[HISTORY: Adopted by the County Commissioners of Allegany County 7-25-2002 by Bill No. 4-02, effective 9-8-2002 (Ch. 160 of the 1984 Code). Amendments noted where applicable.]
This chapter is enacted for the purpose of defining and regulating conditions which constitute a public nuisance, providing for progressive enforcement of the provisions of this chapter, and designating penalties for maintaining or creating a nuisance condition in the unincorporated areas of Allegany County, Maryland, and the incorporated municipalities of Barton and Lonaconing.
As used in this chapter, the following terms shall have the meaning indicated:
- To repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such a manner and to such an extent as the local enforcement official determines is necessary in the interest of the public peace, safety, health and welfare of the community.
- AGRICULTURAL OPERATION
- Any operation devoted to the bona fide production of crops, animals, or fowl; including, but not limited to, the production of fruits and vegetables of all kinds; meat, dairy, poultry and fish products; nuts, tobacco, nursery and floral products, and the production and harvest of products from silviculture activity.
- BUILDING MATERIALS
- Includes lumber, plumbing materials, wall board, sheet metal, plaster, siding, brick, cement, asphalt, concrete block, roofing material, cans of paint and similar materials.
- CONSIDERABLE NUMBER OF PERSONS
- Three or more persons from different households.
- LOCAL ENFORCEMENT OFFICIAL
- The Director of Environmental Health or designee who has the authority and responsibility to enforce the provisions of this chapter.
- A. Any condition that may adversely affect the public health, such as an unsanitary animal enclosure, an improperly functioning sewage system, an excessive accumulation of trash or garbage, dead animals, a contaminated water supply, an inadequately protected water supply, and an accumulation of any material constituting a mosquito or vermin harborage.
- B. Any condition that may endanger health through the spreading of the condition by any means, including by streams, surface drainage, air currents, winged life, domestic animals, or human beings.
- C. Open burning of unapproved materials, or open burning of materials without a valid permit issued by the Allegany County Health Department.
- (1) Accumulation of manure, garbage or rubbish, except a compost pile properly maintained so as not to affect the health or safety of adjoining property;
- (2) Burning of refuse, sawdust, wood, leaves, stumps or other materials in such a manner as to cause or permit dense smoke, noxious fumes, ashes, soot or gases arising from such burning to become injurious to the health, comfort or repose of any person or neighborhood; except for normal emissions created during startup of a properly installed, maintained and operated wood-burning or incineration device;
- (3) Practices or operations which engender fugitive dust, particulate matter, gases, or noxious fumes to become injurious to the health, comfort or repose of any person or neighborhood;
- (4) An accumulation of stagnant water providing harborage or breeding areas for mosquito larvae;
- (5) Improper handling, storage, or disposal of any substance poisonous or harmful to persons or animals;
- (6) The keeping, using or maintaining of any pen, stable, lot, place or premises in which animals may be confined or kept, in such a manner as to be noxious to any considerable number of persons, except for bona fide agricultural or silvicultural uses;
- (7) Any noxious, foul, or putrid liquids or substances to be discharged, placed or thrown upon or to flow from or out of any premises into, or upon, any adjacent premises, stream or waterway, or any ditch or public right-of-way;
- (8) Any other conditions which are determined by the local enforcement official to be in violation of the standards and requirements of this chapter and detrimental to the public safety, health and welfare.
- REPEAT VIOLATION
- A violation of the same regulation by the same person within the immediately succeeding twelve-month period, or a failure to comply with a voluntary consent agreement or an abatement order regarding the initial violation within the stated time set forth in such a contract.
- RESPONSIBLE PARTY
- Any agent, property owner, tenant, or any other person occupying or having charge or lawful control of any real property where a nuisance condition is determined to exist.
In order to limit the circumstances under which agricultural operations may be deemed to be a nuisance, especially when nonagricultural land uses are initiated near existing agricultural operations, no agricultural operation or any of its appurtenances shall be or become a nuisance, private or public, if such operations are conducted in accordance with existing best management practices and comply with § 5-403(c) of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland and local laws. The exemptions specified in this section shall not apply whenever a nuisance results from the negligent or improper operation of any agricultural operation or its appurtenances, nor shall these exemptions supersede any restrictions or requirements of farming operations set forth in other County regulations.
If a violation of this chapter has been determined, the local enforcement official shall write a letter to the responsible party stating the following:
The name and address of the party responsible for the violation;
The street address or other description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance has occurred or is occurring;
A description of the nuisance and a reference to the section which has been violated; and
The necessary corrective action to be taken, and a date or time by which correction must be completed.
A responsible party may voluntarily abate a nuisance condition upon consultation with the local enforcement official. An extension of the time limit for correction or a modification of the required corrective action by the local enforcement official may be granted if the responsible party has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions.
If a violation of this chapter persists despite efforts to gain voluntary compliance, the Health Officer shall issue an order to abate the nuisance which constitutes a violation of this chapter. The order to abate shall contain the same information as the letter describing the violation, a statement that administrative penalties will be assessed if the violation is not corrected within a certain time, and notice of the right to appeal.
Any party who has received an order to abate from the Health Officer or designee may request a hearing to modify the terms of the abatement and enter into a formal voluntary consent agreement to correct the violation. The voluntary consent agreement is a written contract between the local enforcement official and the responsible party under which such party agrees to abate the violation within a specified time and according to specified conditions.
Any party who has received an order to abate from the Health Officer shall have the right to appeal. The aggrieved party shall submit a request for a hearing, in writing, to the Health Officer of designee within five days of the date of the order to abate the nuisance. The appeal shall be heard by the Health Officer or designee within 10 days of the date of appeal. A decision by the Health Officer or designee shall be rendered within five days of the date of the hearing. The decision shall be in writing and delivered to all parties to the proceeding.
If the terms of the voluntary consent agreement are not met, or the Health Officer's order to abate a nuisance is disregarded, the Health Officer shall assess administrative penalties against the responsible party.
In order to facilitate correction of violations of this chapter, the Allegany County Commissioners grant the local enforcement official the right to assess and collect the following administrative penalties:
Payment of a monetary penalty pursuant to this section does not relieve the party of the duty to correct the violation. Nothing in this chapter shall relieve any owner or other responsible person of the obligation of obtaining any required permit to do any work incidental to abatement.
The monetary penalty constitutes a personal obligation of the responsible party to whom the notice of assessment is directed. Any administrative penalties assessed must be paid to the Allegany County Health Department within 20 calendar days from the date of the issuance of the assessment or a notice from the County that penalties are due. The County Attorney is authorized to take appropriate action to collect the monetary penalty.
In accordance with the provisions of the Annotated Code of Maryland, Article 25B, § 13C, when the local enforcement official determines that a violation of this chapter has occurred or is occurring, and is unable to secure correction of conditions which constitute a violation of this chapter through progressive enforcement measures, the local enforcement official may issue a uniform civil citation to the responsible party. The uniform civil citation shall follow the procedures set forth in the guidelines issued by the District Court of Maryland, and be issued on forms approved by the District Court of Maryland.
The local enforcement official may issue a uniform civil citation without having attempted to secure voluntary correction as provided in § 400-4 under the following circumstances:
The local enforcement official shall serve the citation upon the responsible party either personally or by mailing a copy of the notice of citation by certified or registered mail, return receipt requested, to such party at his or her last known address. If the person responsible for the violation cannot be personally served within Allegany County and if an address for mailed service cannot be ascertained, notice shall be served by posting a copy of the citation conspicuously on the affected property or structure.
A violation of any provision of this chapter shall constitute a Class A civil violation according to the schedule of fines for civil infractions of Allegany County (Resolution No. 98-13). All civil citations shall be processed in accordance with Article 25B, § 13C, of the Annotated Code of Maryland. Each violation under this chapter is a separate offense, and a separate citation shall be issued for each discrete violation. Each day that a violation exists is considered a separate offense. Repeat violations for the same offense in a twelve-month period will result in a doubling of all applicable fines and/or administrative penalties.
Repeated offenses, intentional willful violations, failure to remedy a violation within a reasonable period of time, or a failure to comply with any judicial decree or order, shall constitute a misdemeanor and shall be punishable by imprisonment for not less than 30 days, or by fine not to exceed $1,000; or both.
The agency or any citizen may institute injunction, mandamus, or any other appropriate action or proceeding at law or equity for the enforcement of violations or to correct violations; and any court of competent jurisdiction shall have the right to issue restraining orders, temporary or permanent injunctions, mandamus, or other appropriate forms of remedy or relief.
The local enforcement official and the responsible party to whom the civil citation was directed may participate as parties in the hearing and each party may call witnesses.
An appeal of a decision of the District Court may be made to a higher court pursuant to then-current procedures.
Fines paid to the County general fund shall be set aside for the Environmental Health Division to be used for public outreach and education efforts and any other purposes relating to the enforcement of the provisions of this chapter. The payment of monetary penalties to the court does not relieve the responsible party of an obligation to abate a nuisance if the responsible party has been judged to be in violation of this chapter.
In all cases where the local enforcement official has determined to proceed with abatement, including but not limited to absentee ownership, immediate threat to public health, ignoring or failing to abide by the terms stated in a consent agreement to abate a nuisance; with permission of the Health Officer 10 days after giving notice the County shall acquire jurisdiction to abate the condition at the responsible party's expense as herein provided. Upon the abatement of the condition or any portion thereof by the County, all the expenses thereof shall constitute a civil debt owing to the County by such persons who have been given notice as herein provided. The debt shall be collectible in the same manner as any other civil debt owing to the County. The County shall also have the right to file a lien against the real property for all charges and expenses incurred in abating the nuisance. A notice of the County's lien specifying the expenses incurred in abating the nuisance and giving the legal description of the premises sought to be charged shall be filed within 90 days from the date of the abatement.
Whenever any condition on or use of property causes or reasonably appears to cause or constitutes an imminent or immediate danger to the health of the public or a significant portion thereof, the local enforcement official shall have the authority to summarily and without notice abate the same. The expenses of such abatement shall be collected as provided in this chapter.
Allegany County shall have a lien for any monetary penalty imposed and all other related costs, including administrative penalties, attorney and expert witness fees, against the real property on which the monetary penalty was imposed. The lien shall be subordinate to all previously existing special assessment liens imposed on the same property and shall be superior to all other liens, except for state and County taxes, with which it shall be on a parity.
The County Attorney shall cause a claim for lien to be filed for record within 90 days from the later of the date that the monetary penalty is due or the date the nuisance is abated.
The claim of the lien shall contain sufficient information regarding the notice of civil violation, a description of the property to be charged with the lien and the owner of record, and the total amount of the lien.
Any such claim of lien shall be verified by the local enforcement official, and may be amended from time to time to reflect changed conditions.
No such liens shall bind the affected property for a period longer than three years without foreclosure or extension agreed to by the property owner.
The provisions of this chapter are not exclusive and may be used in addition to other enforcement provisions authorized by applicable Allegany County Code Home Rule Articles, the Annotated Code of Maryland, and/or Code of Maryland Regulations (COMAR).