(A) Property owner responsibility. It is unlawful for any person who is the owner or who has primary responsibility for the control of property or for repair or maintenance of property in the town, to permit property that is defaced with graffiti to remain defaced for a period of ten days after service by first class mail (return receipt requested) of notice of the defacement or five days after personal service is effected. The notice shall contain the following information:
(1) The street address and legal description of the property sufficient for identification of the property.
(2) A statement that the property is a graffiti nuisance property with a concise description of the conditions leading to the finding.
(3) A statement that the graffiti must be removed within ten days after receipt of the notice or within five days if personal service is effected, and that if the graffiti is not abated within that time, the town will declare the property to be a public nuisance.
(4) If personal service or service by mail cannot be effected on the owner or responsible party, the notice shall then be posted on the property by the entrance or in a conspicuous location for ten days before the town will enter the property to effect removal/remediation.
(5) Violations of Ch. 134 of the town code are a Class 3 misdemeanor offense and punishable by a fine of up to $500 plus 80% surcharges and by up to 30 days in jail.
(B) Exceptions of property owner responsibility. The removal requirements of division (A) shall not apply if the property owner or responsible party can demonstrate that:
(1) The property owner or responsible party lacks the financial ability to remove the defacing graffiti; or
(2) The property owner or responsible party has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit the property to remain defaced with graffiti for a period of ten days after service by first class mail of notice of the defacement or five days if personal service was effected.
(C) Right of town to remove.
(1) Use of public funds. Whenever the town becomes aware or is notified and determines that graffiti is located on publicly- or privately-owned property viewable from a public or quasi-public place, the town shall be authorized to use public funds for the removal of the graffiti, or for painting or repairing of the graffiti, but shall not authorize or undertake to provide for the painting or repair of any more extensive area than where the graffiti is located, unless the Town Manager, or the designee of the Town Manager, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner or responsible party agrees to pay for the costs of repainting or remediating the more extensive area. Any work that would be valued at more than $250 in materials and labor shall be performed by a handyman, licensed contractor or by the owner.
(2) Right of entry on private property. Prior to entering upon private property, or property owned by a public entity other than the town for the purpose of graffiti removal, the town shall attempt to secure the consent of the property owner or responsible party and a release of the town from liability for property damage or personal injury. If the property owner or responsible party fails to remove the offending graffiti within the time specified by this chapter, or if the town has requested consent to remove or paint over the offending graffiti and the property owner or responsible party has refused consent for entry on terms acceptable to the town and consistent with the terms of this section, the town shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified in the town code.
(D) Due process/order to show cause hearings.
(1) The Town Attorney may file a petition in the Municipal Court to compel the removal of graffiti by the property owner and/or responsible party. Upon filing the petition, the court shall set a hearing within seven days to determine if the defacement is graffiti, determine if it is a nuisance and order its removal by the property owner and/or responsible party within 72 hours. The property owner and/or responsible party shall be entitled to present evidence and argue that the property does not constitute a public nuisance. Notice shall be served by mailing a copy of the petition and a summons to the property owner at the address where the graffiti is located or at the address to which the most recent tax bill has been mailed, if different. If the property owner of record or the responsible party cannot be found after a diligent search, the notice shall be posted on the property by an entrance or conspicuous place for ten days. The Town Magistrate, upon determining graffiti exists and is a nuisance, shall issue an order for the remediation of the graffiti and, within ten days of the order, the town will enter the property and abate the graffiti.
(2) The judgment entered after the hearing may be appealed to the Superior Court in the same manner as established for the appeal of other Municipal Court judgments.
(Ord. 483-08, passed 6-2-2008) Penalty, see § 134.99