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(A) The County Nuisance Abatement Hearing Board is hereby established and is hereby authorized to conduct hearings. The Board shall be composed of five members appointed by the County Judge/Executive subject to the approval of the Fiscal Court.
(B) Board members shall serve as Hearing Officers pursuant to this chapter. Any action of a Hearing Officer shall be deemed to be the action of the Board.
(C) The jurisdiction of Hearing Officers to conduct hearings, issue orders and impose penalties shall be only that specifically granted by ordinance or statute.
(D) The initial appointment shall be for one-, two-, three-, four- and five-year terms. After expiration of each term, all re-appointments shall be for three-year terms. The maximum consecutive terms of any appointee shall not exceed six years; however, the person appointed for the initial one-year term shall be eligible to serve seven consecutive years and the person appointed for the initial two-year term shall be eligible to serve eight consecutive years. The County Judge/Executive may also appoint alternate members who may serve in the absence of a regular Hearing Board member. The terms and appointments of the alternate members shall be the same as the regular members.
(E) Each member of the Hearing Board shall be compensated for his or her services as authorized by the Fiscal Court.
(Ord. passed 8-23-2011)
(A) Generally. Enforcement of this chapter shall be administered by the County Nuisance Hearing Board and Hearing Officer, and any citizen aggrieved, including, but not limited to, any citizen owning property adjacent to the property on which the alleged nuisance exists, may apply to the Board through the office of the County Judge/Executive to obtain an investigation by the Hearing Officer to determine whether a nuisance exists on the offending premises. The County Judge/Executive shall, within ten days of receiving a complaint, forward a copy of the complaint to the Hearing Officer and the magistrate in whose district the property complained of is located.
(B) Investigating the complaint. Upon investigating the complaint, the Hearing Officer shall determine whether a nuisance exists on the offending premises. If the Hearing Officer determines that a nuisance exists on the offending premises, the Hearing Officer shall proceed to provide notice of the violation to the owner of the offending premises. The determination of the Hearing Officer that a nuisance exists shall be final unless the owner of the premises requests a hearing before the Hearing Board within 30 days of notice being received by the owner of the premises.
(C) Provision of notice.
(1) Notice shall be provided to the owner of premises on which the nuisance exists by personal service or by sending the notice via certified mail to the last known of address of such owner, and by posting the notice conspicuously upon the offending premises.
(2) The notice shall include the following:
(a) The notice shall described the nuisance and demand that the nuisance shall be abated within 30 days of the notice, unless such nuisance constitutes an immediate danger to the health and well-being of the community, or adjoining property owners, in which case the notice shall demand abatement within 24 hours of the notice;
(b) A statement to the effect that a determination has been made that a violation has been committed and that if the nuisance is not abated within the prescribed time, the local government or any individual or entity acting on its behalf may proceed to abate the nuisance;
(c) A statement to the effect that the Hearing Officer’s determination shall be final if no appeal to the Hearing Board is filed by the owner within 30 days of notice being provided by the Hearing Officer;
(d) A statement to the effect that the abatement costs constitute a lien against the property in favor of the County Fiscal Court; and
(e) A statement to the effect that after the County Fiscal Court has abated the nuisance, the County Judge/Executive will send an invoice for the abatement costs, and if such invoice is not paid within 30 days following the mailing of the invoice, that notice of a lien for the cost of the abatement will be placed against the property.
(D) Commencement of notice period. The notice periods provided for in this division (D) shall be determined to commence as follows:
(1) Where notice is personally served, on the day following service;
(2) Where notice is by mail, on the third day following mailing; and
(3) Where notice is by posting, on the third day following posting.
(Ord. passed 8-23-2011)
(A) Creation of lien. The County Fiscal Court shall have a lien against the property upon which the nuisance exists for its abatement costs incurred in abating, correcting or remedying any violation of this chapter. The affidavit of the County Judge/Executive, or Solid Waste Enforcement Officer, shall constitute prima facie evidence of the amount of the lien and the regularity of the proceeding pursuant to this chapter, and shall be recorded in the office of the County Clerk. The lien shall be notice to all persons from the time of its recording and shall bear interest thereafter until paid at the legal rate of 12% per annum. The lien created shall take precedence over all other subsequent liens, except ad valorem taxes due the commonwealth, the county and other taxing district or municipalities, and may be enforced by the filing of an action to enforce such lien in the County Circuit Court.
(B) Perfection of lien. The lien hereby created shall be evidenced by a notice of lien filed in the County Clerk’s office, which notice shall include the affidavit of the County Judge/Executive describing the subject property and the amount of the Fiscal Court’s cost of abatement as provided herein. The Fiscal Court shall invoice the property owner or occupant of such premises at least once following abatement and no notice of lien claims shall be filed against the property until 30 days have elapsed since such post-abatement invoice is sent. A copy of the notice of lien claimed shall be mailed to the owner of the premises at his or her last known address, and posted on the property. The failure to mail the owner a copy of such notice or failure to post same, or failure of the owner to receive such notice shall not affect the right to foreclose the lien for such charges as provided herein above.
(C) Personal liability for lien. In addition to the lien remedy prescribed herein or any other remedy authorized by law, the owner of a property upon which a lien has been attached pursuant to this section shall be personally liable for the amount of the lien, including all interest, civil penalties and other charges. The Fiscal Court may bring a civil action against the owner and shall have the same remedies as provided for the recovery of a debt.
(D) Property to be sold. Any action to enforce the lien herein shall be filed in the County Circuit Court by the Fiscal Court and shall name as defendants all owners or other persons holding a recorded interest in the subject property. Property subject to a lien for unpaid abatement charges herewith may be sold for nonpayment of the same, and the proceeds of such sale shall be applied to pay the abatement charges after deducting costs as is the case in the foreclosure of statutory liens.
(E) Release of lien. The County Attorney or his or her assistant is hereby authorized and directed to execute a release of the lien provided for herein upon payment in full of the abatement charges evidenced by the lien. The release shall be filed in the office of the County Clerk.
(Ord. passed 8-23-2011)
(A) Time for appeal to Hearing Board. Within 30 days of notice of a violation being given to the property owner by the Hearing Officer, any owner may appeal the Hearing Officer’s decision to be heard by the Hearing Board by filing a notice of appeal at the County Judge/Executive’s office. Upon filing of the appeal, no further abatement action shall be taken prior to the decision of the Hearing Board.
(B) Notice of hearing, contents. The Board shall notify the alleged offending party of the hearing before the Hearing Board by notice not less than ten days in advance of the date set for the hearing.
(1) The notice shall be served on the parties by personal service or by certified mail, return receipt requested, to the last known address.
(2) The notice required by this section shall be in plain language and shall include:
(a) A statement of the date, time, place and nature of the hearing;
(b) A statement of the issues involved in sufficient detail to give the parties reasonable opportunity to prepare evidence and argument;
(c) A reference to the specific provision of this chapter which relates to the issues involved;
(d) A statement advising the person of his or her right to legal counsel; and
(e) A statement advising that any party who fails to attend or participate as required at any stage of the administrative hearing process may be held in default.
(C) Hearings.
(1) An officer or officers of the Nuisance Abatement Hearing Board shall preside over the conduct of an administrative hearing and shall regulate the course of the proceedings in a manner which will promote the orderly and prompt conduct of the hearing.
(2) To the extent necessary for the full disclosure of all relevant facts and issues, a Hearing Officer shall afford all parties the opportunity to respond, present documentary or tangible evidence, conduct cross-examination, and submit rebuttal evidence.
(3) Any party to an administrative hearing may participate in person and/or be represented by counsel.
(4) If a party fails to attend or participate in a hearing, a Hearing Officer may adjourn the proceedings and issue a default order.
(5) In an administrative hearing, findings of fact shall be based exclusively on the evidence on the record. The strict rules of evidence governing civil proceedings shall not apply.
(6) All testimony shall be made under oath or affirmation. Any part of the evidence may be received in written format if doing so will expedite the hearing without substantial prejudice to the interests of any party, or if such practice is authorized by statute. Any party shall have the right to inspect the documentary or tangible evidence relating to an administrative hearing either in person or by counsel. Copies of documentary evidence may be obtained upon the payment of a fee, except documents protected from disclosure by state or federal law.
(7) Objections to evidentiary offers may be made by any party and shall be noted in the record.
(8) A Hearing Officer may take official notice of any matter of which a court of the commonwealth may take such notice.
(9) A Hearing Officer shall cause all testimony in a hearing to be accurate completely recorded. Any person, upon request, may receive a copy of the recording. A Hearing Officer may prepare a transcript of a hearing upon request, but the party making the request shall be responsible for the cost thereof.
(D) Orders and appeals.
(1) Within a reasonable time after the conclusion of the hearing, a Hearing Officer shall issue a written order which shall include findings of fact, conclusions of law, and disposition of the hearing, including penalties, if any. A copy of the order shall be sent to each party.
(2) An appeal from the Hearing Board’s determination may be made to the District Court of the county within 30 days of the Board’s determination. The appeal shall be initiated by the filing of a complaint and a copy of the Board’s order in the same manner as any civil action under the Rules of Civil Procedure. The action shall be tried de novo and the burden shall be upon the local government to establish that a violation occurred. If the court finds that a violation occurred, the owner shall be ordered to pay to the local government all fines, fees, and penalties occurring as of the date of the judgment. If the court finds a violation did not occur, the local government shall be ordered to dismiss the notice and the plaintiff shall be authorized to recover his or her costs.
(3) A judgment of the District Court may be appealed to the Circuit Court in accordance with the Rules of Civil Procedure.
(Ord. passed 8-23-2011)
(A) Any owner of premises who fails to abate the nuisance within 30 days of receipt of notice from the Hearing Officer shall be subject to civil penalties of not less than $100 nor more than $500. Each date that a violation continues after 30 days has passed since the receipt of notice shall constitute a separate offenses. This civil penalty shall apply in addition to the abatement procedures provided for in this chapter, or in lieu thereof, where no abatement procedures are performed by the County Fiscal Court.
(B) The procedures and remedies contained herein shall not be deemed to be exclusive, and any party aggrieved by a public or private nuisance shall retain all rights as granted elsewhere in common law and statutory law for the redress of nuisances.
(Ord. passed 8-23-2011)