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ORDINANCE NO. 13-03

WEEDS, RUBBISH, BRUSH, AND OTHER OBJECTIONABLE, UNSIGHTLY, OR UNSANITARY MATTER

“AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF KERMIT, TEXAS, REPLACING THE CODE OF ORDINANCES OF THE CITY OF KERMIT, TEXAS, BY  RESCINDING ORDINANCE 91-538; REPEALING ALL PRIOR ORDINANCES OR ORDINANCE PROVISIONS IN CONFLICT WITH THE PROVISIONS OF THIS ORDINANCE; PROVIDING FOR SEVERABILITY OF THE PROVISIONS OF THIS ORDINANCE; AND PROVIDING AN EFFECTIVE DATE”.  

WHEREAS, the safety of the citizens of Kermit, Texas is of primary importance to the City Council; 

WHEREAS, the health, safety, and welfare of the citizens of Kermit requires that the City Council enact provisions to bring all properties within the City into compliance with regulations on weeds, rubbish, brush and other objectionable, unsightly, or unsanitary matter; 

WHEREAS, Texas Health and Safety Code Section 342.004, et seq provides municipalities with the power to require the owner and/or occupant of a lot within the municipality to keep the lot free from weeds, rubbish, brush, and other objectionable, unsightly, or unsanitary matter; 

WHEREAS, keeping the City free of weeds, rubbish, brush, and other objectionable, unsightly, or unsanitary matter will improve the quality of life of the citizens of Kermit by improving the aesthetics of the City, by eliminating harbors for rodents, by decreasing illegal dumping and littering, by eliminating fire hazards and by deterring crime by increasing visibility and access; 

NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Kermit, Texas that Chapter 94 Nuisances of the Code of Ordinances be amended to read as follows: 

Sec. 1 Definitions 

As used in this ordinance, the following terms shall have the respective meanings ascribed to them:

a. Brush - All trees or shrubbery under seven (7) feet in height which are not cultivated or cared for by persons owning or controlling the premises.

b. Code enforcement officer. The director or the director’s duly authorized representative of the department designated by the city manager to enforce and administer this article. 

c. Nuisance. Shall include but not limited to any public nuisance known at common law or in equity jurisprudence. A condition that is detrimental to the safety and welfare to one's self or to others; to invite vandalism or to create a recognizable fire or health hazard; to constitute an attractive hazard to the health and safety of inquisitive minors or to the general public; that which is insufficient. Inadequate, un-cleaned, unwholesome or detrimental to the so i 1, air or water required for human or domestic needs; and that which is detrimental to the economic welfare of the City and to its citizens or tends to reduce the value of private property.

d. Owner. Any agent of an owner, any tenant, any lessee, any other occupant of the property, and any agent of any other occupant of the property.

e. Commercial. Is the use or intended use of a building, structure, property, or any portion thereof, for office, professional, or service type transactions, including the storage and the keeping of records and accounts, or for assembling, repairing, fabricating finishing, manufacturing or processing operations, to include among others: barber shops, service stations, restaurants, super markets, department stores, wholesale stores, warehouses and all other- such establishment that cannot be defined as residential.

f. Premises or property. A lot, tract, plat, parcel of land, or portion thereof, occupied or unoccupied, improved or unimproved, including the front and side parkway between the property line or sidewalk and the curb or traveled way, and the rear or side parkway between the property line and the centerline of an adjacent alley or street right-of-way, the parkway between the sidewalk and the curb, the right-of-way between any fence, wall or barrier and the curb or pavement if such exists or the centerline of said right-of-way or the area between a fence, wall, or barrier and within any abutting drainage channel easement to the top of such channel closest to the property.

g. Residential.  Is the use or intended use of a building, structure, property, or any portion thereof, in which families or households live or in which sleeping and sanitation accommodations are provided, to include among others: homes, dwellings, hotels, motels, boarding houses, and apartment houses.

h. Regularly cultivated. Any plant which is routinely cared for by a person to foster the plant’s growth.

i. Rubbish. Any unused, discarded, or abandoned object, including but not limited to grass clippings, leaves, tree limbs, shrub trimmings, newspapers, tires, cans, odds and ends, iron, or other metal, glass, cordage, and unused equipment, unless the rubbish or object is completely enclosed within a building or is not visible from a public street or public area and as such is not unsafe or constitute a hazard to the safety, health, or public welfare of the citizens of the city. 

j. Weeds. Any brush, grass, vegetation, or any plant that is not regularly cultivated, that exceeds a height of ten (10) inches, and shall include any other objectionable, unsightly, or unsanitary matter. Any plant that is not regularly cultivated which exceeds ten (10) inches in height shall be presumed to be objectionable, unsanitary, and unsightly.

Sec. 2    Nuisance declared

Weeds, rubbish, brush, and any other objectionable, unsightly, or unsanitary matter are hereby declared to be a nuisance.

Sec. 3     Maintenance of property

It shall be the duty of each person owning, claiming, occupying, or having supervision or control of any property, occupied or unoccupied, within the city or within 5,000 feet outside the limits to keep same free from stagnant water, weeds, tall grass, rubbish, brush, trash, junk, and any other objectionable, unsightly or unsanitary matter of whatever nature, and to keep the sidewalks in front of same premises free and clear from weeds, brush, and tall grass from the line of such property to the established curbline next adjacent thereto and to fill up, drain or re-grade any lots, grounds, or yards and any other property owned, rented, leased, managed or under his control at all time free from filthy or impure or unwholesome matter of any kind.

Sec. 4     Weeds, grass, and other vegetation over certain height

Weeds, grass, and other vegetation more than ten inches in height is prohibited and is declared a nuisance. A person, owner, tenant, lessee, renter, agent or person responsible for any property commits an offense if said person, owner, tenant, lessee, renter, agent or person responsible for the property permits or allows grass, brush or weeds to grow on the property to a greater height than ten (10) inches. Such condition or conditions are hereby defined as public nuisances.

Sec. 5     Maintenance of alley; unlawful disposal of garbage, trash, etc.

It shall be the duty of each person owning, claiming, occupying, or having supervision or control of any property, occupied or unoccupied, within the city or within 5,000 feet outside the limits which abuts any alley to keep the alleyway clear of litter, junk, grass, weeds, and overhanging brush between the property line and the centerline of said alley. The disposing of garbage, trash, rubbish, brush, or any other refuse in any street, alley, right-of-way, drainage ditch, utility easement, or other public place is prohibited.

Sec. 6     Maintenance of sidewalk or parkway

It shall be the duty of every person owning, claiming, occupying, or having supervision or control of any premises with a sidewalk or parkway abutting thereon to keep the sidewalk or parkway free and clear of weeds, grass, brush, trash, or rubbish. The growth or accumulation upon such a sidewalk or parkway of weeds, grass, brush, trash, or rubbish to such extent as is reasonably calculated to create a fire hazard or to become injurious to the health of the city is declared to constitute a public nuisance.

Sec. 7     Enforcement

The provisions of this article shall be enforced by the city manager or his duly authorized code enforcement officer, and it shall be unlawful for any person to interfere with the city manager or the code enforcement officer in the exercise of the duties under this article.

Sec. 8    Notice of violation

(a)     In the event any owner or person violates the provisions of this article, the code enforcement officer shall give written notice to such person or owner describing the location and type of violation and directing the abatement of the violation within a ten-day period. The notice shall be given in any one of the following ways:

(1)     Personal delivery;

(2)     By letter addressed to such owner or person at the address shown on the city’s tax roll or other official record of the city or county and which shall be deemed to have been received five (5) days from the date of mailing by regular mail; or

(3)     If personal service cannot be obtained or the address is unknown:

(A)     By publication two (2) times within ten (10) consecutive days in a newspaper of general circulation;

(B)     By posting the notice on or near the front door of each building on the property to which the violation relates; or

(C)     By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates if the property contains no buildings.

(b)     In the event any person or owner owning, occupying, claiming, or having supervision or control of any occupied or unoccupied real property fails to comply with the provisions of this article, and in the event such person has been previously issued the ten-day notice or issued a citation described herein within a twenty-four (24) month period, then the enforcement officer may issue a citation without additional notice.

Sec. 9     Contents of notice

Such written notice shall briefly set forth the particular or particulars in which this provision has been violated and advise the owner and/or occupant that unless such violation is corrected within ten (10) days from the date of service of such notice that the city will cause the necessary work to be done to comply with the provisions of this section, the cost of which will be charged to such owner and/or occupant and a lien fixed against such premises as provided by section 324.004, et seq. of the Texas Health and Safety Code.

The municipality, in the notice of a violation, may inform the owner and/or occupant, that if the owner and/or occupant commits another violation of the same kind or nature that poses a danger to the public health and safety on or before a twenty-four (24) month period of the date of the notice, the municipality without further notice may correct the violation at the owner’s and/or occupant’s expense and assess the expense against the property. If a violation covered by a notice under this subsection occurs within the twenty-four month period, and the municipality has not been informed in writing by the owner and/or occupant of an ownership or change in occupant status, then the municipality without notice may take any action permitted by this chapter and assess its expenses as provided by this chapter.

Sec. 10     Costs incurred by City

In the event any person or owner fails to comply with the demand for compliance in the notice within ten (10) days of such notice or issuance of citation, the city may do such work or cause such work to be done to bring the property into compliance with this article. The costs, charges, and expenses incurred by the city in doing or having such work done to the property shall be a charge to and personal liability of such person or owner provided, however, that the city will not assess expenses against an owner who has not been given the notice required in section 6.03.008 above. The city manager of the city shall thereupon assess all such expense so incurred on the real estate, lot, or lots upon which such expense shall have been incurred. A lien statement prepared by the city manager or his designee of such expenses may then be filed with the county clerk. The lien statement must state the name of the owner and/or occupant, if known, and the legal description of the property. The lien statement is prima facie proof of the expenses incurred by the municipality in doing the work or making the improvements. Upon the filing of such statement with the county clerk, the city shall thereupon have a privileged lien upon such real estate lot or lots, second only to tax liens and liens for street improvements, to secure the expenditure so made. The lien shall accrue interest at a rate of ten (10) percent on the amount from the date of such statement being filed. The governing body of the municipality may bring a suit for foreclosure in the name of the municipality to recover the expenditures and interest due.

Sec. 11     Additional authority to abate dangerous weeds

(a)     If the weeds and/or brush on any premises or property within the city or within 5,000 feet outside the limits have grown higher than forty-eight (48) inches and, as such, are an immediate danger to the health, life or safety of any person, the city may enter onto the lot or lots, without notice, and cause to be removed the weeds and/or brush. Not later than the tenth (10th) day after the date the city abates the weeds and/or brush, the city shall give notice to the property owner and/or occupant in the manner required in this article. The notice shall contain:

(1)     An identification, which is not required to be a legal description of the property;

(2)     A description of the violations of this article that occurred on the property;

(3)     A statement that the municipality abated the weeds and/or brush; and

(4)     An explanation of the property owner’s and/or occupant’s right to request an administrative hearing concerning the abatement of the weeds.

(b)     The city shall conduct an administrative hearing on the abatement of the weeds if, not later than thirty (30) days after the date of the abatement of the weeds, the property owner and/or occupant files with the city manager or his designee a written request for a hearing. The administrative hearing should be held no later than the twentieth (20) day after the date a request for hearing is filed. The owner and/or occupant may testify or present any witnesses or written information relating to the abatement of the weeds and/or brush. The city may assess expenses and create liens under this section as it assesses expenses and creates liens under this article.

Sec. 12     Injunctive relief and civil actions

Notwithstanding any other provision of this article, the city attorney is authorized to file suit on behalf of the city for injunctive relief as well as any other civil action that may be necessary to enforce the provisions of this article. Further, any civil action taken against a person or owner does not waive any of the city’s other civil actions or criminal enforcement actions it may have against any person or owner. In addition, the owner or any other person responsible as provided herein, shall be jointly and severally liable for the charges.

Sec. 13     Penalty for violation

Any violation of this section shall also be considered a criminal violation, Class C Misdemeanor. If any person or owner violates any of the provisions of this section, the code enforcement officer may issue a citation to said person or owner, prosecuted in municipal court, and upon conviction thereof, shall be fined in the sum not to exceed the amount allowed by law for each offense. Each day such violation continues shall constitute a separate and distinct offense. Further, prosecution in municipal court does not waive any of the city’s civil enforcement actions if it may have to enforce this article against any person or owner.

Sec. 14:  Repealing Provision

            The City Council of the City of Kermit declares that any prior ordinance or any provision in any prior ordinance, as may be applicable, is hereby repealed to the extent that such ordinance or provision of an ordinance conflicts or contradicts the amendments and provision enacted herein.

Sec. 15:  Severability Clause 

            Should any portion, section or part of a section of this ordinance be declared invalid, inoperative or void for any reason by a court of competent jurisdiction, such decision, opinion or judgment shall in no way impair the remaining portions, sections or parts of sections of this ordinances, which said remaining provisions shall be and remain in full force and effect. 

Sec. 14:    Publication and Effective Date 

            This Ordinance shall become effective no less than ten days following passage of the ordinance and after publication by the City Secretary of the descriptive caption and the penalty section of this ordinance in a local newspaper twice within a thirty-day period in accordance with Section 25 of the City Charter. 

PASSED AND APPROVED ON FIRST READING ON JUNE 20, 2013. 

PASSED AND APPROVED AND SECOND AND FINAL READING ON THIS THE 23RD DAY OF JULY, 2013.

 ATTESTED TO:                                                      CITY OF KERMIT, TEXAS 

City Secretary, Gloria Saenz                                       Mayor, Ken Mays