For purposes of this article, a “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. The “City” means the City of Montezuma, Kansas.
(Ord. 405; Code 2014)
The City Superintendent is hereby designated as the public officer to exercise the powers prescribed by this article.
(Ord. 405; Code 2014)
Whenever a petition is filed with the public officer by at least five residents of the City charging that any structure is unfit for human use or habitation or whenever it appears to the public officer that any structure is unfit for human use or habitation, the public officer, if the officer’s preliminary investigation discloses a basis for such charges, shall issue and cause to be served upon the owner, every mortgage 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.
(Ord. 405; Code 2014)
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 that 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.
(Ord. 405; Code 2014)
If, after such notice and hearing as provided for in Section 3 above, 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. Such costs of repairs shall be deemed reasonable if such costs do not exceed fifteen percent (15%) of the replacement value of the structure; 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. Such costs of repairs shall be deemed reasonable if such costs do not exceed fifteen percent (15%) of the replacement value of the structure. 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. 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.
(Ord. 405; Code 2014)
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 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.
(Ord. 405; Code 2014)
Complaints or orders issued by a public officer pursuant to this ordinance 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 the official city newspaper. 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 order 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.
(Ord. 405; Code 2014)
Any person affected by an order issued by a public officer pursuant to this section may petition the District Court of Gray County, Kansas, 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.
(Ord. 405; Code 2014)
The public officer shall have the authority to exercise such powers as may be necessary or convenient to carry out and effectuate the purposes and provisions of this article, including, in addition to others herein granted, the power to:
(a) Investigate the structure conditions in the City of Montezuma in order to determine which structures therein are unfit for human use or habitation;
(b) administer oaths and affirmations, examine witnesses and receive evidence;
(c) 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;
(d) 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
(e) delegate any of the officer’s functions and powers under such ordinance to such officers, agents and employees as the officer may designate.
(Ord. 405; Code 2014)
As soon as possible after adopting this ordinance, the governing body of the City 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 this ordinance or any ordinance adopted pursuant to K.S.A. 17-4759.
(Ord. 405; Code 2014)
Nothing in this section shall be construed to abrogate or impair the powers of the courts or of any department of the City 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. Nothing in this section shall be construed to impair or limit in any way the power of the City to define and declare nuisances and to cause their removal or abatement, by summary proceedings or otherwise. The City, by ordinance adopted by its governing body, may:
(a) prescribe minimum standards for the use and occupancy of any type structure throughout the city;
(b) prevent the use or occupancy of any structure which is injurious to the public health, safety, morals or welfare and
(c) prescribe punishment for the violation of any provision of such ordinance.
(Ord. 405; Code 2014)