Memorandum

City of Lawrence

Planning & Development Services

TO:	Diane Stoddard, Assistant City Manager
FROM:	Brian Jimenez, Code Enforcement Manager
CC:	Scott McCullough, Director Planning & Development Services
Date:	February 19, 2008
RE:	Accelerated Trash Ordinance

This purpose of this memo is to address the issue of accelerated trash abatement by providing a summary of our current ordinance and exploring options similar to those of the property maintenance code adopted by the City of Overland Park, Kansas.

Summary of Environmental Code

The Environmental Code’s purpose is to protect, preserve, upgrade and regulate the environmental quality of industrial, commercial and residential neighborhoods in the City, by outlawing conditions which are injurious to the health, safety or welfare of the neighborhoods; to remove conditions which are detrimental to the structural integrity of our built environment including those conditions affecting adjoining property, the neighborhood or the City; and to provide for the administration and enforcement thereof.

The code specifically regulates the conditions of buildings and exterior yards. A concern of many citizens who contact our office with a complaint is the amount of time allowed by our code to correct violations that pertain specifically to refuse or trash as defined by section 906.3 (S) & (V). A large percentage of the complaints our division receives fall into the category of refuse or trash.

Section 9-607 requires a notice of violation be sent to the owner for violations pertaining to yard conditions that involve conditions that could be defined as refuse or trash. There is language that states if the required notice is for the same person who has had a prior violation within 24 months, staff or the City’s Prosecutor Office shall have the authority to issue a notice to appear in Municipal Court pursuant to the provisions of Charter Ordinance No. 31. To my knowledge, our department has never explored this option as this option would require staff to make personal contact with owner and obtain their personal information to issue a citation much like a police officer writes a citation for a traffic violation. Instead of issuing a citation, staff forwards a written memorandum outlining the history of the complaint to Municipal Court asking for a formal complaint to be filed. This option does eliminate the process of mailing a notice of violation and bypasses the time period for compliance however it does not resolve the existence of the violation as the case could be heard several months or more from the date of the complaint. There have been situations where exterior violation cases have been in limbo for months at a time.

The violation notice is required to be sent by certified mail, postage prepaid, and return receipt requested. For violations consisting of yard conditions the owner shall have 15 days from the date of the mailing of the notice to alleviate the exterior yard conditions. Other violations involving a structure are given a compliance date of 30 days from date of mailing. The owner is allowed per code section 9-607 (B)(3) to appeal our interpretation of the code to the Neighborhood Resources Advisory Committee within 15 days of the mailing of the notice. Appeals of our decisions do not occur frequently and we usually see about one per year go before the committee. The committee’s sole purpose during the hearing is to weigh all evidence and testimony and then determine if staff interpreted the code correctly.

Failure to alleviate the condition or to request a hearing may result in prosecution under section 9-608 and/or abatement of the condition by the City according to section 9-609 of the article with the costs assessed against the person under section 9-613 of the article.

To abate a property condition, staff is currently required to present a resolution to the Governing Body for adoption authorizing staff or other agents of the City to abate the conditions causing the violation at the end of 20 days after passage of the resolution. The resolution shall further provide that the costs incurred by the City shall be charged against the person in violation. A copy of the resolution is then served upon the person in violation.

It has been our practice to only utilize the abatement procedures in the most severe violation cases such as a demolition by neglect case. Our annual budget has $5,000 dollars allotted for abatement purposes and this money can easily be spent on one violation case if the property needs to be taken down. If we are going to consider an accelerated abatement on exterior yard conditions, it would be necessary to increase the funds available to our division to properly address these situations where abatement is required.

City of Overland Park

Their code states no property owner, occupant or other person shall place or allow to remain on any property, drainage course or other land, any solid waste, as that term is defined in Chapter 7.36 of the Overland Park Municipal Code, or any worn out, broken, or worthless item, waste, garbage, trash, debris or refuse, unless such material is in an authorized trash container store and maintained in compliance with Chapter 7.36 of the Overland Park Municipal Code.

Their code has accelerated abatement for 2 specific situations.

1. In addition to any other penalties or remedies provided by law, any prohibited items, including but not limited to trash, trash bags, large limb piles, boxes, carpet padding, building supplies or material, or any other materials that are determined by an authorized enforcement officer to create an imminent threat or substantial risk of being spread, scattered or blown onto neighboring properties or public property or right-of-way and creating a  substantial interference with the use and enjoyment of said properties, may be subject to summary abatement by the City.

2. In addition to any other penalties or remedies provided by law, any prohibited items, including but not limited to materials that reasonably appear to an authorized enforcement officer to be discarded items or materials that, by virtue of their nature, amount or composition, create a  substantial interference with the use and enjoyment of neighboring properties or public property or right-of-way, may be subject to accelerated abatement by the City

Upon a determination that a situation described in Section A exists and that a summary abatement without notice is necessary and appropriate, the enforcement officer shall order the immediate abatement without any requirement for notice.

If a situation under Section B is present then the enforcement officer posts the property where the materials are located with a notice warning that accelerate abatement will occur unless the violation is corrected as required. If the property owner resides at location, then 24 hours is given to remedy the violation. If person lives within the City but at different address the time period of 48 hours is given to remedy the situation. If the owner lives out of town then the enforcement officer sends notice by overnight delivery and time of the abatement will be 48 hours from the time of the posting.

As previously discussed during our meeting on January 29th, an representative from the City of Overland Park gave a presentation to City staff regarding these 2 abatement provisions several years ago. As I understand and confirmed by Toni Wheeler, our Legal Department had some initial concerns regarding due process in these scenarios and further discussions of amending our code ceased at that time.

Staff spoke with Shannon McGuire, an Enforcement Specialist for the Overland Park Community and Development Services Department. Shannon stated their city’s compliance date is 5 days after the initial inspection for any yard violation that does not fall under the criteria for accelerated abatement. Shannon advised the summary abatement (A) where no notice is given is for extreme situations when there is a large amount of trash in a yard where there is the potential for the trash to blow into other properties.

The accelerated abatement (B) is for only situations where the items in violation can be determined to be trash, refuse or any other items that appear to be of no worth. Any cases involving exterior storage of personal items that are in violation of city code are sent to court. Shannon stated once they post a property for an accelerated abatement warning the property is almost always cleaned up by the owner as their notice identifies the cost of the abatement.

Staff asked him if their department had good results with sending cases to their city municipal court for prosecution. Shannon stated their judge very rarely gives extensions to the property owner for compliance and usually fines the person the maximum permitted under the code. This result is much different than what our staff experiences in our municipal court as our judge more often than not suspends part of the fine and often gives owners extensions that have lasted more than 6 months.

In these situations, it is very frustrating to staff and even more frustrating for the citizens who have are waiting to see the violation corrected. There are many occurrences where I inform a citizen the case has been forwarded to municipal court. A more proactive abatement policy would eliminate many of these situations where the case is slowly progressing through court.

City of Topeka

Staff also researched the City of Topeka regarding their ordinances pertaining to nuisances such as refuse and trash. Their city code cites state statute K.S.A 12-1617e which allows for up to 10 days for a violation to be corrected. Depending on the severity of the nuisance violation their staff may reduce the time period to correct the violation. There is a provision in their code that allows them for immediate abatement for situations which are deemed to be an immediate hazard requiring immediate action to protect public health, safety or welfare.

Their appeal process allows for a similar process as our ordinance however their appeals are heard by an administrative hearing officer. Once an appeal request is received, the hearing is scheduled within 3 days.

There are abatement costs identified in their code. For general nuisances such as trash and refuse the abatement costs are $140.00 dollars. There are additional administrative costs imposed on the property owner. If the costs or removal or abatement remains unpaid after 30 days, the city may assess the costs against the property or pursue collections as provided by statue statute.

Summary

From an enforcement standpoint, staff understands citizen’s concerns regarding the timeliness of compliance especially when the owner must be taken to court. Exterior yard violations do have an immediate impact on neighboring properties as these violations create a substantial interference with the use and enjoyment of such properties. Dilapidated structures and exterior yard violations have negative effects on neighboring property values and the integrity of the neighborhood.

Our environmental code provisions pertaining to length of time for compliance and abatement procedures should be discussed further to determine if the city would like to become more proactive through a shorter compliance deadline and more aggressive abatement enforcement.

If city staff decides to explore amending our code, the following points of interest should be discussed.

• Reducing time period of compliance from the current 15 days to a shorter period of time. A compliance time frame of 5 to 10 days would be much more effective in addressing all exterior yard violations including trash and refuse.
• Amend appeal text language to coincide with the amended compliance deadline time period.
• Discuss adding language to the code similar to Overland Park’s code language reference accelerated abatement for situations where the items are trash, refuse or discarded items of no worth.
• Amend current abatement language that currently requires a resolution to be approved by City Commission before abatement takes place.
• Eliminate courtesy letter notification. Currently, by sending this letter we extend the period 15 days. Sending this letter is not required but is a department policy.
• Budget additional funds to allow for more aggressive abatement of violations.