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ARTICLE C. PUBLIC NUISANCE ABATEMENT LAW
SECTION:
1-4C-1: Legislative Declarations
1-4C-2: Short Title
1-4C-3: Definitions
1-4C-4: Public Nuisance; Right Of Action To Abate
1-4C-5: Civil Abatement
1-4C-6: Permanent Injunction
1-4C-7: Preliminary Injunctions; Temporary Restraining Orders
1-4C-8: Temporary Restraining Order; Defendant's Remedies
1-4C-9: Temporary Receiver
1-4C-10: Civil Penalties
1-4C-11: Assistance Of Ogden Police Department
1-4C-12: Prohibited Acts
1-4C-13: Article Not Exclusive Remedy
The council of Ogden City finds that public nuisances exist in the city in the operation of certain commercial establishments and the use, alteration, maintenance or operation of residential, commercial and industrial properties, in flagrant violation of the ordinances of the city or the laws of the state of Utah. All of these interfere with the interest of the public in property values, public health, safety, and welfare, and the quality of life and community environment. The council further finds that the continued occurrence of such activities and violations is detrimental to the health, safety and welfare of the people of the city and of the businesses thereof. It is the purpose of the council to create one standardized procedure for securing legal and equitable remedies in the civil courts relating to the subject matter encompassed by this law, without prejudice to the use of other remedies or procedures available under existing and subsequently enacted statutes or ordinances, and to strengthen existing laws on the subject.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
The following terms, as used in this article, shall mean as follows:
ABATE, ABATEMENT: To repair, replace, rehabilitate, remove, destroy, demolish, correct or otherwise remedy a condition that constitutes a public nuisance.
ADVERSE IMPACT: Includes, but is not limited to, the following: any search warrants served on the premises or property where controlled substances and/or weapons were seized; investigative purchases of controlled substances on or near the property by law enforcement agencies or their agents; arrests for violations of controlled substance law and/or possession of weapons; loitering for the purposes of engaging in illegal activity; an increase in the volume of traffic associated with property; complaints made to law enforcement officials of illegal activity associated with the property; finding of illegal weapons, as provided in part 5, chapter 10, title 76, Utah code, or controlled substances, as defined in the Utah controlled substances act of the Utah code, on or near property by law enforcement officials and their agents.
CLOSING, CLOSING ORDER: A court order prohibiting use or occupancy of premises or property, except as reasonably necessary for the performance of maintenance or abatement work in accordance with city ordinances.
CONVICTION: The entry of a plea of guilty or no contest to, or a verdict of guilty, upon an indictment or information in a criminal action.
HABITUAL NUISANCE: Any premises or property located within the city:
A. Where there have occurred two (2) or more convictions of a public nuisance related offense on the part of the lessees, owners, operators or occupants within the period of one year prior to the commencement of an action under this article;
B. Where there have occurred three (3) or more violations of a public nuisance related offense on the part of the lessees, owners, operators or occupants within the period of one year prior to the commencement of an action under this article; or
C. For which there has been presented a preponderance of evidence of repeated criminal activity that has an adverse impact on such premises or property, or the surrounding neighborhood, within the period of one year prior to the commencement of an action under this article.
NOTICE TO ABATE: A written notice to abate or otherwise correct a public nuisance as defined herein, which notice is provided either by personal service, or by first class mail or certified mail, postage prepaid, to the address of the premises or property, or to such other address as provided in the records of the Weber County assessor.
PREMISES: A building or structure, or the premises on which a building or structure is located, or undeveloped land.
PROPERTY: A lot, parcel or plot of ground, whether occupied or not.
UTAH CODE: Utah Code Annotated, 1953, as amended.
VIOLATION: Conduct or evidence of conduct prohibited under this article. A violation does not require criminal prosecution and conviction but only a preponderance of evidence that the prohibited conduct is occurring or has occurred. Evidence of prohibited conduct may include, but is not limited to, police reports, investigative reports, execution of search warrants, results of police surveillance, arrest and/or conviction of local and state and federal laws, activities associated with trafficking of controlled substances, finding of weapons and/or controlled substances on or near the property, increased volume of traffic associated with the premises or property.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
A. Every premises or property within the city is a public nuisance and subject to abatement under the provisions of this article where:
1. There occurs, or has occurred, the unlawful sale, manufacture, service, storage, distribution, dispensing, or acquisition of any controlled substance, precursor, or analog specified in the Utah controlled substances act, title 58, chapter 37, Utah code;
2. Gambling is, or has been, permitted to be played, conducted, or dealt upon as prohibited in title 76, chapter 10, part 11 of the Utah code;
3. Criminal activity is, or has been, committed in concert with two (2) or more persons as provided in section 76-3-203.1, Utah code;
4. Parties occur frequently that create the conditions of a nuisance as defined in subsection 78-38-1(1);
5. Prostitution or promotion of prostitution is, or has been allowed to be, regularly carried on by one or more persons as provided in title 76, chapter 10, part 13, Utah code;
6. Used for the purpose of, or to aid in, the commission of a violation of title 76, chapter 10, part 5 (weapons) of the Utah code;
7. There is, or has occurred, a criminal nuisance as defined in sections 76-10-801, 802, 803, 804, or 805 of the Utah code;
8. Used for the purposes of pornographic performances and/or promotion of pornographic material as defined and prohibited in title 76, chapter 10, part 12 of the Utah code;
9. Used for purpose of a business, activity or enterprise that is not licensed as required by federal, state or the provisions of title 5 of this code, exclusive of any license required only for revenue purposes;
10. There exists, or has been allowed to exist, alcoholic beverages or products possessed, kept, used, offered for sale, sold, given, furnished, supplied, received, purchased, stored, warehoused, manufactured, adulterated, shipped, carried, transported, or distributed in violation of title 5, chapter 3 of this code or in violation of alcohol beverage control act, title 32A of the Utah code, which alcoholic products, packages, equipment, or other property kept or used in maintaining the public nuisance on such premises or property shall also be considered to be a public nuisance;
11. There is, or has occurred, a violation of the provisions of sections 76-6-408 (receiving stolen property), 41-1a-1313 (possession without identification number), 41-1a-1316 (receiving or transferring stolen vehicle), 41-1a-1317 (selling or buying without identification numbers), 41-1a-1318 (fraudulent alteration of identification number) of the Utah code;
12. Used for the purpose of animal fighting as prohibited under title 76, chapter 9, part 3 of the Utah code, or section 13-3-1 of this code; or
13. There is occurring:
a. A violation of the property maintenance regulations described in title 12, chapter 4 of this code,
b. A nuisance as described in section 12-8-1 of this code,
c. A violation of the zoning ordinances of Ogden City, Utah, title 15 of this code,
d. A violation of the international property maintenance code as adopted pursuant to title 16 of this code,
e. A violation of this code for the abatement of dangerous buildings, title 16, chapter 8 of this code, or failure to comply with an order issued pursuant to that chapter,
f. A violation of the storm water pollution prevention ordinance of Ogden City, title 9, chapter 7 of this code, or
g. A violation of title 12, chapter 18 of this code.
B. Premises or property determined to be a "habitual nuisance" as defined herein shall be deemed to be a public nuisance subject to abatement under the provisions of this article, and a cause of irreparable harm to the city and the interests of the public sought to be protected under this article.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005; Ord. 2006-45, 7-25-2006; Ord. 2007-14, 5-1-2007)
A. Whenever there is reason to believe that a public nuisance, as defined in section 1-4C-4 of this article, is kept, maintained, or exists in the city, the city attorney may maintain a civil proceeding:
1. To abate or enjoin the public nuisance, through the issuance of one or more of the following:
a. Temporary restraining order, including, but not limited to, the issuance of a closing order or vacation order pursuant to section 1-4C-7 of this article,
b. Preliminary injunction, including, but not limited to, the issuance of a closing order or vacation order pursuant to section 1-4C-7 of this article,
c. Permanent injunction, including, but not limited to, the issuance of a closing order pursuant to subsection 1-4C-6D of this article or a vacation order pursuant to subsection 1-4C-6C of this article;
2. For damages for causing or maintaining the public nuisance, including, but not limited to:
a. The cost, if any, of abating the public nuisance, or
b. The actual costs, expenses and disbursements of the city in investigating, bringing and maintaining the action, including reasonable attorney fees;
3. To abate any public nuisance defined under subsections 1-4C-4A1 through A6 of this article and obtain an order for the automatic eviction of the tenant of the premises or property harboring the public nuisance, pursuant to sections 78-38-10 through 78-38-16 of the Utah code;
4. For the imposition of civil penalties as provided in section 1-4C-10 of this article; and/or
5. Any other equitable relief determined by the court to be appropriate or necessary for the abatement of such public nuisance.
B. The action shall be brought in the second district judicial court of the state of Utah, or any other court of competent jurisdiction, and shall be in the form prescribed by the rules of civil procedure of the state of Utah for injunctions, but the city attorney shall not be required to execute a bond with respect to the action. The civil action may be brought pursuant to this article or pursuant to state law.
C. In any action to abate or enjoin any public nuisance, the court need not find that the property involved was being unlawfully used at the time of the hearing.
D. If the action is instituted to abate the distribution or exhibition of material alleged to offend public decency, no restraining order or injunction shall issue except upon notice to the person sought to be enjoined, and that person shall be entitled to a trial of the issues commencing within three (3) days after filing of an answer to the complaint and a decision shall be rendered by the court within two (2) days after the conclusion of the trial. As used in this subsection, "distribute", "exhibit", and "material" mean the same as provided in section 76-10-1201, Utah code.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
A. Personal Property: A judgment awarding a permanent injunction may direct the sheriff to seize and remove from the premises or property all material, equipment and instrumentalities used in the creation and maintenance of the public nuisance and shall direct the sale by the sheriff of such property in the manner provided for the sale of personal property under execution pursuant to the provisions of the rules of civil procedure of the state of Utah.
B. Removal And Correction Of Construction And Structural Alterations: A judgment awarding a permanent injunction may authorize officers, employees, contractors, or agents of the city to forthwith remove or correct construction and structural alterations in violation of title 15 or 16 of this code.
C. Vacation Order: If the premises or property are in such condition as to make it immediately dangerous to the life, limb, health, property or safety of the public or its occupants, a judgment awarding a permanent injunction shall order that the premises or property be vacated until such condition is abated, in addition to any other order of the court. A vacation order shall not prohibit abatement work performed pursuant to city ordinances.
D. Closing Order: A judgment awarding a permanent injunction may direct the closing of premises or property by the sheriff, to the extent reasonably necessary to abate the nuisance, which order shall direct the sheriff to post a copy of the judgment and a printed notice of such closing conforming to the requirements of subsection F of this section. The closing directed by the court shall be for such period as the court may direct, but in no event shall the closing be for a period of more than one year.
E. Surety In Lieu Of Closure: If the owner, lessee, tenant or occupant gives a bond with sufficient surety approved by the court in the value of the premises or property ordered to be closed, under subsection D of this section, and submits proof to the court that the public nuisance has been abated and will not be created, maintained or permitted for such period of time as the premises or property has been directed to be closed in the judgment pursuant to subsection D of this section, the court may vacate the provisions of the judgment that directs the closing of the premises or property.
F. Posting: Upon issuance of a permanent injunction directing the closure or vacation of the premises or property, the officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of such premises where the public nuisance is being conducted, maintained or permitted. In addition, where a permanent injunction has been granted prohibiting or restricting specific activity upon the premises or property, the officers shall affix, in a conspicuous place or upon one or more of the principal doors at entrances of such premises, a printed notice that shall state that certain described activity is prohibited by court order. Where an order of closure or vacation has been issued, the notice shall contain the legend "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises, the date of the order, the court from which issued and the name of the office or agency posting the notice, and that it is a class B misdemeanor to occupy or use the premises or to mutilate or remove this notice. A notice for an order of vacation shall also state that the building is "unsafe to occupy".
G. Costs: A judgment awarding a permanent injunction pursuant to this article shall provide, in addition to the costs and disbursements allowed by the rules of civil procedure of the state of Utah, upon satisfactory proof by affidavit or such other evidence as may be submitted, the actual costs, expenses and disbursements of the city in investigating, bringing and maintaining the action, including reasonable attorney fees.
H. Closing Or Vacation Not Possession Or Ownership: A closing order or order of vacation pursuant to this section shall not constitute an act of possession, ownership or control by the sheriff or the city of the closed property or premises. Nor shall such orders relieve the owner or lessee from any duty to comply with laws and ordinances affecting the premises or property.
I. Not Exclusive Remedy: The provisions of this section are not intended to preclude other equitable remedies that may be imposed by the court.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
A. General: Pending an action for a permanent injunction, the court may grant a temporary restraining order or preliminary injunction enjoining a public nuisance within the scope of this article and the person or persons conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the public nuisance. A temporary restraining order or preliminary injunction shall include a temporary or preliminary vacation order where the premises or property are in such condition as to make it immediately dangerous to the life, limb, health, property or safety of the public or its occupants. A temporary restraining order or preliminary injunction shall include a temporary or preliminary closing order where reasonably necessary to prevent the further conducting, maintaining or permitting of a public nuisance on the premises or property. Where a preliminary injunction has been granted, the court shall render a decision with respect to a permanent injunction at its earliest convenience after conclusion of the trial. The procedure and grounds for entry of a preliminary injunction or temporary restraining order shall be as prescribed by the rules of civil procedure of the state of Utah. The city attorney shall not be required to execute a bond or provide other security with respect to the action.
B. Temporary Restraining Order And Preliminary Injunction: A temporary restraining order or preliminary injunction entered pursuant to this article shall restrain the defendants and all persons from further conducting, maintaining or permitting the public nuisance and, if applicable, from removing or transferring off the premises or property or in any manner interfering with fixtures or movable property used in conducting, maintaining or permitting the public nuisance. Furthermore, the court may order all other temporary or preliminary relief it deems appropriate.
C. Vacation Order For Dangerous Premises: A temporary or preliminary vacation order shall order that the premises or property be vacated until the conditions creating immediate danger to the life, limb, health, property or safety of the public or its occupants are abated. A vacation order shall not prohibit abatement work performed pursuant to city ordinances.
D. Closing Order: A temporary or preliminary closing order shall order the closing of those portions of the premises or property wherein the public nuisance is being, or has been, conducted, maintained or permitted until further order of the court.
E. Issuance Of Both Temporary Restraining Order And/Or Temporary Closing Order Or Vacation Order: If the city attorney submits evidence warranting both a temporary or preliminary closing order or vacation order, the court shall grant both orders.
F. Closing Of Premises Pursuant To Temporary Closing Order: The officers serving a temporary restraining order imposing a temporary or preliminary closing order or vacation order of the premises or property shall, upon service of the order, command all persons present in the premises or property to vacate the premises forthwith. Upon the premises or property being vacated, the premises shall be securely locked and all keys delivered to the officers serving the order who thereafter shall deliver the keys to the fee owner, lessor or lessee of the premises involved. If the fee owner, lessor or lessee is not at the premises or property when the order is being executed, the officers shall securely padlock the premises and retain the keys until the fee owner, lessor or lessee of the building is ascertained, at which time, the officers shall deliver the keys to such owner, lessor or lessee, if such individual resides within Weber County.
G. Posting: Upon issuance of a temporary or preliminary closing order or vacation order, the officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of such premises where the public nuisance is being conducted, maintained or permitted. In addition, where a temporary restraining order or preliminary injunction has been granted prohibiting or restricting activity upon the premises or property, the officers shall affix, in a conspicuous place or upon one or more of the principal doors at entrances of such premises, a printed notice that shall state that certain described activity is prohibited by court order. Where a closing order or vacation order has been issued, the notice shall contain the legend "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises, the date of the order, the court from which issued and the name of the office or agency posting the notice, and that it is a class B misdemeanor to occupy or use the premises or to mutilate or remove this notice. A notice for an order of vacation shall also state that the building is "unsafe to occupy".
H. Inventory Of Personal Property: If a temporary restraining order or preliminary injunction restrains the defendants and all persons from removing or transferring off the premises or property or in any manner interfering with the fixtures and movable property used in conducting, maintaining or permitting the public nuisance, the officers serving a temporary restraining order or preliminary injunction shall forthwith make and return to the court an inventory of personal property situated in and used in conducting, maintaining or permitting a public nuisance within the scope of this article and shall enter upon the premises or property for such purpose. Such inventory shall be taken in any manner that is deemed likely to evidence a true and accurate representation of the personal property subject to such inventory including, but not limited to, photographing such personal property.
I. Closing Or Vacation Not Possession Or Ownership: A closing order or vacation order entered pursuant to this section shall not constitute an act of possession, ownership or control by the sheriff or the city of the closed property or premises. Nor shall such order relieve the owner or lessee from any duty to comply with laws and ordinances affecting the premises or property.
J. Not Exclusive Remedy: The provisions of this section are not intended to preclude other equitable remedies that may be imposed by the court.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
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