[8-20-2013; 2016 Code]
The council hereby finds that the health of elm, oak and ash
trees within the city is threatened by invasive diseases and pests,
including a fatal disease known as Dutch elm disease, a fatal disease
known as oak wilt disease and the Emerald Ash Borer, an exotic wood
boring beetle that only feeds on ash trees.
[8-20-2013; 2016 Code]
The following are hereby declared to be a public nuisance:
(A)
Infected or infested elm trees or elm wood. Any living or standing
elm tree or part thereof infected with the Dutch elm disease fungus
Ceratocystis ulmi (Buisman) or Ophiostoma ulmi or infested by any
of the elm bark beetles Scolytus mulristriatus (Marsh) or Hylurgopinus
rufipes (Eichh) or any dead elm tree or part thereof, including logs,
branches, stumps, firewood or other elm material from which the bark
has not been removed and burned or properly treated with an effective
elm bark beetle destroying insecticide.
(B)
Infected oak trees or oak wood. Any living or standing oak tree or
part thereof infected with the oak wilt disease fungus Ceratocystis
fagacearum or any dead oak tree or part thereof, including logs, branches,
stumps, firewood or other oak material from which the bark has not
been removed.
(C)
Infested ash trees or ash wood. Any living or standing ash tree or
part thereof infested with any Emerald Ash Borer beetles Agrilus planipennis
or any Emerald Ash Borer infested dead ash tree or part thereof, including
logs, branches, stumps, firewood or other ash material from which
the bark has not been removed and burned or otherwise disposed of
in a manner that destroys any Emerald Ash Borer beetles that may be
present.
[8-20-2013; 2016 Code]
No person or entity shall permit any public nuisance as defined
in this chapter to remain on any premises owned or controlled by such
person or entity within the city.
[8-20-2013; 2016 Code]
Following receipt of a complaint, or upon his or her own initiative,
the city forester shall inspect or cause to be inspected any property
within the city to determine whether a public nuisance as defined
in this chapter exists thereon.
[8-20-2013; 2016 Code]
(A)
Public property. If the city forester, upon inspection or examination,
shall determine that any public nuisance as defined in this chapter
exists in or upon any public street, alley, park or other public place
within the city, including the terrace strip between curb and lot
line, he or she shall immediately abate such public nuisance in such
manner as to destroy or prevent as fully as possible the spread of
the disease or the insects that have caused such public nuisance.
(B)
Private property. If the city forester shall determine with reasonable
certainty that any public nuisance as defined in this chapter exists
in or upon private property, the city forester shall report the existence
of such public nuisance to the board of park and recreation commissioners.
If the board of park and recreation commissioners determines that
such nuisance exists, it shall set a date and time for a hearing,
the objective of which shall be to determine if an order should be
made to abate such nuisance.
(1)
Notice of hearing. Notice of the date, time and location of
such hearing shall be mailed, not less than 14 days before the hearing,
via first class mail addressed to the property owner's last known
address, and a copy shall be served upon the owner or occupant at
the property location or may be posted by attaching to the entrance
of any dwelling, building or other structure on the property on which
such public nuisance exists. If the owner is not known and cannot
be determined with reasonable diligence such notice shall be issued
to the tenant or other person or entity occupying such property. The
notice shall state that the board of park and recreation commissioners
has found that a nuisance as defined in this chapter exists on such
property and proposes to order abatement of such nuisance and how
such abatement will be accomplished. The notice shall specify the
general location and number of trees logs, branches, stumps, firewood
or other material constituting the nuisance on the property.
(2)
Hearing procedures. The owner, tenant, or an authorized agent
of either, may appear at the hearing and shall have the opportunity
to provide evidence relevant to the issues before the board of park
and recreation commissioners. If the board of park and recreation
commissioners finds that a nuisance as defined in this chapter exists
it shall order the abatement of such nuisance and the city forester
shall issue a written notice to the owner, agent or tenant or operator
of the property to abate such nuisance within a reasonable time as
specified in the notice. The notice shall include the method or methods
by which the nuisance shall be abated and the proper method or methods
of disposal of such trees or parts thereof, logs, branches, stumps,
firewood or other material constituting the nuisance, and that failure
to abate the nuisance as so ordered will result in the city abating
the nuisance at the property owner's expense. The notice shall
be mailed via first class mail addressed to the property owner's
last known address, and a copy shall be served upon the owner or occupant
at the property location or may be posted by attaching such notice
to the entrance of any dwelling, building or other structure on the
property on which such public nuisance exists.
(C)
Appeal to council. If the property owner wishes to appeal the decision
of the board of park and recreation commissioners or the methods required
by the city forester to abate the nuisance, the property owner may
appeal such decision to the council. Such appeal shall be made by
filing a notice of appeal with the city clerk within 10 business days
following service of the written notice issued by the city forester
directing abatement of the nuisance. Within 30 days following receipt
of such notice of appeal by the city clerk, the council shall review
the decision of the board of park and recreation commissioners or
the city forester, or both, and may affirm, deny or modify such decision.
If the decision is modified, the council shall file its decision with
the city clerk within 7 days following the meeting where the appeal
was considered. The council's decision shall state the specific
facts and reasons which are the basis for its decision to modify a
decision of the board of park and recreation commissioners or the
city forester. The council may, but shall not be compelled to, afford
the party appealing an opportunity to be heard before the council
acts on an appeal.
(D)
Abatement by city. If any public nuisance as defined in this chapter
is not abated within the time allowed, the city forester may cause
the same to be abated. No damages shall be awarded to the property
owner for the destruction of any elm trees, elm wood, oak trees, oak
wood, ash trees or ash wood, or any part thereof, resulting from such
abatement.
[8-20-2013; 2016 Code]
(A)
Special charge. Costs of abating any public nuisance as defined in
this chapter may be chargeable to and imposed as a special charge
against the property upon which the nuisance existed. The cost of
abating any such nuisance which is located in or upon any park or
public grounds, boulevards or public right-of-way shall be borne by
the city.
(B)
Records and report. The city forester shall keep strict account of
the costs of work done to abate a nuisance as defined in this chapter
for which special charges are to be made, the description of the land,
lots, parts of lots or parcels of land upon which such work was done
and the amount chargeable to each. The city forester shall report
to the council the aggregate amounts chargeable to each lot or parcel.
[8-20-2013; 2016 Code]
No person or entity shall transport within the city any bark
bearing diseased elm wood, diseased oak wood or Emerald Ash Borer
infested ash wood or material without first securing the written permission
of the city forester.
[8-20-2013; 2016 Code]
No person or entity shall remove, trim or prune any oak tree
or portion thereof between April 1 and August 15 without first securing
the written permission of the city forester.
[8-20-2013; 2016 Code]
No person or entity shall prevent, delay or interfere with the
city forester, or any city agents or employees working under the direction
of the city forester, while they are engaged in the performance of
duties imposed by this chapter.
[8-20-2013; 2016 Code]
A person or entity that violates any provision of this chapter
shall upon conviction be subject to a Class 3 forfeiture.
