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(A) If the enforcement authority finds it necessary to take emergency action concerning an unsafe premises in order to protect life, safety, or property, it may take that action without issuing an order or giving notice. However, this emergency action must be limited to removing any immediate danger.
(B) The Building Department, acting through the enforcement authority, may recover the costs incurred by the enforcement authority in taking emergency action, by filing a civil action in the Circuit or Superior Court of Lake County against the persons who held a fee interest, life estate interest, or equitable interest of a contract purchaser in the unsafe premises at the time the enforcement authority found it necessary to take emergency action and the Building Department is not liable for the costs of the civil action.
(C) If an unsafe premises poses an immediate danger to the life or safety of persons occupying or using nearby property, the enforcement authority may, without following this chapter's requirements for issuing an order and giving notice, take emergency action to require persons to vacate and not use thenearby property until the danger has passed.
(1) However, any person required to vacate an unsafe premises under this division (C) may challenge in an emergency court proceeding the enforcement authority's determination that the premises poses an immediate danger to the life or safety of any person; and
(2) In the emergency court proceeding, the enforcement authority has the burden of proving that emergency action is necessary to protect from immediate danger the life or safety of persons occupying or using nearby property.
(D) As an alternative, the town may bring a civil action under IC 36-7-9-17 and 36-7-9-22, alleging the existence of unsafe premises presenting an immediate danger to the community sufficient to warrant emergency action.
('80 Code, § 15.16.120) (Am. Ord. 2005-06, passed 3-28-05)
Statutory reference:
Recovery of costs by enforcement authority, see IC 36-7-9-9(b)
(A) Service. Notice of orders, notice of continued hearings without a specified date, notice of a statement that public bids are to be let, and notice of claimsfor payment must be given by:
(1) Sending a copy of the order or statement by registered or certified mail to the residence or place of business or employment of the person to be notified, with return receipt requested;
(2) Delivering a copy of the order or statement personally to the person to be notified; or
(3) Leaving a copy of the order or statement at the dwelling or usual place of abode of the person to be notified.
(B) Publication. If, after a reasonable effort, service is not obtained by a means described in division (A), service may be made by publishing a notice of the order or statement in accordance with IC 5-3-1. However, publication may be made on consecutive days. If service of an order is made by publication, the publication must include the information required by divisions (1), (2), (3), (4), (5), (6), (7), (8) and (10) of § 153.05(C) and must include a statement indicating generally what action is required by the order and that the exact terms of the order may be obtained from the enforcement authority.
(C) Affidavit. When service is made by any of the means described in this section, except by mailing or by publication, the person making service must make an affidavit stating that he has made the service, the manner in which service was made, to whom the order or statement was issued, the nature of the order or statement, and the date of service and the affidavit must be placed on file with the enforcement authority.
(D) Effective date. The date when notice of the order or statement is considered given is as follows:
(1) If the order or statement is delivered personally or left at the dwelling or usual place of abode, notice is considered given on the day when the order or statement is delivered to the person or left at his or her dwelling or usual place of abode.
(2) If the order or statement is mailed, notice is considered given on the date shown on the return receipt, or, if no date is shown, on the datewhen the return receipt is received by the enforcement authority.
(3) Notice by publication is considered given on the date of the second day that publication was made.
(E) Waiver of notice. Notice of orders, notice of continued hearings without a specified date, and notice of a statement that public bids are to be let need not be given to a person holding a property interest in an unsafe premises if:
(1) No instrument reflecting the property interest held by the person is recorded in the recorder's office of the county where the unsafe premises is located;
(2) The order or statement was recorded in accordance with the procedures contained in IC 36-7-9-26; and
(3) The enforcement authority has received neither written information nor actual notice of the identity of the person who holds a property interest in the unsafe premises.
(F) Consent. A person who fails to record an instrument reflecting an interest in his unsafe premises is considered to consent to action taken under this chapter relative to which notice would otherwise be given.
('80 Code, §§ 15.16.040, 15.16.070) (Ord. 1982-28, passed 12-28-82; Am. Ord. 2005-06, passed 3-28-05)
(A) A hearing must be held relative to each order of the enforcement authority, except orders issued under § 153.05(A)(2), (A)(3), (A)(4), or (A)(5) of this chapter. An order issued under § 153.05(A)(2), (A)(3), (A)(4), or (A)(5) ofthis chapter becomes final ten days after notice is given, unless a hearing before the BZA is timely and properly requested before the ten-day period ends by a person holding a fee interest, life estate interest, or equitable interest of a contract purchaser in the unsafe premises.
(B) Hearings before the BZA shall be held on a business day no earlier than ten days after notice of the order is given. The board may, however, take action at the hearing, or before the hearing if a written request is received by the enforcement authority not later than five days after notice is given, to continue the hearing to a business day not later than 14 days afterthe hearing date shown on the order.
(C) Unless the BZA takes action to have the continued hearing held on a definite, specified date, notice of the continued hearing must be given to the person to whom the order was issued at least five days before the continued hearing date, in the manner prescribed by § 153.08 of this chapter.
(D) If an order being considered at the continued hearing was served by publication, it is sufficient to give notice of the continued hearing by publication unless the enforcement authority has received information in writing that enables it to make service under § 153.08 of this chapter by a method other than publication.
(E) The person to whom the order was issued, any person having a substantial property interest in the unsafe premises that are the subject of the order, or any other person with an interest in the proceedings may appear in person or by counsel at the hearing. Each person appearing at the hearing is entitled to present evidence, cross-examine opposing witnesses, and present arguments.
(F) At the conclusion of any hearing at which a continuance is not granted, the hearing authority may make findings and take action to:
(1) Affirm the order;
(2) Rescind the order; or
(3) Modify the order, but unless the person to whom the order was issued, or counsel for that person, is present at the hearing, the hearing authority may modify the order in only a manner that makes its terms less stringent.
(4) In addition to affirming the order, in those cases in which the BZA finds there has been a willful failure to comply with the order, the board may impose a civil penalty in an amount not to exceed $5,000. The effective date of the civil penalty may be postponed for a reasonable period, after which the BZA may order the civil penalty reduced or stricken if the board is satisfied that all work necessary to fully comply with the order has been done.
(G) For purposes of an appeal under IC 36-7-9-8, or enforcement of an order under IC 36-7-9-17, action of the BZA is considered final upon the affirmation of an order even though the board may retain jurisdiction for the ultimate determination of a fine at a future date.
(H) If, at the hearing, a person to whom an order has been issued requests an additional period to accomplish action required by the order, and shows goodcause for this request to be granted, the board may grant the request, however, as a condition for allowing the additional time period, the board may require that the person post a performance bond to be forfeited if the action required by the order is not completed within the additional time periodgranted by the board.
(I) The BZA shall, at a public hearing, after having given notice of the time and place of the hearing by publication in accordance with IC 5-3-1, adopt a schedule setting forth the maximum amount of performance bonds applicable to various types of ordered action. The BZA shall use this schedule to fix the amount of the performance bond required under division (I) above.
(J) A record of the findings made and action taken by the BZA at a hearing shall be available to the public upon request, however, neither the enforcement authority nor the BZA is required to give any person notice of the findings and action.
(K) The amount of any civil penalty imposed under division (G) above, may be collected in the same manner as costs under IC 36-7-9-13.
(L) The amount of any civil penalty collected shall be deposited in the Town of Lowell Unsafe Building Fund.
('80 Code, § 15.16.080) (Ord. 1982-28, passed 12-28-82; Am. Ord. 2005-06, passed 3-28-05)
(A) When action required by an order is performed by the enforcement authority or by a contractor acting under IC 36-7-9-11, each person who held a fee interest, life estate interest, or equitable interest of a contract purchaser in the unsafe premises from the time when the order requiring the work performed was recorded to the time that the work was completed is jointly and severally responsible for the following costs:
(1) The actual cost of the work performed by the enforcement authority or the bid price of work accomplished by the contractor under IC 36-7-9-11.
(2) An amount that represents a reasonable forecast of the average processing expense that will be incurred by the enforcement authority in taking the technical, administrative, and legal actions concerning typical unsafe premises that are necessary under this chapter so that the action required by an order may be performed by a contractor under IC 36-7-9-11. In calculating the amount of the average processing expense, the following costs may be considered:
(a) The cost of obtaining reliable information about the identity and location of persons who own a substantial property interest in the unsafe premises.
(b) The cost of notice of orders, notice of statements of rescission, notice of continued hearing, notice of statements that public bids are to be let or that the enforcement authority intends to accomplish the work, and notice that a hearing may be held on the amounts indicated in the record, in accordance with IC 36-7-9-25.
(c) Salaries for employees.
(d) The cost of supplies, equipment, and office space.
(B) The BZA shall determine the amount of the average processing expense at the public hearing, after notice has been given in the same manner as is required for other official action of the board or commission. In determining the average processing expense, the board or commission may fix the amount at a full dollar amount that is an even multiple of ten.
(C) Unpaid costs are subject to the procedures in IC 36-7-9-13 and 36-7-9-13.5, and may result in a judgment, special tax assessment, and/or lien on real or personal property or persons responsible for such costs.
('80 Code, § 15.16.150) (Ord. 1982-28, passed 12-28-82; Am. Ord. 2005-06, passed 3-28-05)
(A) An action taken under § 153.09(F) by the BZA is subject to review by the Circuit or Superior Court of Lake County, on request of:
(1) Any person who has a substantial property interest in the unsafe premises; or
(2) Any person to whom that order was issued.
(B) A person requesting judicial review under this section must file a verified complaint including the findings of fact and the action taken by the hearing authority. The complaint must be filed within ten days after the date when the action was taken.
(C) An appeal under this section is an action de novo. The court may affirm, modify, or reverse the action taken by the BZA.
('80 Code, § 15.16.090) (Ord. 1982-28, passed 12-28-82; Am. Ord. 2005-06, passed 3-28-05)
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