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HomeMy WebLinkAboutOrd 2007-08 tkilw ORDINANCE NO.07-08 AN ORDINANCE OF THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS, ARIZONA, AMENDING THE TOWN OF FOUNTAIN HILLS TOWN CODE, CHAPTER 10, HEALTH AND SANITATION, ARTICLE 10-2, Lii [ER; NUISANCES, SUBSECTIONS 10-2-2, 10-2-16 AND 10-2-17 RELATING TO EMERGENCY ABATEMENT OF NUISANCES CREATED BY IMPROPERLY MAINTAINED POOLS, SPAS AND SIMILAR WATER FEATURES; AND DECLARING AN EMERGENCY. WHEREAS, the Mayor and Town Council (the "Town Council") of the Town of Fountain Hills (the "Town") is empowered by Aiuz. REV. STAT. § 9-240 to (i) define, abate and remove nuisances, and punish persons committing nuisances, (ii) provide for regulations to prevent the introduction or spread of contagious, loathsome or infectious diseases within the Town and (iii) perform other acts, and prescribe other regulations, which may be necessary or expedient for the prevention and suppression of disease; and WHEREAS, the Town has identified improperly maintained pools, spas and similar water features as public nuisances within the corporate limits of the Town; and WHEREAS, improperly maintained pools, spas and similar water features may create a breading ground for mosquitoes and other insects that may carry infectious diseases, including forms of the West Nile Virus, which diseases may cause harm to residents within the corporate limits of the Town; and WHEREAS, Maricopa County public health officials have indicated that the conditions are right for an increase in the number of mosquitoes carrying the West Nile Virus; and WHEREAS, the Town Council desires to take all steps necessary to allow the Town to address improperly maintained pools, spas and similar water features to reduce the number of places available for mosquitoes and other insects to breed. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF FOUNTAIN HILLS as follows: SECTION 1. That the Fountain Hills Town Code, Chapter 10, Health and Sanitation, Article 10-2, Litter; Nuisances, Section 10-2-2, Public Nuisances Defined, is hereby amended to add a new subsection"Q" to read as follows: Q. To allow any swimming or architectural pool, spa, pond, fountain or similar water feature located on real property within the Town to remain or be maintained in a condition that poses a health or safety hazard, harbors insect infestation or creates a visible deteriorated or blighted appearance including, without limitation, a stagnant or unfiltered condition. (1110, 749740.1 SECTION 2. That the Fountain Hills Town Code, Chapter 10, Health and Sanitation, Article 10-2, Litter; Nuisances, Section 10-2-16, Maintenance of Pools, Spas and Similar Water Features, is hereby amended to add a new subsection "D" to read as follows: D. Emergency Abatement. 1. For the purposes of this subsection, "imminent hazard" shall mean a condition existing upon any real property, whether within or without a building that, if left un-mitigated, would cause a reasonable person to believe that such condition presents an immediate threat to life, health or public safety. 2. If a condition exists that would cause a violation of Section 10-2-16 of this chapter and such condition presents an imminent hazard to life, health or public safety, the Town may initiate an emergency abatement procedure as set forth below: a. The Town shall notify, in writing, the owner, the owner's authorized agent, the owner's statutory agent, an occupant or the person responsible for the real property upon which the violation exists to correct the violation within 24 hours of receipt of such notice. The notice shall specify that, if the responsible party does not correct the violation within 24 hours of receipt of the notice, the Town may abate the violation and charge the cost of such abatement, plus reasonable administrative costs, to the property owner. Notice shall be deemed proper by any of the following methods: (1) By hand delivering a copy of the notice to the owner, the owner's authorized agent, the owner's statutory agent, an occupant, lessee and/or person responsible for the violation, which notice shall be deemed given on the date that the notice is so delivered. (2) By mailing of a copy of the notice, via US Mail (certified, return receipt requested) to the owner, the owner's authorized agent, the owner's statutory agent, an occupant, lessee and/or person responsible for the violation at the last known address, which notice shall be deemed given three days after such notice is deposited in the US Mail. (3) By prominently posting a copy of the notice on the property, which notice is deemed given on the date of such posting. b. The Town Manager or authorized designee may, at any time after the condition creating the imminent hazard has been identified, and 749740.1 2 kirw only after attempting to make contact with the occupants of the real property upon which the imminent hazard exists, enter upon the real property for the sole purpose of placing devices or chemicals to prevent insect breeding until such time as the imminent hazard may be fully abated. 3. When any such person to whom notice, as aforesaid, has been given, and on or before the date of compliance on the notice, fails, neglects or refuses to abate from such property the condition causing the imminent hazard, the Town Manager or designee is authorized and directed to cause same to be abated at the expense of the owner or person controlling such property. Upon completion of the work, the Town Manager or designee shall prepare a verified statement of account of the actual cost of such abatement, the date the work was completed, and the street address and the legal description of the property on which said work was done, including five percent for additional inspection and other incidental costs in connection therewith. The verified statement shall be personally served on the owner or person controlling such property, in the manner provided in Rule 4(d) of the Arizona Rules of Civil Procedure, or mailed to the owner or person controlling such property at his last known address by certified or registered mail, or the address to which the tax bill for the property was last mailed. If the owner does not reside on such property, a duplicate notice shall also be sent to him by certified or registered mail at his last known address. The owner or person controlling such property shall have 30 days from the date of service to appeal in writing to the Council from the amount of the assessment as contained in the verified statement. If an appeal is not filed with the Town Clerk within such 30- day period, then the amount of the assessment as determined by the Town Manager or designee shall become final and binding. If an appeal is taken, the Council shall, not later than its second regular meeting following receipt of such appeal notice, hear and determine the appeal. The Council may affirm the amount of the assessment, modify the amount thereof, or determine that no assessment at all shall be made. The decision of the Council shall be final and binding on all persons. 4. If no appeal is taken from the amount of the assessment described in subsection 3 above, or if an appeal is taken and the Council has affirmed or modified the amount of the assessment, the original assessment or the assessment as so modified, shall be recorded in the office of the Maricopa County recorder and, from the date of its recording, shall be a lien on said lot or tract of land until paid. Such liens shall be prior and superior to all other liens, obligations, mortgages or other encumbrances, except liens for general taxes. A sale of the property to satisfy a lien obtained under the provisions of this section shall be made upon judgment of foreclosure or order of sale. The Town shall have the right to bring an action to enforce thw the lien in the superior court at any time after the recording of the 749740.1 3 assessment,but failure to enforce the lien by such action shall not affect its validity. The recorded assessment shall be prima facie evidence of the truth of all matters recited therein and of the regularity of all proceedings prior to the recording thereof. A prior assessment for the purposes provided in this section shall not be a bar to a subsequent assessment or assessments for such purposes, and any number of liens on the same lot or tract of land may be enforced in the same action. SECTION 3. That the Fountain Hills Town Code, Chapter 10, Health and Sanitation, Article 10-2, Litter; Nuisances, Section 10-2-17, Abatement of Nuisances, is hereby deleted in its entirety and replaced with the following: Section 10-2-17 Abatement of Nuisances A public nuisance committed under this article may be abated (A) as set forth herein, (B) as set forth in Article 10-4 of this Code or(C) by any other means provided by law. SECTION 4. That the immediate operation of this Ordinance is necessary to allow for imminent hazard of improperly maintained pools, spas and similar water features presenting an immediate threat to life, health or public safety; therefore, an emergency is hereby declared to exist. This Ordinance shall be in full force and effect from and after its passage and approval by the Town Council as required by law, and this Ordinance is hereby exempt from the referendum provisions of the constitution and laws of the State of Arizona. SECTION 5. That, if any provision or any portion of any provision of this Ordinance is for any reason held to be unconstitutional or otherwise unenforceable by a court of competent jurisdiction, such provision or portion thereof shall be deemed separate, distinct and independent of the remaining provisions of this Ordinance and shall be severed therefrom without affecting the validity of the remaining portions of this Ordinance. PASSED AND ADOPTED by the Mayor and Council of the Town of Fountain Hills, Arizona, August 2, 2007. FOR THE TOWN OUNTAIN HILLS: ATTESTED TO: W.J. Nichols, Mayor Bevelyn J. Be r, n Clerk REVIEWED BY: - APPROVED AS TO FORM: • ,, Timothy G. Pickering, Town a er Andrew J. cGuire, Town Attorney 749740.1 4