CITY COMMISSION AGENDA ITEM

Department:	Planning & Development Services		Commission Meeting Date:  February 21, 2017
Staff Contact:	Brian Jimenez, Code Enforcement Manager
Recommendations/Options/Action Requested:
Conduct an appeal hearing initiated by Chris Black, the owner of the wood-fired furnace located on the property at 1501 Learnard Avenue, which is owned by  Sunrise Green LLC. The appeal  hearing  is in response to staff issuing both Sunrise Green LLC and Mr. Black a  Notice of a Nuisance violation letter regarding the use of the wood-fired furnace that has created a nuisance condition for the surrounding neighborhood.  The City Commission shall conduct the hearing to determine if the smoke emitting from the wood-fired furnace constitutes a nuisance as cited by staff and defined in section 9-201 of the City Code. City Commission options: Uphold staff’s Notice of a Nuisance violation letter by adopting Resolution No. 7190, which affirms the Governing body finds that conditions, injurious to the health, safety and welfare of the community, constituting a nuisance, exists on the property and those conditions that must be remedied by the owner or abated by staff if the owner does not remedy the nuisance within a certain  timeframe to be determined by the City Commission. Overturn staff’s Notice of a Nuisance violation letter and find for the appellant that the smoke being emitted from the wood-fired furnace does not constitute a nuisance as defined in section 9-201 of the City Code thereby allowing for the use of the furnace to continue without prejudice.
Executive Summary:		On May 2, 2016, staff issued a building permit for the installation of an outdoor wood-fired furnace at 1501 Learnard Avenue that is located on the southwest portion of the property.  The furnace was installed initially without a building permit.  The furnace is used to provide heat to greenhouses for the growing of agriculture during the cold months of the year that prevent outdoor planting. In the spring of 2016, staff received complaints from a neighboring single-family property owner on E. 15^th Place stating the amount of smoke being exhausted from the chimney had created a nuisance. Specifically, the owner stated that the smoke infiltrating onto his property and into his home interrupted his peaceful enjoyment of his property and he was concerned for the potential harm the smoke caused to his health.  When confronted with this complaint, and through applying the building codes through the permitting process, the owner of the furnace willingly increased the height of the chimney intending for the smoke to rise above the tree cover presumably holding it close to the ground.  It soon warmed to the point of not needing to operate the furnace and the issue resolved itself temporarily. On December 6 and 14, 2016, staff received complaints from two separate neighbors citing the same concerns.  Staff spoke to the neighbors and visited the site on several occasions to observe the conditions that prompted the complaints.  The neighbors reported heavy smoke infiltrating their homes and that the smoke was causing them to have breathing problems. On January 5, 2017, after investigating the complaints and finding cause, staff mailed Sunrise LLC and Mr. Black  a Notice of a Nuisance letter advising that the use of the wood-fired furnace had created a nuisance violation of the City Code, Chapter 9, Article 2 (Health and Sanitation), 9-201 Nuisances Defined; Prohibited.  In accordance with code section 9-203(B), Staff advised that the use of the furnace must cease by January 15, 2017, a time not exceeding 10 days. Section  9-201 (Nuisances Defined; Prohibited) states: It shall be unlawful for any person to permit, cause, keep or maintain any nuisance, or cause to be committed, caused, kept or maintained any nuisance within the City. Anything dangerous to human health, or anything that renders the ground, the water, the air or food hazardous or injurious to human health is hereby deemed and declared to be a nuisance. On January 10, 2017, per section 9-203(B), the owner exercised their right to request a hearing before the City Commission. On February 7, 2017, the City Commission adopted Resolution No. 7189, which set the appeal hearing date of February 21, 2017. In summary, staff believes the furnace is creating a nuisance condition for the adjacent neighborhood based on  the amount of particulate being exhausted from the furnace and its close proximity to the nearby homes.  The photographic and video evidence demonstrates that the amount of smoke is several times that of a typical residential fireplace, causing the air in the neighborhood to be “hazardous or injurious to human health” relative to what should be expected in a reasonable mixed use situation. Staff has sent notice of this hearing to the appellant and to neighbors within 400 feet of the subject property.
Strategic Goal Area:		Not Applicable
Fiscal Impact (Amount/Source):		If  staff’s Notice of a Nuisance violation letter is upheld and the City abates or removes the nuisance, the City may recover the cost of such removal or abatement and the costs shall be collected in the manner provided in 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 is located.
Attachments:		Resolution No. 7189 Resolution No. 7190 Notice of a Nuisance Letter Video from Jeff McDiffett sent to the City Commission on December 16, 2016 Email from Jeff McDiffett sent to City Commission on December 16, 2016 Pictures taken by staff on December 19, 2016 Video from Jeff McDiffett sent to staff on January 26, 2017 Mr. Black appeal via email Location Map

Reviewed By: (for CMO use only)

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