(A) Abatement; owner’s duty. It shall be the duty of all property owners within the town to keep the property owned by them, together with the adjacent parkway between the sidewalk and the traveled portion of any street or public highway, hereby referred to as the street right-of-way, free and clear of any live, diseased or dead tree, shrub, overhanging bough, hedge, which, in its then condition, reasonably constitutes a hazard to traffic or danger to life, limb, or property, and the presence of it upon such property or parkway is declared to be a public nuisance.
(B) Removal order.
(1) Delivery. The Town Council may require the owner of any property whereupon, or upon whose adjoining right-of-way is situated, any such live, diseased, or dead tree, shrub, overhanging bough, or hedge, to remove the same within a reasonable time, which time shall be fixed by the Town Council in a written order delivered by certified mail, return receipt requested, to the owner of record of the property as it appears on the county tax rolls.
(2) Appeal.
(a) A request for a hearing upon the removal order shall be made in writing and delivered to the Town Clerk-Treasurer within ten days from the date the removal order is sent to the property owner. Such request shall specify the removal order for which the request is made, the requesting party’s name, address, phone number, and the nature of the interest held by the requesting party.
(b) In the event of a removal order for which notice has been given, and no hearing is requested, the Town Council may proceed with removal pursuant to division (C) below. If a proper request for hearing is filed, removal shall only proceed upon an order of the Municipal Court or withdrawal of the request for hearing.
(c) In the event a request for hearing is filed and provided, a hearing shall be held before the Municipal Court or such other individual or group as designated by the Town Council to act as hearing examiner. The purpose of the hearing shall be to decide whether the removal order is proper and for taking such further action as is authorized under this chapter. Notice of the time, place, and hour of the hearing shall be sent at least 30 days in advance of the hearing to all known parties.
(d) At such hearing, all parties shall be afforded an opportunity to present evidence, to cross-examine and present argument; provided, that all persons testifying shall be sworn; irrelevant, immaterial, or unduly repetitious evidence shall be excluded; and the decision of the Municipal Court Judge or hearing examiner shall be based upon the type of evidence commonly relied upon by the Municipal Court.
(e) At or after such hearing, and in the event of confirmation that the removal order is appropriate, the Municipal Judge or the hearing examiner, as the case may be, may order the Mayor and/or his or her employees or agents to remove the tree. In the event the recommendation of removal is confirmed, administrative costs may also be assessed at the hearing. If it is found that the revocation or cancellation is not appropriate, removal authority shall be denied and costs shall not be assessed.
(f) Appeals from the Municipal Court or hearing examiner may be made to the County District Court, second judicial district, under the rules of appellate procedure as found in the state court rules in effect at that time.
(g) In the event a request for hearing, as provided, is not timely filed, the right to a hearing shall be considered to have been waived.
(C) Failure to remove, penalty.
(1) If the property owner fails to comply with the final order within ten days after such appeal has been determined, or if no appeal is taken within 15 days after the mailing of the order, then the Town Council or its designee may cause such live, diseased, or dead tree, shrub, overhanging bough, or hedge to be removed or destroyed and shall assess the expense thereof against the property owner of record.
(2) Failure to comply with the final order shall be a general misdemeanor unless specific penalties are provided in the section. Each day that the property owner fails to comply with the final order is a separate violation.
(Prior Code, § 8-3-7) (Ord. 359, passed 1-7-2010) Penalty, see § 1-4-1