Aberdeen City Council

City of ABERDEEN CITY COUNCIL WORK SESSION AGENDA Monday, April 4, 2022 at 4:30 PM City Council Chambers 123 S Lincoln St, Aberdeen, SD 57401 1. Call to Order a. Roll Call b. Pledge of Allegiance 2. Discussion on Proposed Ordinance No. 22-03-02 Prohibiting Chronic Nuisances and Criminal Activity Public Nuisances 3. Adjournment Office of the City Manager ∙ Office: 605-626-7025 ∙ joe.gaa@aberdeen.sd.us 123 South Lincoln Street ∙ Aberdeen, South Dakota 57401 Page 1 of 6 First Reading: Second Reading: Adopted: Published: Effective Date: ORDINANCE NO. 22-03-02 AN ORDINANCE AMENDING THE ABERDEEN CITY CODE REGARDING PUBLIC NUISANCES WHEREAS, the City Council of the City of Aberdeen is charged with protecting the health, safety, and property of its citizens; and WHEREAS, the City Council has determined that the following ordinance will protect the health, safety, and property of its citizens. BE IT ORDAINED BY THE CITY OF ABERDEEN THAT THE FOLLOWING ADDITION SHALL BE MADE TO THE ABERDEEN CITY CODE: 1. The following sections shall be added to Article V. NUISANCES, of Chapter 26 – HEALTH AND SANITATION, as follows: Sec. 26-124. Chronic nuisances. (a) Chronic nuisance. Enhanced enforcement remedies shall be available when public nuisances continue or recur at a property. For purposes of this chapter, a public nuisance is a chronic nuisance when: (1) Three (3) or more public nuisances occur or exist upon the property within any period of 60 days; or (2) Four (4) or more public nuisances occur or exist upon the property within any period of one (1) year. (b) Notice and continuing order. The notice and order for any violation that is a chronic nuisance shall be a continuing order requiring the owner and all persons responsible for the property within seven (7) days after the service thereof and at all times subsequent to such order to prevent any further public nuisances on the property for a period of at least one (1) year. (c) Penalties. In addition to the enforcement remedies set forth in this chapter, including application to any court of competent jurisdiction for injunction, mandamus, or other appropriate action or proceeding to prevent chronic nuisance activities at the property and/or restraining any person from violating any of the provisions of this chapter and compelling compliance with the provisions herein, a chronic nuisance violation shall incur the following penalties for a misdemeanor: Page 1 of 5 Ordinance No. 22-03-02 Page 2 of 6  (1) First chronic nuisance offense. Along with a notice and continuing order, a chronic nuisance violation ticket shall be served with the initial violation ticket indicating the offense and penalty associated with the offense, plus court costs. (2) Subsequent offenses. If after the first chronic nuisance violation ticket another chronic nuisance violation occurs, a violation ticket shall be served with the subsequent offense fine being doubled from the first ticket, plus court costs. The subsequent offense fine for continued chronic nuisance violations thereafter shall be the maximum penalty for an ordinance violation, plus court costs. (3) Court appearance required; arrest. A person who has received a chronic nuisance violation shall be required to appear before the court of competent jurisdiction to answer to the charge set forth therein according to the procedure of the court. Upon the failure of a person to appear in response to a notice of chronic nuisance violation, he or she shall be subject to arrest in the manner otherwise provided by law. Sec. 26-125. Criminal activity as a public nuisance. (a) Purpose. The purpose of this section is to provide additional tools for city officials to protect the safety, health, and property of a neighborhood where repeated instances of criminal activity are occurring at a premises, and the owners or occupants of such premises fail to take actions necessary to prevent such activity. (b) Unlawful use of premises. It is unlawful for any person, owner, occupant or person in charge of any house, building, lot, or premises to create, maintain, commit, or permit to be created, maintained, or committed any public nuisance criminal activity as defined in this section. An owner of such premises is deemed to have knowledge of such activity upon receipt of the notice as set forth in this section. This section shall not apply to a hotel or motel. (c) Public nuisance criminal activity. For purposes of this chapter, a public nuisance shall include any of the following criminal activity: (1) Any contraband production contaminated property. “Contraband production contaminated property” means any structure or premises which has been identified through scientific evidence by law enforcement, by a federal, state, or local government health department, or by a federal, state or local government agency for environmental protection, to be contaminated with chemical residues as a result of contraband production. “Contraband production” means the unlawful manufacture of a controlled Schedule I or Schedule II drug or substance as defined by state law when such property has not been decontaminated. For the purposes of this chapter, contraband production contamination renders a property to be unsanitary, unsafe, and unfit for human habitation, occupancy, or use, and dangerous to life, health or safety. (2) Any premises, other than a hotel or motel, where law enforcement officers, on more than one occasion in the preceding one-year period, where each such offense listed below begins a new one-year period, issued an official incident report or a criminal or administrative citation, Page 2 of 5 Ordinance No. 22-03-02 Page 3 of 6  or arrested a person, for any of the following substantiated violations of state law perpetrated by an owner or lawful occupant: a. Prostitution, pimping, or human trafficking offenses; a. Formatted: Indent: Left: 2", No bullets or numbering d.c. Gambling offenses; e.d. Misdemeanor or fFelony possession, distribution, counterfeiting, or manufacturing offenses for a controlled Schedule I or Schedule II drug or substance; f.e. Murder and manslaughter; g.f. Assault and related offenses, but not including victims of domestic violence; TGrand theft, robbery, and burglary offenses; or h. Drug paraphernalia offenses; or i.h. Contributing to the delinquency or need for supervision of a minor. (d) Complaint by law enforcement agency. A complaint alleging public nuisance criminal activity may only be made by a law enforcement agency, and shall be made within 30 days from the date of the alleged activity. Such complaint shall be to the code enforcement officer and shall include reasonable detail regarding the circumstances, time, and location of the public nuisance criminal activity, and may include incident reports, criminal citations, and arrest reports. (e) Duties of code enforcement and procedures for violations. (1) Notice. a. After an initial complaint from a law enforcement agency of Formatted: Indent: Left: 1.5" public nuisance criminal activity, the code enforcement officer shall notify an owner of the property that further violations will constitute a public nuisance. b. Following a second complaint from a law enforcement agency to the code enforcement officer that a criminal activity public nuisance exists in or upon the property, the code enforcement officer shall notify the owner that the property is a public nuisance that must be abated. (2) Order to close and vacate premises. Should the public nuisance criminal activity not be fully abated at the time stated in the notice, the code enforcement officer shall issue an order closing and vacating the premises to the extent necessary to abate the public nuisance. The code enforcement officer may order a property to close and vacate for a reasonable period of time, but in no event shall the order closing and vacating be for a period of more than one (1) year from the date of the closing. A close and vacate order issued by the code enforcement officer, pursuant to this section is not an act of possession, ownership, or control by the city. A close and vacate Page 3 of 5 Ordinance No. 22-03-02 Page 4 of 6  order shall be rescinded within 14 days of full abatement unless such premises is the site of another close and vacate order within 60 days. a. If the premises consist of multi-unit dwellings, apartment buildings, or mixed uses and the public nuisance has occurred solely within a unit or units, the authority to close and vacate is restricted to the unit or units in which the public nuisance has occurred, and does not extend to any other unit in the premises. b. Upon the issuance of any order provided for in this section, a copy of the order shall be served on an owner of the property in the same manner as the notice provided for in this chapter, and a copy shall be conspicuously posted on the property. (3) Compliance actions. If any person or owner fails to comply with an order to close and vacate issued pursuant to this subsection, the code enforcement officer may: a. Discontinue the furnishing of city utility services to the premises at which the nuisance exists; b. Revoke the certificate of occupancy of the premises; or c. Use any other legal remedy available under this Code or state law. (4) Relief from order. The code enforcement officer may vacate or suspend the provisions of an order to close and vacate upon a showing by clear and convincing evidence that the public nuisance has been abated and will not be maintained or permitted in any unit of the premises. (f) Owner’s rights. (1) Eviction as a defense. It shall be a defense to a violation of this section if an owner has instituted a proceeding within 30 days of the order to evict the offending tenants or occupants of the subject premises, and completes the eviction within 75 days of commencement or as soon thereafter as court procedures allow. In the case of multi-unit dwellings, apartment buildings, or mixed uses, the only parties necessary to name in an eviction proceeding are the occupants of the actual unit involved with the activity suspected, or the occupants suspected of the activity described in the notice. (2) Other defenses. Upon appeal of an order, the board of zoning adjustment may consider evidence presented by any person or owner directly affected by a notice of violation or order regarding whether the owner knew or should have known of the violations and whether reasonable steps were taken to abate the violations, including removing the offender, notifying police of the violation(s), and securing vacant property. (3) Abatement actions not in violation of law. Actions taken by an owner to abate a public nuisance as defined in this section shall not be Page 4 of 5 Ordinance No. 22-03-02 Page 5 of 6  deemed to be violations of federal or state fair housing laws or landlord and tenant laws. 2. Severability. The provisions of this ordinance are severable. If any provision of this ordinance or the application thereof to any person or circumstance is held to be invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application. 3. Effective Date. The City Finance Officer shall cause this ordinance to be published in the official newspaper in clean text with all deletions and additions incorporated therein. This ordinance shall become effective twenty (20) days after the completed publication, unless the referendum is invoked. Travis Schaunaman, Mayor ATTEST: Karl Alberts, Finance Officer First Reading: Second Reading: Adopted: Published: Effective Date: Page 5 of 5 Ordinance No. 22-03-02 Page 6 of 6