ARTICLE 3.03 UNSAFE BUILDINGS <a id="ref40550860-1" href="#ft40550860-1" class="footnoteref" > [1]

Title.

The provisions included within the following sections of this article shall constitute and be known and may be cited as the unsafe buildings code, hereinafter referred to as "this code."

Scope.

This article shall apply to all unsafe buildings or structures and imminently dangerous buildings or structures, as herein defined, and shall apply equally to new and existing conditions.

Purpose.

It is the purpose of the provisions of this article to provide a just, equitable, and practicable method, to be cumulative with and in addition to, any other remedy provided by the city building code, or any other ordinances, rules and regulations of the city or the laws of the state, 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 vacated secured, repaired or demolished.

Declaration.

All unsafe buildings and structures within the terms of this article are hereby declared to be public nuisances and illegal and shall be vacated, secured, repaired, demolished, or the occupants relocated, as herein provided.

Code remedial.

This code is hereby declared to be remedial and shall be construed to secure the beneficial interests and purposes thereof, which are public safety, stability, sanitation, adequate light and ventilation, and safety to life and property from fire and other hazards incident to the construction, alteration, repair, removal, demolition, use and occupancy of buildings, structures or premises.

(f)

Alterations, repairs or rehabilitation work.

Alterations, repairs or rehabilitation work may be made to any existing building without requiring the building to comply with all the requirements of the currently adopted building codes of the city, provided that the alteration, repair or rehabilitation work conforms to the requirements of the currently adopted building codes of the city for new construction. The building official shall determine, subject to action by the hearings board, the extent, if any, to which the existing building shall be made to conform to the requirements of the currently adopted building codes of the city for new construction.

Alterations, repairs or rehabilitation work shall not cause an existing building to become unsafe as defined by this code.

§ 3.03.002 Enforcement officer; records.

If the occupancy classification of an existing building is changed, the building shall be made to conform to the intent of the currently adopted building codes of the city for the new occupancy classification as established by the building official.

(4)

Repairs and alterations not covered by the preceding subsections of this section, restoring a building to its condition previous to damage or deterioration, or altering it in conformity with the provisions of this code or in such manner as will not extend or increase an existing nonconformity or hazard, may be made with the same kind of materials as those of which the building is constructed, but not more than 25% of the roof covering of a building shall be replaced in any period of 12 months unless the entire roof covering is made to conform with the requirements of the currently adopted building codes of the city for new buildings.

(g)

Historic buildings and districts.

The provisions of this code relating to the construction, alteration, repair, enlargement, restoration, relocation or moving of buildings or structures shall not be mandatory for existing buildings or structures identified and classified by the state or local jurisdiction as historic buildings when such buildings or structures are judged by the building official to be safe and in the public interest of health, safety and welfare regarding any proposed construction, alteration, repair, enlargement, restoration, relocation or moving of buildings within fire districts. The applicant must submit complete architectural and engineering plans and specifications bearing the seal of a registered professional engineer or architect.

(h)

Maintenance.

All buildings or structures, both existing and new, and all parts thereof, shall be maintained in a safe and sanitary condition. All devices or safeguards which are required by the currently adopted building codes of the city in a building where erected, altered or repaired shall be maintained in good working order. The owner, or his designated agent, shall be responsible for the maintenance of buildings and structures.

(Ordinance 446 adopted 9/12/2023)

Enforcement officer.

The provisions of this code shall be enforced by the building official. The building official shall be appointed and removed from time-to-time by the city council.

§ 3.03.003 Powers of building official.

Records.

The building official shall keep, or cause to be kept, a record of his business, and such records shall be open to public inspection.

(Ordinance 446 adopted 9/12/2023)

Right of entry.

The building official or his authorized representative may enter any building, structure or premises at all reasonable times to make an inspection or enforce any of the provisions of this code.

When entering a building, structure or premises that is occupied, the building official shall first identify himself, present proper credentials and request entry. If the building, structure or premises is unoccupied, he shall first make a reasonable effort to locate the owner or other persons having charge of the building and demand entry. If entry is refused, the building official or his authorized representative shall have recourse to every remedy provided by law to secure entry.

No person, owner or occupant of any building or premises shall fail, after proper credentials are displayed, to permit entry into any building or onto any property by the building official or his authorized agent for the purpose of inspections pursuant to this code. Any person violating this section shall be prosecuted within the limits of this code.

Inspections.

The building official and other authorized representatives are hereby authorized to make such inspections or take such actions as may be required to enforce the provisions of this code.

Requirements not covered by code.

Any requirement necessary for the strength or stability of an existing or proposed building or structure, or for the safety or health of the occupants thereof, not specifically covered by this code, shall be determined by the building official.

Liability.

Any officer or employee of the city, or member of the hearings board, charged with the enforcement of this code, in the discharge of his duties, shall not thereby render himself liable personally, and he is hereby relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or permitted in the discharge of his duties. Any suit brought against any officer or employee because of such act performed by him in the enforcement of any provision of this code shall be defended by the city attorney until the final termination of the proceedings.

(Ordinance 446 adopted 9/12/2023)

§ 3.03.004 Authority.

The city may, by ordinance, require the vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is:

Dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare;

Regardless of its structural condition, unoccupied by its owners, lessees, or other invitees and is unsecured from unauthorized entry to the extent that it could be entered or used by vagrants or other uninvited persons as a place of harborage or could be entered or used by children; or

Boarded up, fenced, or otherwise secured in any manner if:

The building constitutes a danger to the public even though secured from entry; or

The means used to secure the building are inadequate to prevent unauthorized entry or use of the building.

(Ordinance 446 adopted 9/12/2023)

§ 3.03.005 Notice of hearing.

Time of notices.

The building official shall issue a written notice of the public hearing to the owner of the building.

The notice shall be served at least ten calendar days prior to the hearing date upon the owner of record. The notice may be served either personally or by certified mail, return receipt requested. The executed return receipt shall be prima facie evidence of service. If the owner cannot be identified, notice shall be posted on or near the front door of the building.

A notice shall be published in a newspaper of general circulation in the city one time on or before the tenth calendar day before the date fixed for the hearing.

Written notice shall also be provided to each mortgagee and lienholder in the same manner provided for in subsection (a) of this section. Notice shall also be filed in the official public records of real property in the county clerk's office.

Content of notices.

The written notice must include:

A statement that the owner, lienholder, or mortgagee, as applicable, will be required to submit at the hearing proof of the scope of any work that may be required to comply with this article and the time it will take to reasonably perform the work;

The name and address of the owner of the affected property, if that information can be determined from a reasonable search of the instruments on file in the county clerk's office, a legal description of the affected property, and a description of the proceedings;

An identification of the building, a description of each violation which allegedly exists at the building, a statement that the city may perform the required work to abate the violation if the owner fails to do so, and an explanation of the owner's right to a hearing.

The published notice shall include:

Only the address, legal description, and property owner(s) name(s).

(Ordinance 446 adopted 9/12/2023)

§ 3.03.006 Hearing in municipal court.

Public hearing.

A public hearing shall be held in the municipal court of the city a reasonable amount of time after the notice of hearing has been sent to the owner, lienholder, or mortgagee of the property the city has deemed substandard or unsafe. No hearing shall be held until at least ten (10) days after notice has been given.

Standards.

The following standards shall be utilized by the municipal court in determining whether a building shall be declared unsafe and ordered vacated, secured, repaired, removed, demolished, and/or the occupants relocated:

The building, structure, or any part thereof is liable to partially or fully collapse.

The structure or any part thereof was constructed or maintained in violation of any provision of the city's building code, or any other applicable ordinance or law of the city, county, state or federal government.

Any wall or other vertical structural members list, lean, or buckle to such an extent that a plumbline passing through the center of gravity falls outside of the middle third of its base.

(4)

The foundation or the vertical or horizontal supporting members are 25 percent or more damaged or deteriorated.

(5)

The nonsupporting coverings of walls, ceilings, roofs, or floors are 50 percent or more damaged or deteriorated.

(6)

The structure has improperly distributed loads upon the structural members, or they have insufficient strength to be reasonably safe for the purpose used.

(7)

The structure or any part thereof has been damaged by fire, water, earthquake, wind, vandalism, or other cause to such an extent that it has become dangerous to the public health, safety, and welfare.

(8)

The structure or any part thereof has inadequate means of egress as required by the city's building code.

(9)

The structure does not have adequate light, ventilation, or sanitation facilities as required by the city's building code and plumbing code.

Court order.

If the municipal court determines that a building is unsafe, it shall proceed to determine whether the building shall be vacated, repaired, secured, demolished and/or the occupants relocated under the standards contained herein and in accordance with the following:

If the structure is in such a condition as to make it hazardous to the health, safety or general welfare of its occupants or the public, it shall be ordered vacated and secured, and the order may also require the occupants to be relocated.

If the structure can be feasibly repaired or the condition remedied so that it will no longer exist in violation of the provisions of this article, it shall be ordered remedied or repaired. Repairs shall be deemed feasible only if less than 50 percent of the structure or the building must be repaired or replaced.

In any case where more than 50 percent or more of its value or structure is damaged or deteriorated, a building shall be demolished or removed, and in all cases where a structure cannot be repaired so that it will no longer exist in violation of the provisions of this article, it shall be demolished or removed.

(D)

If the municipal court determines the building to be unsafe, it shall issue an order based upon this determination, requiring the owner of the building to vacate, repair, secure, demolish and/or relocate the occupants from the building. The order shall specify a reasonable time for the ordered actions to be taken by the owner and an additional reasonable time as provided in this section for the ordered actions to be taken by the mortgagees or lienholders in the event the owner fails to comply with the order within the time provided by the order. Each order requiring the repair, removal, or demolition of a building shall require that a permit for such repair or demolition be obtained by the owner prior to commencing work required by the order.

The building official shall, no later than the next working day after the municipal court issues an order:

Mail a copy of the order by certified mail, return receipt requested, to the owner and any record lienholder and mortgagee of the building;

Post an unsafe building placard in a conspicuous location at each entrance to the unsafe building. Such placard shall remain posted until the required action is completed; and

The building official shall, no later than ten calendar days after the date that the municipal court issues an order:

(i)

File a copy of the order in the office of the city secretary; and

(ii)

Publish in a newspaper of general circulation in the city a notice containing the street address or legal description of the property, the date of the hearing, a brief statement indicating the results of the order, and instructions stating where a complete copy of the order may be obtained.

Compliance time schedule.

The municipal court in each unsafe building order shall, unless otherwise provided herein, require the owner, mortgagee or lienholder to:

Secure the building from unauthorized entry within 30 calendar days; or

Repair, remove, or demolish the building, unless the owner, mortgagee, or lienholder establishes at the hearing that the work required cannot reasonably be performed within 30 calendar days.

If the municipal court allows the owner, mortgagee, or lienholder more than 30 calendar days to repair, remove or demolish the building, the municipal court shall establish specific time schedules for the commencement and performance of the work and shall require the owner, mortgagee, or lienholder to secure the property in a reasonable manner from unauthorized entry while work is being performed, as determined by the municipal court.

The municipal court may not allow the owner, mortgagee, or lienholder more than 90 calendar days to repair, remove, or demolish the building or fully perform all work required to comply with the order unless the owner, mortgagee, or lienholder:

Submits a detailed plan and time schedule for the work at the hearing; and

Establishes at the hearing the work cannot reasonably be completed within 90 calendar days because of the scope and complexity of the work.

§ 3.03.008 Performance of work; acceptable materials.

Order allowing more than 90 calendar days.

If the municipal court allows the owner, mortgagee, or lienholder more than 90 calendar days to complete any part of the work required to repair, remove, or demolish the building, the municipal court shall require the owner, mortgagee or lienholder to regularly submit progress reports to the building official to demonstrate that the owner, mortgagee, or lienholder has complied with time schedules established for commencement and performance of the work. The order may require the owner, lienholder or mortgagee to appear before the municipal court, or its designee, to demonstrate compliance with such time schedules.

(Ordinance 446 adopted 9/12/2023)

§ 3.03.007 Appeals.

The owner, lienholder, or mortgagee shall have the right to appeal the decision of the municipal court to district court. A notice of appeal must be filed with the district court clerk within 30 calendar days from the date the municipal court's order is mailed to the owner, lienholder and mortgagee, as provided herein.

(Ordinance 446 adopted 9/12/2023)

Work shall be performed in an expeditious and workmanlike manner in accordance with the requirements of this article and all other applicable ordinances of the city and accepted engineering practice standards.

The securing of windows, doors or any other opening allowing access to an unsecured unoccupied building shall be done with such materials and in such a manner as to effectively bar entrance to the structure. Upon receipt of an order to secure, each and every accessible means of entry must be secured.

Materials approved for use include plywood, lumber, steel, replacement glass, nails, screws and bolts and other materials approved by the building official.

§ 3.03.009 Duty to secure unoccupied building.

The use of cardboard, tar paper, window and door screens or any other material that will not effectively prevent entrance shall not be sufficient to meet the requirements of this article, or an order issued by the municipal court.

(Ordinance 446 adopted 9/12/2023)

An owner or person in control of an unoccupied building shall ensure that the building is in such condition that an unauthorized person, including a child, cannot enter into it through missing or unlocked doors or windows, or through other openings into the building.

(Ordinance 446 adopted 9/12/2023)

§ 3.03.010 Offenses.

It shall be unlawful to knowingly permit, allow or suffer any unoccupied building under any person's ownership or control to be or remain in such a condition as to constitute an unsecured, unoccupied building as defined in this article. The issuance of an order by the building standards municipal court under this article establishing times for the securing, vacating, repairing or demolishing of any building shall not be construed to condone the violation of this section prior to the deadlines therefor established in such order. No testimony or other evidence provided by any person in a hearing conducted under this article may be used in any criminal prosecution against that person under this section.

(Ordinance 446 adopted 9/12/2023)

§ 3.03.011 City's authority to secure dangerous structure.

The city may secure a building that the building official determines:

Violates the minimum standards; and

Is unoccupied or is occupied only by persons who do not have a right of possession to the building.

Before the 11th day after the building is secured, the building official shall give notice to the owner by:

Personally serving the owner with written notice;

Depositing the notice in the United States mail addressed to the owner at the owner's post office address;

Publishing the notice at least twice within a ten-day period in a newspaper of general circulation in the city in which the building is located if personal service cannot be obtained and the owner's post office address is unknown; or

(4)

Posting the notice on or near the front door of the building if personal service cannot be obtained and the owner's post office address is unknown.

(5)

The notice must contain;

An identification, which is not required to be a legal description, of the building and the property on which it is located;

A description of the violation of the municipal standards that is present at the building;

A statement that the city will secure or has secured, as the case may be, the building; and

(D)

An explanation of the owner's entitlement to request a hearing about any matter relating to the city's securing of the building.

The municipal court shall conduct a hearing at which the owner may testify or present witnesses or written information about any matter relating to the city's securing of the building if, within 30 calendar days after the date the city secures the building, the owner files with the municipal court a written request for the hearing. The municipal court shall conduct the hearing within 20 calendar days after the date the request is filed.

The city has the same authority to assess expenses under this section as it has to assess expenses under section 3.03.012. A lien is created under this section in the same manner that a lien is created under section 3.03.012 and is subject to the same conditions as a lien created under that section.

§ 3.03.012 Abatement by city; lien for costs.

The authority granted by this section is in addition to that granted elsewhere by this article.

(Ordinance 446 adopted 9/12/2023)

If the unsafe building is not vacated, secured, repaired, removed, demolished, or the occupants are not relocated as specified in the unsafe building order within the allotted time, the building official may cause the ordered action to be performed at the city's expense. If the ordered action is demolition of the unsafe building, demolition shall not occur until a magistrate has issued a seizure and demolition warrant supported by a probable cause affidavit stating that:

The city has complied with the procedures set forth in this article;

The municipal court's order authorizes demolition; and

The time for appeal of the municipal court's order to district court has expired and no appeal has been taken or, in the alternative, that the municipal court's order was appealed to district court but the appeal has been finally resolved in a manner that does not prevent the city from proceeding with demolition.

The owner of an unsafe building that is vacated, secured, repaired, removed, demolished, or the occupants are relocated by the city shall be charged for the expense of the city's work. Charges shall include, but are not limited to, the expenses of inspection or testing by third parties, photography, publication, title search, attorney's fees, labor and equipment costs for preparation of the premises, work to secure, repair, demolish, clean up and remove debris, and landfill fees.

The building official shall certify the expenses incurred in enforcing the provisions of this article. The certified expenses shall be forwarded to the accounting division. The city shall assess the expenses on, and have a lien against, the property on which the structure was located, unless it is a homestead as protected by the state Constitution.

Notice of the lien shall be provided to the property owner and filed in the official records of the county clerk's office on a form approved by the city attorney. The lien notice must contain the name and address of the owner if that information can be reasonably determined, a legal description of the real property on which the structure was located, the amount of expenses incurred by the city, the interest rate to be charged, and the balance due.

The city's lien is a privileged lien subordinate only to tax liens. Such lien shall bear interest at the rate of 10 percent per annum until paid.

(f)

The lien shall be extinguished and a release of lien filed in the official records of the county if the property owner or another person having an interest in the legal title to the property reimburses the city for the total amount due.

(Ordinance 446 adopted 9/12/2023)

§ 3.03.013 Other remedies.

The remedies provided for herein shall be available to the city in addition to any penal or other remedy provided by law or equity which the city, state or any other person may have to remedy the unsafe building condition.