Article 1. General Provisions

9.1.1.     Short title.

This Chapter shall be known and may be cited as the "Bel Aire Nuisance Enforcement Code” (Nuisance Code) and shall be construed in conformance with the provisions of K.S.A. 12-1617e.

9.1.2.     Purpose.

The purpose of the Nuisance Code is to promote the health, safety and welfare of the residents of the City of Bel Aire, Kansas, and to protect neighborhoods against physical, visual and economic deterioration.

Within this Nuisance Code the City intends to prohibit nuisances that:

Contribute to or cause injury, or endanger the health, safety or welfare of others, including but not limited to the following;

Such properties and conditions serve as a breeding ground for flies, mosquitoes, rats and other insects and rodents;

Dangerous to persons, particularly children, because of possibility of drowning, injury from broken glass, sharp metal protrusions, and potential for entrapment;

Encourage pilfering and theft, and constitute a blighting influence upon the area in which they are located, thereby causing a loss in property value to surrounding property; and

Constitute a fire hazard in that they block access for fire equipment to adjacent buildings and structures, and leak environmentally harmful fuels and lubricants onto/into the ground.

Are contrary to community standards of decency;

Are offensive to the senses of the general public;

Obstruct the free use of property so as to essentially interfere with the comfortable enjoyment of life and property by the public; or

Damage or contribute to the deterioration of property or improvements in the community.

9.1.3.     Definitions.

Unless otherwise specified the following terms as used in this Nuisance Code shall mean as follows:

Abandoned Property means any residential or commercial real estate for which taxes are delinquent for the preceding two (2) years and which has been unoccupied continuously by persons legally possessed of such property for the preceding one year.

Abandoned vehicle means a vehicle that has remained on private property without the consent of the owner or person in control of the property for more than forty-eight hours.

Agriculture shall mean the use of a tract of land of not less than 20 acres for growing crops in the open, dairying, pasturage, horticulture, floriculture, and necessary accessory uses, including the structure necessary for carrying out farming operations and the residence of the person who owns or operates the farm, and the family thereof, provided, however, agriculture shall not include the following uses:

the maintenance and operation of commercial greenhouses or hydroponic farms;

wholesale or retail sales;

the feeding of garbage to animals;

the raising of poultry or fur bearing animals as a principal use; and

the operation or maintenance of a feed lot.

Bulky Waste shall mean discarded or stored inoperative household appliances, disused furniture, disused equipment, junk lumber and other building demolition debris, parts of machinery and equipment, and similar waste not ordinarily collected with compacter equipment; provided that this definition shall not mean abandoned or inoperable vehicles in whole or in part.

City means Bel Aire, Sedgwick County, Kansas.

Control Measures shall mean any chemical, structural or physical procedures or processes designed to eradicate, minimize prevent or otherwise limit the reproduction and/or infestation of insects and rodents detrimental to community health.

Dead Animals shall mean those that die in the normal course of community activity, excluding condemned animals at slaughter houses or any other animals normally considered industrial refuse

Foodstuffs shall mean all food used for human consumption.

Enforcing Officer shall mean the person designated as Enforcing Officer by the City Manager, or such Enforcing Officer’s designee.

Garbage shall mean the putrescible animal and vegetable wastes resulting from the handling, preparation, cooling and consumption of food.

Governing Body means the mayor and city council of the City of Bel Aire, Kansas.

Human Excreta shall mean the body discharge (both feces and urine) of humans.

Industrial Refuse shall mean the solid wastes resulting from industrial processes.

Inoperable Vehicle shall mean any motor vehicle which:

is abandoned,

has mechanical defects prohibiting it from performing the function for which it was constructed,

a wrecked or partially wrecked frame or body,

missing or dismantled parts,

is placed on jacks, blocks, or other support, or

does not have any other lawfully required element of vehicle operation including valid registration.

Insects shall mean the classes Insecta and Archnida of the Phylum Arthrepeda including but not limited to flies, mosquitoes, fleas, lice, cockroaches, bed bugs, plant bugs, mites, ticks, spiders and scorpions.

Junk vehicle means any vehicle which is wrecked, scrapped, ruined, partially dismantled, inoperative, abandoned and/or without a valid automobile license tag.

Manure shall mean the body discharge of all animals except humans.

Nuisance shall mean any condition which is injurious to health, or is a potential health hazard or is indecent, or offensive to senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property by an entire community or by a majority of persons subjected to the condition being no less a nuisance because the extent of the annoyance or damage inflicted is unequal.

Occupant means any person, with or without the knowledge or consent of the owner, who has actual possession of a dwelling unit or rooming unit and who is living, sleeping, cooking or eating within the dwelling unit or rooming unit.

Offensive odors shall mean any odor deemed annoying, nauseous, disagreeable, unwholesome or objectionable by a majority of individuals so exposed as to interfere with the comfortable enjoyment of life or property not withstanding the fact that the degree of such annoyance, disagreeableness, nausea, unwholesomeness or objectionableness may be unequal.

Outdoor Storage means the keeping outside of an enclosed building for more than seventy-two consecutive hours.

Owner means any person who is a holder of any legal or equitable interest in the premises, and alone or jointly or severally with others:

Has record legal title to any dwelling or dwelling unit with or without accompanying actual possession thereof; or

Has charge, care or control of any dwelling or dwelling unit which may include all persons who have an interest in a structure and any who are in possession or control thereof as owner or agent of the owner, contract purchaser, or as executor, executrix, administrator, trustee or guardian of the estate of the owner;

Collects rent for a dwelling unit on behalf of or in place of the owner. Any such person representing the owner shall be bound to comply with the provisions of this chapter to the same extent as if he/she were the owner, and upon failure to comply therewith shall be subject to the same penalties set out.

In the absence of substantial evidence to the contrary, records of the Sedgwick County Clerk's Office, Register of Deeds, certified copies of court records or judgments of any court, copies of lease agreements, contracts for deed, mortgages, tax records, rental agreements and other financial documents related to the property shall be conclusive evidence of the ownership of the property.

Parties in Interest means any owner or owners of record or their agent(s), judgment creditor, lienholder, tax purchaser, occupant or party having any legal or equitable title or interest in the property.

Person shall mean a natural person or a legal entity such as but not limited to' an individual, firm association, joint stock company, syndicate, partnership or corporation.

Premises shall mean a lot, plot, or parcel of land including structures located thereon.

Property shall mean any real property within the City of Bel Aire which is not a street or highway.

Refuse includes all putrescible and nonputrescible waste materials (except body wastes) such as trash, garbage, tree trimmings, grass cutting, dead animals and industrial wastes but shall not include human or animal excrements, salvage or inert materials produced in connection with the erection or demolition of buildings.

Residential bulky waste means items of solid waste normally produced by persons in their dwellings or on their dwelling premises that are too large or too heavy to be placed in a thirty to thirty-five gallon container and includes household appliances, furniture, plumbing fixtures, playground equipment, yard appliances and equipment and similar materials but does not include vehicle major component parts, hazardous waste, demolition and construction waste or tree waste.

Rodents shall mean the so called domestic rats, rattus norvegicus, and rattus rattus, and domestic mice, Mus musculus and wild native rodents associated with the transmission of disease or causing nuisance to man or other animals.

Safe and Sanitary for purposes of this chapter shall mean free from conditions that are dangerous or could cause injury and free from elements such as filth or bacteria that endanger health.

Salvage Material shall mean materials of some value that are obtained from the disassembly of various kinds of machinery, or mechanical appliances and/or the demolition of buildings or structures.

Salvage Yards shall mean any premises used for:

Storage and/or sale or resale of used merchandise; or

The disassembly of wrecked or used automobiles for the and/or sale of automobile parts; or

The storage and/or sale of various kinds of metal and/or used building materials.

Sewage shall mean a combination of the water carried wastes from residences, business buildings, institutions and industrial establishments, together with such ground surface and storm waters as may be present.

Site Screening shall mean decorative fencing, evergreen vegetation or landscaped earth berms maintained for the purpose of concealing from view the area behind such fence, evergreen vegetation or berms. When fencing is used for screening, it shall not be less than six or more than eight feet in height.

Structure shall include any building, wall, superstructure or other structure which requires location on or attachment to the ground or attachment to a surface or thing directly to the ground.

Tenant shall mean any person who has a severable or non-severable interest in the real property either by oral or written lease or covenant, or by other methods of conveying a limited interest in such lands; or any person who occupies or has possession of such real property.

Trash or Rubbish shall mean all nonputrescible animal and vegetable wastes including but not limited to paper, cardboard, tin cans, glass, wood, yard clippings, crockery, metals, and ashes.

Unsecured structure means: Any building or structure, including but not limited to vacant houses or other residential structures, garages, sheds, barns, tool houses and vacant commercial structures that are:

Readily open to entry by unauthorized persons without the consent of the owner or agent of the owner; or

Inhabited, occupied or used without the consent of the owner or agent of the owner.

Vehicle shall mean a machine propelled by power ether than human power that is designed to travel along the ground by use of wheels, treads, runners or slides or ether devices, and that transports persons or property or pulls machinery and shall include without limitation an automobile, truck, trailer, mobile home, motorcycle, tractor, buggy and wagon.

Waste or Wastes shall mean useless, unused, unwanted or discarded materials resulting from normal community activities. Wastes include solids, liquids or gases.

Waste Water shall mean any water that is used for any purpose and then discharged obviously not existing for any benefit, but not including a natural water course, artificial pond, or lake.

Water Impoundments shall mean situations created by improper drainage or discharge obviously not existing for any benefit, but not including a natural water course, artificial pond, or lake.

Weeds shall mean obnoxious growth of vegetation including those plants defined as "noxious weeds" in K.S.A. 2-1314 and amendments thereto.

9.1.4.     Enforcing officer responsibilities.

The Enforcing Officer, or his designee, shall be responsible for the enforcement of all provisions contained in this Chapter and is hereby authorized to make investigations, to issue notices and orders, to issue citations for prosecution in the Bel Aire Municipal Court, to bring legal action in courts of competent jurisdiction, and to take other measures as are necessary for the enforcement of said provisions.

(Ord. 27)

9.1.5.     Right of entry.

The enforcing officer has the right of access and entry upon any public or private property, at any reasonable time to make inquiry and inspection to determine if a nuisance exists, and to effect any other purposes of this Nuisance Code.

9.1.6.     Unlawful interference.

It shall be unlawful for any person to interfere or attempt to interfere with, or to prevent or attempt to prevent, the enforcing officer and/or the service agent, or any contractor authorized by the City to abate such nuisance, from entering upon any property, or from proceeding with abating any nuisance described within this Nuisance Code, or from accomplishing any other lawful purpose of this Nuisance Code. Any person violating this section shall be guilty of a violation of this Nuisance Code and shall be subject to such fines and penalties as provided for in this Article.

9.1.7.     Notice.

The enforcing officer shall provide written notice to the owner, occupant or agent in charge of any premises in the city upon which a nuisance condition exists in violation of this Nuisance Code. Such notice shall be served upon such owner, occupant or agent in charge by certified mail, return receipt requested, or by personal service, door hangers, conspicuously posting notice of such order on the property, personal notification, communication by telephone, or first class mail.

Notice shall also be provided to non-residential owners as provided by this Chapter, if applicable. If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail.

If the owner or agent of the owner of the property has failed to accept delivery or otherwise failed to effectuate receipt of a notice sent pursuant to this section during the preceding twenty- four month period, the Governing Body may provide notice of the issuance of any further orders to abate or remove a nuisance from such property by such methods including, but not limited to, door hangers, conspicuously posting notice of such order on the property, personal notification, telephone communication or first class mail. If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail.

All notices sent shall include the following information:

A common or legal description of the premises.

Specific notice that the owner, occupant or agent in charge of the property is in violation of any provision of this Nuisance Code, specific citation to the applicable provision(s) deemed to be violated, and specifically describing the violation either in clear written form or by photograph.

An administrative order directing the owner, occupant, or agent in charge of the property to abate the nuisance condition within five (5) days of the date of the notice, such compliance date to be stated on the face of the notice.

Notice that the administrative order may appeal the administrative notice provided such request for appeal is submitted to the City Clerk prior to the date provided within that notice.

Notice that failure to comply with the notice of abatement shall result in the City abating the violation with the assessment of costs made against the property or by filing for judgment against the recipient.

Notice that failure to pay such assessments within 30 days of the notice of costs shall result in the filing of a tax lien against the property; or the filing for judgment against the recipient, or both.

Notice that such violations are subject to criminal prosecution, in addition to any such administrative action.

Notice that the Enforcing Officer may, upon request, provide information regarding possible methods of abatement, but that correct and timely abatement is the responsibility of the individual named in the notice.

9.1.8.     Notice to owner.

Notwithstanding any other provision of this Nuisance Code or of law, prior to assessment of costs as a tax lien against the property, any and all notices required by this Nuisance Code shall also be served upon the owner or, in the event the property or premises is unoccupied and the owner thereof does not reside within the corporate limits of the city, by mailing such notice by certified mail, return receipt requested, to the owner’s last known address. If the property owner fails to accept notice, or if the property owner cannot be identified, the City shall publish the notice of violation one time within the City’s newspaper.

Should there occur a change in the record owner of title to property subsequent to the giving of notice pursuant to this section, the city may not recover any costs or levy an assessment for costs of abatement or correction of a nuisance condition on such property unless the new record owner of title to such property is provided notice as required by this Nuisance Code.

If the owner fails to accept notice for any reason, or if the property owner cannot be identified, the City shall publish the notice of violation one time within the City’s newspaper, and may take action as provided within this Nuisance Code five (5) days following such publication. If the owner or agent of the owner of the property has failed to accept delivery or otherwise failed to effectuate receipt of an order sent pursuant to this Nuisance Code during the preceding 24-month period, the City may provide notice of the issuance of any further orders to abate or remove a nuisance from such property by publication within the City’s newspaper, and may take action as provided within this Nuisance Code five (5) days following such publication.

If the owner or agent of the owner of the property has failed to accept delivery or otherwise failed to effectuate receipt of a notice sent pursuant to this section during the preceding twenty- four month period, the Governing Body may provide notice of the issuance of any further orders to abate or remove a nuisance from such property by such methods including, but not limited to, door hangers, conspicuously posting notice of such order on the property, personal notification, telephone communication or first class mail. If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail.

9.1.9.     Uniform complaint; notice to appear; right to proceed; fines and costs.

In addition to the administrative process, the enforcing officer is hereby authorized to issue to the owner, occupant or agent in charge of the property a Uniform Complaint and notice to appear in municipal court charging a violation of the applicable section of this Nuisance Code.

Should such owner, occupant or agent in charge of such property contest the charge, the city shall not be precluded from abating the nuisance during the pendency of the case through administrative or civil action.

Any person found guilty, or entering a plea of guilty or nolo contendere to violating any section of this Nuisance Code shall be found guilty of an unclassified misdemeanor and subject to a fine up to $500.00;

Any person convicted and fined pursuant to this Nuisance Code shall also be assessed court costs, and mailing costs. Additionally, the costs of both temporarily making the nuisance condition safe and actual abatement may be ordered as either additional costs of the action or as restitution, as applicable.

9.1.10.     Appeal.

If the recipient of the notice of abatement makes a written request for hearing within the waiting period, then the City shall schedule a hearing within ten business days before a member of the City Council designated by the Mayor. The hearing officer shall receive evidence, review the investigation, and prepare a written order within forty-eight (48) hours following the hearing. The order shall be sent by to all relevant parties by regular mail, except the appellant shall be served either personally or by certified mail, unless otherwise stated at the hearing, and prior to the City taking any action to abate the violation. The order shall describe the relevant facts relied upon, state the specific Nuisance Code provisions being relied upon should a violation be found, and state any such other stipulations, methods of abatement, or orders as deemed necessary by the hearing officer. If the appellant fails to accept the order personally or by certified mail for any reason, the City shall publish the order one time within the City’s newspaper, and shall then proceed in the same manner as if the order had been delivered either personally or by certified mail.

9.1.11.     Assessment, funding and payment of costs.

Mailing and Publication Costs. All costs of mailing or publication within the City’s newspaper shall be assessed against the individual named in such mailed or published notice.

Abatement Costs. The costs incurred by the City for any action undertaken by the enforcing officer pursuant to or incidental to this Code shall be reported in detail and in writing by said officer to the city clerk. The city clerk shall keep an account of such costs, as well as any and all costs of notices, required by this Code. The city clerk shall immediately cause the reportings and accountings required by this section to be entered in the appropriate city record and shall report the same to the City Manager.

Notice of Abatement Costs. The city clerk shall, within the ten (10) days of receipt of the enforcing officer’s report of costs, give notice by restricted mail to the owner of the structure of the costs required to be reported by subsection (a) of this section, and such notice shall include a statement requiring payment of the costs to the city within thirty (30) days following receipt of the notice. Should the owner refuse to take delivery of the notice and return is made to the city indicating such refusal, the city clerk shall 1) publish such notice in the City’s official newspaper, and 2) send to the owner, by first class mail, the notice previously sent. Receipt by the owner shall be deemed to have occurred upon the date of publication in the newspaper. The city clerk shall make and maintain records detailing the method and time of sending and receipt of such notice.

Collection of Unpaid Abatement Costs. Should the costs remain unpaid thirty (30) days after of receipt of the notice by the owner, the city clerk shall, at the time required by law for the certification of the other city taxes, certify the unpaid portion of said costs to the Sedgwick County Clerk for extension of the same on the county tax rolls against the property upon which the structure was located. In addition to levying a special assessment against the property upon which the structure was located, the city may also elect to collect the unpaid portion of the costs provided for herein in the manner provided by K.S.A. 12-1,115 and amendments thereto, and may pursue such remedy without limiting its ability to levy the special assessment, but only until such time as the full costs and any applicable interest has been paid in full.

(K.S.A. 12-1,115; K.S.A. 12-49-3901; K.S.A. 79-2940)