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An uninterrupted or periodically recurring nuisance; not necessarily a constant or unceasing injury, but a nuisance which occurs so often and is so necessarily an incident of the use of property complained of that it can fairly be said to be continuous. Such a nuisance may be of such character that its continuance is necessarily an injury which will continue without change.
(Ord. 12662. Passed 7-1-03.)
(Ord. 12662. Passed 7-1-03.)
Public safety and law enforcement officers, as well as affected members of the community, shall report findings and recommendations to the City Manager; and if the City Manager ascertains from the report and findings that the condition presents a public nuisance, as herein defined, the Manager shall make his recommendation to Council that just cause exists to abate the nuisance. Whereupon by a majority vote of Council, a hearing shall be held after at least ten days’ notice to the property owner, tenant, business manager and/or licensee of the time and place of such hearing, which notice shall contain a statement or specification of the charges, grounds or reasons for such proposed contemplated action, and which shall be served upon the property owner, tenant, business manager and/or licensee as notices under the West Virginia rules of civil procedure or by certified mail, return receipt requested, and shall, in addition, be posted in a conspicuous place on the premises as well as within 100 feet surrounding such premises affected by the recommendation. The term “cause” shall include the doing or omitting of any act or permitting any condition to exist which causes a public or continuing nuisance as defined in this article. At which time and place, so designated in the notice, the City Administration shall put forth its evidence in support of the recommendation made to Council as well as the property owner, tenant, business manager and/or licensee shall have the right to appear and produce evidence in his behalf, and to be represented by counsel. Provided that the Council may forthwith suspend any such license when they believe the public safety will be adversely affected by the continued operation of such nuisance.
If, at the request of the property owner, tenant, business manager and/or licensee or on his motion, the hearing shall be continued and shall not take place on the day fixed by the Council, the property owner, tenant, business manager and/or licensee shall not be permitted to continue doing business pending an appeal as provided by this article.
(Ord. 12662. Passed 7-1-03.)
In addition to the definitions provided above, a permanent nuisance is also a nuisance of such a character that its continuance is necessarily an injury which will continue without change, unless Council takes such action to cease any like nuisance from becoming established and reoccurring at the particular location. It is not enough to show a slight interference to the public welfare and such will not be restrained unless the type of business or manner of operation is injurious to the public health, safety and welfare of the community or has a tendency to promote unlawful behavior or behavior which is considered by the City Administration, including its health and/or safety officials, to be a menace to public order and safety.
(Ord. 12662. Passed 7-1-03.)
(Ord. 12662. Passed 7-1-03.)
If upon review of information presented to Council it can be shown that acts, occupations, types of businesses or structures which are generally not considered nuisances at all times and under any circumstances are found to have become nuisances by reason of the circumstances or the location and surroundings, the Council may declare by majority vote of Council such a nuisance-in-fact. Upon a showing that there has been a continuing nuisance of similar character and circumstances at a particular location and surrounding area existing in an uninterrupted or periodically reoccurring fashion, Council may declare such a permanent nuisance and therefore permanently revoke and withhold further licensure or approval of similar acts, occupations, types of businesses or structures at such location. However, for industrial and commercial zones which permit commercial establishments, the declaration of a permanent nuisance as stated in this article and section shall not apply. Council may consider primarily reports of safety and law enforcement officials, as well as public comment and complaints of the community spanning at a minimum a three-year period, at a minimum, when considering declaring a particular permanent nuisance. The Municipality is entitled to seek appropriate judicial relief against such public nuisances which are believed to be permanent in nature and judicial proceedings and adjudication by a court of competent jurisdiction may be sought.
(Ord. 12662. Passed 7-1-03.)
(Ord. 12662. Passed 7-1-03.)
After any hearings as defined herein and upon the declaration of the Municipality that a public nuisance exists, an order to abate such nuisance shall issue. If means short of destruction would abate the nuisance, such must be employed. The order shall prohibit a further use constituting a nuisance.
(Ord. 12662. Passed 7-1-03.)
Should such a location be declared a permanent public nuisance, any further use of that location for the same purpose is not allowed and after three months of the date that such property is declared a permanent nuisance, the property would lose its non-conforming use status and revert to the land use permitted in accord with the Planning and Zoning Code. However, reconsideration of a Declaration of a Permanent Nuisance may occur if such request is filed within three (3) months of such order declaring a permanent nuisance. Another business or non-conforming use may petition City Council for a hearing to demonstrate that a legitimate business interest or other non-conforming use is proposed for such location. If such petition is granted, a bond shall be posted in an amount not less than $25,000.00 to extend for a minimum of one year from the date of occupation of the premises. Such one-year period shall be considered probationary in that any recurrence of similar activity which leads to the prior declaration of a nuisance or would lead to a new nuisance violation shall be cause for immediate forfeiture of said bond to the City of Wheeling and closure of such establishment upon notice by the City Manager as directed by City Council.
(Ord. 12662. Passed 7-1-03.)
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