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HomeMy WebLinkAbout09651 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