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Legislation #: 080296 Introduction Date: 3/20/2008
Type: Ordinance Effective Date: 4/13/2008
Sponsor: COUNCILMEMBER MARCASON AND COUNCILMEMBER GOTTSTEIN
Title: Amending Chapter 48, Nuisances, Code of Ordinances, by enacting a new Section 48-50. Chronic nuisance, which prohibits chronic nuisance properties.

Legislation History
DateMinutesDescription
3/20/2008 Filed by the Clerk's office
3/20/2008 Referred to Public Safety and Neighborhoods Committee
3/26/2008 Do Pass as a Committee Substitute
3/27/2008 Assigned Third Read Calendar as Substituted
4/3/2008 Passed as Substituted

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COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 080296

 

Amending Chapter 48, Nuisances, Code of Ordinances, by enacting a new Section 48-50. Chronic nuisance, which prohibits chronic nuisance properties.

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section 1. That Chapter 48, Nuisances, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by enacting a new Section 48-50, Chronic nuisance, to read as follows:

 

Sec. 48-50. Chronic nuisance.

 

(a)                Chronic nuisance unlawful. It shall be unlawful for any owner or occupant, as defined in section 48-1, of any property, premise, lot, tract or parcel of land to cause, permit, encourage or allow a chronic nuisance to exist upon said property.

 

(b) Chronic nuisance defined. A chronic nuisance property is any premise, lot, tract or parcel of land, or any structure or portion of structure thereon, that has any of the following repeated activities, behaviors, or conduct occurring on that property or any structure or portion of structure thereon, or that is associated with the property, when it is used in conjunction for the commission of any of the following activities:

 

(1) illegal use, possession or distribution of drug or drug paraphernalia as defined in section 50-201 or otherwise by the laws of the city or the state of Missouri; or

 

(2) illegal possession or use of marijuana as defined in section 50-10 or otherwise by the laws of the city or the state of Missouri; or

 

(3) illegal possession, use or sale of firearms or weapons as defined in article VIII of chapter 50 or otherwise by the laws of the city or the state of Missouri; or

 

(4) prostitution or patronizing prostitution, as defined in section 50-72 or otherwise by the laws of the city or the state of Missouri; or

 

(5) drinking alcoholic beverages in public places as defined in section 50-152 or otherwise by the laws of the city or the state of Missouri; or

 

(6) disorderly conduct defined in section 50-164 or otherwise by the laws of the city or the state of Missouri; or

 

(7) attempting bodily injury as defined in section 50-168 or otherwise by the laws of the city or the state of Missouri; or

 

(8) any other activity that constitutes a felony or misdemeanor under federal or state law.

 

(c) Administrative procedures.

 

(1) Whenever the Kansas City, Missouri Police Department has responded five or more times on separate days during a 30 day period to the same property for any of the activities described in 48-50(b) and filed an incident report for said responses and the director of neighborhood and community services becomes aware of such reports, the director of neighborhood and community services shall provide written notice to the property owner that: identifies the property, states that the property may be designated as a chronic nuisance property which may necessitate the closing of the property, describes the nuisance activities that have occurred on the property and orders that abatement measures must be taken by the owner within 30 days of the notice.

 

(2) The written notice shall be delivered by hand to the owner and the occupant(s) of the property by delivery to him or her personally or by leaving notice at his or her usual place of abode with a member of the family over the age of 15 years, or by mail, addressed to the owner or agent and the occupant(s). If a person to whom such notice is addressed cannot be found after diligent effort to do so, service may be made upon such person by posting the notice on or about the property described in the notice, or by causing such notice to be published in a newspaper of general circulation. If the owner or occupant is a corporation, the notice shall be served upon an officer, a person in charge of any local business office, or its registered agent or any other agent authorized by appointment or required by law to receive service of process.

 

(3) Upon the expiration of the 30 day abatement period in section (c)(1) above, the director of neighborhood and community services shall determine whether the nuisance activities have been abated. If the nuisance activities have been abated, or the property owner is making reasonable efforts toward abatement as determined by the director of neighborhood and community services, the property owner may continue to work with the director of neighborhood and community services to abate the nuisance. If the nuisance activities have not been abated, the director of neighborhood and community services shall set a hearing to determine if the property is a chronic nuisance property. Notice shall be served upon the property owner and shall include the time, date, and location of the hearing and shall be served upon the property owner in the manner prescribed in section (c)(2) above. All mortgagees of record and other interested parties known to the city, including tenants of the property known to the city, shall receive a copy of the notification.

 

(d) Chronic nuisance hearing.

 

(1) The hearing shall be heard by a hearing officer as defined in section 48-77 and shall be conducted in the manner prescribed in sections 48-79 and 48-80 and as further detailed in section (d)(2) below in order to determine whether a property is a chronic nuisance property. Each interested party shall be given an opportunity to present evidence under oath and to be represented by counsel.

 

(2) Following the hearing, the hearing officer shall make a written determination as to whether the property is a chronic nuisance property and will consider the following in making said determination:

 

a. Knowledge of the property owner of the chronic nuisance or otherwise illegal activities occurring on the property

 

b. Nature and extent of nuisance activity associated with the property.

 

c. Nature and extent of conditions that violate city codes.

 

d. Actions taken by the property owner to prevent nuisance activity and to abate existing nuisance activity found to exist on the property.

 

e. The physical characteristics of the property, including the proximity of property to residential property, parks, churches, schools and playgrounds.

 

f. Whether there is harassing or intimidating conduct, as prohibited by law, by the owner, occupant(s) or person(s) frequenting the property toward persons living in the neighborhood or passing by the place. A person shall be considered to be frequenting the property if he or she lives or works on the property, visits the property, or loiters about the property, as defined in section 50-161 of the code.

 

g. Whether there is street or sidewalk congestion caused by the owner, occupant or persons frequenting the place, as defined in subsection (d)(2)(f) above.

 

h.. The impact of chronic nuisance determination on innocent parties, such as, but not limited to, tenants of the property.

 

i. Any other evidence deemed relevant by the hearing officer.

 

(3) The hearing officer shall issue a final written determination within ten (10) days of the conclusion of the hearing. If the hearing officer determines that the property owner is working to remedy the matter, the hearing officer may continue the hearing for up to 60 days before making a final determination. If the hearing officer determines that the conditions on the property constitute a chronic nuisance, he or she may order the abatement of the nuisance or order any action necessary to abate the nuisance, including the closing of any structure or any part thereof on the property for a period not to exceed one year.

 

(4) In determining whether the property or any portion thereof should be ordered closed as a result of the existence of a chronic nuisance, the hearing officer shall consider, in addition to all other relevant factors, the impact of the closure on innocent parties; however, the lack of knowledge of, acquiescence or participation in, or responsibility for a public nuisance on the part of the owners, lessors, lessees, mortgagees and all those persons in possession or having charge of as agent or otherwise, or having any interest in the property used in conducting or maintaining the public nuisance, shall not be a defense by such persons or entities.

 

(5) The order issued by the hearing officer shall include the address of the property, a description of the nuisance(s), the length of time allowed for the property owner to abate the nuisance or, if the structure or any part thereof is ordered closed, the length of time of the closure and, if only a part of the structure is ordered closed, the identification of the area to be closed. Furthermore, the order will require that if the property is ordered closed, the property owner shall submit a plan of action intended to prevent the property from being a chronic nuisance property after the period of closure expires, as further described in section (e)(1) below. The order shall also state that any costs incurred by the city in order to uphold and this order, including closure of the property, will be specially assessed and shall be deemed both a personal debt against the owner as well as a lien on the property until paid.

 

(6) The order shall be mailed to the property owner, occupants known to the city, and mortgagees of record of the property. The order shall be posted on the property within 48 hours of the decision.

 

(e) Enforcement of the Order.

 

(1) Within 30 days of the closure of the property, the property owner shall submit to the director of neighborhood and community services for approval a plan of action as described in section (d)(5) above intended to prevent the property from being a chronic nuisance property after the period of closure expires. The plan shall include any lawful method of abatement and remediation as deemed applicable by the director of neighborhood and community services. If the property owner, lessor or lessee submits proof satisfactory to the hearing officer that the nuisance(s) has been abated for a period of 30 days, the hearing officer may vacate the provisions of the order directing closure or may modify said order.

 

(2) If a property or a portion thereof is ordered closed, it shall be unlawful to occupy the property ordered closed or allow the property ordered closed to be occupied during the period of closure.

 

(3) Any closure pursuant to this section shall not constitute an act of possession, ownership or control of the closed structure by the city.

 

(4) If the owner does not obey the order of the hearing officer, the city shall take all appropriate steps to undertake and complete the work necessary to abate the chronic nuisance and/or close and secure the structure and shall assess the costs to the owner as a special tax bill. The special tax bill from the date of its issuance shall be deemed a personal debt against the owner and shall also be a lien on the property until paid. The tax bill shall be payable within sixty (60) days after the date of issuance without interest and thereafter with interest from the date of its issue until paid at either the minimum rate of nine (9) percent per annum or the rate payable on ten-year United States treasury notes as established at eth last auction before the particular assessment is certified to the director of finance plus two (2) percent, whichever is greater. The city may initiate actions to collect against the owner if payment in full is not received within sixty (60) days. The lien may be enforced by any method appropriate for the enforcement of special assessments generally.

 

(5) The owner of the property at the time an order is issued shall be responsible for complying with the order, regardless if he or she conveys his or her interest in the property to any other person or persons after such order was issued and served.

 

(6) No order to close shall relieve the owner or occupant of any property from complying with the building, fire, property maintenance and zoning codes or any other ordinance that regulates the condition or use of the premises.

 

(7) None of the provisions in this section are applicable to cases which are determined to be emergencies, as defined in section 48-68.

 

(f) Retaliation prohibited.

 

(1) It shall be unlawful for a landlord to terminate the lease agreement or periodic tenancy of any tenant or otherwise retaliate against any tenant because the tenant complained to the city about nuisance activities on the landlords premises. It shall be presumed that any attempt to increase charges, reduce services, or to otherwise harass or retaliate against the tenant during the 12-month period following receipt of the complaint by the city constitutes unlawful retaliation under this section. Such presumption shall be rebutted by the preponderance of evidence that the actions taken by the landlord were based upon good cause, such as but not limited to failure to pay rent, committing a nuisance activity as defined by this chapter, violating the terms and conditions of the lease agreement or periodic tenancy, or the necessity of closing the building in an effort to abate the chronic nuisance(s). A landlords failure to renew a lease agreement upon expiration of such lease agreement shall not be deemed a violation of this section.

 

(2) It shall be unlawful for a tenant or any other person to submit or cause to be submitted a false report(s) as defined in section 50-42 to the Kansas City, Missouri Police Department alleging incidents of any of the activities identified in section 48-50(b).

 

(g) Violations and penalties.

 

(1) It shall be unlawful for any owner or occupant, as defined in section 48-1, of any property, premise, lot, tract or parcel of land to cause, permit, encourage or allow a chronic nuisance to exist upon said property

 

(2) It shall be unlawful to use, occupy or permit the use or occupancy of any structure ordered closed through the procedures of this section.

 

(3) It shall be unlawful to interfere with any entry into or upon the place by any police officer, agent or employee of the city for the purpose of closure of a structure or otherwise abating the nuisance as ordered pursuant to this section.

 

(4) It shall be unlawful to remove an order posted on the property.

(5) Any violation of this ordinance shall be punishable as provided in section 48-72.

 

_____________________________________________

 

Approved as to form and legality:

 

 

___________________________________

Nicole Rowlette

Assistant City Attorney