TITLE 4

PUBLIC HEALTH AND SAFETY

Subject Chapter

Nuisances..................................................................... 1

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CHAPTER 1

NUISANCES

SECTION:

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Purpose

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Application

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Definitions

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Public Nuisances

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Responsibility For Maintenance

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Enforcement

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Summary Abatement

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Abatement In Other Cases; Notice

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Abatement By Owner

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4-1-11:

4-1-12:

4-1-13:

4-1-14:

4-1-15:

Appeal Proceedings; Hearing Abatement By Town

Notice Of Assessment Personal Liability Of Owner

Overhead Charge; Civil Penalties Criminal Penalties

4-1-1 : PURPOSE:

Intent: The intent of this chapter is to provide a comprehensive mechanism for the identification and abatement of public nuisances within thetown.

Remedies: The remedies provided for in this chapterare supplemental and complementary to all of theprovisionsofthis code, and state and federal law, and nothing herein shall be read, interpreted or construed in any manner to limit any existing right or power of the town to abate any and all publicnuisances.(2008Code)

APPLICATION: The provisions of this chapter shall apply to all property throughout the town wherein any of the conditions

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hereinafter specified are found to exist; provided, however, that any condi tion which would constitute a violation of this chapter but which is duly authorized under any other city, state or federal law, shall not constitute a violation. (2008 Code)

DEFINITIONS: As used in this chapter, the following words and terms shall have the meanings ascribed to them in this

section:

ABATEMENT:

OWNER:

PROPERTY:

PUBLIC NUISANCE:

The removal, stoppage, prostration or destruc tion of that which causes or constitutes a nuisance, whether by breaking or pulling it down, or otherwise destroying, or effacing it.

The owner of record or any person with legal, financial or equitable interest in the property on which the alleged public nuisance exists at the time of the violation.

Any real property, premises, structure or location on which a public nuisance is alleged to exist.

Any fence, wall, shed, deck, house, garage, building, structure or any part of any of the aforesaid; or any tree, pole, smokestack; or any excavation, hole, pit, basement, cellar, sidewalk subspace, dock; or any lot, land, yard, premises or location which in its entirety, or in any part thereof, by reason of the condition in which the same is found or permitted to be or remain, shall or may endanger the health, safety, life, limb or property, or cause any harm, damage or injury to any one or more neighbors of the property, in any one or more of the following particulars:

By reason of being a menace, threat orhazard to the general health and safety of the community.

By reason of being a firehazard.

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By reason of being unsafe for occupancy, or use on, in, upon, about or around the aforesaid property.

By reason of lack of sufficient or adequate maintenance of tile property and/orbeing vacant, any of which substantially depreciates the enjoyment and use of the property in the immediate vicinity to such an extent that it is permanently harmful to the adjacentproperty.

Tile term "public nuisance" shall mean any nuisance designated in section 4-1-4 of this chapter.

SUMMARY ABATEMENT:

Abatement of the nuisance by the town, or a contractor employed by the town, by removal, repair or other acts without notice to the owner, agent or occupant of the property, except for the notice required by this chapter. (2008 Code)

4-1-4 : PUBLIC NUISANCES:

Declared Public Nuisance: The following are hereby declared to be publicnuisances:

Unsafe Building Or Structure: Any building or structure whichmeets the definition of an unsafe building or structure as provided in the international building code, or any successor provision, adopted pursuant to thiscode.

Dangerous Building Or Structure: Any building or structure which meets the definition of a dangerous building as provided in theuniform code for the abatement of dangerous buildings or any successor provision adopted pursuant to thiscode.

Substandard Building Or Structure: Any building or structure which meets the definition of a substandard building as provided in section 1001 of international uniform housing code, or any successor provision, adopted pursuant to thiscode.

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Safety Hazard: Any imminent life safety hazard which creates a present and immediate danger to life, property, healthorpublic safety.

May Be Declared Public Nuisance: The following may be declared to be publicnuisances:

Attractive Nuisance: Any condition which constitutes an attractive nuisance whether within a structure or on thepremises.

Repeated Disruptive Activities: Any building or place which has been operated or maintained in a manner that has resulted inrepeated disruptive activitiesincluding, but not limitedto, disturbances of the peace, public drunkenness, drinking in public, harassment of passersby, sale of stolengoods,publicurination, theft, assaults, batteries, acts of vandalism, excessive littering, illegal parking, loud noises (particularly in late night orearlymorninghours), traffic violations or police detentions andarrests.

Unwholesome, Unsanitary Or Detrimental Conditions:Any condition which renders air, food ordrink unwholesome, unsanitary or detrimental tohealth.

Fire Hazard: Any condition which poses a firehazard.

Animals: Any condition in violation of title 5, chapter 2ofthiscode.

Kennel: The ownership, maintenance or operation of a dog or animal kennel without proper provisions for the protection of the surrounding properties from odor and sound generatedbythe kennel.

Abandoned, Wrecked Vehicles; Junk; Rubbish: The keeping, storage, depositing or accumulation on the premises for an unreasonable period of time of any personal property or waste; including, but not limited to, abandoned, wrecked, dismantled or inoperative vehicles; abandoned, wrecked or dismantled boats or vessels; automotive parts and equipment; appliances; furniture;containers; packing materials; scrap metal; wood; building materials; junk; rubbish; debris; dirt; sand; gravel; concrete or other similar materials which is within the view of persons on adjacent or nearby real property or the public right of way and whichisdetrimentalto the public health, safety and general welfare. However, building materials being used or to be used for a project of repairor

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renovation for which a building permit has been obtained may be stored for such period of time as is necessary expeditiously to complete the project.

Defined In Statute: Any public nuisance as defined in Montana Code Annotated section 45-8-111 or otherwise recognized in law as constituting a public nuisance. (2008Code)

4-1-5 : RESPONSIBILITY FOR MAINTENANCE:

Responsibility: Every owner, occupant, lessee or holder of any possessory interest in real property within the town is required to maintain such property so as not to violate the provisions of this chapter.

Liability For Violation: The owner of the property shall remain liablefor violations hereof regardless of any contract or agreementwithany third party regarding such property or the occupation of the property by any third party. (2008Code)

ENFORCEMENT: The town council shall have primary responsibility for the abatement of a public nuisance under

this chapter. (2008 Code)

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SUMMARY ABATEMENT:

Complaint; Inspection; Abatement By Town: Whenever a complaint is made to the town council of the existence of a "public nuisance" as defined in sections 4-1-3 and 4-1-4 of this chapter, the town council shall promptly cause to be inspected the property on which it is alleged that such public nuisance exists. Should the town council find that public nuisance exists, and that the public health, safety or welfare is in immediate life threatening danger, then summary abatement procedures shall be implemented and the town council may cause the nuisance to be removed or abated.

Notice For Immediate Abatement: When summary abatement is authorized, notice to the owner, agent or occupant of the property informing of the need for the immediate abatement shall be required. Failure or refusal of the occupant or owner to receive the notice does not affect the right of summaryabatement.

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Posting On Property: Following summary abatement, thetown council shall cause to be posted on the property liable for the abatement, notice describing the action taken to abate the nuisance.

(2008 Code)

4-1-8: ABATEMENT IN OTHER CASES; NOTICE:

Nuisance Declared; Findings Filed With Council: If,after inspecting the property on which the nuisance is reported, the town council declares the existence of a public nuisance, but the nature thereof is not such as to require the summary abatement of suchnuisance, then, regular abatement procedures shall be followed. Photographs and reports of the findings and inspections shall be made and filed with the towncouncil.

Notice To Owner;Service:

Personal Service: The town council shall determinethelegal owner who, from the records in the countyclerkandrecorder's office, appears to be the titled owner of the aforesaid property and immediately cause a written notice to be served on such owner bypersonal service or by leaving a copy of the notice at the usual place of residence or business of such owner, or address of such owner shown in the clerk and recorder's records, or by copy mailed to such owner at such address by United States certified mail, return receipt requested.

Publication; Posting: If service ofsuch written notice is unable tobe perfected by any of the methods described above,thetown council shall cause a copy ofthe aforesaidnotice to be published ina newspaper of general circulation in the town, once a week fortwo

(2) consecutive weeks and shall further cause a copy of the afore said notice to be left with the individual, if any, in possession of such property on which it is alleged such public nuisance exists, or if there is no individual in possession thereof, the town council shall cause a copy of the notice to be posted at such structure located on the premises.

Notice To Lien Holder: The town council shall alsodeterminefrom the county clerk and recorder's office who the lien holder of the property, if any, as documented therein, is andcauseawrittennotice to be served on such lien holder by United States mail, return receiptrequested.

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Contents Of Notice: The aforesaid notice of the owner, and lien holder, if any, of the property shall state clearly and concisely the findings of the town council with respect to the existence of a public nuisance. The notice shall further state that unless the owner thereof shall cause the abatement of the public nuisance, pursuant to the orders contained in the town council notice, the public nuisance shall be abated by the town at the expense of theowner.

Responsibility, Liability Of Owner: Any person who is the recordowner of the premises, location or structure at the time anorder

pursuant to this chapter is issued and served upon him, shall be responsible for complying with that order, and liable for any costs incurred by the town therewith, notwithstanding the fact that such owner conveys his interests in the property to another after such order was issued and served.

No Defense: It shall not be a defense to the determination that a public nuisance exists that the property is boarded up or otherwise enclosed. (2008Code)

4-1-9 : ABATEMENT BY OWNER:

Abatement Or Statement No Nuisance Exists: Within thirty (30) days after the posting and mailing of a notice to abate a nuisance,the

owner, agent of the owner or individual in possession of the affected property shall remove and abate such nuisance or show that no nuisance in fact exists. Such showing shall be made by filing a written statement that no nuisance exists. The statement shall be filed with the town council.

Additional Time: The town council, upon written application by the owner within the thirty (30) day period after the notice has been served, may grant additional time for the owner to effect the abatement of the public nuisance. (2008Code)

4-1-10 : APPEAL PROCEEDINGS; HEARING:

Request For Hearing: The owner or occupant ofthe propertywho has been served with a notice pursuant to this chapter that a public nuisance exists and that it must be abated within thirty (30)days, may, within seven (7) calendar days after receipt of suchnotice, make a written demand to the town council for a hearing on the question of whether a public nuisancein fact exists.

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Hearing Scheduled; Notice: The hearing shall be held at the next scheduled regular meeting of the town council, following receipt by the town council of the written demand and at least two (2) days'

notice of the hearing shall be given to the individual who made the written demand for the hearing.

Hearing: The hearing shall be conducted by the town council. The council may amend or modify the notice and/or order, or extend the time for compliance with the town council order by the owner by such date as the majority of the council maydetermine.

Right To Present Evidence: The owner, agent of the owner, occupant and lien holder, if any, of the subject property shall be given the opportunity to present evidence to the council in the course of the hearing.

Waiver Of Costs: In those instances where the nuisance has been abated by the town, the council shall have discretiontowaivethe cost of abating a nuisance, in whole or in part, if in the course of the hearing reviewing the decision, the council finds that any of the following did not conform to the provisions of thischapter:

The notice to remove thenuisance;

The work performed in abating the nuisance;or

The computation of charges. (2008Code)

4-1-11 : ABATEMENT BY TOWN:

Failure To Comply; Authority To Enter: Should any publicnuisance not be abated at the expiration of time stated in the notice/order or within such additional time as the town council may grant, the town council shall have the authority to enter upon the property and abate the public nuisance foundthereon.

Sale: In abating such nuisance, the town council may go to whatever extent may be necessary to complete the abatement of the public nuisance and should it be practicable to salvage any material derived in the aforesaid abatement, the town may sell the salvaged material at private or public sale at the best priceobtainableandshall keep an accounting of the proceedsthereof.

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Proceeds Of Sale: The proceeds, if any, obtained from the sale of any material salvaged as a result of an abatement of apublic nuisance by the town shall be deposited to the general fund of the town and any deficit between the amount so received and the cost of the abatement may be levied as an assessment against the property in question by the town council and collected on any other assess ment by the town; however, any other alternative collection method may be utilized by the town to recoup the deficit.Shouldthe proceeds of the sale of such salvaged material exceed the cost of abatement, the surplus, if any, shall be paid to the owner of the property from which the public nuisance was abated when a proper claim, pursuant to state law, to the excess isestablished.

Work Done By Town Departments; Private Contract: In abating a public nuisance, the town council may call upon any of the town departments or divisions for whatever assistance shall be deemed necessary or may, by private contract, cause the abatement ofthe

public nuisance.

Statement Of Costs: The town council shall, after completing the removal and abatement, file a statement of costs with the townclerk.

(2008 Code)

4-1-12 : NOTICE OF ASSESSMENT:

Service On Owner; Right To Object: Upon receipt of the statement of costs from the town council, the town clerk shall mail to the owner of the property upon which the public nuisance has been abated notice of the amounts set forth in the statement plus an additional amount sufficient to defray the costs of the notice and stating that the town proposes to assess against ihe property the amount set forth in the notice and that objections to the proposed assessment mustbe made, in writing, and received by the town clerk within twenty (20) days from the date of mailing suchnotice.

No Objection By Owner; Lien: Upon the expiration of the twenty (20) day period, if no objections have beenreceivedby thetown clerk, the town clerk shall enter that amount in the town liens docket which shall therefore constitute a lien against theproperty.

Objection; Referral To Council: If objections of either the property owner or their representative are received by the town clerk prior to the expiration of the twenty (20) day period, the town clerk shall refer the matter to the town council forreview.

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Review; Determination: Upon conclusion of the review, the town council shall make a written determination that the amount of the

charges shall be cancelled, reduced or remain the same. A copy of this determination shall be furnished to the person making the objection.

Elimination Of Civil Penalty: The town council, in review, may reducea proposed assessment by eliminating the civil penalty portion of the invoice if it is determinedthat:

The current owner was not in possession of the propertyatthe time the notice required in section 4-1-8 of this chapterwas posted;or

The owner did not receive the notice to remove the nuisance, did not have knowledge of the nuisance and could not, with the exercise of reasonable diligence, have had such knowledge.

Notice Of Assessment Not Received By Owner: If, after a lien has been entered in the docket of town liens, there is a written request of an owner who alleges that the owner did not receive notice of the proposed assessment, the town clerk shall referthematterfor review pursuant to subsection C of thissection.

Reduction Or Cancellation Of Lien: The lien may be cancelled or reduced by the town council, if it is determined that the owner did not receive notice of the proposed assessment, did not previously have knowledge of the lien or of the nuisance abatement work constituting the basis of the lien, could not, in the exercise of reasonable care or diligence, have had such knowledge, and in addition, that the circumstances are such that reduction or cancellation of the charges would have been appropriate had the matter been reviewed pursuant to this section prior to assessment. Upon receipt of a certification from the town council, pursuant to this subsection, the town clerk shall cancel or reduce the lien if required by the determination of the town council.

Entry Of Lien On Docket: A copy of the determinationwillbe furnished to the town clerk who shall then enter a lien in the amount determined by the town council in the town liens docketas providedin subsection B of thissection.

Determination Final: The determination of the town council is a final administrative decision. (2008Code)

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PERSONAL LIABILITY OF OWNER: The person who is the owner of the property at the time at which the notice required

under section 4-1-8 of this chapter is posted shall be personally liable for the amount of the assessment including all interest, civil penalties and other charges. (2008 Code)

4-1-14 : OVERHEAD CHARGE; CIVIL PENALTIES:

Overhead Charge: Whenever a nuisance is abated by the town, the town clerk shall keep an accurate amount of all expenses incurred, including an overhead charge of twenty five percent (25%) for administration and notwithstanding subsection 4-1-12Eofthis chapter a civil penalty of two hundred dollars ($200.00) for each nuisanceabated.

Subsequent Nuisances: When the town has abated a nuisance main tained by any owner of real property, for such subsequentnuisance

that is abated by the town within two (2) consecutive calendar years concerning real property, owned by the same person, an additional civil penalty of fifty percent (50%), minimum of fifty dollars ($50.00), of the cost of abatement shall be added to the costs, charges and civil penalties provided for in subsection A of this section. The civil penalty shall be imposed without regard to whether the nuisances abated by the town involve the same real property or are of the same character. (2008 Code)

4-1-15 : CRIMINAL PENALTIES:

It shall be unlawful and a misdemeanor for any person to remain inviolation of any provision in this chapter when more than thirty (30) days have elapsed from the day the notice was given by the town as required in section 4-1-8 ofthis chapter.

Each day a person is in violation as stated in subsection A of this section shall be a separate misdemeanoroffense.

This section in no way limits the civil remedies provided the town in this chapter, and the town may simultaneously enforce both civil and criminal remedies against the sameperson.

While not a comprehensive list, any and all persons described in section 4-1-5 of this chapter may be held criminally responsible for creating any public nuisance. (Ord. 2008-5,9-2-2008)

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