CHAPTER 80:  PUBLIC NUISANCES
Section
   80.01   Authority
   80.02   Administration and enforcement
   80.03   Definitions
   80.04   Responsibility for violations
   80.05   Nuisances declared
   80.06   Duty to investigate possible nuisances
   80.07   Notice of existence of nuisance; summary abatement
   80.08   Appeal of determination of nuisance; abatement
   80.09   Abatement of nuisances by town
   80.10   Cost of nuisance abatement to be charged to owner of property
   80.11   Lien created upon failure to pay nuisance abatement costs
   80.12   Notice to chronic violators
   80.13   Administrative fee
   80.14   Procedures in chapter not exclusive
 
   80.99   Penalties
§ 80.01  AUTHORITY.
   This chapter is enacted pursuant to the town's authority to define, prohibit, regulate, and abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens or the peace and dignity of the town and to define and abate nuisances pursuant to G.S. §§ 160A-174 and 160A-175; to summarily remove, abate, or remedy everything in the town limits or within one mile thereof that is dangerous or prejudicial to the public health or public safety pursuant to G.S. § 160A-193; and to provide annual notice to chronic violators pursuant to G.S. § 160A-200.1.
(Ord. passed 12-16-2019)
§ 80.02  ADMINISTRATION AND ENFORCEMENT.
   This chapter shall be administered and enforced by such person(s) as may be designated by the Town Manager, referred to herein as the “code enforcement officer.”
(Ord. passed 12-16-2019)
§ 80.03  DEFINITIONS.
   Unless otherwise defined herein, words used in this chapter that are defined in Chapter 91 of this Code (“Storage and Collection of Solid Waste and Recyclables”) shall have the meanings provided in Chapter 91.
(Ord. passed 12-16-2019)
§ 80.04  RESPONSIBILITY FOR VIOLATIONS.
   Any person whose intentional acts or omissions results in a violation of this chapter is responsible for the violation as provided herein. Any person who is a “responsible person” with respect to real property where a nuisance is or was maintained is responsible to abate the nuisance and/or may be subject to penalties as specified herein. For purposes of this chapter, a “responsible person” includes any person who has ownership, legal control of, or actual possession of the property in question, including an owner, lessee, sublessee and/or occupant, as well as the invitees of any such person.
(Ord. passed 12-16-2019)
§ 80.05  NUISANCES DECLARED.
   Each of the following enumerated and described conditions, if created, allowed, and/or maintained with respect to any building, structure, dwelling, dwelling unit or parcel of land, is hereby found, deemed and declared to constitute a detriment, danger and hazard to the health, safety, morals and general welfare to the inhabitants of the town and/or is unsightly, unattractive and contributes measurably to visual blight within the town, and is found, deemed and declared to be a public nuisance wherever the same may exist and the creation, maintenance or failure to abate any such nuisance is hereby declared unlawful.
   (A)   Between May 1 and September 30 of each year, growth of grass or weeds over eight inches in height in an area normally maintained as a lawn. For purposes of this section, a lawn is an area of open, grass-covered land that normally is mowed regularly to keep it short, as opposed to an area that is maintained in a natural state or cultivated with shrubs, herbs, flowers, vegetables, or other garden plants.
   (B)   Grass, weeds, vines, shrubs, or other vegetation over eight inches in height encroaching upon or over a sidewalk, greenway, or the curb or edge of the pavement of an abutting street.
   (C)   Any condition that blocks or obstructs the natural flow of branches, streams, creeks, surface waters, ditches or drains, except as permitted per lawfully-approved development plans; provided, that if the obstruction is caused by natural forces and does not pose an imminent danger or peril to the public, the property owner and any other responsible person shall have a reasonable opportunity to clear the obstruction before it shall be deemed a nuisance.
   (D)   Any stormwater retention or impoundment device that is not operating properly.
   (E)   Nuisance vehicles as defined by Chapter 81 of this code; provided, the process for abating a nuisance vehicle shall be as provided in Chapter 81.
   (F)   Any of the following that either: (i) Is visible from one or more adjacent streets or sidewalks, from public property, or from one or more other private properties; or (ii) poses a danger to the health or welfare of the public or adjacent residents or businesses; provided, that an accumulation of solid waste shall not constitute a public nuisance if it is (i) properly stored in appropriate receptacles or maintained for collection in accordance with the requirements of Chapter 91 of this code ("Storage and Collection of Solid Wastes And Recyclables"), and (ii) in the case of solid waste placed for special collection, arrangements are made within one business day of the accumulation being created for the town's Public Works Department to collect the solid waste.
      (1)   Any accumulation of solid waste, including any manner of refuse, scrap materials, or junk.
      (2)   A collection place, storage or accumulation of lumber, bricks, blocks, nails, building hardware, roofing materials, scaffolding, masonry materials, electrical supplies or materials, plumbing supplies or materials, heating and air conditioning supplies or material or any other type of old or unusable building supplies (especially those with nails, staples or sharp objects and edges), unless such materials are collected for purposes of an improvement or repair being made to that same property or pursuant to a legitimate plan to make an improvement or repair to that same property within six months of when the accumulation is first created.
      (3)   A collection place, storage or accumulation of any amount of garbage, garbage bags, food and kitchen waste, litter, animal waste, trash, or other rotten or putrescible matter of any kind; provided, that nothing in this subdivision shall be construed to prevent the generally accepted use of a properly maintained compost pile or storage of animal manure being used as fertilizer for lawns, gardens or other agricultural or horticultural purposes.
      (4)   Deteriorated or dilapidated sheds, outbuildings, garages or other uninhabited structures that have collapsed, partially collapsed or are likely to collapse and pose a danger of fire, present a risk of injury to neighborhood children who are likely to be attracted to the place, or otherwise pose a danger to adjacent property owners or the public.
      (5)   The non-temporary use of carports, open porches, decks, patios and other non-enclosed outdoor areas that are visible from the street as a storage or collection place for boxes, appliances, furniture (not including outdoor furniture used for their ordinary purposes), tools, equipment, junk, garbage, old, worn out, broken or discarded machinery and equipment, cans, containers, household goods or other similar conditions that increase the likelihood of a fire, may conceal dangerous conditions, or create an unattractive condition or visually blighted property.
      (6)   A collection place, storage or accumulation of any amount of old, worn out, broken or discarded machinery, vehicle parts, tires, tire rims and tubes, metal products, old clothes, rags, furniture, stoves, refrigerators, appliances, cans and containers, household goods, mattresses, boxes, paper, plumbing or electrical fixtures, glass products, brush, limbs, fencing materials, wood products (not including firewood) or similar materials.
      (7)   A collection of combustible items such as mattresses, boxes, paper, automobile tires and tubes, garbage, trash, brush, old clothes, rags, or any other combustible materials of a like nature.
   (G)   Any improper or inadequate drainage on private property that causes flooding or interferes with the use of or endangers in any way the streets, sidewalks, parks or other municipal property of any kind.
   (H)   Failure to clean or clear a public street of mud and debris related to a construction, timbering, or other similar land use project within 12 hours after notification by the town for major and minor thoroughfares or within 24 hours after such notification for collector and local streets; however, if it is found by the town that the situation poses a clear and present danger or hazard to traffic or the general public, such cleaning or clearing may be required to take place as soon after notification as practicable.
   (I)   Failure to remove a dead or partially fallen tree that poses an obvious and imminent threat to a dwelling located on another property or to the traveling public (e.g., motorists, bicyclists or pedestrians).
   (J)   Failure to remove any tree or tree limb or any concentration of branches which have fallen due to an act of nature or having been cut, except in an area maintained as a natural area.  For purposes of this provision, a "natural area" means any area that is not maintained as a lawn or paved, graveled, hardscaped, or otherwise improved.
   (K)   Failure to remediate an accumulation of gravel or similar materials deposited from private property onto a town street or sidewalk after the owner or occupant of the property has been warned of such accumulation by the town within the prior 24 months.
   (L)   Any condition that is defined as a nuisance in Chapter 96 of this code ("Streets, Sidewalks, and Other Public Ways; Encroachments"), including but not limited those related to obstruction of or depositing injurious materials upon streets or sidewalks; drainage; and obstruction of sight distances.
   (M)   The establishment, continuance, maintenance, or use of any building or place for social gatherings or business which, by reason of the conduct of those persons in attendance, results in any one or more of the following conditions or occurrences: public drinking or drunkenness; public urination or defecation; the unlawful sale, furnishing, or consumption of alcoholic beverages or illegal drugs; the unlawful deposit of trash or litter on public or private property; the destruction of public or private property; the generation of pedestrian or vehicular traffic that obstructs the free flow of residential traffic or interferes with the ability to provide emergency services; excessive, unnecessary or unusually loud noise that disturbs the repose of the neighborhood; public disturbances, brawls, fights or quarrels; repeated activities that violate other local ordinances; acts which create and constitute a breach of the peace as defined in G.S. § 19-1.1; or any other activity resulting in conditions that unreasonably annoy, injure or endanger the safety, health, comfort or repose of neighboring residents or businesses. Any owner, tenant, or other responsible person of any premises who sponsors, conducts, hosts, invites, suffers, permits, or continues to allow a nuisance gathering as described in in this division, any person attending such a nuisance gathering, and any owner, tenant or other responsible person who fails to take reasonable steps to prevent a subsequent nuisance gathering is in violation of this section.
   (N)   Any condition that is specifically defined as a nuisance pursuant to any other provision of this Code; provided, that this subdivision does not apply to conditions declared to be nuisances under Chapter 50 ("Water and Sewer") and any such conditions shall be governed by the provisions of that Chapter.
   (O)   Any other condition specifically declared to be a danger or prejudicial to the public health, safety, and general welfare of inhabitants of the town and declared to be a public nuisance by a code enforcement officer and affirmed to be a public nuisance by the town council. The code enforcement officer may declare a nuisance and provide notice to abate the violation(s) prior to the nuisance declaration by the town council. Such notice shall state the condition existing, the location of the violation and that the town council will be requested, after public hearing at which the person notified may appear and be heard, to declare that the conditions existing constitute a danger to the public health, safety, morals, or general welfare of the town inhabitants and a public nuisance. After such declaration by the town council, in the form of an ordinance, the condition shall be abated as provided in this chapter.
(Ord. passed 12-16-2019)
§ 80.06  DUTY TO INVESTIGATE POSSIBLE NUISANCES.
   If an authorized enforcement officer shall have reasonable cause to believe there is a violation of this chapter, he or she shall have the right to enter on any premises within the town ordinance making jurisdiction at any reasonable hour in order to determine if there is a violation.
(Ord. passed 12-16-2019)
§ 80.07  NOTICE OF EXISTENCE OF NUISANCE; SUMMARY ABATEMENT.
   (A)   Notice of existence and opportunity to abate nuisance.
      (1)   Upon a determination that a public nuisance as described in this chapter exists, the code enforcement officer shall notify in writing the property owner and, to the extent actually known to the code enforcement officer, any other responsible person of the condition constituting the public nuisance and shall order the prompt abatement thereof.
      (2)   The notice of violation shall notify the recipient of the following:
         (a)   That condition(s) exist on the property which constitute a public nuisance;
         (b)   The condition(s) existing and the Code provision(s) that are violated by such condition(s);
         (c)   The location of such condition(s);
         (d)   That the property owner and any other responsible person are ordered to abate the public nuisance, and that, unless the condition is abated within the prescribed period, the conditions constituting a nuisance will be abated by the town and the cost of abatement shall constitute a lien against the premises, may be collected in the nature of a civil action, and may result in civil penalties;
         (e)   A statement that civil penalties and an administrative fee of one hundred dollars $100 will be assessed for a second and any subsequent notice of violation issued under this chapter within 12 months of the first such notice of violation.
   (B)   Manner of notice.
      (1)   The notice of a violation of this chapter shall be served on the property owner by:
         (a)   Personal delivery of such notice;
         (b)   By mail sent by both regular first class mail and by certified mail, return receipt requested to the address then on file in the county property tax assessor's office; or
         (c)   By electronic mail, if the property owner confirms receipt of the notice by electronic mail.
      (2)   Any such notice may be served by any authorized representative of the town manager, his or her designee, the code enforcement officer, or by any police officer of the town. If service cannot otherwise be made on a property owner, the property shall be posted with the notice. Notice shall be served in the same manner upon any other responsible person of whom the code enforcement officer is actually aware.
   (C)    Opportunity for owner or other responsible person to abate the nuisance. Except as provided at division (D) of this section, the town ordinarily shall allow 15 calendar days from the receipt of such written notice for abatement of the nuisance. However, for good cause expressed in the written notice to abate, the code enforcement officer may provide a shorter or longer time for the abatement.
   (D)   Summary abatement. Notwithstanding the foregoing provisions or any other provision of this Chapter, if, in the opinion of the Town Manager, his or her designee, or the code enforcement officer, an unlawful condition is such that it poses imminent danger or peril to public, the town may, with or without prior notice, proceed to abate the same, and the cost thereof shall be charged against the property owner.
   (E)   Any defect in the method of giving the notice required by this section, or in the form thereof, or the giving of such notice to an improper person, shall not prevent the town, in any case where the work of abating an unlawful condition upon any property is borne by the town, from collecting the cost thereof from the owner, nor shall it affect the validity of the lien on the property for such cost, nor shall it subject the town to any liability.
(Ord. passed 12-16-2019)
§ 80.08  APPEAL OF DETERMINATION OF NUISANCE; ABATEMENT.
   (A)   Within the period for abatement specified on the notice of violation, the property owner or other responsible person may request in writing a review of the nuisance determination by the Town Manager. Unless the unlawful condition is dangerous so as to require summary abatement per the preceding section, such written request shall stay the abatement of the nuisance by the town until the completion of the review by the Town Manager or his or her designee. In the event no appeal is taken, the town may proceed to abate the nuisance.
   (B)   Within ten days of receiving a request for review, the Town Manager shall hold a hearing to review the nuisance determination. At this hearing, all interested persons shall be heard and may offer evidence and be represented by an attorney. The hearing shall be conducted in an informal manner to determine whether there is a sufficient legal and factual basis to affirm the nuisance determination, and the rules of evidence shall not apply; provided, that the decision of the Town Manager shall be based upon substantial and reliable evidence. If, following the hearing, the Town Manager upholds the findings, and declares the condition existing on the property to be a danger and hazard to the health, safety, and general welfare of the inhabitants of the town and a public nuisance, the Town Manager shall issue a written order directing the property owner or other responsible person to abate the nuisance within 15 days and/or, if the nuisance is not abated by the property owner, directing the town to abate the condition constituting a nuisance.
   (C)   Rather than reviewing an appeal, the Town Manager, in his or her sole discretion, may for good cause refer the review of any notice of violation to the Town Council.
   (D)   If a nuisance is found to exist, the responsibility for abatement shall rest with the property owner and any other responsible person, notwithstanding that the nuisance is found to exist, wholly or in part, within a town easement which crosses private property.
   (E)   Nothing in this section shall prevent the property owner or other responsible party from abating the nuisance in question in accordance with the notice of violation prior to any requested review pursuant to this section.
(Ord. passed 12-16-2019)
§ 80.09 ABATEMENT OF NUISANCES BY TOWN.
   (A)   If any person, after having been ordered to abate a public nuisance described in this chapter, fails, neglects or refuses to abate or remove the condition constituting the nuisance by the date specified in the notice of violation, the town may cause the condition to be removed or otherwise remedied by having employees of the town or a private contractor hired by the town to go upon such premises and remove or otherwise abate such nuisance under the supervision of an officer or employee designated by the Town Manager or his designee. The cost of abatement shall be paid by the property owner.
   (B)   Any person who has been ordered to abate a public nuisance may, within the time allowed by this article, request in writing that the town remove such condition causing the nuisance. If the town abates the nuisance, the costs of abatement shall be paid by the person making the request.
(Ord. passed 12-16-2019)
§ 80.10  COST OF NUISANCE ABATEMENT TO BE CHARGED TO PROPERTY OWNER.
   Upon the completion of abatement by the town, the Town Manager, his or her designee, or the code enforcement officer shall deliver to the finance director a statement showing the actual cost of the abatement of the unlawful condition plus any additional charges, in accordance with the schedule of fees and charges established by the town Council. The finance director shall thereupon mail to the owner of the subject property a bill covering the cost, if with reasonable diligence the name and address of such owner can be ascertained, with instruction that such charges are due and payable within 30 days from the receipt thereof. In the event the costs for abatement are not paid within 30 days after receipt of the statement of charges, such charges may be recovered by the town in a civil action in the nature of debt.
(Ord. passed 12-16-2019)
§ 80.11  LIEN CREATED UPON FAILURE TO PAY NUISANCE ABATEMENT COSTS.
   In the event charges for the removal or abatement of the public nuisance are not paid within 30 days after receipt of the statement of charges, such charges shall become a lien against the real property upon which such costs are incurred. The amount of such lien shall be added to the tax roll and collected as unpaid ad valorem taxes.
(Ord. passed 12-16-2019)
§ 80.12  NOTICE TO CHRONIC VIOLATORS.
   (A)   For purposes of this section, a chronic violator is a person who owns property with respect to which, in the previous calendar year, the town gave notice of violation for a public nuisance violation at least three times under any provision of this chapter.
   (B)   At the beginning of each calendar year, the code enforcement officer shall notify each person who was a chronic violator that, if the violator's property is found to be in violation of this chapter in this calendar year, the town shall, without further notice, take action to remedy the violation, and the expense of the action shall become a lien upon the property and shall be collected as unpaid taxes. The notice shall be sent by registered or certified mail. When service is attempted by registered or certified mail, a copy of the notice may also be sent by regular mail. Service shall be deemed sufficient if the registered or certified mail is unclaimed or refused, but the regular mail is not returned by the post office within ten days after the mailing. If service by regular mail is used, a copy of the notice shall be posted in a conspicuous place on the premises affected.
(Ord. passed 12-16-2019)
§ 80.13  ADMINISTRATIVE FEE.
   (A)   Fee assessed for second and subsequent violations. Any person who is issued a second notice of violation under this chapter within 12 months of the first notice of violation issued hereunder shall be subject to an administrative fee of $100 in addition to any other charge. For each additional nuisance notice of violation occurring prior to the expiration of a 12-month period following issuance of the first nuisance notice of violation, the person shall be subject to an administrative fee of $100. The person may also be assessed any costs incurred in obtaining service of the public nuisance notice including legal publication.
   (B)   Appeal of administrative fee. An appeal of an administrative fee demand for payment must be filed in writing with the Town Manager within ten days after service of the written demand for payment. The written appeal shall provide the reasons the petitioner contends that the administrative fee was wrongly applied and any supporting documentation.
      (1)   Within ten days of receiving a request for review, the Town Manager shall hold a hearing to review the civil penalty. At this hearing, all interested persons shall be heard and may offer evidence and be represented by an attorney. The hearing shall be conducted in an informal manner and the rules of evidence shall not apply; provided, that the decision of the Town Manager shall be based upon substantial and reliable evidence. The Town Manager may reduce the penalty if the Town Manager determines that:
         (a)   The appellant has acted in good faith; and
         (b)   The failure of the appellant to avoid a second or subsequent violation is the result of circumstances beyond the appellant's control; or
         (c)   There are other circumstances which make the assessment of the administrative fee unfair in that particular case.
      (2)   Rather than reviewing an appeal, the Town Manager, in his or her sole discretion, may for good cause refer the review of an administrative fee to the Town Council.
(Ord. passed 12-16-2019)
§ 80.14  PROCEDURES IN CHAPTER NOT EXCLUSIVE.
   The procedures set forth in this article shall be in addition to any other remedies that may now or hereafter exist under law for the abatement of public nuisances. 
   (A)   Nothing in this article shall be deemed to prevent the town from proceeding in a criminal action against any person violating the provisions of this article as provided in G.S. § 14-4.
   (B)   Nothing in this chapter shall be deemed to limit the town's authority to summarily remove, abate, or remedy any condition within the town limits or within 1 mile thereof that is dangerous or prejudicial to the public health or public safety as provided in G.S. § 160A-193.
   (C)   In addition to or in lieu of proceeding under any other provision(s) of this chapter, the town may file a legal action to abate a nuisance as provided at G.S. § 160A-175.
(Ord. passed 12-16-2019)
§ 80.99  PENALTIES.
   (A)   Penalty for failure to comply with abatement order. Any person failing to comply with an order of abatement issued pursuant to this article, where no appeal is taken within the prescribed time, or after ratification of the order on appeal, shall be subject to a civil penalty in the amount of $50 per day for so many days as the person remains in violation until such date as the nuisance is abated, up to a maximum of ten days.
   (B)   Penalty for second and subsequent violations. Upon second and subsequent violations of the same provision of this chapter by a person within 12 months of that person receiving a notice of violation under this chapter, a civil penalty of $100 shall be assessed upon the issuance of the notice of violation. If the nuisance is not abated within the prescribed time period, the person shall be guilty of a misdemeanor and subject to a fine of up to $500. In addition, the offender shall be subject to a civil penalty in the amount of $100 per day for so many days as the person remains in violation until such date as the nuisance is abated, up to a maximum of ten days. For purposes of this division, the “same provision” of this chapter means any one of §§ 80.05(A) through (O) of this chapter; and a violation of any of the subparts of § 80.05(F) shall be considered a violation of the same provision (that is, § 80.05(F)) of this chapter.
   (C)   Appeal of civil penalty. An appeal of a civil penalty must be filed in writing with the Town Manager within ten days after service of a written demand for payment. The written appeal shall provide the reasons the petitioner contends that the civil penalty was wrongly applied and any supporting documentation.
      (1)   Within ten days of receiving a request for review, the Town Manager shall hold a hearing to review the civil penalty. At this hearing, all interested persons shall be heard and may offer evidence and be represented by an attorney. The hearing shall be conducted in an informal manner and the rules of evidence shall not apply; provided, that the decision of the Town Manager shall be based upon substantial and reliable evidence. The Town Manager may reduce the penalty if the Town Manager determines that:
         (a)   The appellant has acted in good faith; and
         (b)   The failure of the appellant to correct a violation is the result of circumstances beyond the appellant's control; or
         (c)   There are other circumstances which make the amount of the presumptive civil penalty unfair in that particular case.
      (2)   Rather than reviewing an appeal, the Town Manager, in his or her sole discretion, may for good cause refer the review of a civil penalty to the Town Council.
(Ord. passed 12-16-2019)