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City Clerk’s Office Item # R-12
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: January 13, 2020
COUNCIL MEETING DATE:
TO: President Dennis E. Flores and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Brenda Armijo, Acting City Clerk
FROM: Nancy Keller, Wastewater Director, and Robert P. Jagger, Sr. Asst. City Attorney
SUBJECT: AN ORDINANCE AMENDING TITLE XVI OF THE PUEBLO MUNICIPAL CODE
BY THE ADDITION OF A NEW CHAPTER 3.5 RELATING TO
ENCROACHMENTS ON CITY SANITARY SEWER EASEMENTS, DECLARING
PROHIBITED ENCROACHMENTS TO BE A NUISANCE AND PROVIDING FOR
ABATEMENT AND PENALTIES FOR VIOLATION THEREOF
SUMMARY:
The proposed Ordinance declares any encroachment upon a City sanitary sewer easement which
endangers or interferes with the construction, reconstruction, maintenance, inspection or removal
of the public sewer to be a nuisance and provides for abatement and enforcement.
PREVIOUS COUNCIL ACTION:
Ordinance No. 7206 passed September 27, 2004 declaring encroachment upon and obstruction
of public right-of-way to be a nuisance and providing for abatement.
Ordinance No. 6676 passed April 23, 2001 prohibiting and providing for abatement of obstructions
of drainage easements.
BACKGROUND:
Encroachments upon a City sanitary sewer easement which endangers or interferes with the
construction, reconstruction, maintenance, inspection or removal of the public sewer system has
created problems in the City. The Ordinance makes it unlawful to create, maintain, permit or
suffer such a nuisance condition to exist and allows the Wastewater Director to give notice to
property owners to abate and/or remove such nuisance. Any owner served with such notice may
appeal same to the Zoning Board of Appeals. The Ordinance provides flexibility in enforcement
by way of abatement directly by the City and/or enforcement by way of violation and summons.
City currently has enacted similar code provisions prohibiting and providing for abatement of
obstructions of public right-of-way and drainage easements. This Ordinance is consistent with
such an approach but is applied to address sanitary sewer easements.
FINANCIAL IMPLICATIONS:
Not significant. This is an enforcement mechanism for a nuisance condition. If the owner fails to
abate the nuisance and the City chooses to abate, all costs of abatement could be assessed
against the property by lien and/or assessment.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
The City Council could choose not to enact the proposed Ordinance, and there would continue to
be no enforcement mechanism under City Code for the abatement of this type of nuisance.
RECOMMENDATION:
City administration recommends passage and approval of the proposed Ordinance.
Attachments: Proposed Ordinance
ORDINANCE NO. 9651
AN ORDINANCE AMENDING TITLE XVI OF THE PUEBLO
MUNICIPAL CODE BY THE ADDITION OF A NEW
CHAPTER 3.5 RELATING TO ENCROACHMENT ON CITY
SANITARY SEWER EASEMENTS, DECLARING
PROHIBITED ENCROACHMENTS TO BE A NUISANCE
AND PROVIDING FOR ABATEMENT AND PENALTIES
FOR VIOLATION THEREOF
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: (brackets indicate
matter being deleted, underscoring indicates new matter being added)
SECTION 1.
Title XVI of the Pueblo Municipal Code is amended by the addition of a new
Chapter 3.5 to read as follows:
Chapter 3.5 - Encroachment on Sanitary Sewer Easements
Sec. 16-3.5-1. Definitions.
As used in this Chapter, unless the context otherwise requires, the
following terms and/or phrases shall have the following meaning:
(a) “Director” means the Wastewater Director of the City or his or her
designee.
(b) “Sanitary sewer easement” means an easement or right of way
dedicated to the public and utilized by the City in providing sanitary
sewer services.
(c) “Prohibited encroachment” means any building, fence, tree, street
or other improvement or growth located upon a Sanitary Sewer
Easement that may in any way endanger or interfere with the
construction, reconstruction, maintenance, inspection or removal of all
or any parts of the public sewer.
Sec. 16-3.5-2. Declaration of Policy.
A prohibited encroachment is hereby expressly declared to be a
nuisance and shall be subject to enforcement and abatement as herein
provided.
Sec. 16-3.5-3. Prohibited Encroachments.
It shall be unlawful and a Class 2 municipal offense for the owner of any
property upon which a sanitary sewer easement is located to create, maintain,
permit or suffer any prohibited encroachment to exist or remain upon the
sanitary sewer easement.
Sec. 16-3.5-4. Order to Abate.
The Director may issue a written order to the owner of any property upon
which a sanitary sewer easement is located to abate and/or remove all
prohibited encroachments therefrom. Such order shall describe the prohibited
encroachment to be abated and/or removed and the date by which such action
shall be completed.
Sec. 16-3.5-5. Appeal of Order.
Any person receiving an order issued pursuant to section 16-3.5-4 may
appeal the order to the Zoning Board of Appeals by filing a written notice of
appeal specifying the grounds therefor with the Director of the Department of
Zoning Administration within ten (10) days from the date of the order. The
Director of the Department of Zoning Administration shall transmit to the
Zoning Board of Appeals all documents constituting the record with respect to
the order being appealed.
Sec. 16-3.5-6. Hearing and Review.
The Zoning Board of Appeals shall fix a reasonable time for the hearing
on appeal, give fifteen (15) days prior written notice thereof to the person filing
the appeal and the Director, conduct the hearing on appeal in accordance with
the ordinances of the City, and decide the appeal within thirty (30) days after
the conclusion of the hearing. At the hearing any interested party may appear
in person or by agent or attorney. All abatement and/or removal action required
by the order shall be stayed pending decision of the Zoning Board of Appeals.
The City or any person aggrieved by the decision of the Zoning Board of
Appeals may seek review of the decision by the Pueblo County District Court
in the manner provided by C.R.C.P. 106(a)(4). Pending such review, all such
decisions and related orders shall remain in full force and effect unless stayed
by order of Court.
Sec. 16-3.5-7.Failure to Obey Order.
It shall be unlawful and a Class 2 municipal offense for any person served
with an order issued pursuant to section 16-3.5-4 to fail to comply with the
order within the time specified therein. Failure to comply with such order
constitutes a separate and independent violation in addition to and not in
substitution of any violation of section 16-3.5-3.
Sec. 16-3.5-8. - Abatement.
If the person served with an order issued pursuant to section 16-3.5-4 fails
to comply with the order to remove, the Director may cause the prohibited
encroachment to be abated and removed and charge such person the cost of
abatement and removal, together with twenty-five (25%) thereof for administrative
and incidental costs, plus interest at the rate of ten percent (10%) per annum
(herein collectively the “Delinquent Charge”). If any person fails or refuses to pay
when due any Delinquent Charge imposed under this section, the City may pursue
all civil collection remedies and recover the amount of such charges together with
all collection expenses, including reasonable attorneys' fees and costs. In addition,
upon recording a verified statement by the Mayor in the office of the County Clerk
and Recorder to show the Delinquent Charge and describing the property upon
which the sanitary sewer easement is located, such Delinquent Charge shall be
and constitute a perpetual lien on the land having priority over all other liens, except
general tax liens, and such lien shall remain in full force and effect until the
Delinquent Charge has been paid in full. In case such Delinquent Charge is not
paid within six (6) months of recording, the Delinquent Charge may be certified by
the City Clerk to the county treasurer who shall collect the Delinquent Charge,
together with a ten percent (10%) penalty for cost of collection, in the same manner
as other taxes are collected. The laws of this state for assessment and collection
of general taxes, including the laws for the sale and redemption of property for
taxes, shall apply to the collection of such assessments. All collection remedies
provided in this Chapter are cumulative.
Sec. 16-3.5-9. Summary abatement.
Nothing in this Section shall be construed as impairing or otherwise
limiting the right of the City, without notice to the owner, to abate and/or remove
any prohibited encroachment which constitutes an emergency and an
immediate threat to the safety or health of the public.
Sec. 16-3.5-10. - Remedies cumulative.
The enforcement remedies set forth in this Chapter are cumulative and the
prosecution of any person under Sections 16-3.5-4 or 16-3.5-7 shall not preclude
the City from instituting any abatement action under this Chapter, nor shall the
undertaking of an abatement action under this Chapter preclude the City from
commencing or continuing any prosecution under Sections 16-3.5-4 or 16-3.5-7.
The remedies provided in this Chapter shall further not act nor be construed in any
manner as a limitation upon any right provided for in the plat, easement, right of
way or other legal document creating or affecting the sanitary sewer easement.
SECTION 2.
The officers and staff of the City are authorized and directed to perform any and
all acts consistent with the intent of this Ordinance to effectuate the policies and
procedures described herein.
SECTION 3.
This Ordinance shall become effective on the date of final action by the Mayor and
City Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on January 13, 2020.
Final adoption of Ordinance by City Council on January 27, 2020.
President of City Council
Action by the Mayor:
☒ Approved on January 29, 2020 .
☐ Disapproved on based on the following objections:
Mayor
Action by City Council After Disapproval by the Mayor:
☐ Council did not act to override the Mayor's veto.
☐ Ordinance re-adopted on a vote of , on
☐ Council action on __________________failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk