(a) For the purpose of this article, public nuisance is defined as any person, corporation, partnership or association committing any unlawful act, or omitting to perform a duty, or suffering or permitting any condition to exist, which act, omission or condition either:
(1) Injures or endangers the welfare, health or safety of others; or
(2) Is offensive, unsightly or hazardous; or
(3) Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage any public or private street, highway, sidewalk, alley, ditch drainage or any public easement; or
(4) Essentially interferes with the use of property of others, or tends to depreciate the value of the property of others.
(b) For the purpose of this article, maintenance of a public nuisance is defined as the placing, depositing, leaving or permitting to be or remain on any public or private property the following described material, items or debris, provided, however, that the following listing should not be construed as conclusive, limiting or restrictive:
(1) Filth, excrement, lumber, concrete blocks, rocks, bricks, dirt, cans, paper, trash, metal, disabled automobiles and/or parts or any other offensive or disagreeable thing or substance thrown or left or deposited upon any street, avenue, alley, sidewalk, park, public or private enclosure or lot whether vacant or occupied;
(2) All dead animals not removed within 24 hours after death;
(3) Any place or structure or substance which emits or causes any offensive, disagreeable or nauseous odors;
(4) All stagnant ponds or pools of water;
(5) Abandoned iceboxes, freezers, refrigerators or similar appliances kept outdoors on the premises under the control of any person not in actual use; if such appliance is in actual use, it must be kept locked by a locking device that is an integral part of the appliance or by a chain or padlock, except for the time that the owner thereof is placing articles in or removing articles from said appliance; this subsection shall not apply to commercial ice machines or commercial ice storage appliances when in actual use;
(6) All articles or things whatsoever caused, kept, maintained or permitted by any person to the injury, annoyance or inconvenience of the public or of any neighborhood;
(7) Any fence, structure, thing or substance placed upon or being upon any street, sidewalk, alley, easement or public ground so as to obstruct the same, except as permitted by the laws of the city;
(8) Any condition which provides harborage for rodents, rats, mice, snakes or other vermin;
(9) Pollution of any public or private well, stream, lake, or other body of water by sewage, dead animals, industrial waste or other substances;
(10) Any building, structure, or other place or location where any activity in violation of local, state or federal law is frequently conducted or maintained. Two (2) such violations within a one (1) year period shall be deemed to be frequent;
(11) Dense smoke, noxious fumes, gas, or any other substance released into the air which may be injurious to the public health;
(12) Inoperable vehicles as defined in Article 2, Section 10-208;
(13) Any other condition which is determined to present a dangerous or harmful condition to the public.
(c) Perennial Violator shall mean any person who shows a pattern of failing to comply with this section which may be shown by three or more Notices to Abate or previous violations of this section within the preceding 12 months.
(Ord. 260; Ord. 378; Code 2018)
It shall be unlawful for any person, corporation, partnership or association to cause or permit the creation or maintenance of a public nuisance within the city.
(Ord. 260; Ord. 378; Code 2018)
The mayor shall designate a public officer to be charged with the administration and enforcement of this article.
(Ord. 260; Ord. 378; Code 2018)
The public officer shall investigate complaints that a nuisance exists. Upon making any inquiry and inspection the public officer shall make a written report of findings. If the public officer determines that a nuisance exists, the officer or city clerk shall direct that a notice to abate be sent to the property owner, representative or tenant. The governing body, by resolution, may also make such determination.
(Ord. 260; Ord. 378; Code 2018)
It shall be a violation of this article to deny the public officer the right of access and entry upon private property at any reasonable time for the purpose of making inquiry and inspection to determine if a nuisance exists. If the property owner or occupant prevents or attempts to prevent the public officer or the officers designee from entering or examining such premises during reasonable hours the city may then request an administrative search warrant from the district court.
(Ord. 260; Ord. 378; Code 2018)
Any person, corporation, partnership or association found by the public officer to be in violation of Section 8-102 shall be served a notice of such violation. The notice shall be served by certified mail, return receipt requested, or by personal service. If the property is unoccupied and the owner is a nonresident, then notice shall be served by certified mail, return receipt requested, to the last known address of the owner.
(Ord. 260; Ord. 378; Code 2018)
The notice shall describe the property and the condition(s) which is (are) in violation of this article. The notice shall also inform the person, corporation, partnership or association:
(a) That the condition creating the violation shall be abated within ten days from the date of the notice, provided that extensions shall be granted if the recipient can demonstrate that due diligence is being exercised in abating the nuisance; and
(b) That the recipient, upon written request, may obtain a hearing before the governing body, provided that such written request is received by the city clerk prior to the expiration of the designated waiting period;
(c) That failure to abate the condition(s) or to request a hearing within the time allowed may result in prosecution as provided by Section 8-108 and/or abatement of the condition(s) at the recipient’s cost as provided by Section 8-109.
(Ord. 260; Ord. 378; Code 2018)
(a) In addition or as an alternative to the remedy of abatement as provided under this article, any person, corporation, partnership or association may be prosecuted in municipal court and subject to a fine of not less than $50 nor more than $500 and not more than five days in jail, or both a fine and jail sentence. Any person, corporation, partnership or association found guilty of causing, permitting, maintaining or allowing the creation or maintenance of a nuisance three or more times within the preceding 12 months or determined by the Municipal Court to be a perennial violator as defined by this article, shall be fined not less than $250 nor more than $1, 000 and shall be subject to a sentence not to exceed ten days in jail, or both a fine and a jail sentence.
(b) Prosecution of any offender under this article does not limit the city’s right to pursue assessment or collection of costs as stated in this article, or by other laws.
(c) Each day that any violation shall continue shall constitute a separate offense.
(d) Any fines assessed under this article shall be collected by the city clerk and paid over to the general fund.
(Ord. 260; Ord. 378; Code 2018)
(a) If the recipient of the notice to abate fails to comply within the period of time designated in the notice, or fails to comply with the notice after a hearing on the matter, then the city may go onto the property to abate the violation in a reasonable manner. The city shall not be responsible for damage to property due to reasonable methods of gaining entrance onto the property or for damages to property in the reasonable exercise of its duty to the public to abate the violation(s). The city may use its own employees or contract for services to abate nuisances.
(b) If the city takes action to abate the violation, it shall provide a notice of costs to the property owner, representative, or tenant. The notice of costs shall be delivered by certified mail, return receipt requested, at the last known mailing address; or if the property is vacant or unoccupied, the notice of costs shall also be posted on the property in a reasonable manner. The recipient shall have 3 0 days from the date of the notice to make full payment. The notice of costs shall state:
(1) The common or legal description of the property, or both;
(2) The nature of the violation, including relevant ordinances;
(3) The nature of the work performed to abate the violation;
(4) The costs incurred for the abatement of the violations in either a lump sum or in itemized form;
(5) That the notice is a demand for payment within 30 days from the date of notice;
(6) That failure to pay the entire amount within 30 days shall allow the city to file a tax lien against the property or to pursue litigation for the recovery of the costs, or both;
(7) That such additional remedies to recover costs shall include additional amounts including additional administrative costs, attorneys’ fees when applicable, and interest;
(8) That the payments shall be made by check or money order made payable to the City of Bennington, Kansas, with no post-dating of the check, and sent to the address as stated within the notice with a written indication of the purpose for the payment and the address of the property where the violations occurred. Partial payments will not be accepted and shall be considered as non-payments, unless a payment arrangement has been agreed to and approved in writing by the governing body.
(c) If the payment of costs is not made within the 30-day period, the city may levy a special assessment for such costs against the property. The city clerk at the time of certifying other city taxes to the county clerk shall certify the aforesaid costs, and the county clerk shall extend the same on the tax roll of the county against the lot or parcel of ground, and it shall be collected by the county treasurer and paid to the city as other city taxes are collected and paid. Provided further, the city may collect the costs in the manner provided at K.S.A. 12-1,115, as amended, by bringing an action in the appropriate court as a personal debt. The city may pursue both assessment and collection at the same time until the full cost, including applicable interests, court costs, attorneys’ fees, and administrative costs, including but not limited to, investigative cost as well as the cost of providing notice, including any postage, have been paid in full.
(d) The abatement of a nuisance by the city shall not be a defense or excuse to the owner of a vehicle or property in violation of this chapter.
(Ord. 260; Ord. 378; Code 2018)
If a hearing is requested within the period provided in the notice to abate, such request shall be made in writing to the governing body. Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest the findings of the public officer before the governing body. The hearing shall be held by the governing body as soon as possible after the filing of the request therefore, and the person shall be advised by the city of the time and place of the hearing. At any such hearing, the person may be represented by counsel, and the person and the city may introduce such witnesses and evidence as is deemed necessary and proper by the governing body. The hearing need not be conducted according to the formal rules of evidence. Upon conclusion of the hearing, the governing body shall record its determination of the matter by means of adopting a written order and serving the order upon the person by certified mail or personal service.
(Ord. 260; Ord. 378; Code 2018)