This article shall be known as the dangerous building code and
may be cited as such and will be referred to herein as “this
code.”
(1997 Code, sec. 150.060)
(a)
Purpose.
(1)
It is the purpose of this code to provide a just, equitable and practicable
method, to be cumulative with and in addition to any other remedy
provided by the building code or otherwise available at law, whereby
buildings or structures which from any cause endanger the life, limb,
health, morals, property, safety or welfare of the general public
or their occupants may be required to be repaired, vacated or demolished.
(2)
The purpose of this code is not to create or otherwise establish
or designate any particular class or group of persons who will or
should be specially protected or benefitted by the terms of this code.
(b)
Scope.
The provisions of this code shall apply to all
dangerous buildings, as herein defined, which are now in existence
or which may hereafter become dangerous in this jurisdiction.
(1997 Code, sec. 150.061)
For the purpose of this code, certain terms, phrases, words
and their derivatives shall be construed as specified in either this
code or as specified in the building code. Where terms are not defined,
they shall have their ordinary accepted meanings within the context
with which they are used. Webster’s Third New International
Dictionary of the English Language, Unabridged, copyright 1986, shall
be construed as providing ordinary accepted meanings.
The editions of the various International Codes promulgated by the International Code Council and the National Electrical Code of the National Fire Protection Association together with all local and NCTCOG Regional Amendments to such codes as adopted by and through section 3.03.051 of this code.
For the purpose of this code, any building or structure which
has any or all of the conditions or defects hereinafter described
shall be deemed to be a dangerous building, provided that the conditions
or defects exist to the extent that the life, health, property or
safety of the public or its occupants is endangered:
Whenever any door, aisle, passageway, stairway or other means
of exit is not of sufficient width or size or is not so arranged as
to provide safe and adequate means of exit in case of fire or panic;
Whenever the walking surface of any aisle, passageway, stairway
or other means of exit is so warped, worn, loose, torn or otherwise
unsafe as to not provide safe and adequate means of exit in case of
fire or panic;
Whenever the stress in any materials, member or portion thereof,
due to all dead and live loads, is more than 1-1/2 times the working
stress or stresses allowed in the building code for new buildings
of similar structure, purpose or location;
Whenever any portion thereof has been damaged by fire, earthquake,
wind, flood or by any other cause to such an extent that the structural
strength or stability thereof is materially less than it was before
the catastrophe and is less than the minimum requirements of the building
code for new buildings of similar structure, purpose or location;
Whenever any portion or member or appurtenance thereof is likely
to fail, or to become detached or dislodged, or to collapse and thereby
injure persons or damage property;
Whenever any portion of a building, or any member, appurtenance
or ornamentation on the exterior thereof, is not of sufficient strength
or stability, or is not so anchored, attached or fastened in place
so as to be capable of resisting a wind pressure of one-half of that
specified in the building code for new buildings of similar structure,
purpose or location without exceeding the working stresses permitted
in the building code for the buildings;
Whenever any portion thereof has wracked, warped, buckled or
settled to such an extent that walls or other structural portions
have materially less resistance to winds or earthquakes than is required
in the case of similar new construction;
Whenever the building or structure, or any portion thereof,
because of dilapidation, deterioration or decay; faulty construction;
the removal, movement or instability of any portion of the ground
necessary for the purpose of supporting the building; the deterioration,
decay or inadequacy of its foundation; or any other cause, is likely
to partially or completely collapse;
Whenever, for any reason, the building or structure, or any
portion thereof, is manifestly unsafe for the purpose for which it
is being used;
Whenever the exterior walls or other vertical structural members
list, lean or buckle to such an extent that a plumb line passing through
the center of gravity does not fall inside the middle 1/3 of the base;
Whenever the building or structure, exclusive of the foundation,
shows 33% or more damage or deterioration of its supporting member
or members, or 50% damage or deterioration of its nonsupporting members,
enclosing or outside walls or coverings;
Whenever the building or structure has been so damaged by fire,
wind, earthquake or flood, or has become so dilapidated or deteriorated,
as to become an attractive nuisance to children, or a harbor for vagrants,
criminals or immoral persons, or as to enable persons to resort thereto
for the purpose of committing unlawful or immoral acts;
Whenever any building or structure has been constructed, exists
or is maintained in violation of any specific requirement or prohibition
applicable to the building or structure provided by the building regulations
of this city, as specified in the building code or housing code, or
of any law or ordinance of this state or city relating to the condition,
location or structure of buildings;
Whenever any building or structure, whether or not erected in
accordance with all applicable laws and ordinances, has in any nonsupporting
part, member or portion less than 50%, or in any supporting part,
member or portion less than 66%, of the strength, fire-resisting qualities
or characteristics, or weather-resisting qualities or characteristics
required by law in the case of a newly constructed building of like
area, height and occupancy in the same location;
Whenever a building or structure, used or intended to be used
for dwelling purposes, because of inadequate maintenance, dilapidation,
decay, damage, faulty construction or arrangement, inadequate light,
air or sanitation facilities, or otherwise, is determined by the health
officer to be unsanitary, unfit for human habitation or in such a
condition that is likely to cause sickness or disease;
Whenever any building or structure, because of obsolescence,
dilapidated condition, deterioration, damage, inadequate exits, lack
of sufficient fire-resistive construction, faulty electric wiring,
gas connections or heating apparatus or other cause, is determined
by the fire marshal to be a fire hazard;
Whenever any building or structure is in such a condition as
to constitute a public nuisance known to the common law or in equity
jurisprudence; and
Whenever any portion of a building or structure remains on a
site after the demolition or destruction of the building or structure
or whenever any building or structure is abandoned for a period in
excess of 6 months so as to constitute the building or portion thereof
an attractive nuisance or hazard to the public.
(1997 Code, sec. 150.062; Ordinance 557, sec. 7, adopted 2/20/17)
All buildings or structures which are required to be repaired
under the provisions of this code shall be subject to the prevailing
building code.
(Ordinance 462, sec. I, adopted 4/15/08)
(a)
Administration.
The building inspector is hereby authorized
to enforce the provisions of this code and shall have the power to
render interpretations of this code and to adopt and enforce rules
and regulations supplemental to this code as necessary in order to
clarify the application of the provisions of this code. Those interpretations,
rules and regulations shall be in conformity with the intent and purpose
of this code.
(b)
Inspections.
The health officer, the fire marshal and
the building inspector are hereby authorized to make inspections and
take actions as may be required to enforce the provisions of this
code.
(c)
Right of entry.
(1)
Whenever necessary to make an inspection to enforce any of the provisions
of this code, or whenever the building inspector or his or her authorized
representative has reasonable cause to believe that there exists in
any building or upon any premises any condition or code violation
which makes the building or premises unsafe, dangerous or hazardous,
the building inspector or his or her authorized representative may
enter the building or premises at all reasonable times to inspect
the same or to perform any duty imposed upon the building inspector
by this code, provided that, if the building or premises be occupied,
he or she shall first present proper credentials and request entry,
and if the building or premises be unoccupied, he or she shall first
make a reasonable effort to locate the owner or other persons having
charge or control of the building or premises and request entry. If
entry is refused, the building inspector or his or her authorized
representative shall have recourse to every remedy provided by law
to secure entry.
(1997 Code, sec. 150.064)
All buildings or portions thereof which are determined after inspection by the building inspector to be dangerous as defined in this code are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal in accordance with the procedures which are specified in section 3.04.015.
(1997 Code, sec. 150.065)
It shall be unlawful for any person, firm or corporation to
erect, construct, enlarge, alter, repair, move, improve, remove, convert
or demolish, equip, use, occupy or maintain any building or structure
or cause or permit the same to be done in violation of this code.
(1997 Code, sec. 150.066)
All buildings or structures within the scope of this code and
all construction or work for which a permit is required shall be subject
to inspection by the building inspector in accordance with and in
the manner provided by this code and the International Building Code.
(1997 Code, sec. 150.067; Ordinance
adopting Code)
(a)
The governing body of a municipality may provide for the appointment of a board of adjustment. In the regulations adopted under this article, the governing body may authorize the board of adjustment, in [with] appropriate conditions and safeguards, to make special exceptions to the terms of the zoning ordinance that are consistent with the general purpose and intent of the ordinance and in accordance with any applicable rules contained in sections 3.04.009 through 3.04.014.
(b)
The
board of adjustment will consist of the 5 city council members. The
board member term shall be concurrent with his or her city council
term. The board by majority vote shall adopt rules in accordance with
any ordinance adopted under this article. The board will hold an organizational
meeting upon the adoption of this section and thereafter on the third
Tuesday of each May to elect a presiding officer by majority vote.
Meetings of the board are held at the call of the presiding officer
and at other times as determined by the board. The presiding officer
or acting presiding officer may administer oaths and compel the attendance
of witnesses. All meetings of the board shall be open to the public
and comply with the Open Meetings Law, chapter 551, Government Code.
(c)
Each
case before the board of adjustment must be heard by at least 75%
of the members.
(d)
The
board shall keep minutes of its proceedings that indicate the vote
of each member on each question or the fact that a member is absent
or fails to vote. The board shall keep records of its examinations
and other official actions. The minutes and records shall be filed
immediately in the board’s office and are public records.
(1997 Code, sec. 150.068)
(a)
The
board of adjustment may:
(1)
Hear and decide an appeal that alleges error in an order, requirement,
decision, or determination made by an administrative official and
the planning and zoning commission in authorizing issuance of a building
permit in the enforcement of this article or an ordinance adopted
under this article;
(2)
Hear and decide special exceptions to the terms of a zoning ordinance
when the ordinance requires the board to do so;
(3)
Authorize, in specific cases of appeals, a variance from the terms
of a zoning ordinance if the variance is not contrary to the public
interest and, due to special conditions, a literal enforcement of
the ordinance would result in unnecessary hardship, and so that the
spirit of the ordinance is observed and substantial justice is done;
and
(4)
Hear and decide other matters authorized by an ordinance adopted
under this article.
(b)
In exercising its authority under subsection (a)(1), the board may reverse or affirm, in whole or in part, or modify the administrative official’s order, requirements, decision, or determination from which an appeal is taken and make the correct order, requirement, decision, or determination, and for that purpose the board has the same authority as the administrative official.
(c)
The
concurring vote of 75% of the members of the board is necessary to:
(1997 Code, sec. 150.069)
(b)
The
appellant must file with the board and the official from whom the
appeal is taken a notice of appeal specifying the grounds for the
appeal. On receiving the notice, the official from whom the appeal
is taken shall immediately transmit to the board all the papers constituting
the record of the action that is appealed.
(c)
An
appeal stays all proceedings in furtherance of the action that is
appealed unless the official from whom the appeal is taken certifies
in writing to the board facts supporting the official’s opinion
that a stay would cause imminent peril to life or property. In that
case, the proceedings may be stayed only by a restraining order granted
by the board or a court of record on application, after notice to
the official, if due cause is shown.
(d)
The
board shall set a reasonable time for the appeal hearing and shall
give public notice of the hearing and due notice to the parties in
interest. A party may appear at the appeal hearing in person or by
agent or attorney. The board shall decide the appeal within a reasonable
time.
(e)
A
member of the governing body of the municipality who serves on the
board of adjustment may not bring an appeal under this section.
(1997 Code, sec. 150.070; Ordinance 469, sec. I, adopted 6/17/08)
(a)
Any
of the following persons may present to a district court, county court,
or county court of law a verified petition stating that the decision
of the board of adjustment is illegal in whole or in part and specifying
the grounds of the illegality:
(b)
The
petition must be presented within 10 days after the date the decision
is filed in the board’s office.
(c)
On
the presentation of the petition, the court may grant a writ of certiorari
directed to the board to review the board’s decision. The writ
must indicate the time by which the board’s return must be made
and served on the petitioner’s attorney, which must be after
10 days and may be extended by the court. Granting of the writ does
not stay the proceedings on the decision under appeal, but, on application
and after notice to the board, the court may grant a restraining order
if due cause is shown.
(d)
The
board’s return must be verified and must concisely state any
pertinent and material facts that show the grounds of the decision
under appeal. The board is not required to return the original documents
on which the board acted but may return certified or sworn copies
of the documents or parts of the documents as required by the writ.
(e)
If
at the hearing the court determines that testimony is necessary for
the proper disposition of the matter, it may take evidence or appoint
a referee to take evidence as directed. The referee shall report the
evidence to the court with the referee’s findings of fact and
conclusions of law. The referee’s report constitutes a part
of the proceedings on which the court shall make its decision.
(f)
The
court may reverse or affirm, in whole or in part, or modify the decision
that is appealed. Costs may not be assessed against the board unless
the court determines that the board acted with gross negligence, in
bad faith, or with malice in making its decision.
(g)
The
court may not apply a different standard of review to a decision of
a board of adjustment that does not contain members of the governing
body of a municipality.
(1997 Code, sec. 150.071)
(a)
The
governing body of a municipality may adopt ordinances to enforce this
article or any ordinance or regulations adopted under this article.
(b)
If
a building or other structure is re-erected, constructed, reconstructed,
altered, repaired, converted, or maintained or if a building, other
structure or land is used in violation of this article or an ordinance
or regulation adopted under this article, the appropriate municipal
authority, in addition to other remedies, may institute appropriate
action to:
(1)
Prevent the unlawful erection, construction, reconstruction, alteration,
repair, conversion, maintenance, or use;
(2)
Restrain, correct, or abate the violation;
(3)
Prevent the occupancy of the building, structure, or land; or
(4)
Prevent any illegal act, conduct, business or use on or about the
premises.
(1997 Code, sec. 150.072)
(a)
If
a rezoning regulation adopted under this article requires a greater
width or size of a yard, court, or other open space, requires a lower
building height or fewer number of stories for a building, requires
a greater percentage of lot to be left unoccupied, or otherwise imposes
higher standards than those required under another statute or local
ordinance or regulation, the regulation adopted under this article
controls. If the other statute or local ordinance or regulation imposes
higher standards, that statute, ordinance, or regulation controls.
(b)
This
article does not authorize the governing body of a municipality to
require the removal or destruction of property that exists at the
time the governing body implements this article and that is actually
and necessarily used in a public service business.
(c)
This
article does not apply to a building, other structure, or land under
the control, administration, or jurisdiction of a state or federal
agency.
(d)
This
article applies to a privately owned building or other structure and
privately owned land when leased to a state agency.
(1997 Code, sec. 150.073)
(a)
Commencement of proceedings.
Whenever the building inspector
has inspected or caused to be inspected any building and has found
and determined that a building is a dangerous building, he or she
shall prepare and file with the city administrator a written report
of the inspection, giving a general description of the building or
structure in question, a description of the land on which it is located
and the street address, and stating his or her opinion as to whether
the building or structure should be ordered to be vacated, repaired
or demolished as provided in this code.
(b)
Notice of public hearing.
After the report has been
filed, the city administrator or his or her agent shall set a date
for a public hearing of the report by the city council, and the owner
of the building shall be given notice of the hearing as follows:
(1)
The notice shall be written and shall be directed to the person shown by the tax rolls of the city and county to be the owner of the building or structure. The notice shall state the date, time and place of the hearing and cite the owner to appear and show cause why the building or structure should not be declared to be substandard and why the owner should not be ordered to vacate, repair or destroy the building or structure. A copy of the written report directed in subsection (a) above shall accompany the notice;
(2)
Except as provided in subsection (b)(3) of this section, a copy of the written notice shall be delivered either personally or by certified mail to the owner or to an authorized representative thereof if the same be known and shall be so delivered not less than 10 days prior to the hearing; and
(3)
In the event personal service cannot be made and the owner’s
address is unknown, the notice shall be given by publication at least
2 times within 10 consecutive days in a newspaper of general circulation
within the city and by posting a copy of the written notice in a place
of prominence on the building or structure in question at least 10
days before the hearing.
(c)
Public hearing; determination.
At the time and place stated in the notice of public hearing, the city council shall hold a public hearing to determine whether the subject building or structure is a dangerous or substandard building or structure as defined in section 3.04.003, and the owner may make such presentations as he or she desires. After the hearing has been closed, the council shall then make a final determination whether the building or structure is a dangerous building or structure.
(1)
If the council determines that the building or structure must be
repaired, the order shall require that all required permits be secured
therefor and the work physically commenced within that time (not to
exceed 60 days from the date of this order) and completed within the
time as the council shall determine is reasonable under all of the
relevant circumstances.
(2)
If the council determines that the building or structure must be
vacated, the order shall require that the building or structure shall
be vacated within a time certain from the date of the order as determined
by the council to be reasonable.
(3)
If the council determines that the building or structure must be
demolished, the order shall require that the building or structure
be vacated within a time as the council shall determine is reasonable
(not to exceed 60 days from the date of the order), that all required
permits be secured therefor within 60 days from the date of the order,
and that the demolition including slab and all utility service connections
be completed within a time as the council shall determine is reasonable.
(d)
Issuance of order.
The city council shall issue a notice
and order directed to the record owner of the building or structure.
The notice and order shall contain:
(1)
The street address and a description, which is not required to be
a legal description, sufficient for identification of the premises
upon which the building or structure is located;
(2)
A statement that the council has found the building or structure to be dangerous, with a brief and concise description of the conditions found to render the building or structure dangerous under the provisions of section 3.04.003;
(3)
A statement of the action required to be taken as determined by the
council;
(4)
Statements advising that if any required repair or demolition work
(without vacation also being required) is not commenced within the
time specified, the building inspector will order the building vacated
and posted to prevent further occupancy until the work is completed,
and may proceed to cause the work to be done and charge the costs
thereof against the property or its owners; and
(5)
Statements advising that any person having any record title or legal
interest in the building or structure may appeal from the notice and
order or any action of the city council or the board of appeals, provided
the appeal is made in writing as provided in this code and filed with
the building inspector within 30 days from the date of service of
the notice and order, and that failure to appeal will constitute a
waiver of all right to an administrative hearing and determination
of the matter.
(e)
Notice to interested persons.
If the record owner does
not take the ordered action within the allotted time, the city shall
make a diligent effort to discover each mortgagee and lienholder having
an interest in the building or in the property on which the building
is located. The city shall send to each identified mortgagee and lienholder
a notice containing:
(1)
The street address and a description, which is not required to be
a legal description, sufficient for identification of the building
and the property on which it is located;
(2)
A statement that the council has found the building or structure to be dangerous, with a brief and concise description of the conditions found to render the building or structure dangerous under the provisions of section 3.04.003;
(3)
A statement of the action required to be taken as determined by the
council; and
(4)
A statement advising that the city will vacate, remove or demolish
the building or relocate the occupants of the building if the ordered
action is not taken within a reasonable time.
(f)
Method of service.
Service of the notice and order shall
be made upon all persons entitled thereto either personally or by
mailing a copy of the notice and order by certified mail, return receipt
requested, to each person. In the event personal service cannot be
made and the address of the person entitled to notice is unknown,
then a copy of the notice and the order shall be mailed, addressed
to that person, at the address of the building involved in the proceedings.
The failure of any such person to receive the notice shall not affect
the validity of any proceedings taken under this section. Service
by certified mail in the manner herein provided shall be effective
on the date of mailing.
(g)
Proof of service.
Proof of service of the notice and
order shall be certified to at the time of service by written declaration
under penalty of perjury executed by the persons effecting service,
declaring the time, date and manner in which service was made. The
declaration, together with any receipt card returned in acknowledgment
of receipt by certified mail, shall be affixed to the copy of the
notice and the order retained by the building inspector.
(h)
Recording of notice and order.
If compliance is not
had with the order within the time specified therein, and no appeal
has been properly and timely filed, the building inspector shall file
in the office of the county clerk or recorder a certificate describing
the property and certifying that the building is a dangerous building
and that the owner has been so notified. Whenever the corrections
ordered shall thereafter have been completed or the building demolished
so that it no longer exists as a dangerous building on the property
described in the certificate, the building inspector shall file a
new certificate with the county clerk or recorder certifying that
the building has been demolished or all required corrections have
been made so the building is no longer dangerous, whichever is appropriate.
(1997 Code, sec. 150.074; Ordinance
adopting Code)
The following standards shall be followed by the city council
(and by the board of appeals if an appeal is taken) in ordering the
repair, vacation or demolition of any dangerous building or structure;
and any building declared a dangerous building under this code shall
be made to comply with one of the following:
(1)
The
building shall be repaired in accordance with the current building
code or other current code applicable to the type of substandard conditions
requiring repair;
(2)
Repairs
shall be deemed feasible only if less than 50% of the structure must
be repaired or replaced, and if the repairs amount to less than 50%
of the structure’s value;
(3)
If
the building or structure is in a condition so as to make it dangerous
to the health, safety and welfare of the occupants, it shall be ordered
vacated; and
(4)
If
a building requires repairs over greater than 50% of its surface or
amounting to greater than 50% of its value, it shall be demolished.
Further, if a building cannot be repaired so that it will be brought
into compliance with this code, it shall be demolished. Additionally,
if the building as it stands presents an incurable fire hazard in
violation of the terms of this code or any ordinance of the city or
statute of the state, it shall be demolished. For the purposes of
this code, the term “demolished” includes the cleaning
of the property and the removal of all debris and trash.
(1997 Code, sec. 150.075)
(a)
Every notice to vacate, in addition to being served as provided in section 3.04.015, shall be posted at or upon each exit of the building and shall be in substantially the following form:
|
DO NOT ENTER - UNSAFE TO OCCUPY.
|
|
It is a misdemeanor to occupy this building or to remove or
deface this notice.
|
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Building Inspector, City of Runaway Bay.
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(b)
(1)
Whenever that notice is posted, the building inspector shall include a notification thereof in the notice and order issued by the city council under section 3.04.015(d), reciting the emergency and specifying the conditions which necessitate the posting.
(2)
No person shall remain in or enter any building which has been so
posted, except that entry may be made to repair, demolish or remove
the building under permit.
(3)
No person shall remove or deface any such notice after it is posted
until the required repair, demolition or removal has been completed
and a certificate of occupancy has been issued pursuant to the building
code.
(1997 Code, sec. 150.076)
(a)
Form of appeal.
(1)
Any person entitled to service under section 3.04.015(d) and (e) may appeal from any notice and order for any action of the city council under this code by filing at the office of the building inspector a written appeal containing:
(A)
A heading in the words: “Before the Board of Appeals of the
City of Runaway Bay”;
(B)
A caption reading as follows: “Appeal of __________”
giving the names of all appellants participating in the appeal;
(C)
A brief statement setting forth the legal interest of each of the
appellants in the building or land involved in the notice and order;
(D)
A brief statement in ordinary and concise language of the specific
order or action protested, together with any material facts deemed
to support the contentions of the appellants;
(E)
A brief statement in ordinary and concise language of the relief
sought and the reasons why it is claimed the protested order or action
should be reversed, modified or otherwise set aside;
(F)
The signatures of all parties named as appellants and their official
mailing addresses; and
(G)
Verification (by declaration under penalty of perjury) of at least
1 appellant as to the truth of all matters stated in the appeal.
(2)
The appeal shall be filed within 30 days from the date of the service of the order or action of the city council; provided, however, that if the building or structure is in a condition as to make it immediately dangerous to life, limb, property or safety of the public or adjacent property and is ordered vacated and is posted in accordance with section 3.04.017, the appeal shall be filed within 10 days from the date of the service of the notice and order of the city council.
(b)
Processing of appeal.
Upon receipt of any appeal filed
pursuant to this section, the building inspector shall present it
at the next regular or special meeting of the board of appeals.
(c)
Scheduling and noticing appeal for hearing.
(1)
As soon as practicable after receiving the written appeal, the board
of appeals shall fix a date, time and place for the hearing of the
appeal by the board.
(2)
That date shall be not less than 10 days nor more than 60 days from
the date the appeal was filed with the building official.
(3)
Written notice of the time and place of the hearing shall be given
at least 10 days prior to the date of the hearing to each appellant
by the city secretary either by causing a copy of the notice to be
delivered to the appellant personally or by mailing a copy thereof,
postage prepaid, addressed to the appellant at his or her address
shown on the appeal.
(1997 Code, sec. 150.077)
Failure of any person to file an appeal in accordance with provisions of section 3.04.018 shall constitute a waiver of his or her right to an administrative hearing and adjudication of the notice and order or any portion thereof.
(1997 Code, sec. 150.078)
Only those matters or issues specifically raised by the appellant
shall be considered in the hearing of the appeal.
(1997 Code, sec. 150.079)
Except for vacation orders made pursuant to section 3.04.016, enforcement of any notice and order of the city council issued under this code shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.
(1997 Code, sec. 150.080)
(a)
Hearing examiners.
The board may appoint 1 or more hearing
examiners or designate 1 or more of its members to serve as hearing
examiners to conduct the hearings. The examiner hearing the case shall
exercise all powers relating to the conduct of hearings until it is
submitted by him or her to the board for decision.
(b)
Record.
A record of the entire proceedings shall be
made by tape recording or by any other means of permanent recording
determined to be appropriate by the board.
(c)
Reporting.
(1)
The proceedings at the hearing shall also be reported by a phonographic
reporter if requested by any party thereto.
(2)
A transcript of the proceedings shall be made available to all parties
upon request and upon payment of the fee prescribed therefor.
(3)
The fees may be established by the board but shall in no event be
greater than the cost involved.
(d)
Continuances.
The board may grant continuances for good
cause shown; however, when a hearing examiner has been assigned to
the hearing, no continuances may be granted except by him or her for
good cause shown so long as the matter remains before him or her.
(e)
Oaths; certification.
In any proceedings under this
article, the board, any board member or the hearing examiner has the
power to administer oaths and affirmations and to certify to official
acts.
(f)
Reasonable dispatch.
The board and its representatives
shall proceed with reasonable dispatch to conclude any matter before
it. Due regard shall be shown for the convenience and necessity of
any parties or their representatives.
(1997 Code, sec. 150.081)
The notice to the appellant shall be substantially in the following
form, but the notice may include other information:
You are hereby notified that a hearing will be held before the
(Board of Appeals or name of hearing examiner) at __________ on the
_____ day of __________, 19_____ at the hour _____, upon the notice
and order served upon you. You may be present at the hearing. You
may be, but need not be, represented by counsel. You may present any
relevant evidence and will be given full opportunity to cross-examine
all witnesses testifying against you. You may request the issuance
of subpoenas to compel the attendance of witnesses and the production
of books, documents or other things by filing an affidavit therefor
with (Board of Appeals or name of hearing examiner).
(1997 Code, sec. 150.082)
(a)
Filing of affidavit.
The board or examiner may obtain
the issuance and service of a subpoena for the attendance of witnesses
or the production of other evidence at a hearing upon the request
of a member of the board or upon the written demand of any party.
The issuance and service of the subpoena shall be obtained upon the
filing of an affidavit therefor which states the name and address
of the proposed witness, specifies the exact things sought to be produced
and the materiality thereof in detail to the issues involved, and
states that the witness has the desired things in his or her possession
or under his or her control. A subpoena need not be issued when the
affidavit is defective in any particular.
(b)
Cases referred to examiner.
In cases where a hearing
is referred to an examiner, all subpoenas shall be obtained through
the examiner.
(c)
Violations; penalty.
Any person who refuses without
lawful excuse to attend any hearing or to produce material evidence
in his or her possession or under his or her control as required by
any subpoena served upon the person as provided for herein shall be
guilty of a misdemeanor.
(1997 Code, sec. 150.083)
(a)
Rules.
Hearings need not be conducted according to the
technical rules relating to evidence and witnesses.
(b)
Oral evidence.
Oral evidence shall be taken only on
oath or affirmation.
(c)
Hearsay evidence.
Hearsay evidence may be used for the
purpose of supplementing or explaining any direct evidence but shall
not be sufficient in itself to support a finding unless it would be
admissible over objection in civil actions in courts of competent
jurisdiction in this state.
(d)
Admissibility of evidence.
Any relevant evidence shall
be admitted if it is the type of evidence on which responsible persons
are accustomed to rely in the conduct of serious affairs, regardless
of the existence of any common law or statutory rule which might make
improper the admission of the evidence over objection in civil actions
in courts of competent jurisdiction in this state.
(e)
Exclusion of evidence.
Irrelevant and unduly repetitious
evidence shall be excluded.
(f)
Rights of parties.
Each party shall have these rights,
among others:
(1)
To call and examine witnesses on any matter relevant to the issues
of the hearing;
(2)
To introduce documentary and physical evidence;
(3)
To cross-examine opposing witnesses on any matter relevant to the
issues of the hearing;
(4)
To impeach any witness regardless of which party first called him
or her to testify;
(5)
To rebut the evidence against him or her; and
(6)
To represent himself or herself or to be represented by anyone of
his or her choice who is lawfully permitted to do so.
(g)
Official notice.
(1)
What may be noticed.
In reaching a decision, official
notice may be taken, either before or after submission of the case
for decision, of any fact which may be judicially noticed by the courts
of this state or of official records of the board or departments and
ordinances of the city or rules and regulations of the board.
(2)
Parties to be notified.
Parties present at the hearing
shall be informed of the matters to be noticed, and these matters
shall be noted in the record, referred to therein, or appended thereto.
(3)
Opportunity to refute.
Parties present at the hearing
shall be given a reasonable opportunity, on request, to refute the
officially noticed matters by evidence or by written or oral presentation
of authority, the manner of the refutation to be determined by the
board or hearing examiner.
(4)
Inspection of premises.
The board or the hearing examiner
may inspect any building or premises involved in the appeal during
the course of the hearing; provided that notice of the inspection
shall be given to the parties before the inspection is made, the parties
are given an opportunity to be present during the inspection, and
the board or the hearing examiner shall state for the record upon
completion of the inspection the material facts observed and the conclusions
drawn therefrom. Each party then shall have a right to rebut or explain
the matters so stated by the board or hearing examiner.
(1997 Code, sec. 150.084)
(a)
Hearing before board itself.
Where a contested case
is heard before the board itself, no member thereof who did not hear
the evidence or has not read the entire record of the proceedings
shall vote on or take part in the decision.
(b)
Hearing before examiner.
If a contested case is heard
by a hearing examiner alone, he or she shall within a reasonable time
(not to exceed 90 days from the date the hearing is closed) submit
a written report to the board. The report shall contain a brief summary
of the evidence considered and state the examiner’s findings,
conclusions and recommendations. The report also shall contain a proposed
decision in a form so that it may be adopted by the board as its decision
in the case. All examiner’s reports filed with the board shall
be matters of public record. A copy of each report and proposed decision
shall be mailed to each party on the date they are filed with the
board.
(c)
Consideration of report by board; notice.
The board
shall fix the time, date and place to consider the examiner’s
report and proposed decision. Notice thereof shall be mailed to each
interested party not less than 5 days prior to the date fixed, unless
it is otherwise stipulated by all of the parties.
(d)
Exceptions to report.
Not later than 2 days before the
date set to consider the report, any party may file written exceptions
to any part or all of the examiner’s report and may attach thereto
a proposed decision together with written argument in support of the
decision. By leave of the board, any party may present oral argument
to the board.
(e)
Disposition by board.
The board may adopt or reject
the proposed decision in its entirety, or may modify the proposed
decision.
(f)
Proposed decision not adopted.
If the proposed decision is not adopted as provided in subsection (e) of this section, the board may decide the case upon the entire record before it, with or without taking additional evidence, or may refer the case to the same or another hearing examiner to take additional evidence. If the case is reassigned to a hearing examiner, he or she shall prepare a report and proposed decision as provided in subsection (b) of this section after any additional evidence is submitted. Consideration of the proposed decision by the board shall comply with the provisions of this section.
(g)
Form of decision.
The decision shall be in writing and
shall contain findings of fact, a determination of the issues presented,
and the requirements to be complied with. A copy of the decision shall
be delivered to the appellant personally or sent to him or her by
certified mail, postage prepaid, return receipt requested.
(h)
Effective date of decision.
The effective date of the
decision shall be as stated therein.
(1997 Code, sec. 150.085)
(a)
Compliance.
After any order of the city council or the
board of appeals made pursuant to this code shall have become final,
no person to whom any like order is directed shall fail, neglect or
refuse to obey any like order. Any person who fails to comply with
any like order is guilty of a misdemeanor.
(b)
Failure to obey order.
If, after any order of the city council or the board of appeals made pursuant to this code has become final, the person to whom the order is directed shall fail, neglect or refuse to obey the order, the building inspector may cause such to be prosecuted under section 3.01.001 and institute any appropriate action to abate the building as a public nuisance.
(c)
Failure to commence work.
Whenever the required repair
or demolition is not commenced within 30 days after any final notice
and order issued under this code becomes effective:
(1)
The building inspector shall cause the building described in the
notice and order to be vacated by posting at each entrance thereto
a notice reading:
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DANGEROUS BUILDING - DO NOT OCCUPY.
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It is a misdemeanor to occupy this building or to remove or
deface this notice.
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Building Inspector, City of Runaway Bay
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(2)
No person shall occupy any building which has been posted as specified in this subsection (c). No person shall remove or deface any notice so posted until the repair, demolition or removal ordered by the city council has been completed and a certificate of occupancy issued pursuant to the provisions of the building code.
(3)
The city council may, in addition to any other remedy herein provided,
cause the building to be repaired to the extent necessary to correct
conditions which render the building dangerous as set forth in the
notice and order; or, if the notice and order require demolition,
cause the building to be sold and demolished, and the materials, rubble
and debris therefrom removed and the lot cleaned. Any like repair
or demolition work shall be accomplished and the costs thereof paid
and recovered in the manner hereinafter provided in this code. Any
surplus realized from the sale of any like building or from the demolition
thereof over and above the costs of demolition and of cleaning the
lot shall be paid over to the person or persons lawfully entitled
thereto.
(1997 Code, sec. 150.086)
(a)
Upon
receipt of an application from the person required to conform to the
order and an agreement by that person that he or she will comply with
the order if allowed additional time, the city council may, in its
discretion, grant an extension of time, not to exceed an additional
120 days, within which to complete the repair, rehabilitation or demolition,
if the city council determines that such an extension of time will
not create or perpetuate a situation eminently dangerous to life or
property.
(b)
This
authority to extend time is limited to the physical repair, rehabilitation
or demolition of the premises and [does] not in any way affect the
time to appeal the council’s notice and order.
(1997 Code, sec. 150.087)
No person shall obstruct, impede or interfere with any officer,
employee, contractor or authorized representative of this jurisdiction
or with any person who owns or holds any estate or interest in any
building which has been ordered repaired, vacated or demolished under
the provisions of this code, or with any person to whom the building
has been lawfully sold pursuant to the provisions of this code, whenever
the officer, employee, contractor or authorized representative of
this jurisdiction, person having an interest or estate in the building
or structure, or purchaser is engaged in the work of repairing, vacating
and repairing, or demolishing any such building pursuant to the provisions
of this code, or in performing any necessary act preliminary to or
incidental to such work or authorized or directed pursuant to this
code.
(1997 Code, sec. 150.088)
(a)
Procedure.
When any work of repair or demolition is to be done pursuant to section 3.04.027(c)(3) of this code, the city council shall issue its order therefor to the city administrator, and the work shall be accomplished by personnel of this jurisdiction or by private contract under the direction of the city administrator or his or her agent. Plans and specifications therefor may be prepared by the city administrator or he or she may employ the architectural and engineering assistants on a contract basis as he or she may deem reasonably necessary. If any part of the work is to be accomplished by private contract, standard public work contractual procedures shall be followed.
(b)
Costs.
The cost of the work shall be paid from the repair
and demolition fund and may be made a special assessment against the
property involved.
(1997 Code, sec. 150.089)
(a)
Established.
The city council shall establish a special
revolving fund to be designated as the repair and demolition fund.
Payments shall be made out of the fund upon the demand of the city
administrator to defray the costs and expenses which may be incurred
by this jurisdiction in doing or causing to be done the necessary
work of repair or demolition of dangerous buildings.
(b)
Maintenance of fund.
The city council may at any time
transfer to the repair and demolition fund, out of any money in the
general fund of this jurisdiction, sums as it may deem necessary in
order to expedite the performance of the work of repair or demolition,
and any sum so transferred shall be deemed a loan to the repair and
demolition fund and shall be repaid out of the proceeds of the collections
hereinafter provided for. All funds collected under the proceedings
hereinafter provided for shall be paid to the city secretary of this
jurisdiction, who shall credit the same to the repair and demolition
fund.
(1997 Code, sec. 150.090)
(a)
The city administrator or his or her agent shall keep an itemized account of the expense incurred by the city in the repair or demolition of any building done pursuant to the provisions of section 3.04.027(c)(3).
(b)
Upon the completion of the work of repair or demolition, the city administrator or his or her agent shall prepare and file with the city secretary a report specifying the work done, the itemized and total costs of the work, a description of the real property upon which the building or structure is or was located, and the names and addresses of the persons entitled to notice pursuant to section 3.04.015(d) and (e).
(1997 Code, sec. 150.091)
(a)
Upon
receipt of the report, the city secretary shall present it to the
city council for consideration. The council shall fix a time, date
and place for hearing the report and any protests or objections thereto.
The city secretary shall cause notice of the hearing to be posted
upon the property involved, published once in a newspaper of general
circulation in this city, and served by certified mail, postage prepaid,
addressed to the owner of the property as his or her name and address
appear on the last equalized assessment roll of the county, if such
so appears, or as known to the city secretary.
(b)
The
notice shall be given at least 10 days prior to the date set for hearing
and shall specify the day, hour and place when the council will hear
and pass upon the city administrator’s or his or her agent’s
report, together with any objections or protests which may be filed
as hereinafter provided by any person interested in or affected by
the proposed charge.
(1997 Code, sec. 150.092)
(a)
Any
person interested in or affected by the proposed charge may file written
protests or objections with the city secretary at any time prior to
the time set for the hearing on the report of the city administrator
or his or her agent.
(b)
Each
protest or objection must contain a description of the property in
which the signer thereof is interested and the grounds of the protest
or objection.
(c)
The
city secretary shall endorse on every protest or objection the date
it was received by him or her. He or she shall present the protests
or objections to the city council at the time set for the hearing,
and no other protests or objections shall be considered.
(1997 Code, sec. 150.093)
(a)
Upon
the day and hour fixed for the hearing, the city council shall hear
and pass upon the report of the city administrator or his or her agent
together with any objections or protests.
(b)
The
council may make a revision, correction or modification in the report
or the charge as it may deem just; and when the council is satisfied
with the correctness of the charge, the report (as submitted or as
revised, corrected or modified) together with the charge, shall be
confirmed or rejected.
(c)
The
decision of the council on the report and the charge, and on all protests
or objections, shall be final and conclusive.
(1997 Code, sec. 150.094)
(a)
The
city council may thereupon assess the charge against the property
involved. If the city council orders that the charge shall be assessed
against the property, it or its designee shall confirm the assessment,
and cause the same to be recorded on the assessment roll, and thereafter
the assessment shall constitute a special assessment against and a
lien upon the property.
(b)
The
lien arises and attaches to property at the time the notice of the
lien is recorded and indexed in the office of the county clerk in
the county in which the property is located. The notice must contain
the name and the address of the owner if that information can be determined
with a reasonable effort, a legal description of the real property
on which the building is located, the amount of expenses incurred
by the municipality, and the balance due.
(1997 Code, sec. 150.095)
(a)
The
validity of any assessment made under the provisions of this code
shall not be contested in any action or proceeding unless the same
is commenced within 30 days after the assessment is placed upon the
assessment roll as provided herein.
(b)
Any
appeal from a final judgment in the action or proceeding must be perfected
within 30 days after the entry of the judgment.
(1997 Code, sec. 150.096)
(a)
The
city council, in its discretion, may determine that assessments in
amounts of $500.00 or more shall be payable in not to exceed 5 equal
annual installments.
(b)
The
council’s determination to allow payment of the assessments
in installments, the number of installments, whether they shall bear
interest, and the rate thereof shall be by a resolution adopted prior
to the confirmation of the assessment.
(1997 Code, sec. 150.097)
(a)
Priority.
(1)
After the notice has been given and the opportunity to repair, remove
or demolish the building is afforded to each mortgagee and lienholder,
the lien becomes a privileged lien subordinate only to the tax liens
and all previously recorded bona fide mortgage liens attached to the
real property to which the city’s lien attaches.
(2)
The lien shall continue until the assessment and all interest due
and payable thereon are paid.
(b)
Interest.
Any assessment imposed under this section
accrues interest at the rate of 10% a year from the date of the assessment
until paid in full.
(1997 Code, sec. 150.098)
After confirmation of the report, certified copies of the assessment
shall be given to the assessor and the tax collector for this jurisdiction,
who shall add the amount of the assessment to the next regular tax
bill levied against the parcel for municipal purposes.
(1997 Code, sec. 150.099)
(a)
If
the county assessor and the county tax collector assess property and
collect taxes for this jurisdiction, a certified copy of the assessment
shall be filed with the county auditor.
(b)
The
descriptions of the parcels reported shall be those used for the same
parcels on the county assessor’s map books for the current year.
(1997 Code, sec. 150.100)
(a)
The
amount of the assessment shall be collected at the same time and in
the same manner as ordinary property taxes are collected and shall
be subject to the same penalties and procedure and sale in case of
delinquency as provided for ordinary property taxes. All laws applicable
to the levy, collection and enforcement of property taxes shall be
applicable to the assessment.
(b)
If
the city council has determined that the assessment shall be paid
in installments, each installment and any interest thereon shall be
collected in the same manner as ordinary property taxes in successive
years. If any installment is delinquent, the amount thereof is subject
to the same penalties and procedure for sale as provided for ordinary
property taxes.
(1997 Code, sec. 150.101)
All money recovered by payment of the charge or assessment or
from the sale of the property at foreclosure sale shall be paid to
the city secretary of this jurisdiction, who shall credit the same
to the repair and demolition fund.
(1997 Code, sec. 150.102)
