City Council

CITY OF FREDERICKSBURG, VIRGINIA CITY COUNCIL City Hall, 715 Princess Anne Street, Second Floor Conference Room Fredericksburg, Virginia 22401 Tuesday, November 22, 2011 5:30 P.M. CALL TO ORDER TOPIC • Staff presentation related to nuisance residential properties • Council discussion ADJOURNMENT HON. THOMAS J. TOMZAK, MAYOR HON. MARY KATHERINE GREENLAW, VICE-MAYOR HON. KERRY P. DEVINE, AT-LARGE HON. BRADFORD C. ELLIS, WARD ONE HON. GEORGE C. SOLLEY, WARD TWO HON. FREDERIC N. HOWE, III, WARD THREE HON. BEATRICE ROSE PAOLUCCI, WARD FOUR  MEMORANDUM TO: City Council FROM: Kathleen Dooley, City Attorney DATE: September 9, 2011 RE: Nuisance Residential Properties ISSUE: City Council asked staff to research what can be done to address repeated violations of City anti-nuisance ordinances at residential properties. Council was concerned that repeated noise, alcohol, over-occupancy, weeds, and trash violations, for example, at occupied residential properties detract from the peace and quiet of the affected residential neighborhoods. Council asked whether the City had adopted the legal tools necessary to address repeat offenders, and whether the City could adopt comprehensive rental housing regulations to address this question. RECOMMENDATION: The Assistant City Manager, Chief of Police, Building Maintenance Official, and City Attorney reviewed existing ordinances and practices. This review revealed shortcomings in the ordinances in the City Code and in the coordination of code enforcement operations. The recommendation is to adopt more robust City Code provisions with respect to general nuisances, trash, and weeds, and to work over the next year to better coordinate enforcement. City staff can also make better use of existing local and state laws, using the code enforcement approach in the City of Norfolk as a benchmark. Finally, the City can also work more proactively with owners of nuisance properties in an effort to address problems early. This topic would benefit from a Council work session. Later in the fall, after the courts project is wrapped up, might be a good time for this discussion. The City Manager has a number of topics pending, so we will work together to identify a date for this work session. Nuisance residential properties Page 1 BACKGROUND: Staff review of the Council’s inquiry included three components – a legal review of the current ordinances and ordinances from other jurisdictions, a records review of residential properties with repeat “nuisance” type offenses, and an operational review of current practices with respect to residential repeat offense addresses. 1. Legal review a. New public nuisance ordinance. The legal review included a comparison of Fredericksburg’s ordinances addressing weeds and trash with those of other Virginia communities. 1 This comparison revealed opportunities to address limitations in Fredericksburg’s City Code, including a broader definition of a condition which would constitute a violation. A proposed new public nuisance ordinance is attached. The benefits of the proposed ordinance are as follows: 1. Collect the existing nuisance ordinances in a single City Code chapter. 2. Provide a general prohibition against maintaining a public nuisance 3. Define a “weeds” violation more broadly. 4. Define the “trash” violation more broadly. 5. Provide additional illustrative examples of public nuisances. 6. Provide express authority to board up unsecured buildings. 7. Provide express authorization to seek injunctive relief when necessary. The new “weeds” violation should assist in addressing vegetation that obstructs public sidewalks or obstructs “sight triangles” on public or private streets. The new “trash” definition would have assisted the City with a property like the junkyard at 1928 Lafayette Boulevard, which was addressed through the zoning ordinance instead. This property could have been dealt with more quickly and effectively with a good trash definition. The proposed ordinance contains explicit authority for boarding up vacant unsecured buildings. Especially when the property owner is out-of-town, the City is often in a position of needing to act quickly to protect the public health, safety and welfare. Such buildings typically pose an imminent threat, and the ordinance permits immediate action to board them up and abate the nuisance. The City does take this action now, but Council’s express authority to do so, stated in the City Code, would be a nice clarification. The existing weeds (City Code 38-111) and trash (City Code 62-4) provisions provide for an escalation of civil penalties for the second and subsequent violation. The City has the option of imposing civil penalties or criminal penalties. Staff continues to study which approach would best serve the City. The draft ordinance retains the existing schedule of escalating civil penalties, but imposes a new $50 civil penalty for a first offense. As a 1 The comparison included Lynchburg, Norfolk, Roanoke, and Chesterfield County. Nuisance residential properties Page 2 final enforcement tool, the proposed ordinance provides express authority for the city manager to bring a civil action for an injunction to abate a nuisance. The proposed ordinance would also relocate the inoperable vehicles provisions from the current Motor Vehicles chapter of the City Code to the new Nuisances chapter. This would remove them from a chapter enforced primarily by the Police Department and collect them with other ordinances governing public nuisance conditions that occur on private property. These provisions comply with current statutory authorization, so no substantive change is proposed. This new chapter would also provide a home in the future if Council wishes to adopt ordinances addressing graffiti or drug blight. b. Noise ordinance. With respect to noise violations, the City’s noise ordinance was recently revised to comply with a new Virginia Supreme Court ruling. The most common noise disturbance associated with a residential property is noise associated with late-night parties. Under City Code §38-36, the use of a sound system after 11:00 at night, in such a way as to be plainly audible at a distance of 50 feet from the property line, is illegal. It is a Class 3 misdemeanor, which carries a maximum fine of $500. In addition, the noise ordinance contains a general prohibition, which provides officers guidance for other types of noise disturbances. The general prohibition permits officers to consider proximity of the sound to sleeping facilities, the time of day or night that the sound occurs, and the duration, volume and intensity of the sound. No changes are proposed. c. Maximum occupancy ordinance. Finally, the City does have a maximum occupancy ordinance on the books, and this ordinance does take advantage of existing state authorizing legislation for criminal penalties for non-compliance. The fine for a first-time offense may be up to $2,000 compared to a maximum of $1,000 for other zoning violations. The Court is required to order the violator to abate or remedy the violation within 30 days. Failure to abate the violation within the time period specified is punishable by a fine of up to $5,000, with additional penalties every ten-day period that the violation continues. That said, over- occupancy cases are notoriously difficult to investigate and prove. Evidence to meet the criminal legal standard of “beyond a reasonable doubt” is very difficult to gather with respect to the number of people who reside in a home. No legislative changes are proposed. Planning staff continues to investigate these cases as they arise. d. Comprehensive rental property ordinances. At the request of Council, my office studied an ordinance from South Orange Village, New Jersey. South Orange Village had a significant number of landlords renting to persons who frequently engaged in conduct which constituted breaches of the peace. Its ordinance creates a registration program for all rental properties within the jurisdiction. Nuisance residential properties Page 3 To register, an owner pays a fee and provides information including owner/manager contact information, lease terms, tenant names, and rental unit descriptions. Failure to register before renting, repeated disorderly conduct violations, and continued rental after license revocation are violations of the ordinance that are punishable by a fine of not less than $500 per violation. There is no specific Dillon’s Rule authority for a rental property registration ordinance of this type in Virginia. The City does have authority to register landlords in connection with its landlord business license tax, and the name of landowners is readily available through the public land records, so some of the information South Orange Village collects is already available. However, the City could use a revised general public nuisance ordinance to respond to an address with multiple “quality of life” violations as defined in the South Orange Village ordinance. These were defined to include assault, public urination, lewdness, criminal mischief, crimes against property or excessive noise which occur at a residential premises or on an immediate adjacent public right of way. If the illegal dispensing or consumption of alcohol is involved, then state law permits the City to petition the Circuit Court to “close” the house (see below). The review of City of Fredericksburg police response data did not identify any existing single family residences in Fredericksburg that would meet the South Orange Village standard. However, if such a property did develop, then the general nuisance ordinance would provide a means of addressing it. e. Fire Prevention Code. The City enforces the Statewide Fire Prevention Code. The City can make better use of this existing tool to respond to large parties in homes which are open to the public. No ordinance amendment is needed. f. Collection of nuisance abatement costs. Existing City ordinances do a good job of passing along the costs of nuisance abatement to the property owner or occupant. The proposed new ordinance carries over these provisions. The City Code also authorizes the imposition of late fees and penalties for delinquent nuisance abatement costs (City Code 2-511). But there is one more fee authorized by state law that the City is not currently charging, which is an administrative fee for the cost of collecting delinquent nuisance abatement liens. Virginia Code §58.1-2958 authorizes the imposition of an administrative fee of $150 or 25% of the nuisance abatement cost, whichever is less (with a minimum collection fee of $25). The Treasurer would add this one-time, flat fee to an account if the owner failed to make timely payment of the City’s nuisance abatement costs. A proposed ordinance for this fee is attached. The Treasurer collects these costs through the real estate tax collection process. Nuisance residential properties Page 4  g. Alcohol Beverage Control Laws. The City can also make better use of Title 4.1 of the Code of Virginia, and in particular of §4.1-317 in addressing nuisance residential properties. Section 4.1-317 prohibits the use of a house where alcoholic beverages are sold, dispensed, given away or used contrary to law, and declares such use to be a common nuisance. This would apply to any party which involves the illegal sale of alcohol (to guests) without an ABC license or to underage guests. The statute does not even require proof of an illegal sale, since it applies when alcohol is “given away” contrary to law. This state law also holds the owner of the property responsible, even if the owner is not involved in the original offense, if the owner has knowledge of the use of the house for this purpose and fails to take effective steps to stop the illegal use. Typically, written notice to the owner by the City of the problem will generate the desired response by the owner and tenants. Where the problem continues, this statute permits the City to go to court for an order to “close” the house, or for the owner to continue to lease the premises under the condition of a bond of $500 or more, that there will be no more illegal use of the premises for five years. 2. Records review – identifying existing problem residential properties. One of the most important tasks was to simply identify the current state of problem properties within residential neighborhoods. Staff identified these properties per the Council’s definition – addresses with repeated violations of nuisance-type ordinances, such as noise, alcohol, weeds, and trash. The Police Department and Property Maintenance Official reviewed their records for properties with repeat “disturbance” calls within the past six months or repeat weeds/trash violations within the past 12 months, and identified a combined address database of 24 single family residences. Fourteen addresses were generated by the Police Department, and ten by the Property Maintenance Official. Only one address had generated calls for service by both the Police Department and the Property Maintenance Official. This exercise in “defining the problem” generated a number of important conclusions, as follows: (a) Not all PD disturbance calls are a result of an incident that poses a nuisance to the neighborhood in general. For example, disputes between tenants affect the occupants within the house, but were not reported as having an effect outside of the residence. One residence generated repeat calls for assistance, but this residence did not constitute a “nuisance” with respect to the neighborhood on this basis. The number of calls for service is a raw data point which, by itself, does not convey meaningful information. Nuisance residential properties Page 5  (b) Not all PD disturbance calls are a result of an actual violation of local or state laws. Some residents are highly sensitive to the activities of their neighbors, and find offensive conduct that does not arise to an actual violation of the law. City and state law both protect private conduct on private property and provide a wide berth before it constitutes a nuisance violation. Determining that any particular property constitutes a “nuisance” based on the number of calls for response would be inappropriate and incorrect. The number of calls for service is a raw data point which, by itself, does not convey meaningful information. (c) Most of the PD responses to a disturbance call do not result in a citation, arrest, or conviction. Often the officers do not observe a violation in progress, and in such instances, they do not have the legal authority to issue a citation. The neighbors who observed the violation are entitled to present sworn testimony to a magistrate, who may determine that the filing of criminal charges is appropriate. But for understandable reasons, neighbors are typically not willing to do this. (d) Some of the PD disturbance responses are to known college-related residences, but these were not the majority of residences identified. 3. Operations review – identifying proposed changes in practice. Before Council’s inquiry, there was no comparison of residential properties that generate PD and PMO responses, or formal tracking of residential properties that generate multiple calls for service on nuisance-type violations. Although only one property was found to “overlap,” the exercise of identifying properties with repeat calls for response provided the PD and PMO with the opportunity to consider how to coordinate efforts and focus resources. The review revealed additional uses of the Statewide Fire Prevention Code to apply to problem residential properties, in particular when they are used for parties that are open to the public. The Fire Prevention Code can be a very effective tool. The City of Norfolk is the leader in an integrated code enforcement approach. We plan to send staff to Norfolk to observe their methods for future use here. The review revealed that the City has not used the legal authority available to it to bring an injunction action against private property owners whose properties are the subject of on-going, repeat weeds and trash violations. For property owners who are truly recalcitrant, there is no elevation of the enforcement response. The City has the legal resources and legal authority to bring an action in Circuit Court seeking a court order to a landowner to maintain his property, and the City should use this option when routine enforcement fails. The coordination of efforts between the City and the University of Mary Washington is improved in recent years, especially with respect to off-campus student misconduct. The Nuisance residential properties Page 6 City will continue to work with the University and to identify the ways in which we can partner with the University to address off-campus problems. That said, it should be stressed that many of the residential problem properties are not related to UMW students. Finally, if problem properties can be identified early, then the City has an opportunity to offer to assist an affected landlord in remedying the problem. For example, the Police recently responded twice in one night to a residence at 1202 Anderson Street in Idlewild, in response to a noise complaint by a neighbor. The responses generated a number of arrests for alcohol violations, including under-age drinking. The residents failed to heed the officers’ warning to shut down the party after the first response and round of arrests. Police returned to the property around 4:00 a.m. to find the party still in progress, resulting in additional alcohol-related arrests. City staff identified the out-of-town owner of this property through the GIS system, and sent her a letter enclosing a copy of the police report, bringing it to her attention, and advising that the Police Department would provide testimony, if needed, in an eviction action should she choose to bring one. The letter also reminded the landowner of her responsibilities to the community, and warned her that the City Council had identified nuisance residential properties as a priority for Code enforcement. This type of proactive communication may be effective in responding to these properties in partnership with the landowner, and provides a better “first contact letter” than a threat of legal action or enforcement action. In the future, staff will include a copy of Virginia Code §4.1-317 in these letters. CONCLUSION With the direction from Council, Code enforcement staff will continue to focus efforts on occupied residential properties where repeated violations – such as weeds, trash, noise, disorderly conduct, and alcohol-related offenses – create the potential to disturb or disrupt the peace of the near neighbors generally. City staff will work together on a regular basis to do a better job of identifying these properties and to make early contact with landowners, to bring the problem to their attention. The City can make better use of existing legal authority to redress problem properties; and the City can improve its anti- nuisance ordinances. Attachments: 1. Draft new public nuisance ordinance 2. Draft ordinance assessing collection fee for delinquent nuisance abatement liens 3. Va. Code §4.2-317 4. Letter re: 1202 Anderson Street Nuisance residential properties Page 7 MOTION: [date of meeting] Regular Meeting SECOND: Ordinance No. [yr-#] RE: PROHIBITING PUBLIC NUISANCES AND PROVIDING FOR THE ABATEMENT THEREOF, BY ADOPTING A NEW CITY CODE CHAPTER 59, “NUISANCES,” AND RELOCATING CURRENT CITY CODE CHAPTER 38, “ENVIRONMENT,” ARTICLE IV, “WEEDS AND WILD GROWTH,” CITY CODE SECTION 62-4, “RESPONSIBILTY FOR REMOVAL OF REFUSE,” AND CITY CODE CHAPTER 58, ARTICLE V, DIVISION 4, “INOPERABLE VEHICLES” TO THE NEW NUISANCE CHAPTER. REPEALING CITY CODE SECTION 38-79(b) AS REDUNDANT. ACTION: APPROVED: Ayes: ; Nays: FIRST READ: _______________________ SECOND READ:______________________ IT IS HEREBY ORDAINED by the City Council of the City of Fredericksburg, Virginia, that the Fredericksburg City Code is amended as follows: SEC. I. City Code Amendments. 1. Chapter 38, “Environment,” Article IV, “Weeds and Wild Growth” repealed. Fredericksburg City Code Chapter 38, “Environment,” Article IV, “Weeds and Wild Growth,” consisting of §38-111, “Duty of owner of vacant property to cut grass and weeds,” and §38-112, “Removal of weeds by burning,” are hereby repealed. 2. Sec. 62-4, “Responsibility for removal of refuse,” repealed. Fredericksburg City Code §62-4, “Responsibility for removal of refuse,” is hereby repealed. 3. New Chapter 59, “Nuisances,” Article I., “In General,” adopted. There is hereby added to the Fredericksburg City Code a new Chapter 59, “Public Nuisances,” Article I, “In General,” as follows: CHAPTER 59, “NUISANCES” ARTICLE I. IN GENERAL Sec. 59-1 Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Draft Public Nuisance Ordinance 10-05-2011 Page 1 Abatement costs: The city’s cost of labor, equipment and supplies for, or the contract price of and any charges to the city with respect to, the abatement of a nuisance upon a property or premises. Nuisance: The doing of any act or the omission to perform any duty, or the permitting of any condition or thing to exist that endangers life or health, obstructs or interferes with the reasonable or comfortable use of public or private property, tends to depreciate the value of the property of others, or in any way renders other persons insecure in the life or the use of property. Wherever the term nuisance is used in this chapter, it shall be deemed to mean a public nuisance. A nuisance shall include but not be limited to: the accumulation of refuse, trash, rubbish, debris, junk, garbage, containers, wire, glass, wood, ashes, animal matter, vegetable matter, human and animal wastes, and odors. Owner: The owner of record. Person: Any individual, firm, owner, sole proprietorship, partnership, corporation, unincorporated association, executor, administrator, trustee, guardian, agent, occupant or other legal entity. Public nuisance: (1) An act or condition that unlawfully operates to injure an indefinite number of people. Injury can include affecting the safety, health or morals of the public, or working a substantial annoyance, inconvenience or injury to the public in general. The doing of or the failure to do something that injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public generally. (2) A nuisance whereby a public right or privilege common to every person in the community is interrupted or interfered with, as by the obstruction of a public way. Weeds: shall include any plant, grass or other vegetation (herbaceous or woody) over twelve (12) inches in height, excluding trees, ornamental shrubbery, vegetable and flower gardens, purposefully planted and maintained by the property owner or occupant free of weed hazard or nuisance, cultivated crops, or undisturbed woodland not otherwise in violation. Sec. 59-2 Illustrative enumeration. The existence of any of the following activities or conditions are hereby declared to be public nuisances, provided, however, this enumeration shall not be deemed or construed to be conclusive, limiting or restrictive: (a) Accumulation of rubbish, trash, refuse, junk and other abandoned materials, metals, lumber or other things that cause a blighting problem, an obstruction or hindrance to the safe movement of vehicular and pedestrian traffic upon streets, alleys, or sidewalks abutting such property, or constitute a fire hazard, or adversely affect the public health or safety. (b) Outside storage on a residential property of abandoned, discarded or unused objects or equipment, including but not limited to tires, household furniture, appliances, lawn equipment, tools, motor vehicle parts, mattresses, wood or lumber not neatly stacked or piled, which are visible from an adjacent property or road. (c) Outside storage on a residential property for more than sixty consecutive days of more than five yards of any used or unused building materials which are visible from an adjacent property or road, provided, that nothing herein shall prohibit such storage when done in conjunction with a construction project for which a building permit has been issued and which, in the opinion of the city, is being pursued diligently to completion or, when the proposed construction does not Draft Public Nuisance Ordinance 10-05-2011 Page 2  require a building permit, the construction, in the opinion of the city, is being diligently pursued to completion. (d) Permitting any property, either vacant or developed, to allow weeds to reach a stage of growth wherein it causes a public nuisance. (e) Any condition which provides harborage for rats, mice, snakes and other vermin. (f) Any accumulation of stagnant water permitted or maintained on any lot or piece of ground. (g) Any condition or action which unlawfully interferes with, obstructs or tends to obstruct or renders dangerous for passage any public or private street, highway, sidewalk, stream, ditch or drainage area, including, but not limited to, obstructions to line of sight, obstructions of roadside signs, using Federal Highway Administration Safety standards as a guideline . (h) An unfenced lot adjacent to a street or sidewalk where the difference in level between the lot and the street constitutes a danger to life and limb. (i) Any unsecured vacant or abandoned building. Sec. 59-3. Prohibition; penalties. (a) It shall be unlawful for any person to create, cause, permit or maintain a public nuisance. The owner or occupant of each premises shall abate the public nuisance at such time as may be prescribed in the notice. (b) Each business day a public nuisance shall continue after the date set by the city for its abatement shall constitute a separate offense. (c) Failure to comply with a notice issued pursuant to this article shall be subject to a civil penalty of $50.00 for the first violation, or violations arising from the same set of operative facts. (d) The civil penalty for subsequent violations not arising from the same set of operative facts within 12 months of the first violation shall be $200. (e) In no event shall a series of specified violations arising from the same set of operative facts result in civil penalties that exceed a total of $3,000 in a 12-month period. (f) Civil penalties provided herein shall be in addition to liability for the city’s costs of abatement. Sec. 59-4. Administration and enforcement. This article shall be enforced and administered by the city manager, who may designate a city department to carry out this task. The director of the department shall designate the staff members that shall be responsible for the enforcement of this article. The city manager or designee shall conduct investigations of alleged public nuisances, give the necessary notices to abate public nuisances, make the necessary arrangements to abate public nuisances, prepare the statements of costs and expenses incurred by the city in the abatement of public nuisances and take whatever action is necessary to eliminate the presence of public nuisances within the city. The city manager may also make arrangements with other individuals and agencies to assist in the enforcement of the nuisance ordinance. The city manager is authorized to initiate civil proceedings to enjoin a violation of this article. Draft Public Nuisance Ordinance 10-05-2011 Page 3 Sec. 59-5. Notice to abate. (a) Whenever a nuisance is found to exist within the city, a duly designated officer of the city shall give written notice to the owner or owners, occupant or occupants of the property or premises. (b) The notice may be delivered by hand-delivery, posting the notice prominently upon the property, or certified mail to the owner at the owner’s address of record, or to the occupant at the address of the premises. Proof of such delivery, posting or mailing shall be sufficient evidence of the service of such notice. (c) The notice shall contain the following: 1. The location of the nuisance. 2. A description of what constitutes the nuisance. 3. A statement of acts necessary to abate the nuisance. 4. A time period reasonable under the circumstances, in which the nuisance shall be abated. 5. A statement that if the nuisance is not abated as directed and no request for hearing is made within the prescribed time, the city will abate such nuisance and assess the cost thereof against such person. 6. A statement that the failure to abate the nuisance constitutes a Class 4 misdemeanor punishable as set forth herein. (d) When, in the opinion of the designated officer, a nuisance constitutes an imminent, substantial or compelling threat to the public health or safety, the notice requirement shall be dispensed with, and the city may abate the nuisance as provided herein. (e) Upon request, a hearing shall be held before a designated officer of the city other than the officer who initially determined the existence of the nuisance. If, after hearing evidence, the hearing officer finds by a preponderance of the evidence that such nuisance exists, he shall order its abatement; otherwise, he shall dismiss the notice. A hearing must be requested in writing at least forty-eight (48) hours prior to the date given for the abatement of the nuisance. The hearing shall be held promptly and shall not unreasonably delay the abatement of the nuisance. Attendance at the hearing is the responsibility of the requesting party. The hearing shall be informal, and while each party shall have the opportunity to present pertinent information, the rules of evidence shall not apply. The decision of the designated officer is final and not subject to appeal. Sec. 59-6. Abatement by city. (a) Upon the failure of the owner or occupant to abate the nuisance, the city shall proceed to abate the nuisance and shall prepare a statement of costs incurred in the abatement thereof. When, in the opinion of the designated officer, a nuisance constitutes an imminent, substantial or compelling threat to the public health or safety, the officer may have the necessary work done to abate the nuisance whether or not notice to require the owner or occupant of the premises to abate the nuisance has been given. (b) In order to abate a nuisance, the city may revoke any permit or license issued by the city to the owner or occupant of the offending property and which is required by law to conduct the business or activity which gives rise to the nuisance. Draft Public Nuisance Ordinance 10-05-2011 Page 4 Sec. 59-7. Collection of costs of abatement; lien. (a) In the event the city takes steps to abate the nuisance, the city manager shall assess the costs and expenses thereof, plus 15 percent to cover administrative costs, to the owner or owners, occupant or occupants of the property. (b) The city treasurer shall collect the abatement costs from the owner or owners, occupant or occupants of the property, as provided in section 2-511 of this Code. (c) Every charge authorized by this section in excess of $200 which has been assessed against the owner of any such property and which remains unpaid for a period of thirty days shall constitute a lien against such property. Such liens shall have the same priority as other unpaid local taxes and shall be enforceable in the same manner as provided for in Articles 3 and 4 of Chapter 39 of Title 58.1 of the Code of Virginia. All such liens shall remain a personal obligation of the owner of the property at the time the liens were imposed. The city manager shall cause a notice of the lien prepared by the city attorney to be recorded in the clerk’s office of the circuit court of the City of Fredericksburg. 4. New Chapter 59, “Nuisances,” Article II, “Inoperable vehicles.” Current City Code Chapter 58, “Motor Vehicles and Traffic,” Article V, “Illegally Parked, Unattended, Immobilized and Abandoned Vehicles,” Division 4, “Inoperable Vehicles,” §§58-301 through 304 inclusive are hereby repealed and readopted as Chapter 59, “Nuisances,” Article II, “Inoperable Vehicles,” §§59-201 through 59-204. 5. City Code section 38-79, subsection (b) repealed. City Code section 38-79(b) is redundant, and is hereby repealed. SEC. II. These amendments shall be effective immediately. Approved as to form: _________________________ Kathleen Dooley, City Attorney ********************** Clerk’s Certificate I, the undersigned, certify that I am Clerk of Council of the City of Fredericksburg, Virginia, and that the foregoing is a true copy of Ordinance No. __-____ duly adopted at a meeting of the City Council held __________________, at which a quorum was present and voted. ____________________________ Tonya B. Lacey Draft Public Nuisance Ordinance 10-05-2011 Page 5  Clerk of Council Draft Public Nuisance Ordinance 10-05-2011 Page 6 § 4.1-317. Maintaining common nuisances; penalties, VA ST § 4.1-317 West’s Annotated Code of Virginia Title 4.1. Alcoholic Beverage Control Act (Refs & Annos) Chapter 3. Prohibited Practices; Penalties; Procedural Matters (Refs & Annos) Article 1. Prohibited Practices Generally VA Code Ann. § 4.1-317 § 4.1-317. Maintaining common nuisances; penalties Currentness A. All houses, boathouses, buildings, club or fraternity or lodge rooms, boats, cars and places of every description where alcoholic beverages are manufactured, stored, sold, dispensed, given away or used contrary to law, by any scheme or device whatever, shall be deemed common nuisances. No person shall maintain, aid, abet or knowingly associate with others in maintaining a common nuisance. Any person convicted of a violation of this subsection shall be guilty of a Class 1 misdemeanor. B. In addition, after due notice and opportunity to be heard on the part of any owner or lessor not involved in the original offense, by a proceeding analogous to that provided in §§ 4.1-339 through 4.1-348 and upon proof of guilty knowledge, judgment may be given that such house, building, boathouse, car or other place, or any room or part thereof, be closed. The court may, upon the owner or lessor giving bond in the penalty of not less than $500 and with security to be approved by the court, conditioned that the premises shall not be used for unlawful purposes, or in violation of the provisions of this chapter for a period of five years, turn the same over to its owner or lessor; or proceeding may be had in equity as provided in § 4.1-335. C. In a proceeding under this section, judgment shall not be entered against the owner, lessor, or lienholder of the property unless it is proved he (i) knew of the unlawful use of the property and (ii) had the right, because of such unlawful use, to enter and repossess the property. Credits Acts 1993, c. 866, eff. Oct. 1, 1993. Notes of Decisions (9) Current through End of 2011 Regular Session and includes 2011 Sp. S. I, c. 1. End of Document © 2011 Thomson Reuters. No claim to original U.S. Government Works. © 2011 Thomson Reuters. No claim to original U.S. Government Works. 1 § 15.2-900. Abatement or removal of nuisances by localities;..., VA ST § 15.2-900 West’s Annotated Code of Virginia Title 15.2. Counties, Cities and Towns (Refs & Annos) Subtitle II. Powers of Local Government Chapter 9. General Powers of Local Governments (Refs & Annos) Article 1. Public Health and Safety; Nuisances (Refs & Annos) VA Code Ann. § 15.2-900 § 15.2-900. Abatement or removal of nuisances by localities; recovery of costs Currentness In addition to the remedy provided by § 48-5 and any other remedy provided by law, any locality may maintain an action to compel a responsible party to abate, raze, or remove a public nuisance. If the public nuisance presents an imminent and immediate threat to life or property, then the locality may abate, raze, or remove such public nuisance, and a locality may bring an action against the responsible party to recover the necessary costs incurred for the provision of public emergency services reasonably required to abate any such public nuisance. The term “nuisance” includes, but is not limited to, dangerous or unhealthy substances which have escaped, spilled, been released or which have been allowed to accumulate in or on any place and all unsafe, dangerous, or unsanitary public or private buildings, walls, or structures which constitute a menace to the health and safety of the occupants thereof or the public. The term “responsible party” includes, but is not limited to, the owner, occupier, or possessor of the premises where the nuisance is located, the owner or agent of the owner of the material which escaped, spilled, or was released and the owner or agent of the owner who was transporting or otherwise responsible for such material and whose acts or negligence caused such public nuisance. Credits Acts 1997, c. 587, eff. Dec. 1, 1997. Notes of Decisions (11) Current through End of 2011 Regular Session and includes 2011 Sp. S. I, c. 1. End of Document © 2011 Thomson Reuters. No claim to original U.S. Government Works. © 2011 Thomson Reuters. No claim to original U.S. Government Works. 1  VML FALL CONFERENCE Roanoke, Virginia October 19, 2009 DEALING WITH BLIGHTED PROPERTIES By Walter C. Erwin, Lynchburg City Attorney I. PROBLEMS ASSOCIATED WITH BLIGHTED PROPERTIES Blighted properties are an ongoing problem in many localities throughout the state. In 1994 House Joint Resolution 489 and the accompanying report prepared by the Department of Housing and Community Development, recognized that the existence of blighted and deteriorated properties erodes the quality of life in Virginia's communities. • Blighted and deteriorated properties create potential nuisances and can become a convenient haven for criminal activities. • The presence of blighted and neglected properties impair or arrest growth and development of a neighborhood and often lead to an exodus of current businesses and residents, threatening the spread of blight to other properties and neighborhoods. • Vandalism of a single property or structure can have significant negative economic and environmental impact on an entire neighborhood. The problems associated with blighted and deteriorated properties are still as true today as they were in 1994. Localities are well aware of the connection between blighted and deteriorated properties and overall neighborhood decline. The March 1982 issue of the Atlantic Monthly magazine contained an article titled "Broken Windows" which discussed the concept of "community policing. " A basic principle of community policing is that the failure of law enforcement officials to deal with minor offenses such as vandalism,graffiti,public drunkenness, etc. ,creates an atmosphere in which more serious crimes such as robbery, assault,drug offenses, etc. will flourish. This same basis tenet also applies to blighted and deteriorated properties. The article noted that social psychologists agree that if any window in a building is broken and left unrepaired, all of the rest of the windows will soon be broken. One unrepaired broken window is a signal that no one cares. In such an atmosphere the breaking of windows escalates and the overall condition of the neighborhood declines. A stable neighborhood of families who care for their houses can change in a few years or even a few months into an inhabitable jungle. building that is poorly maintained is abandoned, weeds grow up, litter accumulates, vacant lots become sites for rowdy behavior, families move out, unattended adults more in, and the overall quality of life in the neighborhood deteriorates. It is essential that blighted and deteriorated properties be dealt with before this downward spiral begins. II. AUTHORITY TO DEAL WITH BLIGHTED PROPERTIES Over the years the General Assembly has recognized the problems associated with blighted properties and given localities a number of tools to use in their efforts to deal with such properties. In fact, until they make a list, many localities may not be aware of all of the powers they actually have to deal with blighted properties. These powers include the Uniform Statewide Building Code, a variety of nuisance laws, spot blight statutes, delinquent tax statutes, etc. Some of these powers are already on the books and are automatically available for use; others require the adoption of local ordinances. However, none of these statutes will work in every situation. Because there are a variety of statutes to consider when trying determining the best approach to use to deal with a blighted property, many localities have found it helpful to take a team approach. A number of localities have established inter-agency or inter­ departmental task forces to deal with blighted properties. These task forces consist of a variety of members that have a role in dealing with blighted properties. For example, Lynchburg has a Code Enforcement Task Force, consisting of the following members: • Building Officials • Zoning and Nuisance Inspectors • Housing Authority • Police • Public Works (utilities issues) • Collections Division (taxes) • Fire Marshall • Commonwealth's Attorney • Local Government Attorney • Ad hoc members as needed The Code Enforcement Task Force meets on a regular basis to discuss problem properties, share information, talk over possible solutions for dealing with particular properties and identify the resources that are available to remediate problem properties. Remedies are selected, task force members are given assignments for their departments and progress is monitored. A software program was developed that tracks the various efforts to deal with a blighted property. In addition, task force members conduct walk-through inspections of neighborhoods and make contact with community organizations (e.g. neighborhood watches, civic associations, etc.) to help identify problem properties in the community. The City has had more success using this approach to deal with blighted properties than when each department dealt with such properties on an independent basis. When dealing with a blighted property the goal is to try and make the owner assume responsibility for the property. However, in many instances efforts to make an owner assume responsibility for the blighted property are unsuccessful. For example, (i) sometimes property owners live outside of the locality and are not subject to the jurisdiction of the local courts (ii) sometimes blighted properties are owned by companies that have gone out of business or individuals that are incompetent or deceased (iii) sometimes properties are owned by companies or individuals that have filed for 2 bankruptcy or do not have the financial resources to correct blighted conditions, or (iv) sometimes a property owner dies without a will and the property passes to multiple heirs who are unknown or have such a small interest in the property no one is willing to assume responsibility for the property. Even though the laws give a locality the right to take certain actions to compel an owner to abate blighted conditions, sometimes for the reasons listed above or other factors, trying to compel the owner to correct the blighted condition is simply not going to work. The purpose of to do those things the private sector can't or won't do. In many instances if the locality wants to eliminate the blighted condition, the locality is going to have to take the corrective action. Unfortunately, one area where local governments have not been given a great deal of authority is dealing with properties that do not rise to the level of a public nuisance but are simply eyesores. Government officials are often pressured by citizens to declare something a threat to the public health, safety or welfare when it is actually nothing more than an annoying condition. The Virginia Supreme Court and the Attorney General have advised that aesthetic considerations alone do not justify the exercise of local police powers to regulate or control private property. See, Roanoke v. Bolling, 101 Va. 182(1903),Bd. ofSup. James City County v. Rowe,. 216 Va. 128,145 (1975) and 1993 Opinions of the Attorney General at page 79. III. 2009 DERELICT BUILDINGS LEGISLATION In the spring of 2008, Mark K. Flynn, the Director of Legal Services for the Virginia Municipal League put together a work group to develop legislative recommendations to amend various sections of the Virginia Code to help localities deal with abandonedlblighted structures in a more efficient and timely manner. As a result of the work group's efforts, legislation was introduced in the 2009 Session of the General Assembly, the so-called "Derelict Buildings Legislation" and the General Assembly adopted all of the work group's recommendations. The 2009 amendments to the Virginia Code are summarized as follows: • Section 36-3 and Section 15.2-907.1 of the Virginia Code were amended to include a definition of a derelict building, "a residential or nonresidential building or structure whether or not construction has been completed, that might endanger the public's health, safety, or welfare and for a continuous period in excess of six months, it has been (i) vacant, (ii) boarded up in accordance with the building code, and (iii) not lawfully connected to electric service from a utility provider or not lawfully connected to any required water or sewer service from a utility service provider." • Section 15.2-907.1 was added to the Virginia Code to allow a locality to establish a tax abatement program to encourage the owners of derelict buildings to demolish or renovate such buildings. Under such a program locality can expedite the issuance of demolition or building permits; when a derelict building is demolished can refund the building and demolition permit fees; when a derelict building is renovated can refund the site plan and building permit fees up to$5,000; and can abate the demolition costs or the increase in real estate taxes resulting from the renovation for a period of not less than 15 years. 3 •Section 36-49.1:1 of the Virginia Code was amended to simplify the spot blight process. The requirement that blighted properties must be reviewed by the local planning commission. • Section 58.1-3965 of the Virginia Code was amended to make it easier to sell a blighted property for delinquent taxes by shortening the time (from two years to one year) for a locality to enforce a lien for any monies the locality has spent correcting problems with the property (e.g. demolishing or repairing an unsafe structure, etc.) and increased the value of property that can be sold to enforce a lien from$50,000 to$100,000. • Section 58.1-3969 of the Virginia Code was amended to reduce the costs of a delinquent tax sale by allowing the court to accept the opinion of the local tax assessor as to fair market value instead of having to pay for an appraisal by a licensed real estate appraiser. • Section 36-105(C.)(3) of the Virginia Code was amended to allow building code officials to obtain inspection warrants for any building or structure when the owner, tenant, or occupant refuses to allow the code official to inspect the structure. Previously this section only provided for the issuance of inspection warrants for residential dwelling units. • Section 2.2-3705.3 of the Virginia Code was amended to exempt the name, address, and telephone number of people making building code or fire code complaints from disclosure under the Virginia Freedom of Information Act. •Section 48.1-5 of the Virginia Code was amended to increase the penalty for creating or permitting a public nuisance to continue from$10,000 and$25,000. • Section 15.2-908 of the Virginia Code was amended to increase the authority of local governments to deal with the removal of graffiti from buildings, walls, fences or other structures on private property when the graffiti is visible from a public right-of-way. If the graffiti is located on a building, wall, fence or other structure located on unoccupied property the locality can remove the graffiti and bill the property owner for the removal costs it the owner fails to remove the graffiti after having been given notice to do so. IV. OPTIONS FOR DEALING WITH BLIGHTED PROPERTIES A. Uniform Statewide Building Code/Property Maintenance Code One of the most valuable tools available to local governments in their efforts to deal with blighted and deteriorated properties is the property maintenance provisions of the Uniform Statewide Building Code. While the property maintenance code (PMC) is not a cure-all for blighted properties, it can be a valuable resource in helping local governments deal with problem properties. It is often easier to put together a case of building code violations than to prove a structure is being used for illegal activities such as the unlawful use of controlled substances, prostitution, etc. Also, the PMC contains a comprehensive scheme for dealing with blighted structures-e.g. the PMC sets maintenance standards; gives the 4 right to enter and inspect; provides a procedure for administrative inspection warrants; allows a rental property inspection program; describes how to give notice; has procedures to secure, repair, vacate, or demolish unsafe/unfit structures; contains an enforcement procedure, etc. -everything you need is in the PMC. 1. Unsafe or Unfit Properties Under the property maintenance code building code officials have the authority to secure, repair, vacate, condemn and even demolish properties that are unsafe or unfit for human occupancy. The definitions of unsafe/unfit structures are very broad and cover a wide range of structures. a. Vacating a Structure. A code official can order a structure that is unfit for human habitation to be vacated. Once the structure is posted, entering the building is prohibited except as authorized by the code official to make inspections, to perform required repairs or to demolish the building. See, USBC, Part III, Section 105.6 Posting of placard. b. Revocation of the Certificate of Occupancy. A code official can revoke the certificate of occupancy for an unsafe structure. See, USBC, Part III, Section 105.7 Revocation of certificate of occupancy. c. Vacant and Open Structures. When an unsafe structure or a structure unfit for human habitation is open for public entry the code official has the authority to authorize the necessary work to make the structure secure. See, USBC, Part III, Section 105.8 Vacant and open structures. d. Emergency Repairs and Demolition. The code official may authorize emergency repairs to or demolition of unsafe structures or structures unfit for human habitation when there is an immediate danger of any portion of such structure collapsing or falling and when life is endangered. The costs of the emergency repairs or demolition can be billed to the owner of the premises and such costs, if unpaid, constitute a lien against the property. See, USBC, Part III, Sections 105.1 General and 105.9 Emergency repairs and demolition. 2. Selective Enforcement of the Property Maintenance Code If a locality does not wish to enforce the entire property maintenance code it may be able to elect to enforce selected portions of the code. A number of localities have taken the position that since they have the express authority to enforce all of the property maintenance code they have the implied power to elect to enforce only selected portions of the code. 5  3. Inspection of Rental Properties Section 36-105.1: 1. of the Virginia Code authorizes localities to adopt a residential rental dwelling unit inspection ordinance. A locality may designate an area as a rental inspection district based upon findings that the rental units within that district are blighted, deteriorating or in danger of deterioration, that the living conditions in the area are unsafe, indecent, or unsanitary, or that that there is a need to protect the health, safety and welfare of occupants of dwelling units in the district. A locality may conduct periodic inspections of rental properties to determine compliance with the property maintenance code. See also, USBC, Part III, Section 104.1.1 Rental inspections. B. OTHER OPTIONS FOR DEALING WITH BLIGHTED PROPERTIES While the Uniform Property Maintenance Code is a very effective tool to dealing with problem properties it will not work in every situation. The following is a list of other sections of the Virginia Code a locality may be able to use to deal with problem properties. 1. Abatement of Nuisances A nuisance is any act, omission or use of property which is hurtful to the health, tranquility or morals of the community. Ritholz v. Commonwealth, 184 Va. 339, 350,35 S.E.2d 210 (1945). Nuisances fall into two categories, public nuisances and private nuisances. A public nuisance is a condition that affects or has potential to affect the health,safety or welfare of the general public rather than just one individual or a small number of individuals. A private nuisance is a condition that unreasonably interferes with a private property owner's use and enjoyment of his property but does not affect the general public. City o/Virginia Beach v. Murphy, 239 Va. at 353, 355,389 S.E.2d 462,463 (1990). Several sections of the Virginia Code give local governments the authority to eliminate "public nuisances" in order to protect the public health, safety or welfare. These sections enable a locality to not only deal with blighted structures but also such things as illegal dump sites, accumulations of debris and rubbish, the excessive growth of weeds,etc. a. Section 15. 2-900 of the Virginia Code allows a locality to maintain an action to compel a responsible party to abate a public nuisance. A public nuisance includes but is not limited to, any dangerous or unhealthy substances that have been released, spilled or accumulated and unsafe,dangerous or unsanitary buildings, walls or structures. A locality can take immediate action to abate a nuisance if it poses an immediate and imminent threat and can recover the cost of the abatement from the owner. The provisions of Section 15. 2-900 are self-executing and do not require the enactment of an ordinance by the locality. b. Section 15. 2-901 of the Virginia Code authorizes a locality to adopt an ordinance requiring a property owner to remove trash, garbage,refuse, litter and other substances which might endanger the safety of residents and to require a property owner to cut grass, weeds or other foreign growth on vacant developed or undeveloped property. The locality 6 can perform the removal or cutting if the owner fails to do so after having been given reasonable notice and to bill the owner for the costs. A lien can be placed on the property for unpaid costs and such lien has the same priority as a lien for unpaid taxes. The locality can waive the lien in order to effectuate the sale of the property. The provisions of SectionI5. 2-901 are not self-executing and require the enactment of an ordinance by the locality. c. Section 15. 2-906 of the Virginia Code allows a locality to adopt an ordinance requiring a property owner to remove, repair,or secure any building, wall or other structure which might endanger public health or safety. The locality can abate such nuisance after giving the owner written notice to do so and after publishing such notice in a newspaper of general circulation in the community. This section also allows a locality to make exterior maintenance to a building in order to prevent deterioration and can be helpful in preserving historic properties. The owner can be billed for the cost of the abatement and a lien can be placed on the property to recover the unpaid costs. Such lien has the same priority as liens for unpaid local taxes. The locality can waive the lien in order to effectuate the sale of the property. The provisions of Section15. 2-906 are not self-executing and require the enactment of an ordinance by the locality. d. Section 15.2-1115 allows cities and towns to adopt ordinances requiring the abatement of all nuisances, including but not limited to weeds,snow removal,the drainage of stagnant water, the removal of unsafe or dangerous buildings and unhealthy substances, etc. The language in Section 15.2-1115,unlike the language in Section 15.2-901,does not limit the removal of weeds to vacant or undeveloped properties. The locality can abate the nuisance if the owner fails to do so after having been given reasonable notice,bill the owner for the costs and collect the costs in the same manner as unpaid state and local axes are collected. The provisions of SectionI5. 2-1115 are self-executing and do not require the enactment of an ordinance by the locality. However, Section 15.2-1115 only applies to towns and cities, not to counties. 2. Drug Blighted Properties Section 15. 2-907 of the Code of Virginia allows a locality to adopt an ordinance to remove, repair or secure buildings or other structures where (i) "drug blight," exists on the property, (ii) the locality has used diligence to abate the drug blight,and (iii) the drug blight constitutes a present threat to the public's health,safety or welfare. The owner of the property must be given notice and an opportunity for an administrative hearing. The locality's expense in taking corrective action is chargeable to the owner of the property and a lien can be placed against the property to recover such expenses. 3. Bawdy Places, Prostitution Section 15. 2-908.1 of the Virginia Code allows a locality to adopt an ordinance to require a property owner to correct a bawdy place. A bawdy place is defined as any place or building which is used for lewdness or prostitution. If the owner fails to abate the bawdy house the locality can do so and the cost of abatement is chargeable to the owner of the 7 property. A lien can be placed against the property to recover such costs and such lien has the same priority as unpaid local taxes. Section 48-7 of the Virginia Code provides that "whoever shall knowingly erect, establish, continue, maintain, use , own, occupy or lease any building, erection or place used for the purpose of lewdness, assignation or prostitution in the Commonwealth is guilty of a nuisance, and the building, erection, or place, the ground itself, in or upon which such lewdness, assignation or prostitution is conducted, pennitted or carried on, continued, or exists and the furniture, fixtures, musical instruments and contents are also declared a nuisance, and shall be enjoined and abated as hereinafter provide." The Commonwealth's Attorney, the Attorney General or any responsible citizen of the Commonwealth may maintain an action to perpetually enjoin such nuisance. Such action can be brought against the person or persons conducting or maintaining the nuisance and against the owner or agent of the building or ground upon which the nuisance exists. See, Section 48-8 of the Code of Virginia. 4. Registration of Vacant Properties Section 15. 2-1127 of the Virginia Code allows a city to adopt an ordinance requiring the registration of any building that is vacant for more than 12 months. The city can charge a registration fee of up to$25.00. A penalty of$50.00 can be imposed for the failure to register and the penalty can be up to$250.00 for the failure to register a building located in conservation or blighted area. 5. Drug Activity Properties as a Common Nuisance Section 18.2-258 of the Virginia Code provides that any structure, vehicle, aircraft or vessel that is frequented with the knowledge of the owner, operator, lessor, tenant, or manager by persons under the influence of drugs, or for possessing, manufacturing, or distributing drugs is a "common nuisance. " A person who knowingly pennits, keeps or maintains a common nuisance is guilty of a class 1 misdemeanor. A second or subsequent offense is a class 6 felony. After holding a hearing the court is authorized to close the premises. Also, this section allows the owner to seek the immediate tennination of a rental agreement for a tenant violator. The section further provides for the forfeiture of the property in certain instances. Section 19. 2-386.22 of the Virginia Code also provides that any real property used in substantial connection with drug sales or distribution is subject to seizure. 6. Alcohol Violations Section 4. 1-317 of the Virginia Code provides that "all houses, boathouses, buildings, club or fraternity or lodge rooms, boats cars and places of every description where alcoholic beverages are manufactured, stored, sold dispensed, given away or used contrary to law, by any scheme or device whatever, shall be deemed common nuisances. " 8 The maintenance of an alcohol-related nuisance constitutes a class 1 misdemeanor. The Commonwealth's Attorney can initiate forfeiture proceedings against the property and any owner, lessor, or lienholder. See, Section 4.1-317(B) of the Code of Virginia. In addition, any citizen of the locality where the nuisance is located may bring a suit in equity to enjoin the nuisance. See, Section 4. 1-335 of the Code of Virginia. 7. Spot Blight Lynchburg has found one of the most effective tools for dealing with blighted properties is the use of a spot blight program. Sections 36-19.5 and 36-49.1: 1 of the Virginia Code. allow a local government to acquire blighted properties through purchase or eminent domain if their owners fail to properly maintain them. Section 36-3 of the Virginia Code defines "blighted property" as: "Blighted property" means any individual commercial, industrial, or residential structure or improvement that endangers the public's health, safety, or welfare because the structure or improvement upon the property is dilapidated, deteriorated, or violates minimum health and safety standards, or any structure or improvement previously designated as blighted pursuant to § 36-49.1: 1, under the process for determination of "spot blight. " 1. Section 36-49.1: 1 of the Virginia Code allows a locality to acquire or repair blighted properties anywhere within the locality. The owner of a blighted property must be given notice and an opportunity to prepare a plan to correct the blight. If the owner fails to prepare an adequate plan the local governing body holds a public hearing on the condition of the property. The locality can then proceed to repair or acquire the blighted property by eminent domain. The owner of the property can be billed for the costs of any repair or disposal of the property. A locality cannot use this section to acquire occupied property unless the property has been declared unfit for human habitation. 2. Section 36-19. 5 of the Virginia Code authorizes a locality to partner with the local redevelopment and housing authority to acquire a blighted single-family or multi­ family dwelling through purchase or eminent domain. The authority must give the owner of a blighted property written notice and 60 days to correct the blight or to prepare a satisfactory plan to do so. If the owner fails to correct the blight or prepare an adequate plan the authority asks the local governing body to adopt a resolution authorizing the acquisition of the property. The procedure authorized by Section 36-19.5 does not contain the prohibition against acquiring occupied properties. However, this procedure is limited to a housing authority's area of operation and can only be used for residential properties. One of the reasons a spot blight program is so effective is that it allows localities to take meaningful action against the absentee owners of blighted properties. In many instances trying to cite absentee owners for building code or nuisance violations simply is not effective. Often, only the threat of possibly losing their properties will get an absentee owner to repair them. An article in the February 12, 2005 issue of the Richmond Times Dispatch demonstrates the difficulty of dealing with absentee owners. The Carrington 9 Garden apartments which had 216 units had to be closed and all of the tenants were evicted because the owner, a New York resident, and the management company, which was located in New Jersey, would not maintain the property and the City's efforts to require them to do so by citing them for building code violations, etc. were unsuccessful. Another reason Section spot blight is such a valuable tool is that it gives localities a way to protect historic properties and existing housing stock by getting blighted properties out of the hands of neglectful owners and into the hands of new owners that will maintain them before they deteriorate to the extent that they cannot be restored. A spot blight program allows localities to do this. Lynchburg implemented its spot blight program in1999. Since that time the City and the Lynchburg Redevelopment & Housing Authority have used Section spot blight to acquire 27 blighted properties, 15 of the properties were acquired by purchase and 12 by eminent domain. Also, the City has been able to get 109 property owners to either bring their properties into compliance with the building code or to demolish unsafe buildings. A total of 136 blighted properties that have been successfully dealt with as a result of the spot blight program. As a result of the repairs the assessed value of the 136 properties has increased from$3,990,400 to$7,305,300, an increase of$3,314,900. The spot blight program has resulted in the repair of blighted properties; the demolition of unsafe buildings; the preservation of some of the City's housing stock; and, the enhancement of the City's tax base. The City still has a ways to go; there is currently a list of 132 blighted properties it is working on getting the owners to repair. The spot blight program will continue to play a key role in the City's efforts to deal with blighted properties. 8. Delinquent Real Estate Taxes Delinquent tax sales also give localities another way to get blighted properties out of the hands of neglectful owners and into the hands of new owners that will maintain them 1. Section 58.1-3965 of the Virginia Code allows a locality to file a petition to have property with an assessed value of$100,000 or less,sold for delinquent real estate taxes. The statute creates a presumption of abandonment for any property assessed at$100,000 or less if (i) the taxes are delinquent for two or more years and (a) the land or structure has been declared a nuisance (b) the owner has failed to abate the nuisance after having been given proper notice and (c) the locality has abated the nuisance,placed a lien on the property for the abatement costs and the lien is unpaid; or (ii) the taxes are delinquent for five years or longer. Other properties, regardless of their value, may be sold at a delinquent tax sale following the second anniversary of the date on which the taxes have become due and in the case of real property upon which there is situated a structure that has been condemned by the local building official, the property may be sold after the first anniversary of the date on which the taxes have become due. 2. Section 58.1-3970.1 of the Virginia Code authorizes the circuit court to transfer the title of a tax delinquent property to a locality when the property is assessed at$50,000 or less, the parcel has delinquent taxes or a nuisance abatement lien, and the taxes, liens 10 and penalties exceed fifty percent of the assessed value of the property or if the taxes alone exceed twenty-five percent of the assessed value of the parcel. 9. Use of Special Grand Juries to Investigate Public Nuisances Sections 48-1 through 48-6 of the Code of Virginia establish a procedure by which five or more citizens can petition the local circuit court to impanel a special grand jury to investigate whether or not an activity constitutes a nuisance. The court is required to summon a special grand jury to investigate the complaint. Under these sections both the owner who allowed the nuisance to continue and the person who caused or created the nuisance can be held responsible. If the grand jury finds that the activity complained of is a nuisance, the person creating or permitting the nuisance to continue is subject to a fine of up to$25,000 and can be ordered to remove the nuisance and pay the removal costs. In the case of Commonwealth o/Virginia v. Elmore D. Ford and Shelia M Ford, Law No. 4848, Circuit Court of York County (decided August 10, 1990) York County was able to use this procedure to declare a single family residence a public nuisance because of the behavior of the residents. The family that lived in the home dispersed alcoholic beverages to individuals that were not residents of the home; allowed the property to remain in a constant state of disrepair; allowed their guests to engage in rowdy and inappropriate behavior; both the inhabitants and their guests continually harassed members of the neighborhood; regularly used vulgar and insidious language; and, engaged in lewd and obscene behavior. The court described the home as "a place where people can go and do anything they want, a lawless place," declared it to be "the worst public nuisance case I've ever heard of' and fined the owners of the home$5,000. and ordered the home vacated. 10. Inoperable Motor Vehicles Sections 15.2-904 and 15.2-905 of the Virginia Code give localities the authority to enact ordinances making it unlawful for any person to keep an inoperable motor vehicle, except within a fully enclosed building or structure or otherwise shielded or screened from view, on any property zoned for residential or commercial or agricultural purposes. An "inoperable motor vehicle" means any vehicle which is not in operating condition; or which for a period of sixty days or longer has been partially or totally disassembled by the removal of tires and wheels, the engine or other essential parts required for operation of the vehicle; or which does not display neither valid license plates or a valid inspection decal. "Shielded or screened from view" means not visible by someone standing at ground level from outside of the property on which the subject vehicle is located. If an owner can demonstrate that he is actively restoring or repairing a vehicle, and if the vehicle is shielded or screened from view, such vehicle and one additional inoperative motor vehicle being used for the restoration or repair may remain on the property. 11. Abandoned Vessels and Derelict Piers Section 15.2-909 of the Virginia Code allows a locality to adopt an ordinance requiring property owners to secure abandoned vessels or derelict wharfs, piers, pilings or bulkheads 11 that threaten public safety or are a threat to navigation. If the property owner fails to correct the problem the locality after giving reasonable notice can take corrective action. The locality may bill the owner for the costs incurred and place a lien against the property to recover such costs. 12. Junkyards Section 15. 2-903 of the Virginia Code allows a locality to adopt ordinances regulating the maintenance and operation of automobile graveyards and junkyards, to impose license taxes on such facilities and to prescribe fine and other punishment for violations of such ordinances. See a/so, 1984-1985 Opinions of the Attorney General at page 91. Further, Section 33.1-348(c) of the Virginia Code provides that no junkyard shall be established, any portion of which is within 1,000 feet of the nearest right-of-way of any interstate or primary highway or within 500 feet of the nearest edge of the right-of-way of any highway or city street, except (i) junkyards which are screened from sight by natural objects, plantings, fences or other appropriate means (ii) junkyards which are located in areas zoned for industrial use or in unzoned industrial areas as determined by the Commonwealth Transportation Board and (iii) junkyards which are not visible from the main-traveled way of a highway or city street. 13. Removal of Graffiti Section 15.2-908 of the Virginia Code allows a locality to adopt an ordinance requiring the removal of graffiti from public or private buildings, walls, fences or other structures when the graffiti is visible from a public right-of-way. If the graffiti is located on a building, wall, fence or other structure located on unoccupied private property the locality can remove the graffiti and bill the property owner for the removal costs it the owner fails to remove the graffiti after having been given a minimum of 15 days notice to do so. The costs incurred for removing the graffiti shall constitute a lien upon the property, ranks on parity with liens for unpaid local taxes and can be enforced in the same manner that liens for unpaid taxes are enforced. A locality may waive the lien in order to facilitate the sale of the property. 14. The Use of Shame Some communities have tried to use shame as a means of getting a property owner to take responsibility for a blighted property. They have adopted programs providing that signs will be placed in front of properties that (i) are dilapidated and not being maintained in compliance with building codes, (ii) have received repeated citations for failure to comply with the building codes, (iii) have been the subject of repeated complaints by neighbors, and (iv) have a adverse impact upon the neighborhoods in which they are located. Lynchburg has had such a program since 1997. If the owner of the property lives in the community the City will consider putting up a sign that says "If you feel the appearance andlor activity at this property do not meet your neighborhood standards, the property owner is: John and Jane Doe, who live at Woodcrest Drive, Lynchburg, Virginia 24503. " The City has put up such signs in front of neglected properties, "nip joints, " suspected drug 12 houses, etc. The signs are located on City right of way, not private property and only contain factually correct information. In the case of Albiero v. City ofKankakee, 2001 WL 355673 (7th Cir. April 5,2001), a federal court held the city of Kankakee, Illinois did not violate a landlord's rights when it a erected a sign in front of his rental property identifying the property as a "slum property." The landlord claimed the city erected the sign with the intent to embarrass,harass, and humiliate him. The court found that the city did not act out of vindictiveness; the city posted the sign because the property was in a dilapidated condition and the landlord refused to repair it. c. Injunctions A locality can seek an injunction (a court order commanding or preventing an action) to require a property owner to remedy a problem property. When seeking an injunction for violation of a local ordinance it is not necessary to show irreparable harm or any other common law requirements. All you have to prove is the violation itself. See, Gwinn v. Alward, 235 Va. 616 (1988). Also, if a court orders violations to be corrected,the court's order can be enforced through contempt of court proceedings. See, Deeds v. Gilmer, 162 Va. 157,261-263 (1934). There are a number of provisions in the Virginia Code that specifically authorize the use of injunctions when dealing with problem properties. • Section 8.01-620 of the Code of Virginia authorizes a circuit court to issue injunctions to enforce the provisions of the Uniform Statewide Building Code. • Section 15.2-2286(A.)(4.) of the Code of Virginia authorizes a circuit court to issue injunctions for local zoning violations. • Sections 18.2-258 and 18.2.258.01 of the Virginia Code allow the local Commonwealth's Attorney or any citizen to maintain an action in the name of the Commonwealth to enjoin any property where controlled substances are being used, manufactured, possessed or distributed. • Section 27-101 of the Code of Virginia authorizes courts to issue injunctions to enforce the provisions of the Virginia Statewide Fire Code. • Section 3. 1-296.210f the Code of Virginia authorizes the courts to issue injunctions to compel the removal of noxious weeds. • Section 15.2-1432 of the Code of Virginia authorizes a circuit court to enjoin continuing violations of local ordinances. 13 V. COLLECTION OF COSTS AND EXPENSES If a locality has to repair or demolish an unsafe structure or clean up a blighted property,it is going to want to try and recover its costs from the owner. There are a number of sections in the Virginia Code that authorize localities to recover their costs and expenses from the property owner. A. Liens against the Property Several sections of the Virginia Code provide that the costs or expenses a locality incurs in dealing with a problem property shall constitute a lien against the property ranking on parity with liens for unpaid taxes and can be collected in the same manner that delinquent taxes are collected. See, Sections 15.2-901(B),15. 2-906(3),15. 2-907,15.2-908.1,15.2- 909 and 15.2-1115(B) of the Code of Virginia and the Uniform Statewide Building Code, Part III,Sections 105.1-General and 105.9-Emergency repairs and demolition. B. Virginia Setoff Debt Collection Act If a property owner fails to pay the charges incurred by a locality in dealing with a problem property, the locality can enter the unpaid debt into the Virginia Setoff Debt Collection Program. Once the debt is entered,the State will withhold the debtor's tax refunds,lottery winnings,etc. and send such monies to the locality. See, Sections 58.1-520 through 58.1- 535 of the Code of Virginia. C. Seizure of Assets Held by a Third Party Section 58.1-3952 of the Virginia Code allows a locality to collect a debtor's delinquent taxes or "other charges" from the assets held by a third party. This section can be used by a locality to seize bank accounts, garnish wages,seize rents that are held by a tenant,etc. It is not necessary for a locality to file a civil suit against the debtor in order to use these collection techniques. A chart prepared by Cynthia B. Hall, Norfolk Deputy City Attorney, outlining the various sections of the Virginia Code that can be used to deal with blighted properties is included with this outline. For a more detailed discussion of the remediation of blighted and problem properties see the Handbook of Virginia Local Government Law, Chapter 22 Administrative Inspections and the Building Code and Chapter 28. Blight Remediation. 14  #09-18 TOWNSHIP OF SOUTH ORANGE VILLAGE PASSED ORDINANCE AN ORDINANCE TO ESTABLISH A UNIFORM SYSTEM FOR THE REGISTRATION OF RENTAL UNITS, THE LICENSING OF SUCH UNITS, AND TO IMPOSE SANCTIONS ON LANDLORDS WHO PERMIT REPEATED VIOLATIONS OF LAW BY THEIR TENANTS. BE IT ORDAINED, by the Board of Trustees of the Township of South Orange Village, a municipal corporation of New Jersey located in Essex County thereof, as follows: Section 1. Findings. It is hereby found by the Board of Trustees of the Township of South Orange Village that a significant number of landlords rent residential units to unrelated persons who frequently engage in conduct which constitutes breaches of the peace. Such conduct has a negative effect upon occupants of other rental units and nearby structures, impacts the quality of life of the neighborhood and tends to depress the value of surrounding property. This condition is in major part due to the presence of numerous university students in the community, a condition present in relatively few communities. As landlords control both the selection of tenants and their eviction for cause, only landlords can effectively remedy the condition. Section 2. Purpose It is the purpose of this ordinance to create a single-point uniform system for the registration of single-family rental properties and multi-family rental properties; one which satisfies the requirements of registration for Rent Control (Chapter 124 of the Code of the Township of South Orange Village), N.J.S.A. 46:8-27 et seq. and licensing pursuant to this ordinance. While registration and licensing of rental units is authorized pursuant to N.J.S.A. 40:48-2.12c and 40:52-1d, revocation of licenses and the penalties provided for herein are necessary due to the conditions set forth in the findings herein. Due to the localized nature of the condition this ordinance seeks to address and the absence of adequate remedies in state law, it is the purpose of this ordinance to exercise the municipal police power implicit in the New Jersey Constitution and granted pursuant to N.J.S.A. 40:48-2 and, inter alia, to promote the welfare of the municipality and its inhabitants. Section 3. Definitions Dwelling Unit(s) (also referred to as Units, Rental Units or Residential Units) - A room or series of connected rooms designed for permanent residency, containing living, cooking, sleeping and sanitary facilities for one housekeeping unit (as defined in Chapter 92 of the Code of the Township of South Orange Village). The dwelling unit shall be self-contained and shall not require the use of outside stairs (other than those required for initial access to the structure), passage through another dwelling unit or other indirect route to get to any portion of the dwelling unit. {00047557.5}  License - Collectively, the licenses issued to the owner of either a single- family rental property or multi-family rental property pursuant to this ordinance. Each dwelling unit in a multi-family rental property shall be separately licensed pursuant to the provisions of this ordinance. Owner - The fee owner of any single-family rental property or multi-family rental property whether individual, corporation, partnership, trust, limited liability company or other business entity. For the purpose of this ordinance, owner shall also include all corporate officers, partners, trustees, trust beneficiaries, members of LLCs or others with a control interest in an owner, no matter the form. Quality of Life Violation - Conviction for disorderly, indecent, tumultuous or riotous conduct, including, by way of example, but not limited to, simple assault, assault, terroristic threats, harassment, urinating or defecating in public, lewdness, criminal mischief, crimes against property or excessive noise, by a tenant or a tenant’s guest on or in the vicinity of any single-family rental property or multi-family rental property wherein such tenant resides. A violation shall be deemed to have occurred in the vicinity of a covered property if such violation occurred in the adjacent public right of way in front of the covered property or on any property adjacent to the covered property. Multi-family Rental Property - Any structure containing two (2) or more units available for rent, whether occupied or not, also referred to as a covered property. Post/Posting - The requirement to permanently affix information required to be made known to tenants at rental properties regulated by this ordinance. Posting shall be at eye level near the primary entrance to the property, at a place where it is most likely to be seen. The Clerk shall provide forms that shall be used for posting. Single-family Rental Property - Any single-family structure held out for rental, whether occupied or not, also referred to as a covered property. Section 4. Registration of Multi-family Rental Properties Pursuant to N.J.S.A. 40:52-1d, commencing September 1, 2009, and annually on September 1 of each succeeding year, owners of all multi-family rental properties shall register same with the Village Clerk. Annually, at the time of registration, a $100 registration fee shall be paid to the Village Clerk. Such registration shall be on forms provided by the Village Clerk, or by electronic means at such time as a computerized system becomes available. Required information shall generally include the following, information which will be required in greater detail on forms issued by the Clerk: 1. Premises address, and tax block and lot number 2. Owner contact information 3. If owner is a corporation, officer contact information {00047557.5} 2  4. If owner is a limited liability company, member contact information 5. If owner is a partnership, partner contact information 6. Resident Management Agent contact information 7. Rental Agent and other agent contact information 8. Number of persons permitted to occupy each unit pursuant to Sections 117- 25 and 117-28 of the Code of the Township of South Orange Village 9. Unit descriptions, including room sizes, number of bathrooms and the like 10. Summary information regarding leases and tenants, including lease terms, names of tenants and the like 11. Name and address of all mortgagees of record 12. Contact information for any on-site superintendent 13. Emergency contact information 14. If heated by fuel oil, contact information for oil supplier Owners shall amend the filing required by this section within 7 days of an occurrence affecting the required information and shall annually, on July 1 of each year, update the information required by this section. Compliance with this section shall also constitute compliance with the requirements of N.J.S.A. 46:8-27 and registration for the purposes of Chapter 125 of the Code of the Township of South Orange Village - Rent Control. Section 5. Registration of single-family rental properties Pursuant to N.J.S.A. 40:52-1d, commencing September 1, 2009, and annually on September 1 of each succeeding year, owners of single-family rental properties shall register same with the Village Clerk. Annually, at the time of registration, a $50 registration fee shall be paid to the Village Clerk. Such registration shall be on forms provided by the Village Clerk, or by electronic means at such time as a computerized system becomes available. Required information shall include: 1. Premises address, and tax block and lot number 2. Owner contact information 3. If owner is a corporation, officer contact information 4. If owner is a limited liability company, member contact information 5. If owner is a partnership, partner contact information 6. Number of persons permitted to occupy each unit pursuant to Sections 117- 25 and 117-28 of the Code of the Township of South Orange Village 7. Unit descriptions, including room sizes, number of bedrooms and bathrooms {00047557.5} 3  8. Summary information regarding leases and tenants, including lease terms, and names of tenants and permanent addresses 9. Emergency contact information 10. If heated by fuel oil, contact information for oil supplier Owners shall amend the filing required by this section within 7 days of an occurrence affecting the required information and shall annually, on July 1 of each year, update the information required by this section. Compliance with this section shall also constitute registration as may be required for the purposes of Chapter 125 of the Code of the Township of South Orange Village - Rent Control. Section 6. Licensure Upon filing of a completed registration form and the payment of the registration fee, the Village Clerk shall issue a License or renewal to the owner. In the case of a multi-family rental property, the Village Clerk shall issue a single license certificate whereon shall be listed all dwelling units contained in that property. Each dwelling unit so listed shall be deemed separately licensed. Section 7. Violations Failure to register, to amend a registration when so required, to permit occupancy in violation of Sections 117-25 and 117-28 of the Code of the Township of South Orange Village, or to permit repeated violations pursuant to Section 9, shall be a violation of this ordinance. Each such violation shall constitute a separate offense, each punishable by a fine of not less than $500. Continued rental of a dwelling unit, after revocation or suspension of a license, shall constitute a separate offense punishable upon conviction in the municipal court by a fine of not less than $500 for each day such unit was rented without a license. Section 8. Obligation of Owner No owner shall knowingly permit a tenant to remain in occupancy of a dwelling unit who, or whose guests, commit repeated quality of life violations. Section 9. Repeated Quality of Life Violations On each occasion that a tenant in a multi-family rental property or a single-family rental property, or such tenant’s guest, commits a quality of life violation, the Public Officer shall cause notice of such violation to be sent to the owner via certified mail. Upon the occurrence and notice of two (2) quality of life violations by one or more tenants or his/her/their guests, with respect to any dwelling unit within any 12-month period, the Public Officer may cause a complaint to be filed in the Municipal Court and/or to conduct a public hearing, on notice to the owner, why the license to operate a rental property should not be revoked or suspended. In a multi-family rental property, license revocation may only be imposed upon the dwelling unit associated with the subject quality of life violation. Whether the Public Officer seeks to proceed in the Municipal Court or to seek to revoke or suspend the license, proof that the owner unsuccessfully attempted in good faith to evict the offending tenant(s), after commission of two quality of life violations, shall constitute an absolute defense. {00047557.5} 4 Section 10. Resident Agent/Posting A. Pursuant to N.J.S.A. 40:48-2.12c, every owner of a multi-family rental property who does not reside in South Orange shall designate an agent with authority to act in the absence of the owner with respect to such property, and which agent shall be a resident of South Orange. Owners of two-family residences are exempt from the requirement of this subsection. B. Owners shall post both a copy of the most current license and the names, addresses, telephone numbers and e-mail addresses of all persons available in the event of an emergency. Owners of multi-family rental properties shall also include such information for resident agents. Section 11. Repealer. All ordinances or parts of ordinances inconsistent with the provisions of this ordinance are hereby repealed to the extent of such inconsistency. Section 12. Effective Date This ordinance shall take effect upon final passage and publication as required by law. Trustee Member Motion Second Ayes Nays Abstain Absent Bauer X X Davis Ford X Goldberg X Gould X Levison X X Rosner X The above ordinance was passed on second and final reading by the Board of Trustees of the Township of South Orange Village, County of Essex, NJ at a Regular Meeting held on Monday, July 27, 2009. LYNN M. CUCCINIELLO, ACTING VILLAGE CLERK DOUGLAS C. NEWMAN, VILLAGE PRESIDENT {00047557.5} 5