17-4759. Ordinances relating to repair, closing, demolition or removal of structures unsafe, insanitary, dangerous or inimical to welfare of residents; complaints and orders issued pursuant thereto.
17-4759
17-4759. Ordinances relating to repair, closing, demolition or removal
of structures unsafe, insanitary, dangerous or inimical to welfare of
residents; complaints and orders issued pursuant thereto.
(a) Whenever any municipality finds that there exist 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 or sanitary facilities, or
due to other conditions, including those set forth in subsection (c), rendering
such structures unsafe, insanitary or dangerous or
detrimental to the health, safety or morals, or otherwise inimical to
the welfare of the residents of such municipality, the municipality may
require or cause the repair, closing, demolition or removal of such structures
in the manner herein
provided. "Residential structure" or "dwelling"
means 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. "Nonresidential
structure" means 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 residential purposes and, where
applicable, the premises on which such structures are situated.
(b) Upon the adoption of an ordinance finding that structural
conditions of the character described in subsection (a) exist
within a municipality, the governing body of such municipality is hereby
authorized to adopt ordinances relating to the structures within such
municipality which are unfit for human use or habitation. Such
ordinances shall include the following provisions that:
(1) A public officer be designated or appointed to exercise the
powers prescribed by the ordinances.
(2) Whenever a petition is filed with the public officer or by
at least five residents of the municipality charging that any
structure is unfit for human use or habitation or whenever it appears to
the public officer, on the officer's own motion, that
any
structure is unfit for
human use or habitation, the officer, if the officer's preliminary
investigation
discloses a basis for such charges, shall 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. Such complaint shall contain a notice that: A
hearing will be held before the public officer or the officer's
designated agent
at a place therein fixed not less than 10 days nor more than 30
days after the serving of the complaint; that the owner,
mortgagee and parties in interest shall be given the right to file an
answer to the complaint and to appear in person, or otherwise, and give
testimony at the place and time fixed in the complaint; and that the
rules of evidence prevailing in courts of law or equity shall not be
controlling in hearings before the public officer.
(3) If, after such notice and hearing, the public officer
determines that the structure under consideration is unfit for human use
or habitation, the officer shall state in writing the
findings of facts in support
of such determination and shall issue and cause to be served upon the
owner thereof an order which:
(A) Requires
the owner, within the time specified in the order, to repair, alter, or
improve such structure to render it fit for human use or habitation or
to vacate and close the structure until conformance with ordinances
established under this law if the repair, alteration or improvement of the
structure can be made at a reasonable cost in relation to the replacement value
of the structure. The ordinance of the municipality shall fix a certain
percentage of such cost as being reasonable; or
(B) requires
the owner, within the time specified in the order, to remove or demolish
such structure if the repair, alteration or improvement of the structure
cannot be made at a reasonable cost in relation to the replacement value of the
structure. The ordinance of the municipality shall fix a certain percentage of
such cost as being reasonable.
(4) If the owner fails to comply with an order to repair,
alter or improve or to vacate and close the structure, the public
officer may cause such structure to be repaired, altered or improved, or
to be vacated and closed.
(5) If the owner fails to comply with an order to remove or
demolish the structure, the public officer may cause such structure to
be removed or demolished.
(6) The amount of the cost of the repairs, alterations,
improvements, vacating and closing or removal or demolition by the
public officer shall be a lien against the real property upon which the
cost was incurred. Such lien
shall include allowance of the officer's costs and the necessary
attorney's fees and may be foreclosed in
judicial proceedings in the manner provided or authorized by law for
loans secured by liens on real property. In lien [lieu] of foreclosure,
the costs,
including the officer's costs, may be assessed as a
special assessment against the lot or parcel of land on which the
structure was located, in which case the city clerk, at the time of certifying
other city taxes, shall certify the unpaid portion of the 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 public officer, the officer shall sell the materials of such
structure and shall credit the proceeds of the sale against the cost of
the removal or demolition. If there is any balance remaining it shall
be paid to the parties entitled thereto as determined by proper judicial
proceedings instituted by the public officer after deducting the costs
of such judicial proceedings, including necessary attorneys' fees
incurred therein, as determined by the court.
(c) An ordinance adopted by a municipality pursuant to this section
shall provide that the public officer may determine that a structure is
unfit for human use or habitation if the officer 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 the
municipality or which have a blighting influence on properties in the
area. Such conditions may include, but are not limited to, the following:
Defects 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 or 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. Such
ordinance may provide additional standards to guide the public officer
or the officer's agents or employees in determining the fitness of a structure for
human use or habitation.
(d) Complaints or orders issued by a public officer pursuant to an
ordinance adopted under this section shall be served upon persons either
personally or by registered or certified mail. If the
location of
such persons is unknown and cannot be ascertained by the public
officer in the exercise of reasonable diligence, and the public officer
makes an affidavit to that effect, service may be made by publishing the
complaint or order
once in a newspaper printed and
published in the municipality or, in the absence of such newspaper, in
one printed and published in the county and circulating in the
municipality in which the structures are located. A copy of such
complaint or order shall be posted in a conspicuous place on the
premises affected by the complaint or order. A copy of such complaint or
order also shall be filed with the clerk of the district court of
the
county in which the structure is located and the filing of the
complaint or order shall have the same force and effect as other lis
pendens notices provided by law.
(e) Any person affected by an order issued by a public officer pursuant
to this section may
petition the district court of the county in which the property is
located for an injunction restraining the public officer from carrying
out the provisions of the order. Upon such petition, the court may
issue a temporary injunction restraining the public officer pending the
final disposition of the case. Such petition shall be filed not later than
30 days after the posting and service of the order of the
public officer. Hearings shall be held by the court on such petition as
soon thereafter as possible and
shall be given preference over other matters
before the court.
The court shall hear and determine the issues raised and shall enter a
final order or decree in the proceedings. In all such proceedings the
findings of the public officer as to facts, if supported by evidence,
shall be conclusive. Costs shall be in the discretion of the court. The
remedies herein provided shall be exclusive remedies and no person
affected by an order of a public officer pursuant to this section shall
be entitled to recover
any damages for action taken pursuant to such order or because of compliance
by such person with such order.
(f) An ordinance adopted by the governing body of the municipality pursuant
to this section
may authorize the public officer to exercise such powers as may be
necessary or convenient to carry out and effectuate the purposes and
provisions of this section, including, in addition
to others herein granted, the power to:
(1) Investigate the structure conditions in
the municipality in order to determine which structures therein are
unfit for human use or habitation;
(2) administer oaths and
affirmations, examine witnesses and receive evidence;
(3) 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
inconvenience to the persons in possession, and obtain an order for
this purpose from a court of competent jurisdiction in the event entry
is denied or resisted;
(4) appoint and fix the duties of such
officers, agents and employees as the officer deems necessary
to carry out the
purposes of such ordinance; and
(5) delegate any of the officer's functions and
powers under such ordinance to such officers, agents and employees as
the officer
may designate.
(g) As soon as possible after adopting an ordinance under this section,
the governing body of any municipality shall prepare an
estimate of the annual expenses or costs to provide the equipment,
personnel and supplies necessary for periodic examinations and
investigations of the structures in such municipality to determine the fitness
of such structures for human use or habitation,
and for the enforcement and administration of its ordinance or
ordinances adopted under this section.
(h) Nothing in this section shall be construed to abrogate or impair
the powers of the courts or of any department of any municipality to
enforce any provisions of its charter or its ordinances or regulations,
nor to prevent or punish violations thereof and the powers conferred by
this section shall be in addition and supplemental to the powers
conferred by any other law.
(i) Nothing in this section shall be construed to impair or limit in
any way the power of the municipality to define and declare nuisances
and to cause their removal or abatement, by summary proceedings or
otherwise.
(j) Any municipality, by ordinance adopted by its governing
body, may:
(1) Prescribe minimum standards for the use and occupancy of any type
structure throughout the city;
(2) prevent the use or occupancy of any
structure which is injurious to the public health, safety, morals or
welfare; and
(3) prescribe punishment for the violation of any provision
of such ordinance.
History: L. 1955, ch. 86, § 18;
L. 1965, ch. 155, § 1; L. 1981,
ch. 173, § 54;
L. 1998, ch. 159, § 1; July 1.