(Ord. of 5-5-05; A0187-11)
(a)
Purpose.
The purpose of this section is to protect the public safety, health, and welfare and to prevent and abate repeat service response calls by the City to the same property or location for nuisance service calls, as defined herein, which prevent police or public safety services to other residents of the City. It is the intent of the City by the adoption of this section to impose and collect service call fees from the owner or occupant, or both, of property to which City officials must repeatedly respond for any repeat nuisance event or activity that generates extraordinary costs to the City. The repeat nuisance service call fee is intended to cover that cost over and above the cost of providing normal law or code enforcement services and police protection City wide.
(b)
Scope and Application.
This section shall apply to all owners and occupants of private property that is the subject or location of the repeat nuisance service call by the City. This section shall apply to any repeat nuisance service calls as set forth herein made by an Everett police officer or any designee of the Chief of Police, and shall include but not be limited to animal control officers, parking enforcement officers and code enforcement officers.
(c)
Definition of Nuisance Call or Similar Conduct.
The term nuisance service call shall mean any activity, conduct, or condition occurring upon private property within the City which unreasonably annoys, injures or endangers the safety, health, morals, comfort or repose of any member of the public; or will, or will intend to, alarm, anger or disturb others or provoke breach of the peace, to which the City is required to respond, including but not limited to the following:
(1)
Any activity, conduct, or condition deemed as a public nuisance under any provision of the Revised Ordinances.
(2)
Any activity, conduct or condition in violation of any provision of Chapter 13 of the Revised Ordinances.
(3)
Any conduct, activity or condition constituting a violation of Massachusetts state laws prohibiting or regulating prostitution, gambling, controlled substances, use of firearms; and
(4)
Any conduct, activity, or condition constituting disorderly conduct under Massachusetts or Federal Statutes.
(d)
Repeat Nuisance Service Call Fee; Amount.
The City may impose a repeat nuisance service call fee upon the owner or occupant of private property if the City has rendered services or responded to the property on three (3) or more occasions within a period of 365 days in response to or for the abatement of nuisance conduct, activity, or condition of the same or similar kind.
(1)
Violations of the said “Repeat Nuisance Call Service Fees Ordinance” will be enforced in accordance with the provisions of the Everett Non-Criminal Disposition Ordinance.
(2)
Any person violating any provision of this chapter shall be deemed guilty of a violation shall be subject to a fine established by the City Government under Section 1-8 of the Revised Ordinances.
(3)
All repeat nuisance service call fees imposed and charged against the owner or occupant under this section shall be deemed delinquent 30 days after the City’s mailing a billing statement therefor. Delinquent payments are subject to a fourteen percent (14%) annual penalty of the amount due.
(4)
Non-payment of fee imposed on a property owner may result in a lien being placed on said property.
(e)
Notice.
No repeat nuisance service call fee may be imposed against an owner or occupant of property without the City Solicitor or his designee, hereafter referred to as the hearing officer, first providing the owner or occupant with written notice of the previous nuisance service calls prior to the latest nuisance service call rendered by the City upon which the fee is imposed. The written notice shall:
(1)
State the nuisance conduct, activity or condition that is or has occurred or is maintained or permitted on the property, the dates of the nuisance conduct, activity or condition;
(2)
State the owner or occupant may be subject to a repeat nuisance call service fee if a third nuisance service call is rendered to the property for the same nuisance, in addition to the City’s right to seek other legal remedies or actions for abatement of the nuisance or compliance with the law, and
(3)
Be served personally by the hearing officer or by U.S. mail upon the owner or occupant at the last known address.
(f)
Right to Appeal Repeat Nuisance Service Call Fee.
Upon the imposition of a repeat nuisance service call fee, the City shall provide the owner or occupant notice as required in Section 13-18(e). The City shall also inform the owner or occupant of his/her right to a hearing on the alleged repeat nuisance service calls.
(1)
The owner or occupant upon whom the fee is imposed may request a hearing by serving upon the City Clerk within fourteen (14) business days of the mailing of the fee invoice, inclusive of the day the invoice is mailed, a written request for hearing.
(2)
The hearing shall be heard by the City Government or its appointed hearing officer within fourteen (14) days of the date of the owner’s or occupant’s request for hearing.
(3)
The hearing shall be conducted in an informal manner and the Massachusetts Rules of Civil Procedure and Rules of Evidence shall not be strictly applied.
(4)
The hearing need not be transcribed, but may be recorded by any means at the sole expense of the party who requests the transcription.
(5)
After considering all evidence submitted, the hearing officer shall make written findings of fact and conclusions of the issue of whether the City responded to or rendered services for repeat nuisance service calls of the same or similar kind on three (3) or more occasions within a 365 day period.
(6)
The findings and conclusions shall be served upon the owner or occupant by U.S. mail within fourteen (14) days of the notice of hearing.
(7)
An owner or occupant’s right to a hearing shall be deemed waived if the owner or occupant fails to serve a written request for hearing as required herein or fails to appear at the scheduled hearing date.
(8)
Upon waiver of the right to a hearing, or upon the hearing officer’s written findings of fact and conclusions that the repeat nuisance call service fee is warranted hereunder, the fee imposed is due immediately.
(g)
Legal Remedies Nonexclusive.
Nothing in this section shall be construed to limit the City’s other available legal remedies for any violation of the law that may constitute a nuisance service call hereunder, including criminal, civil, injunctive or others.
(h)
Police and inspectional services responses to problem properties.
(1)
After 5 (five) valid complaint incidents in a twelve (12) month period relating to the occupants of a dwelling unit, a particular property or a specific location, the police chief (chief) or the director of inspectional services (director) shall determine whether the cost of response should be assessed to the property owner and shall notify and submit said determination to the city solicitor and the Code Enforcement Task Force.
a.
Following each valid complain incident as determined by the chief or the director, notice shall be delivered, in writing, via certified mail, to the property owner’s residence that is on record at the assessor’s office.
(2)
The chief or the director shall keep an accurate record of the cost of response to a dwelling unit, to a particular property or to a specific location, and such record shall include the number of officers who are part of the response;
(3)
The chief or director shall forward such record to the city solicitor, the city treasurer and the Code Enforcement Task Force;
(4)
The Code Enforcement Task Force shall notify in writing the property owner of the chief’s or director’s decision to assess the cost of officer’s response. The notification shall:
a.
Be delivered by certified mail to the property owner’s residence that is on record at the assessor’s office.
b.
Identify the number of complaint incidents that have occurred in the last 12 months.
c.
Inform the property owner that he or she shall be subject to the costs of this and all future costs of police and inspectional services response to valid complaint incidents.
d.
Indicate that the property owner has the right to appeal to the hearing officer.
e.
Inform the property owner that he has seven (7) days to appeal.
(5)
The treasurer-collector shall bill the property owner for the costs of the city incurred for its police or inspectional services response in addition to any incidental costs during the period of the officer’s response to the location. The property owner is responsible for paying the bill in full within thirty (30) days.
(6)
Any unpaid bill for response shall be added to the real estate tax on the property and collected as part of that tax. Failure to pay real estate taxes will render the property owner delinquent and the treasurer-collector shall commence municipal liens and foreclosure proceedings.
(7)
In the event that the property owner has in good faith begun eviction proceedings against the tenant responsible the incidents at the property, then the application of subsection (h) shall be stayed until the eviction process is concluded.
(8)
The provisions of this section are severable, and if any subsection, phrase, sentence or provision shall be ruled invalid by any decision of a court of competent jurisdiction, such decision shall not impair or otherwise affect any other remaining provision of this section.