Abatement of violation by city forces; lien to recover costs

(a)

Notice to abate violation; service of notice.

(1)

Unless otherwise provided in this Code, whenever the official finds that a violation of any one (1) or more sections of this Code exists, the official may cause a notice to be posted on the property or any parcels thereof upon which the violation exists. Such posted notice shall state the name and address of the record owner thereof as shown upon the records of the county tax assessor; the address and/or the legal description of the real property involved; the time period allowed for a written petition for appeal; that, if the condition is not corrected and terminated within the time specified, the same shall be accomplished by the city with its forces or by an independent contractor at the direction of the city, the costs thereof to be assessed and made a lien against the real property involved; and that the owner, agent, custodian, lessee or occupant of the property is subject to prosecution for violation of the provisions of this Code.

(2)

In addition to the posting of the property as provided in this subsection, the official shall cause a written notice to be mailed by certified mail or to be delivered or served upon the owner, agent, custodian, lessee or occupant of the property, directing such person to remove, terminate and abate such violation within fifteen (15) days of the date of the mailing, delivery or service of such written notice, or, if an appeal is made within the time period established at the appeal hearing, if the official orders removal, termination and abatement of such violation. The written notice shall include a sufficient description by address and/or legal description to identify the property upon which the violation exists; a description of the violation to be terminated; a statement that if the described violation is not terminated within fifteen (15) days after notice as provided in this subsection, or, if an appeal is made within the time established by the official, it may be terminated or caused to be terminated by the official; a statement that any such person as described in this subsection has fifteen (15) days from the date of notice as provided in this subsection to petition in writing for a hearing before the official; that the total cost expended by the city to abate the violation, including administrative costs as set out in this section, shall become a lien upon the property; and that any such person is subject to prosecution for violation of the provisions of this Code. The mailing of such notice shall be sufficient proof thereof, and the service shall be deemed complete and sufficient when deposited in the United States mail with proper postage prepaid. If such notice is returned by postal authorities, the official shall cause a copy of the notice to be served by his agent upon any such person as described in this subsection. If the mailing address of any such person is not known or subject to discovery by the official or if personal service upon such person cannot be performed after a reasonable search by the agent of the official and the offending property is unoccupied, the posted notice on the property as provided in subsection (a)(1) of this section shall constitute sufficient notice to the owner, agent, custodian, lessee or missing occupant thereof; and no additional notice shall be required for any action under the provisions of this subsection.

(b)

Appeal.

(1)

Right to appeal. Within fifteen (15) days after the date of mailing the notice as provided in this section or after notice is served upon him by the official's agent or after the first date of physical posting of the property, the owner, agent, custodian, lessee or occupant of the property involved shall have the right to file with the official a petition for appeal in writing, on forms to be made available by the official.

(2)

Evidence. The petitioner, at the hearing provided, may show that no violation exists on the property involved or that, if such violation does exist, it does not threaten or endanger the public health, welfare or safety or that such violation cannot be terminated within the fifteen (15) days specified or that such violation should not be removed, terminated and abated by the official, either with his forces or by an independent contractor, and a lien for the costs thereof should not be placed on record against the property involved. At the hearing, both the city and the petitioner may introduce such witnesses and evidence as deemed necessary.

(3)

Effect of appeal. The filing of a written petition for appeal with the official shall operate to stay any requirement, order, finding, ruling or other action of the official until a final decision has been rendered by the official. Once a final decision has been rendered by the official, the petitioner will have exhausted his administrative remedies.

(4)

Effect of failure to appeal. Any requirement, order, finding, ruling or other action of the official shall be final upon the sixteenth day after service of notice upon the party affected, as provided in this section, unless stayed by the filing of a notice of appeal to the official.

(c)

Termination of violation. If the violation is not terminated by the owner, agent, custodian, lessee or occupant of the property involved within fifteen (15) days from the date of effective service, whether it be the date of mailing of notice, the date of personal service or the first date of the physical posting of the property or if an appeal has been taken to the official within the time period established by the official and the official orders removal, termination or abatement of the violation, the official shall cause any such condition to be terminated by the city with its own forces or an independent contractor on behalf of the city.

(d)

Cost of abatement; assessment against property; lien foreclosure.

(1)

Within fifteen (15) days from the completion of any work by the city or an independent contractor to effect necessary correction of any violations, the official shall submit a resolution to the city council naming the legal owner of and describing by address and legal description the real property upon which a lien is claimed, the date of completion of the work, and the actual cost of the abatement, which actual cost shall include the cost of serving notice as required by this section and the cost of obtaining title information, lien recording fees, and all other related costs and shall be based upon the following charges:

a.

Violation abatement: Actual contract amount as invoiced by the independent contractor or the labor and material costs expended by the city.

b.

Nuisance abatement surcharge:

1.

Notice, title information, recording, advertising, and processing: Actual cost.

2.

Administrative processing fee: As established by city council resolution.

(2)

Within fifteen (15) days of receipt of the resolution, the city council shall determine the total cost of correcting the violation on the real property described therein and adopt the resolution assessing such costs against each such parcel by address and legal description. Such assessment shall constitute a lien upon the real property for the work accomplished.

(3)

Within fifteen (15) days from the adoption of such resolution by the city council, the official shall cause a certified copy of same to be filed for record in the office of the clerk of the circuit court of the county, and the resolution, when recorded, shall have the force and effect of a notice of assessment of lien. Simultaneously with the filing of such resolution, the official shall cause to be published a notice of the completion of such work and the fact that such lien has been recorded as stated in this paragraph, which notice shall be published one (1) time in a newspaper of general circulation published in the city, giving the lien held by the city against each piece of real property by lot and block number or other proper legal description.

(4)

Any person owning or having any interest, legal or equitable, in the real property shall have the right, within thirty (30) days after the publication of notice by the official, to present to the city council a sworn petition stating his interest in the property and alleging that, in the opinion of the petitioner, the cost of such work as shown in the notice of lien exceeds the actual cost thereof or is otherwise erroneously entered, and shall be heard upon such petition. If it shall appear to the satisfaction of the city council that the cost is erroneously stated, then the city council, by resolution, shall so declare and shall fix such amount to be charged against the real property as shall be just and proper, and the official shall have the corrected notice of lien for such amount recorded in the office of the clerk of the circuit court.

(5)

Where no petition is filed as provided for in this section, the cost of such work as shown in the recorded notice of lien shall become a fixed lien on the real property from the time of recordation of the notice of lien.

(6)

Such liens may be paid within ninety (90) days after the publication of notice provided for in this section without interest, and thereafter the amount so fixed, with interest at the rate of twelve (12) percent per annum from the date of the recordation of such lien, and all costs of collection, including all publication and title information costs, shall continue to be a lien against such real property until paid, and collection thereof shall be enforced as provided by law.

(Ord. No. 89-221, § 2(1-20), 9-28-89)