The governing body has found that there exists in such municipality structures which are unfit for human use or habitation due to dilapidation, defects increasing the hazards of fire, accidents or other calamities, lack of ventilation light of sanitary facilities, or due to other conditions, including those set forth in section 6-1105 of this article, which renders such structures unsafe or unsanitary, or dangerous or detrimental to the health, safety or morals, or otherwise inimical to the welfare of the residents of the city, and it is hereby deemed necessary by such governing body of the city to require or cause the repair, closing or demolition or removal of such structures in the manner hereinafter provided.
(Code 1975, 6-1101)
(a) A residential structure or dwelling shall mean any building or structure, or part thereof, used and occupied for human habitation or intended to be so used, and includes any appurtenances belonging thereto or usually enjoyed therewith.
(b) A nonresidential structure shall mean any structure which is used for other than residential purposes, or a part of such structure, or a structure a part of which is used for other than nonresidential purposes and, where applicable, the premises on which such structures are situated.
(Code 1975, 6-1102)
There is hereby established the position of the Environmental Hearing Officer to whom is delegated the duties and authority set forth in this Article as the “public officer.” The Environmental Hearing Officer shall be under the employment and general supervisory authority of the City Manager, and shall not be subject to the supervisory authority of any other City officer or employee. The Environmental Hearing Officer shall exercise independent judgment and discretion in carrying out the delegated duties and authority set forth in this Article.
(Code 1975, 6-1103; Ord. 4287-99)
(a) Whenever a petition is filed with the public officer by at least five residents of the municipality or by a representative of the building inspection staff of the municipality charging that any structure is unfit for human use or habitation, the public officer shall review such petition to determine whether it discloses a reasonable basis for such charges. In making such determination, the public officer may request that the building inspection staff of the municipality conduct a preliminary investigation as to such matters and submit a report thereon to the public officer. If the public officer makes a determination that such petition, together with the results of any such preliminary investigation, discloses a reasonable basis for such charges, the public officer shall then issue and cause to be served upon the owner, every mortgagee of record and all parties in interest in such structure (including persons in possession) a complaint stating the charges in that respect. Such complaint shall contain a notice that a hearing will be held before the public officer at a place therein fixed, which shall be not less than 10 days nor more than 30 days after the serving of the complaint, and that the owner, mortgagee and parties in interest shall have the right to file an answer to the complaint and to appear in person, or otherwise, at the hearing and give testimony. The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the public officer, provided that all parties are afforded basic procedural due process in such hearings. The public officer may continue the hearing from time to time as necessary for the determination of the issues under hearing. No further notice of such continuance shall be necessary if the time and place of the continued hearing is announced during the hearing which is being continued.
(b) After such notice and hearing, the public officer shall determine whether the structure under consideration is unfit for human use or habitation under the provisions of this Article. If such a determination is made, the public officer shall also determine the nature of the repairs, alterations or other improvements that would be necessary to abate such conditions, and whether such repairs, alterations or other improvements can be made at a reasonable cost in relation to the replacement value of the structure. The governing body hereby establishes that such costs shall be deemed to be reasonable for purposes of this Article if they do not exceed fifty percent (50%) of the existing value of the structure in its then current condition. The public officer shall set forth such findings in writing and shall cause a copy thereof to be issued and served upon the owner thereof and any other party in interest along with any orders issued by the public officer as follows:
(1) If the public officer finds that the necessary repairs, alterations or other improvements can be made at a reasonable cost, the owner of the property and any other appropriate party in interest shall be ordered within a specified time to make such necessary repairs, alterations or improvements, or to vacate and close the structure until conformance with this Article can be met.
(2) If the public officer finds that the necessary repairs, alterations or other improvements cannot be made at a reasonable cost, the owner of the property and any other appropriate party in interest shall be ordered within a specified time to remove or demolish such structure.
(3) The orders issued by the public officer shall include an order that a review hearing or hearings shall be conducted as the public officer shall prescribe to determine whether satisfactory compliance has been made with the orders issued. At any such review hearing the public officer may issue such modified or additional orders as then determined necessary to secure compliance with the provisions of this Article.
(c) If, during the course of such proceedings, the owner or other appropriate party in interest has been found to have failed to comply with any such orders, the public officer shall issue a report to that effect with the Director of Public Works, or with his or her designee, the receipt of which shall constitute authorization for the Director or his or her designee to proceed to cause such structure to be repaired, altered or improved, or to be vacated and closed, or to be removed or demolished as the findings and orders of the public officer have determined as necessary.
(d) The amount of the cost of such repairs, alterations or improvements, or of such vacating and closing, or of such removal or demolition by the Director of his or her designee shall be a lien against the real property upon which such cost was incurred, and such lien, including as part thereof allowance of the public officer’s costs and the necessary attorney’s fees, may be foreclosed in judicial proceedings, in the manner provided or authorized by law for loans secured by liens on real property. In lieu of foreclosure, the costs, including the public officer’s costs, may be assessed as a special assessment against the lot or parcel of land on which structure was located, and the City Clerk shall at the time of certifying other city taxes certify the unpaid portion of the aforesaid costs, and the County Clerk shall extend the same on the tax rolls of the county against the lot or parcel of land. If the structure is removed or demolished by the Director or by his or her designee, the materials of such structure shall be sold and the proceeds thereof shall be credited against the cost of the removal or demolition; and, if there be any balance of such proceeds remaining, it shall be paid to the parties entitled thereto as determined by proper judicial proceedings instituted by the Director or his or her designee after deducting the costs of such judicial proceedings, including his or her necessary attorney’s fees incurred therein, as determined by the court.
(Ord. 2654; Ord. 4287-99)
The public officer herein designated may determine that the structure is unfit for human use or habitation if he or she finds that conditions exist in such structure which are dangerous or injurious to the health, safety or morals of the occupants of such buildings or other residents of such municipality, or which have a blighting influence on properties in the area. Such conditions may include the following, without limitations: Defects therein increasing the hazards of fire, accident, or other calamities; lack of adequate ventilation, air pollution; light or sanitary facilities; dilapidation; disrepair, structural defects, uncleanliness; overcrowding; inadequate ingress and egress; dead and dying trees, limbs or other unsightly natural growth; unsightly appearances that constitute a blight to adjoining property, the neighborhood or the city; walls, sidings or exteriors of a quality and appearance not commensurate with the character of the properties in the neighborhood; unsightly stored or parked material, equipment, supplies, machinery, trucks or automobiles or parts thereof, vermin infestation; inadequate drainage; or any violation of health, fire, building or zoning regulations or any other laws or regulations relating to the use of land and the use and occupancy of buildings and improvements. The public officer shall use as guidelines in making such determinations, to the extent relevant, the provisions of the building, electrical, plumbing, mechanical and housing codes adopted under Chapter VI of this Code, including any adopted amendments, additions or deletions thereto.
(Ord. 2654; Ord. 4287-99)
Complaints or orders issued by the public officer pursuant to this article shall be served upon persons either personally or by registered or certified mail, but if the whereabouts of such persons is unknown and the same cannot be ascertained by the public officer in the exercise of reasonable diligence, and the public officer shall make an affidavit to that effect, then the serving of such complaint or order upon such persons may be made by publishing the same once each week for two consecutive weeks in the official newspaper of the city. A copy of such complaint or order shall also be filed with the Clerk of the District Court of Harvey County, Kansas, and such filing of the complaint or order shall have the same force and effect as other lis pendens notices provided by law.
(Ord. 2654, Sec. 6)
Any person affected by the order issued by the public officer may petition the District Court of Harvey County pursuant to laws of the State of Kansas, for relief pursuant to Kansas Statutes Annotated, Supplement, Section 17-4759.
(Ord. 2654, Sec. 7)
The public officer is hereby authorized to exercise such powers as may be necessary or convenient to carry out and effectuate the purposes and provisions of this article, including the following powers in addition to others herein granted:
(a) To investigate the structure conditions in the municipality in order to determine which structures therein are unfit for human use or habitation;
(b) To administer oaths, affirmations, examine witness and receive evidence;
(c) To enter upon premises for the purpose of making examinations; provided, that such entries shall be made in such manner as to cause the least possible inconveniences to the persons in possession, and to obtain an order for this purpose from a court of competent jurisdiction in the event entry is denied or resisted;
(d) To appoint and fix the duties of such offices, agents and employees as he or she deems necessary to carry out the purposes of such ordinance;
(e) To delegate any of his or her functions and powers under such ordinances to such officers, agents and employees as he or she may designate.
(Ord. 2654, Sec. 8)
The owner of any structure ordered to be demolished or removed by the public officer shall comply with the pertinent provisions of the building code and pay, or cause to be paid, a wrecking permit fee. Upon removing such structure, the owner, wrecker or licensed contractor shall seal the sanitary sewer connection in the manner set forth by the building inspector. In addition, the owner or licensed contractor shall fill any basement or other excavation located upon the premises and take such other action necessary to leave the premises in a safe condition.
(Ord. 2654, Sec. 9)
Upon the issuance of an order by the public official, under section 6-1103 of this article, the public officer shall place a notice on the particular structure covered by the order as follows: “This structure has been found unfit for human habitation by the order of the Director of Building, Zoning, and Inspection Division of the City of Newton. This notice shall remain on this structure until it is (use either of the following phrases as applicable) (1) repaired, altered or improved or vacated and closed as required by the order; (2) removed and demolished as required by the order.”
(Code 1975, 6-1110)
Nothing in this article shall be construed to abrogate or impair the powers of this city to enforce any other provisions of its ordinances or its charter, or regulations, nor to prevent or punish violations thereof; and the powers conferred by this section upon the designated public officer or other public officials shall be in addition and supplemental to the other powers conferred by the city.
(Code 1975, 6-1111)
It shall be unlawful for any person to use or occupy any such structure which has been found to be injurious to the public health, safety, morals, or welfare as hereinbefore set forth. Any person convicted of a violation of this section shall upon conviction be fined not less than $5 nor more than $100, or be imprisoned not less than five days nor more than three months, or be both so fined and imprisoned.
(Code 1975, Sec. 12)
There shall be established in the city a Board of Structure Appeals as designated in this article:
(a) Definition. The word “board” when used in this article shall be construed to mean the Board of Structure Appeals established by this article.
(b) Appointment or Designation of Board; Quorum and Voting. In the absence of the appointment by the governing body of the city of members to serve this function, the governing body of the city shall also serve as the Board of Structure Appeals for purposes of this article, with the mayor serving as the chairperson and the vice-mayor serving as the vicechairperson thereof. The governing body serving in this capacity shall retain its quorum requirements as provided by law or ordinance. The quorum of an appointed board shall be such number as constitutes a majority of the appointed members. The board in either event shall act by a majority vote of the members in attendance, provided the members in attendance constitute a quorum; provided, however, that in the absence of a quorum the members present by majority vote thereof may adjourn the meeting to another date and time.
(c) Meetings, Records and Adoption of Rules and Regulations. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. Such chairperson, or in his or her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and shall be a public record. The board shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this article.
(d) Jurisdiction. The board shall have jurisdiction to hear and decide appeals where it is alleged that there is error in any order, requirement, decision or any determination made by the public officer in the enforcement of the article.
(e) Appeal Procedure. Appeals may be take~ to the board by any person aggrieved by any decision of the designated public officer under this article. Such appeal shall be taken within 10 days after the decision is rendered by filing with the public officer a notice of appeal specifying the grounds therefor, and by depositing with such public officer the sum of $10 as a docket fee, or in any case where an appellant by reason of poverty is unable to make the deposit, an affidavit so stating may be filed and no deposit will be required. The public officer shall forthwith submit to the board a copy of this notice of appeal, together with all the papers constituting the record upon which the action appealed from is taken.
(f) Stay Pending Appeal. An appeal shall stay all proceedings in furtherance of the action appeals from, unless the public officer shall certify to the board subsequent to the filing of any notice of appeal that, by reason of the facts stated in the certificate a stay would cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by the order of any court of competent jurisdiction.
(g) Inspection Reports to be Furnished. The public officer shall furnish the board, upon request, copies of reports of any or all inspections made by such officer in the matter on appeal and furnish such other information as may be available to them and requested by the board.
(h) Hearings. The board shall fix a time and place for the hearing of appeals. Such hearing shall be had within a reasonable time after the filing of the notice of appeal. Notice of the time and place of hearing shall be mailed to the appellant or to his or her attorney of record and such hearing shall not be less than 10 days after the mailing of the notice.
(i) Powers of Board. In exercising its powers the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made.
(j) Action of Board. The action of the board shall not become effective until either the execution of a resolution of the board setting forth the full reason for its decision and the vote of each member participating therein, or until such reason and vote has been spread upon the minutes and such minutes approved by the board. The records of the board’s action shall be maintained on file in the office of the public officer and shall be open to public inspection.
(k) Appeal to District Court. Any person or persons aggrieved by the decision of the board, and with lawful standing to do so, may appeal to the District Court of Harvey County under the provisions of K.S.A. 60-2101(d).
(Code 1975, 6-1113; Ord. 4072; Ord. 4287-99; Ord. 4416-02)