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ORDINANCE NO. 13-04

ABANDONED AND JUNKED MOTOR VEHICLES

“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 92-553; 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 abandoned and junked motor vehicles, 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 abandoned and junked motor vehicles, 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 93 of the Code of Ordinances be amended to read as follows:

Sec. 1 Definitions

Abandoned motor vehicle. A motor vehicle that is inoperable and over eight (8) years old and is left unattended on public property for more than forty-eight (48) hours, or a motor vehicle that has remained illegally on public property for a period of more than forty-eight (48) hours, or a motor 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 (48) hours, or a motor vehicle left unattended on the rights-of-way of any designated county, state or federal highway within this state in excess of forty-eight (48) hours, or in excess of twelve (12) hours on any turnpike project constructed and maintained by the state turnpike authority.

Antique auto. Passenger cars or trucks that were manufactured in 1925 or before, or which is at least thirty-five (35) years old.

Collector. The owner of one or more antique or special interest vehicles who collects, purchases, acquires, trades or disposes of special interest or antique vehicles or parts of them for his own use in order to restore, preserve and maintain an antique or special interest vehicle for historic interest.

Demolisher. Any person whose business is to convert a motor vehicle into processed scrap or scrap metal or otherwise to dismantle motor vehicles.

Garagekeeper. Any owner or operator of a parking place or establishment, motor vehicle storage facility, or any establishment for the servicing, repair or maintenance of motor vehicles.

Junked vehicle. Any vehicle that is self-propelled and:

(1) Does not have lawfully attached to it:

(A)           An unexpired license plate; or

(B)            A valid motor vehicle inspection certificate;

(2) Is wrecked, dismantled or partially dismantled or discarded; or

(3) Is inoperable and has remained inoperable for more than:

(A)           Seventy-two hours if the vehicle is on public property; or

(B)            Thirty consecutive days if the vehicle is on private property.

Motor vehicle. Any motor vehicle subject to registration pursuant to the state Certificate of Title Act or any motorboat, outboard motor, or vessel subject to registration under chapter 31, state Parks and Wildlife Code.

Special interest vehicle. A motor vehicle of any age which has not been altered or modified from original manufacturer's specifications and, because of its historic interest, is being preserved by hobbyists.

Storage facility. A garage, parking lot or any type of facility or establishment for the servicing, repairing, storing or parking of motor vehicles. 

Sec. 2 Enforcement generally 

(a)    The administration of this article shall be the responsibility of the city police department

who may enter upon private property for the purposes specified in the procedures adopted in this article to examine vehicles or parts thereof, obtain information as to the identity of vehicles and to remove or cause the removal of a vehicle or parts thereof declared to be a nuisance pursuant to the procedures. The municipal court shall have authority to issue any order necessary to enforce the procedures set out in this article. Nothing in this article shall affect parking or other ordinances of the city which permit the immediate removal of a vehicle left upon public property or on a public right-of-way, which vehicle constitutes an obstruction of traffic. 

(b)             The relocation of a junked vehicle that is a public nuisance to another location within the corporate city limits after a proceeding for the abatement or removal of the public nuisance has commenced has no effect on the proceeding if the junked vehicle constitutes a public nuisance at the new location. 

(c)             Exceptions: the provisions hereto shall not apply to: 

(1) Any motor vehicle stored as the property of a member of the armed forces of the United States who is on active duty assignment. 

Sec. 3 Authority to take possession of abandoned vehicles.

The police department is authorized to take into custody any abandoned motor vehicle found on public or private property.

 Sec. 4 Notice of impoundment of abandoned vehicles

 The police department shall notify within ten (10) days, by certified mail, return receipt requested, the last known registered owner and all lienholders of record pursuant to the Certificate of Title Act (V.T.C.A., Transportation Code, chapter 501), that it has taken into custody an abandoned motor vehicle under the provisions of this article. The notice shall describe the year, make, model and vehicle identification number of the abandoned motor vehicle; set forth the location of the facility where the motor vehicle is being held; inform the owner and any lienholders of their right to reclaim the motor vehicle not later than the 20th day after the date of the notice, on payment of all towing, preservation and storage charges resulting from placing the vehicle in custody. The notice shall state that the failure of the owner or lienholders to exercise their right to reclaim the vehicle within the time provided shall be deemed a waiver by the owner and all lienholders of all right, title and interest in the vehicle and their consent to the sale of the abandoned motor vehicle at a public auction to be held by the city. If the identity of the last registered owner cannot be determined, if the registration contains no address for the owner, or if it is impossible to determine with reasonable certainty the identity and addresses of all lienholders, notice by one publication in one newspaper of general circulation in the area where the motor vehicle was abandoned is sufficient notice.

Sec. 5 Sale of abandoned vehicles

(a) If an abandoned motor vehicle has not been reclaimed within twenty (20) days after the date of notice and payment of all towing, preservation and storage charges resulting from its impoundment, the police department shall sell the abandoned motor vehicle at a public auction. Proper notice of the public auction shall be given and, in the event a vehicle is to be sold in satisfaction of a garagekeeper's lien, the garagekeeper shall be notified of the time and place of such auction. 

(b) The police department shall furnish a sales receipt for each vehicle to the purchaser thereof at the public auction. The proceeds shall be applied first to reimburse the police department for the expenses of the auction, costs of towing, preserving and storing the vehicle, and all notice and publication costs, and any remainder from the proceeds of the sale shall be held for the owner of the vehicle or entitled lienholder for ninety (90) days, and then shall be deposited in the special fund which shall remain available for the payment of auction, towing, preserving, storage and all notice and publication costs which result from placing other abandoned vehicles in custody, whenever the proceeds from a sale of such other abandoned motor vehicles are insufficient to meet these expenses and costs.

Sec. 6 Custody of abandoned vehicle by garagekeeper

(a)             The police department, upon receipt of a report from a garagekeeper of the possession of a vehicle deemed abandoned under the provisions of this article, shall follow the notification procedures set forth herein for the giving of notice to owners and lienholders of abandoned vehicles, except that custody of the vehicle shall remain with the garagekeeper until after the notification requirements have been complied with.

(b)             A fee of four dollars ($4.00) shall accompany the report of the garagekeeper to the police department, and such fee shall be retained by the police department receiving the report and used to defray the cost of notification or other costs incurred in the disposition of such vehicles, and such fee shall be deposited in the general fund of the city. Abandoned vehicles left in storage facilities, which are not reclaimed after notice given in accordance with this article, shall be taken into custody by the police department and sold at auction, as in the case of other abandoned motor vehicles. The proceeds of the sale shall first be applied to the garagekeeper's charges for servicing, storage and repair; provided, however, that the police department shall retain an amount of two percent (2%) of the gross proceeds of the sale for each vehicle auctioned, but in no event shall it retain less than ten dollars ($10.00), to be used to defray expenses of custody and auction.

Sec. 7 Disposal of abandoned vehicle to demolisher

The police department is authorized to apply to the state department of transportation for authority to sell, give away or dispose of any abandoned vehicle in its possession to a demolisher in accordance with the provisions of V.T.C.A., Transportation Code, Chapter 683, as amended.

Sec. 8 Junked vehicle declared public nuisance

Junked vehicles which are located in any place where they are visible from a public place or public right-of-way are detrimental to the safety and welfare of the general public, reduce the value of private property, invite vandalism, create fire hazards, constitute an attractive nuisance creating a hazard to the health and safety of minors, and are detrimental to the economical welfare of the state by producing urban blight which is adverse to the maintenance and continuing development of the city, and such vehicles are therefore declared to be a public nuisance.  

Sec. 9 Procedures for abating junked vehicle nuisance

The police department of the city, when desiring to remove and dispose of junked vehicles as public nuisances from private property, public property or public rights-of-way, shall comply with the following procedures:

(1)          A notice of not less than ten (10) days, stating the nature of the public nuisance on private property and that it must be removed and abated within ten (10) days and, further, that a request for a hearing must be made before the expiration of said ten-day period, such notice to be mailed, by certified mail with a five-day return receipt requested, must be sent to the last known registered owner, any lienholder of record and the owner or occupant of the private premises on which the public nuisance exists. If the notice is returned undelivered by the United States post office, official action to abate such nuisance shall be continued to a date not less than ten (10) days from the date of such return;

(2)          The requirements of subsection (1) above shall apply to the case of a public nuisance on public property or on a public right-of-way, and such notice shall be sent to the last known registered owner of the junked motor vehicle, any lienholder of record and to the owner or the occupant of the premises adjacent to the public right-of-way whereupon such public nuisance exists;

(3)          Once a junked vehicle has been removed under the provisions of this section, it shall not be reconstructed or made operable;

(4)          Where a hearing is requested by the owner or occupant of the public or private premises, or by the owner or occupant of the premises adjacent to the public right-of-way on which such a vehicle is located, within ten (10) days after service of notice to abate the nuisance, a public hearing prior to the removal of the vehicle or part thereof as a public nuisance must be held before the municipal judge of the city. It shall be the responsibility of the city prosecuting attorney to prosecute the case on behalf of the police department and, should the municipal judge find that such vehicle is a public nuisance as defined herein, he shall enter an order requiring the removal of the vehicle or part thereof from the public or private property or public right-of-way where it is situated, and such order shall include a description of the vehicle and the correct identification number and license number of the vehicle, if available at the site;

(5)          The police department shall give notice to the state department of transportation within five (5) days after the date of removal of the vehicle, identifying the vehicle or part thereof; 

(6)          The procedures set out in this section shall not apply to a vehicle or part thereof which is completely enclosed within a building in a lawful manner where it is not visible from the street or other public or private property, a vehicle or part thereof which is stored or parked in a lawful manner on private property in connection with

the business of a licensed vehicle dealer or a junkyard, or to unlicensed, operable or inoperable antique or special interest vehicles stored by a collector on his property, provided that the vehicle and outdoor storage areas are maintained in such a manner that they do not constitute a health hazard and are screened from ordinary public view by means of a fence, rapidly growing trees, shrubbery or other appropriate means;

(7)             The administration of the procedures of this section shall be carried out by regularly salaried, full-time employees of the city, except that the removal of vehicles or parts thereof from property may be accomplished by any other duly authorized person, including wrecker service operators within the city who have a valid and subsisting contract; and

(8)             If the nuisance is not removed and abated and a hearing is not requested within the ten-day period provided, a complaint may be filed in municipal court for the violation of maintaining a public nuisance. Any person found guilty of maintaining a public nuisance as defined in this article shall be guilty of a misdemeanor and be subject to a fine for each offense, and the municipal court shall order removal and abatement of the nuisance.

Sec. 10. Assessment of Fines

Any violation of this Ordinance 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. 11 Disposal of junked vehicle

Junked vehicles or parts thereof may be disposed of by removal to a scrap yard, demolisher or any suitable site operated by the city for processing as scrap or salvage.

Sec. 12. Severability Clause

If any section, sentence, clause, or phrase of this Ordinance is, for any reason, held to be unconstitutional or otherwise unlawful, such holding shall not affect the validity of the remaining portions of this ordinance, and all of the remainder of the Ordinance not so held to be unconstitutional or otherwise unlawful shall continue to be in full force and effect. 

Sec. 13. Publication

The City Secretary is hereby authorized and directed to publish the descriptive caption of this ordinance in a manner and for the length of time prescribed by law as an alternative method of publication.

PASSED AND APPROVED ON FIRST READING THE 20TH DAY OF JUNE, 2013.

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

 

ATTESTED TO:                                                                  CITY OF KERMIT, TEXAS

City Secretary, Gloria Saenz                                                               Mayor, Ken Mays