

(C)        Fences, walls, or retaining walls.

9-606.3 Inconspicuous, Incorrect or Missing House Numbers shall include failing to affix the assigned numbers in a conspicuous place, so that such numbers may be clearly read from the street in accordance with Section 16-113 of the City Code.

6-606.4 Trash and/or Trash containers shall include, but not be limited to

(A) Failing to provide a trash receptacle, as defined in this Article, for containment of  garbage, refuse or trash.

(B) Failing to clean-up or remove garbage, refuse, or trash scattered or spilled caused by the nature or condition of the trash receptacle, animals, wind or other causes occurring before the arrival of the collection crew.

(C) Placing trash receptacles in the right of way or at the designated point of collection earlier than 7:00 a.m. the day immediately preceding the scheduled day of collection.

(D) Failing to remove trash receptacles and refuse left by the collection crew due to improper packaging from the collection point or right-of-way within 24 hours after the collection crew has departed. 

Section 7.        Chapter 9, Article 6, Section 9-607 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-607                NOTICE OF VIOLATION; AUTHORITY TO ISSUE NOTICE TO APPEAR FOR REPEAT VIOLATIONS. 

Any person found by the public officer to be in violation of Sections 9-606:606.2 through Section 9-606.4 of this Article shall be sent a notice of such violation by the public officer as provided by this Article; provided that no violation notice pursuant to this Article shall be required if the violation notice is for the same person within the preceding twenty-four (24) months, in which case personnel of the Neighborhood Resources Department or the City Prosecutor's Office shall have the authority to issue a Notice to Appear in Municipal Court pursuant to the provisions of Charter Ordinance No. 31.  The notice of violation requirements of this Section 9-607 shall not apply to violations for which a Notice to Appear has been issued.

The violation notice shall be sent by certified mail, postage prepaid, return receipt requested. The violation notice shall state:

(A)        The condition which has caused the violation of this Article; and

(B)        That the person in violation shall have:

(1)        Fifteen (15) days from the date of the mailing of the notice to alleviate the exterior conditions (yard) violation, and/or,

(2)        Forty-five (45) Thirty (30) days from the date of the mailing of the notice to alleviate the exterior conditions (structure) violation, or as an alternative to (1) and/or  (2) above,

            (3)        F ifteen (15) days from the date of mailing of the notice to request, as provided in Section 9-611, a hearing before the Neighborhood Resources Advisory Committee on the matter;

(C)        That failure to alleviate the condition or to request a hearing may result in prosecution under Section 9-608 of this Article, and/or, abatement of the condition by the City according to 9-609 of this Article, with the costs assessed against the person under Section 9-613 of this Article.

Section 8.        Chapter 9, Article 6, Section 9-608 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-608                PENALTY.

The public officer may file a complaint in the Municipal Court against any person found to be in violation of Sections 9-606:606.2 through 9-606.4 of this Article.  Provided however, that such person shall first have been sent a notice as provided in Section 9-607 of this Article, and that the person has neither alleviated the conditions causing the alleged violation nor requested a hearing before the Neighborhood Resources Advisory Committee within the time periods specified in Section 9-607 of this Article. Upon such complaint in the Municipal Court, any person found to be in violation of Sections 9-606::606.2 through 9-606.4  of this Article, shall, upon conviction, be deemed guilty of a misdemeanor and be punished by a fine of not less than $50, nor more than $100 $500, or by imprisonment, for not more than thirty (30) days, or by both such fine and imprisonment, for each offense.  For the purposes of these provisions, a separate offense shall be deemed committed on each day during or on which such violation is permitted to exist.

Section 9.       Chapter 9, Article 6, Section 9-610 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-610                STORAGE AND DISPOSAL OF PROPERTY. 

Whenever the public officer is authorized to abate the conditions causing a violation, as provided in Section 9-609 of this Article, the following procedures shall be observed:

(A)        Items confiscated which have no practical value to the person in violation shall be disposed of by the City;

(B)        Items confiscated which might reasonably be of some value to the person in violation shall be placed in storage by the city.

The persons in violation shall be informed by certified mail, postage prepaid, return receipt requested, of the disposition or storage of any items confiscated.  In the case of items stored, the person in violation shall be further informed that such items shall be stored for a period of thirty (30) days, and further that those items may be claimed by said person upon payment to the City for expenses incurred, as provided in Section 9-613 of this Article.  If the items are not claimed within the thirty (30) day period, then the City may sell the items and deduct its expenses, returning the amount in excess of expenses, if any, to the person. If the City removes and abates from property other than public property or property open to use by the pubic, a motor vehicle determined to be a nuisance, the disposition of such vehicle shall be in compliance with K.S.A. 12-1617e(e).

Section 10.      Chapter 9, Article 6, Section 9-613 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, is hereby amended to read as follows:

9-613                EXPENSES. 

All costs and expenses incurred by the City in carrying out the provisions of Sections  9-607, 9-609, and 9-610 of this Article may be charged to the person in violation and, in addition, if the person in violation is also the record owner of the property on which the violation exists, the expenses may be assessed against the person in violation in the manner provided in K.S.A. 12-6a17. 

Section 11.       Chapter 9, Article 2, Sections 9-203, and 9-204, Chapter 9, Article 4, Section 9-407, and Chapter 9, Article 6, Sections 9-603.2, 9-605, 9-606.1, 9-607, 9-608, 9-610, and 9-613 of the Code of the City of Lawrence, Kansas, 2003 Edition, and amendments thereto, are hereby repealed and of no further force and effect, it being the intent of this ordinance that its provisions be substituted in place thereof.   Chapter 9, Article 6, Sections 9-606.3 and 6-606.4 are hereby enacted.

Section 12.       This ordinance shall be effective on and after its publication as provided by law.

Passed by the governing body this  day of , 2004. 

                                                                        Mike Rundle, Mayor

ATTEST:

Frank S. Reeb, City Clerk

Approved as to form and legality:

David L. Corliss, Assistant City Manager

  and Director of Legal Services