ORDINANCE NO.  8467

AN ORDINANCE AMENDING PORTIONS OF ARTICLE 6 OF CHAPTER IX OF THE CITY CODE; REDEFINING THE TERM “STRUCTURE” TO EXPLICITLY EXCLUDE DRIVEWAYS AND OTHER PARKING AREAS AND AMENDING OTHER PROVISIONS OF THE CITY’S ENVIRONMENTAL CODE.

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

Section 1. Section 9-603.2 of the Code of the City of Lawrence, 2009 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 concrete

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 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 Community Development 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-resistant wood surfaces, applied to prevent rotting and deterioration.

(S)        Refuse shall mean any and all accumulations of waste material, garbage, trash, rubbish, paper, packing material, pasteboard, cinders, metal, small and fallen or cut 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, but shall not include any driveway surface or anything located on the ground or attached to something located on the ground that has no roof and that has been designed for the parking of motor vehicles or is utilized in whole or in part for the parking of motor vehicles.

(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 2.    Section 9-605 of the Code of the City of Lawrence, 2009 edition, and amendments thereto, is hereby amended to read as follows:

9-605 ENFORCEMENT STANDARDS. 

In determining whether a violation of this Article exists, No person shall be found in violation of this Article unless the public officer, after a reasonable inquiry and inspection of the premises, shall consider whether believes that conditions declared unlawful under this Article exist. of a quality and appearance not commensurate with the immediately surrounding properties.  Such evidence shall include conditions declared unlawful under Section 9-606 of this Article, but shall not include Only those conditions that which are not readily visible from any public place or from any surrounding private property shall be considered in determining whether a violation exists.  It shall be an affirmative defense to an enforcement action for a violation of  Section 9-606.2, Exterior Conditions (Structure), that the conditions giving rise to the violation are of a quality and appearance commensurate with the conditions of immediately surrounding properties unless such conditions threaten the health, safety or welfare of any person.      

Section 3.    Section 9-606.1 of the Code of the City of Lawrence, 2009 edition, and amendments thereto, is hereby amended to read 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, 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), and dead or damaged tree limbs that create an unsafe condition, as determined by the City Parks and Recreation Director or his or her designee.

Section 4.    Section 9-606.4 of the Code of the City of Lawrence, 2009 edition, and amendments thereto, is hereby amended to read as follows:

9-606.4 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.

(E) Except when trash receptacles are lawfully placed for collection, storing trash receptacles in the area in front of the front building line of the principal building on the lot.

(F) Except when trash receptacles are lawfully placed for collection, storing trash receptacles in an exterior location that is more than three feet from an exterior wall of the principal building or accessory structure. 

(G) Failing to properly secure trash receptacles that are left at the rear property line in locations where trash collection occurs in an alley.  Trash receptacles at these locations shall be stored in a manner that reasonably prevents the scattering of the trash receptacles and any refuse contained within the receptacles.

Section 5.    Section 9-607 of the Code of the City of Lawrence, 2009 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. 

(A) Any person found by the public officer to be in violation of any provision of Sections 9-606 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 notice of violation notice pursuant to this Article shall be required if the violation notice of violation is for the same a person who has already been served a notice of violation pursuant to this section within the preceding twenty-four (24) months.

(B) If no notice of violation is required under this section for a violation of Sections 9-606 through 9-606.4 of this Article, in which case personnel of the Planning and Development Services Department or the City Prosecutor's Office shall have the authority to issue the person a Notice to Appear in Municipal Court for such violation 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.

(C) The notice of violation shall be served in either of the following ways: as follows:

(1) A copy of the notice of violation shall be conspicuously posted on the property where the violation is alleged to exist.  In the case of property containing a structure, posting a door hanger on a main entrance to the structure shall be considered conspicuous posting.  In addition, a A copy of the notice of violation shall be mailed, postage prepaid, to such person at his or her last known address.

(2) A copy of the notice of violation may be mailed by certified mail, postage prepaid, return receipt requested to such person at his or her last known address.

(D) The notice of violation shall state: 

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

(2) That the person in violation shall have the time periods listed below to alleviate the condition or conditions that have caused the violation of this Article.  Only those time periods that apply to the types of violations actually present on the property in question need to be included in the notice of violation.

(a) Seven (7) days from the date of the service of the notice of violation to alleviate the exterior conditions (yard/porch) violation, for any portion of such a violation that consists of junk or refuse, and/or

(b) Fifteen (15) days from the date of the service of the notice to alleviate the exterior conditions (yard) violation, for any portion of the violation that does not consist of junk or refuse, and/or,

(c) Thirty (30) days from the date of the service of the notice to alleviate the exterior conditions (structure) violation, or as an alternative to (1) and/or (2) above.

(3) That the person in violation shall have seven (7) days from the date of the service of the notice of violation to alleviate regarding any exterior conditions (yard/porch) violation that involves junk or refuse, and fifteen (15) days from the date of service of the notice for all other types of violations to request, as provided in Section 9-611, a hearing before the Neighborhood Resources Community Development Advisory Committee on the matter.   

(4) That failure to alleviate the each condition or to request a hearing within the time period provided 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 as provided by Section 9-613 of this Article.

Section 6.    Section 9-608 of the Code of the City of Lawrence, 2009 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 through 9-606.4 of this Article, provided however, that such person shall first have been sent any notice as required provided in by Section 9-607 of this Article, and that the person has neither not alleviated the conditions causing the alleged violation nor requested a hearing before the Neighborhood Resources Community Development 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 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 $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 7.    Section 9-609 of the Code of the City of Lawrence, 2009 edition, and amendments thereto, is hereby amended to read as follows:

9-609                     ABATEMENT. 

In addition to, or as an alternative to, prosecution as provided in Section 9-608 of this Article, the public officer may seek to remedy violations of this Article in the following manner:  If a person to whom a notice has been sent pursuant to Section 9-607 of this Article has neither alleviated the conditions causing the alleged violation nor requested a hearing before the Neighbor Resources Community Development Advisory Committee within the time periods specified in Section 9-607 of this Article, the public officer may present a resolution to the Governing Body for adoption authorizing the public officer or other agents of the City to abate the conditions causing the violation at the end of twenty (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 as provided in Section 9-613 of this Article.  A copy of the resolution shall be served upon the person in violation in one of the following ways:

(A)        Personal service upon the person in violation;

(B)        Service by certified mail, postage prepaid, return receipt requested; or

(C)        In the event the whereabouts of such persons are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the public officer and filed with the City Clerk, and the serving of the resolution shall be made by publishing the same once each week for two (2) consecutive weeks in the official City newspaper and by posting a copy of the resolution on the premises where such condition exists. 

Section 8.    Section 9-611 of the Code of the City of Lawrence, 2009 edition, and amendments thereto, is hereby amended to read as follows:

9-611         HEARING BEFORE NEIGHBORHOOD RESOURCES COMMUNITY DEVELOPMENT ADVISORY COMMISSION.

If A hearing, if desired, must be is requested within the fifteen (15) day appropriate time period as provided in Section 9-607 of this Article, and such request shall must be made in writing to the Neighborhood Resources Community Development Advisory Committee.  Failure to make a timely request for a hearing shall constitute a waiver of the person's right to contest the findings of the public officer before the committee.  The hearing shall be held by the Neighborhood Resources Community Development Advisory Committee as soon as possible after the filing of the request therefore, and the person shall be advised by the City of the time and place of the hearing at least five days in advance thereof.  At any such hearing, the person may be represented by counsel, and the person and the City may introduce such witnesses and evidence as is deemed necessary and proper by the Neighborhood Resources Community Development Advisory Committee.  The hearing need not be conducted according to the formal rules of evidence.  Upon conclusion of the hearing, the Neighborhood Resources Community Development Advisory Committee shall record its determination of the matter and recommend to the Governing Body adopting a resolution and serving the resolution upon the person in the manner provided in Section 9-609 of this Article.

Section 9.  Sections 9-603.2, 9-605, 9-606.1, 9-606.4, 9-607, 9-608, 9-609, and 9-611 of the Code of the City of Lawrence, 2009 edition, and amendments thereto are hereby repealed, it being the intent of this ordinance to replace those provisions with the amended provisions contained in this ordinance.

Section 10. Severability.  If any section, clause, sentence, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this ordinance.

Section 11.  This ordinance shall take effect and be in force effective upon its passage and publication once in the official city paper as provided by law.

PASSED by the Governing Body this _______ day of____________, 2010.

                                                                                    PASSED:

                                                                                    ________________________

                                                                                    Robert Chestnut, Mayor

ATTEST:

____________________________

Jonathan Douglass, City Clerk

APPROVED AS TO LEGAL FORM:

____________________________

Toni Ramirez Wheeler   

Director of Legal Services