Charter Ordinance No. 17a

A CHARTER ORDINANCE REPEALING CHARTER ORDINANCE NO. 11, ORDINANCE NO. 700 AND ARTICLE 4, CHAPTER VIII, OF THE CITY OF CANEY, KANSAS, AND ADOPTING ALTERNATE PROVISIONS DECLARING CERTAIN MATTERS AS MOTOR VEHICLE NUISANCES WITHIN THE CITY OF CANEY, KANSAS PROVIDING FOR THE REMOVAL OR ABATEMENT OF MOTOR VEHICLE NUISANCES:AUTHORIZING THE ASSESSMENT OF COSTS AND PROVIDING FOR PENALTIES

Be it ordained by the governing body of the City of Caney, Kansas:

Section 1. Charter Ordinance No. 11, Ordinance No. 700 and Article 4, Chapter VIII of the Code of the City of Caney, Kansas, are, on the effective date of this ordinance, hereby repealed and in its place the following Article 4, Chapter XIII of the Code of the city of Caney, Kansas is hereby adopted:

ARTICLE 4.JUNKED, ABANDONED VEHICLES, TRAILERS, BOATS, CAMPERS

8-401. FINDING OF GOVERNING BODY. The governing body finds that junked, wrecked, dismantled, inoperable or abandoned vehicles effect the hea1th, safety and general welfare of citizens of the city because they:

(a) Serve as a breeding ground for flies, mosquitos, rats and other insects and rodents;

(b) Are a danger to persons, particularly children, because of broken glass, sharp metal protrusions, insecure mounting on blocks, jacks or other supports;

(d) Encourage pilfering and theft;

(e) Constitute a blighting influence upon the area in which they are located; and

(f) Constitute a fire hazard because they frequently block access for fire equipment to adjacent buildings and structures.

8-402. DEFINITIONS. As used in this ordinance, unless the context clearly indicates otherwise:

(a) Inoperable means a condition of being junked, wrecked, wholly or partially dismantled, discarded, abandoned or unable to perform the function or purpose for which it was originally constructed;

(b) Vehicle means without limitation, any automobile, truck, tractor, motorcycle, farm or construction equipment, or boats, which is originally built containing an engine, regardless of whether it contains an engine at any other time. Such term shall also be deemed to include the major parts thereof, including bodies, engines, transmissions, frames and rear ends.

(c) Campers means without limitation, truck mount, hitch type, fifth wheel, fold down, camper shells, or any vehicle used for camping or sleeping in.

(d) Privacy Fence means a fence constructed of wood or chain-link with mesh screening six feet in height, properly· maintained, and of sufficient size, strength and density to screen vehicles from the view of the public and to prohibit ready access to stored vehicles by children.

(e) Garage or Building means a roofed structure enclosed on three sides, with the exterior finished with wood, corrugated panels, vinyl, steel or aluminum siding, or other permanent structural material of like nature, suitable to exterior finish of such garage or building.

8-403. NUISANCES UNLAWFUL; DEFINED; EXCEPTIONS. It shall be unlawful for any person to maintain or permit any motor vehicle nuisance within the city.

(a) A motor vehicle nuisance is a motor vehicle which is not currently registered or tagged pursuant to K.S.A. 8-126 to 8-149, or K.S.A. 8-194 to 8-198, inclusive, as amended; or parked in violation of city ordinance; or abandoned on a highway or other property open to use by the public for a period of time in excess of 48 hours; or incapable of moving under its own power; or in a junked, wrecked or inoperable condition. The existence of one or more of the following conditions shall raise the presumption that a vehicle is junked, wrecked or inoperable:

(1) Absence of a current registration plate upon the vehicle or a current title for the vehicle;

(2) Placement of the vehicle or parts thereof upon jacks, blocks, or other supports, or the absence of one or more parts of the vehicle necessary for the lawful operation of the vehicle upon a street or highway;

(3) Growth of grass; weeds or other vegetation to a height of eight (8) inches or more adjacent to the vehicle;

(4) Placement of trash, garage, or other debris in or upon such vehicle.

(b) The provisions of this section shall not apply to:

(l) Any junked, wrecked or inoperable vehicle which is parked or enclosed in a garage or other building, or which is parked in an area enclosed by a privacy fence as defined in Section 8-402 (d); provided, that no more than two junked, wrecked or inoperable vehicles may be parked on the same lot(s) or tract (s) of land under common ownership within a building or garage or enclosed by a privacy fence in an area zoned for residential use.

(2) To the parking or storage of a vehicle inoperable for a period of thirty consecutive days or less;

(3) To any person conducting a business enterprise in compliance with existing zoning regulations and who places such vehicles in a building, garage, or in an area enclosed by a privacy fence as defined by Sub-section 8-402 (d) above. Nothing in this sub-section shall be construed to authorize the maintenance of a public nuisance.

8-404. PUBLIC OFFICER. The Chief of Police shall designate a public officer to be charged with the administration and enforcement of this article.

8-405. COMPLAINTS; INQUIRY AND INSPECTION. The public officer shall make inquiry and inspection of premises upon receiving a complaint or complaints in writing signed by one or more persons stating that a nuisance exists and describing the same and where located or is informed that the nuisance may exist by the Chief of Police, Fire Chief or Mayor. The public officer may make such inquiry and inspection when he or she observes conditions which appear to constitute a nuisance. Upon making any inquiry and inspection the public officer shall make a written report of findings.

8-406. RIGHT OF ENTRY. It shall be a violation of this ordinance to deny the public officer the right of access and entry upon private property at any reasonable time for the purpose of making inquiry and inspection to determine if a nuisance exists.

8-407. NOTICE. Any person found by the public officer to be in violation of Section 8-403 shall be served a notice of such violation. The notice shall be served by restricted mail, postage prepaid, return receipt requested; provided, that if the owner or his or her agent in charge of the property is a resident of Caney, Kansas, the notice shall be personally served by the public officer or a law enforcement officer.

If the public officer is unable, after exercising due diligence, to serve the person found to be in violation of Section 8-403 personally, the notice shall be served by restricted mail, postage prepaid, return receipt requested. In the event any notice which the public officer serves by restricted mail, postage prepaid, return receipt requested, is returned marked “refused” or “unaccepted”, or marked by words of similar import, the public officer shall mail a copy of the notice by first class mail, postage prepaid, and the mailing of such notice by first class mail, postage prepaid, under such circumstances shall be deemed adequate service of notice for the purposes of this ordinance.

8-408. SAME; CONTENTS. The notice shall state the condition(s) which is (are) in violation of Section 8-403. The notice shall also inform the person that:

(a) He, she or they shall have 10 days from the date of serving the notice to abate the condition(s) in violation of Section 3; or

(b) He, she or they have 10 days from the date of serving the notice to request a hearing before the governing body on the matter as provided by section 8-412;

(c) Failure to abate the condition(s) or to request a hearing within the time allowed may result in prosecution as provided by Section 8-409 and/or abatement of the condition(s)by the city as provided by Section 8-410.

8-409. FAILURE TO COMPLY; PENALTY. Should the person fail to comply with the notice to abate the nuisance or request a hearing, or should any person abandon a motor vehicle on a highway or other property open to use by the public for a period of time in excess of 48 hours, the public officer may file a complaint in the municipal court of the city against such person and upon conviction of any violation of the provisions of Section 8-403 be fined in an amount not to exceed $100 or be imprisoned not to exceed 30 days or be both fined and imprisoned. Each day during or on which a violation occurs after notice has been served shall constitute an additional or separate offence.

8-410. ABATEMENT. In addition to, or as an alternative to prosecution as provided in Section 8-409, the public officer may seek to remedy violations of this article in the following manner:

(a) If a person to whom a notice has been sent pursuant to Section 8-407 has neither alleviated the conditions causing the alleged violation nor requested a hearing before the governing body within the time period specified in Section 8-408, the public officer may present a resolution to the governing body for adoption authorizing the public officer or other agents of the city to abate the conditions causing the violation at the end of 10 days after passage of the resolution.

(b) The resolution shall further provide that the costs incurred by the city shall be charged against the lot or parcel of ground on which the nuisance was located as provided in Section 8-413. A copy of the resolution shall be served upon the person in violation in one of the following ways:

(1) Personal service upon the person in violation;

(2) Service by restricted mail, postage prepaid, return receipt requested; or

(3) In the event the whereabouts of such person are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the public officer and filed with the city clerk, and the serving of the resolution shall be made by publishing the same once each week for two consecutive weeks in the official city newspaper.

8-411. DISPOSITION ·OF VEHICLE. Disposition of any motor vehicle removed and abated from private property pursuant to this ordinance shall be as provided by K.S.A. 8-1102, as amended.

8-412. HEARING. If a hearing is requested within the 10 day period as provided in Section 8-408, such request shall be made in writing to the governing body. Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest the findings of the public officer before the governing body. The hearing shall be held by the governing body as soon as possible after the filing of the request therefore, and the person shall be advised by the city of the time and place of the hearing at least 5 days in advance thereof. At any such hearing, the person may be represented by counsel, and the person or the city may introduce such witnesses and evidence as is deemed necessary and proper by the governing body. The hearing need not be conducted according to the formal rules of evidence. Upon conclusion of the hearing, the governing body shall record its determination of the matter by means of adopting a resolution and serving the resolution upon the person in the manner provided in Section 8-410.

8-413. COSTS ASSESSED. If the city abates the nuisance pursuant to Section 8-410, the costs of abatement shall be charged against the 1ot or parcel of ground on which the nuisance was located. The city clerk shall, at the time of certifying other taxes to the county clerk, certify the costs as provided in this section. The county clerk shall extend the same on the tax roll and it shall be collected by the county treasurer and paid to the city as other taxes are collected and paid.

8-414. VEHICLES ABANDONED ON HIGHWAY OR PUBLIC PROPERTY: AUTHORITY TO REMOVE.

(a) Whenever any person shall abandon and leave a motor vehicle on a highway or other property open to use by the public for a period of time in excess of 48 hours, the city may remove the motor vehicle from such highway or other property and place or store the same in a safe and convenient place. If such motor vehicle has displayed thereon a registration plate issued by the Division of Vehicles and has been registered with said division, the city or its designated agent shall mail a notice by certified mail to the registered owner thereof addressed to the address as shown on the certificate _ of registration, and to the lien holder, if any, of record in the county in which the title shows the owner resides, if registered in this state, stating that if the owner or lien holder does not claim such motor vehicle and pay the removal and storage charges incurred by the city on the same within 15 days from the date of the mailing of the notice, that the same will be sold at public auction to the highest bidder for cash.

(b) The City shall use reasonable diligence in determining the title owner, or if from a non- title state, the registered owner of the vehicle, and shall inquire by mail of the office of register of deeds of the county in which the title shows the owner resides, if registered in the state, as to whether there are any lien holders of record.

8-415. SAME; NOTICE.

(a) After fifteen days from the date of mailing notice, if the abandoned motor vehicle is more than four model years of age, or after 30 days from the date of mailing notice, if the abandoned motor vehicle is four model years or less, the city or its designated agent shall publish a notice for two consecutive weeks in the official city newspaper where such motor vehicle was abandoned and left. The notice shall describe the motor vehicle by name of maker, model, serial number and owner if known and state that the same has been impounded by the city and will be sold at public auction to the highest bidder for cash, if the owner thereof does not claim the same within 10 days from the date of the second publication of the notice and pay the removal and storage charges and the publication costs incurred by the city.

(b) If such motor vehicle does not display a registration plate issued by the Division of Vehicles and is not registered with said division, the city or its designated agent, after 15 days from the date of abandonment, may publish a notice in the official city newspaper, which notice shall describe the motor vehicle by name of maker, model, color and serial number and shall state the same has been impounded by the city and will be sold at public auction to the highest bidder for cash, if the owner thereof does not claim the same within 10 days from the date of the second publication of the notice and pay the removal and storage charges incurred by the city.

8-416. SAME; SOLD AT AUCTION.

(a) Whenever the city or its designated agent has complied with the foregoing provisions of this article with respect to any such abandoned motor vehicle and the owner thereof does not claim the same within the time stated in the notice and pay the removal and storage charges and publication costs incurred by the city on such motor vehicle, the city or its designated agent may sell the motor vehicle at public auction to the highest bidder for cash. The sale of any motor vehicle pursuant to this section shall be deemed a sale at retail within the state as provided by K.S.A. 8-1754, but the responsibility for obtaining a certificate of approval for such vehicle prior to its registration in this state shall be upon the purchaser.

(b) After any sale pursuant to this section, the city or its designated agent may file proof thereof with the Division of Vehicles. Thereupon, such division shall issue a certificate of title to the purchaser of such motor vehicle. All moneys derived from the sale of motor vehicles pursuant to this article, after payment of the expenses of the sale, shall be paid into the fund of the city which is used by it for the construction or maintenance of highways.

Section 2. GRACE PERIOD. All persons having inoperable vehicles upon private property shall be given a grace period of sixty (60) days from the effective date of this ordinance within which to erect a privacy fence in which to enclose such vehicle or vehicles. The public officer may issue warning notices during the grace period to advise such person or persons that a violation of this ordinance appears to exist, but shall not issue citations or cause any such vehicle or vehicles to be removed from private property during the grace period.

(07-21-1997)