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Item 7BCity of Southlake, Texas MEMORANDUM August 8, 2006 TO: Sbana Yelverton, City Manager FROM: Robert Finn, Chief of Fire Service SUBJECT: Ordinance No. 876 -A, 2nd Reading, Amending Chapter 4.5, "Buildings and Building Regulations," to update, revise and clarify the standards and regulations that apply to substandard buildings in conformance with legislative amendments, and to provide for civil penalty as permitted by law. Item 7B Action Requested: Conduct the 2 Reading and public hearing of Ordinance No. 876 -A, Amending Chapter 4.5, "Buildings and Building Regulations," to update, revise and clarify the standards and regulations that apply to substandard buildings in conformance with legislative amendments, and to provide for civil penalty as permitted by law. Background Information: It is the intention of Ordinance to clarify procedures, burdens and remedies; providing for the repair, demolition, removal, securing and vacation of dangerous and substandard buildings, The City of Southlake deems it necessary to adopt this ordinance providing minimum standards to safeguard the health, properly and welfare of the citizens of Southlake by regulating and controlling the use, occupancy, maintenance, repair, vacation, removal, demolition, and abatement of substandard or dangerous buildings within the City of Southlake, Financial Considerations: None Financial Impact: None Citizen Input/ Board Review: If approved on the first reading, the public hearing will be held on August 15��, 2006 Legal Review: Reviewed by City Attorney Tim Sralla Alternatives: Do not amend current ordinance Supporting Documents: Ordinance No. , 876 -A Staff Recommendation: Amend ordinance 17 -IMM ORDINANCE NO. 876-A AN ORDINANCE AMENDING REGULATIONS APPLICABLE TO SUBSTANDARD AND DANGEROUS BUILDINGS TO CLARIFY PROCEDURES, BURDENS AND REMEDIES; PROVIDING FOR THE REPAIR, DEMOLITION, REMOVAL, SECURING, AND VACATION OF DANGEROUS AND SUBSTANDARD BUILDINGS; PROVIDING FOR A CIVIL PENALTY; PROVIDING THAT THIS ORDINANCE SHALL NOT LIMIT THE AUTHORITY OF THE CITY; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE OF ALL ORDINANCES; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY FOR VIOLATIONS HEREOF; PROVIDING A SAVINGS CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Southlake is a home rule city acting under its Charter adopted by the electorate pursuant to Article Xl, Section 5 of the Texas Constitution and Chapter 9 of the Local Government Code; and WHEREAS, the City of Southlake has previously adopted Ordinance No. 697 establishing standards for substandard buildings; and WH , REAS, the City Council have desires to update, revise and clarify the standards and regulations that apply to substandard buildings in conformance with legislative amendments, and to provide for civil penalty as permitted by law; and WHEREAS, the City Council of the City of Southlake deems it necessary to adopt this ordinance providing minimum standards to safeguard the health, property and welfare of the citizens of Southlake by regulating and controlling the use, occupancy, maintenance, repair, vacation, removal, demolition, and abatement of substandard or dangerous buildings within the City of Southlake; and WHEREAS, Chapter 214 of the Local Government Code authorizes a municipality to regulate substandard buildings and establishes procedures thereof; and (05/20104) Page 1 WHEREAS, the International Property Maintenance Code establishes minimum standards for residential and nonresidential structure; and WHEREAS, it is the intention of the City Council of the City of Southlake to establish minimum standards for the continued use and occupancy of all buildings regardless of the date of their construction and to provide for the giving of proper notice to the owner of a building and to provide for a public hearing to determine whether a building complies with the standards set out in this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: SECTION I. AMENDMENT OF SECTION 4.5 -162 Section 4,.5 -162 of Article IX of Chapter 4.5 of the Southlake City Code is hereby amended to provide as follows: Sec. 4.5 -162. Definitions. Building means and includes any building, fence, awning, canopy, sign, shed, garage, house, tent or other structure whatsoever and the enumeration of specific types of structures shall not be deemed to exclude other types of' structures to which the sense and meaning of the provisions hereof in context reasonably have application. Building board of appeals (sometimes referred to as "the board ") is the board created by Ordinance No. 622, as amended. Building code means the building code applicable to the structure in question, as adopted and amended by the city. Building official means the person designated by the city manager to enforce this article. Electric code means the electrical code applicable to the structure in question, as adopted and amended by the city. Fire code means the fire code applicable to the structure in question, as adopted and amended by the city. (06/22/06) Page 2 Housing code means the housing code applicable to the structure in question, as adopted by the city.. Mechanical code means the mechanical code applicable to the structure in question, as adopted and amended by the city. Plumbing code means the plumbing code applicable to the structure in question, as adopted and amended by the city. Additionally, the definitions contained in chapter 2, section 2.01 and 2.02 of the 2003 Edition International Property Maintenance Code, promulgated by the International Code Council are hereby adopted for the implementation of this article. (Ord. No. 876, § II, 7- 20--04) SECTION 2. AMENDMENT OF SECTION 45 -165 Section 4..5 -162 of Article IX of Chapter 4.5 of the Southlake City Code is hereby amended to provide as follows: See. 4.5-165. Determination by building official. When the building official has inspected or caused to be inspected any building and has found and determined that the building is substandard, the building official may take any or all of the following actions, as he or she deems appropriate: (1) Issue notice to the record owner that the building is substandard and must be repaired, listing the deficiencies, or issue notice to the record owner that the building is substandard, and that the nature and/or the extent of the deficiencies make repair infeasible, so that the building must be demolished, listing the deficiencies,; (2) Issue citation(s) for violation(s) of this article; (3) Secure the building if'permitted by subsection 4,5- 172(a) below; or (4) Recommend to the board that abatement proceedings be commenced pursuant to section 4.5-166 below. (Ord. No. 576, § V, 7- 20 -04) SECTION 3. AMENDMENT OF SECTION 4.5 -166 Subsections (e) and (f) of Section 4.5166 of Article IX of Chapter 4.5 of the Southlake City Code is hereby amended to provide as follows: Sec. 4.5 -166. Public hearing for abatement of substandard buildings. (05120104) Page 3 (e) .Burden of proof. At the public hearing, the City has the burden of proof to establish that the building or structure at issue is not in compliance with applicable city codes, and is substandard as defined by this Chapter, and to identify the specific deficiencies or code violations; and the owner, lienholder and mortgagee have the burden of proof to establish the scope of any work that may be required to comply with this article, the time it will take to reasonably perform the work, and the financial ability and willingness of the owner, lienholder and/or mortgagee to perform the work with diligence and dispatch. (f) Conduct of public hearing.. At the public hearing, the owner of the building, and all other interested persons may make their appearance and be heard. Any evidence may be received and considered by the board, provided, however, that the board shall not consider evidence as to the existence or extent of any deficiencies or code violations which were not identified in the notice to the record owner described in this Section. The chairman of the board, or in his absence, any officer designated by rules adopted by the board to preside at meetings, shall preside and shall determine all questions of order. The hearing may be adjourned from day to day or continued upon a majority vote of the board. (Ord. No. 876, § V1, 7 -20 -04) The remainder of section 4.5 -166 shall remain unchanged. SECTION 4. AMENDMENT OF SECTION 4.5 -167 Section 4.5 -167 of Article IX of Chapter 4.5 of the Southlake City Code is hereby amended to provide as follows: See. 4.5-167. Order of building board of appeals. (a) Findings of the board. (1) if the board, by a majority vote, finds upon evidence presented at the public hearing that the building is not in violation of standards set out in section 4.5 -164, the board shall order that the enf'or'cement action cease, provided, however, that such order shall neither prevent the building official from instituting a new enforcement action for other violations the building official alleges have been determined to exist, nor shall such order prevent the building official from instituting a new enforcement action for the (06/27106) Page 4 same violations if the building official later determines that the conditions as determined by the board have materially changed as to such violations (2) If the board, by a majority vote, finds upon evidence presented at the public hearing that the building is in violation of standards set out in section 4.5 -164, that such conditions can reasonably be remedied by repair within a reasonable time, and that the owner, lienholder, or mortgagee is financially able and is willing to conduct or cause such repairs to be made within a reasonable time, the board shall identify the specific violations found to exist, and order that the owner, mortgagee or lienholder repair such violations, and, if necessary to the public safety, vacate, secure, or relocate the occupants, within such reasonable times as determined by the board to be appropriate, as provided herein, (3) If the board, by a majority vote, finds upon evidence presented at the public hearing that the building is in violation of standards set out in section 4.5 -164, and that such conditions cannot reasonably be remedied by repair', or that neither the owner, lienholder, nor the mortgagee are financially able or willing to conduct or cause such repairs to be made within a reasonable time, board shall identify the specific violations found to exist, and order that the owner, mortgagee or lienholder remove or demolish the structure, and, if necessary to the public safety, vacate, secure, or relocate the occupants, within such reasonable times as determined by the board to be appropriate, as provided herein, or order such other relief as is permitted by this Chapter. (b) Time allowed to complete work (1) Unless the owner, lienholder, or mortgagee establishes at the hearing that the work cannot reasonably be performed within thirty (30) days, the order shall require the owner, lienholder or mortgagee of the building to, within thirty (30) days, and the lienholder or mortgagee to within an additional thirty (30) days if the owner does not comply, take one or more of the following actions: a. Vacate the building; b. Secure the building from unauthorized entry; c. Repair the violations; and/or d. Remove or demolish the building., (2) If the owner, lienholder, or mortgagee establishes at the hearing that the work cannot reasonably be performed within thirty (30) days, and the board allows the owner, lienholder or mortgagee more than thirty (30) days to repair, remove or demolish the building, the board shall establish specific time schedules as the board determines are appropriate for the commencement and performance of the work and shall require the owner, lienholder or (05120104) Page 5 mortgagee to secure the property in a reasonable manner from unauthorized entry while the work is being performed. (3) The board may not allow the owner, lienholder or mortgagee more than ninety (90) days to repair, remove or demolish the building or fully perform all work required to comply with the order unless the owner lienholder or mortgagee: a., Submits a detailed plan and time schedule for the work at the hearing; and b. Establishes at the hearing that the work cannot be reasonably completed within 90 days because of the scope and complexity of the work. (4) If the board allows the owner, lienholder or mortgagee more than ninety (90) days to complete any part of the work required to repair, remove or demolish the building, the board shall require the owner, lienbolder or mortgagee to regularly submit progress reports to the building official to demonstrate that the owner, lienholder or mortgagee has complied with the time schedules established for commencement and performance of the work, The order may require that the owner, lienholder or mortgagee appear before the board or the building official to: a. Demonstrate compliance with the time schedules; and b. If the owner, lienholder or mortgagee, owns property, including structures and improvements on property within the city's boundaries that exceeds One hundred thousand dollars ($100,000.00), to post cash or surety bond or letter of credit or third party guaranty to cover the cost of the work ordered by the board. (5) All orders of the board must allow a lienholder or mortgagee at least thirty (30) additional days to complete the ordered work in the event the owner fails to comply with the order within the time provided for action by owner, prior to remedial action by the city, except as expressly provided otherwise in this Chapter, (c) Contents of order. The order of the board must contain at minimum: (1) An identification which is not required to be a legal description, of the building and the property on which it is located; (2) A description of each violation of minimum standards present in the building; and (3) A description of each of the ordered actions, including a statement that the owner may repair, if determined feasible by the board, or demolish or remove, the building at his option; (06122106) Page 6 (4) A statement that the city will vacate, secure, remove or demolish the building and/or relocate the occupants of the building if the ordered action is not taken within the time allowed, and charge the costs of such actions to the owner, and impose a lien against the property for all such costs; and (5) If the board has determined that the building will endanger persons or property and that the building is a dwelling with ten or fewer dwelling units, a statement that the city may repair the building and charge the costs to the to the owner, and impose a lien against the property if the ordered action is not taken within the time allowed. (Ord. No. 876, § VII, 7- 20-04) SECTION 5. AMENDMENT OF SECTION 4.5 -169 Section 4.5 -169 of Article IX of Chapter 4.5 of the South.lake City Code is hereby amended to provide as follows: See. 4.5 -169. Enforcement of the order of building board of appeals. (a) If the order not complied with, city may take action as provided herein. If the building is not vacated, secured, repaired, removed or demolished within the time specified by the order, the city may vacate, secure, repair, remove or demolish the building or relocate the occupants at its own expense, provided however: (1) Except as expressly provided otherwise in this Chapter, the city may not act to remove or demolish a building until after the board has found that such defects or conditions exist to the extent that the life, health, property or safety of the public or the occupants of the building are endangered; and either that a. The building is infeasible of repair; or b. There is no reasonable probability that the building will be repaired within a reasonable period of time if additional time is given. (2) The city may only repair a building as provided herein to the extent necessary to correct the conditions which render the building dangerous, and may not act to repair a building unless: a, The board has made a determination that the building is likely to endanger person or property; and b. The building is a residential dwelling with ten (10) or fewer dwelling units.. (05120104) Page 7 (3) In the event there are mortgagees or lienholders, the city may only repair, remove or demolish the building after allowing the lienholder or mortgagee an additional thirty (30) days after the time prescribed in the order has expired to complete the required work, (4) Remedial action by the city does not limit the ability of a municipality to collect on a bond or other financial guarantee that may be required by section 4.5- 167(b)(4) of this article. (b) Posting of notice to vacate building.. If the order requires vacation or if compliance is not had with the order within the time specified therein, the building official is authorized to require that the building be vacated. Notice to vacate shall be mailed by certified mail, return receipt requested to the occupant of the building and it shall be posted at or upon each entrance to the building and shall be in substantially the following form: "SUBSTANDARD BUILDING DO NOT ENTER UNSAFE TO OCCUPY It is a misdemeanor to occupy this building or to remove or deface this notice. Building Official City of Southlake" (c) Remedial action by city. Any repair or demolition work, or securing of the building shall be accomplished and the cost thereof paid and r'ecover'ed in the manner hereinafter provided. Any surplus realized from the sale of such building, or from the demolition thereof, over and above the cost of demolition and cleaning of the lot, shall be paid to the person or persons lawfully entitled thereto. (d) Failure to obey order, Any person to whom an order pursuant to section 4.5 -167 is directed who fails, neglects or refuses to comply with such order shall be guilty of a misdemeanor and may be prosecuted in municipal court in addition to any other remedies available to the city provided herein. (e) Interference prohibited. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the city or with any person who owns or holds any estate or interest in the building which has been ordered repaired, vacated, demolished, removed or secured under the provisions of this article; or with any person to whom such building has been lawfully sold pursuant to the provisions of this article, whenever such officer, employee, contractor or authorized representative of the city, person having an interest or estate in such building, or purchaser is engaged in the work of repairing, vacating and repairing, or demolishing, removing or securing any such building pursuant to the provision of this article, or in performing any necessary act preliminary to or incidental to such work or authorized or directed pursuant to this article. (0622J06) Page 8 (f) Permit required. Any work of closure, repair, removal or demolition by the property owner or any Iienholder or mortgagee or their agents must be performed pursuant to valid unexpired permits issued by the city. All permits issued pursuant to an order of the board shall expire upon expiration of the time for compliance set forth in the order. (Ord. No. 876, § IX, 7- 20 -04) SECTION 6. AMENDMENT OF SECTION 4.5 -172 Section 4.5 -172 of Article IX of Chapter 4:.5 of the Southlake City Code is hereby amended to provide as follows: Sec. 4.5 -172. Additional authority to secure certain substandard buildings prior to public bearing and secure, demolish, repair or remove certain dangerous buildings. (a) Securing of unoccupied, substandard building. Notwithstanding any other provisions of this article, the city may secure a building if the building official determines: (1) That the building violates the minimum standards set forth in this Chapter; and (2) That the building is unoccupied or is occupied only by persons who do not have the right of'possession to the building. (b) If building creates innnediate danger. Notwithstanding any other provisions of this article, if the City Council finds that a building is likely to immediately endanger persons or property the City Council may: (1) Order the owner of the building, or the owner or occupant of the property on which the structure is located to repair, remove, or demolish the structure, or the dangerous part of the structure, within a specified time; or (2) Repair, remove, or demolish the structure, or the dangerous part of the structure, at the expense of the municipality, on behalf of the owner of the structure or the owner' of the property on which the structure is located, and assess the repair, removal, or demolition expenses on the property on which the structure was located. (c) Notice of ' action. Before the 11th day after the date the building is secured pursuant to subsection 4.5- 172(x) above, or action is ordered pursuant to subsection 4.5-- 172(b)(1) above, or the building is repaired, removed or demolished pursuant to subsection 4.5- 172(b)(2) above, the building official shall give notice to the owner by: {1) Personally serving the owner with written notice; or (05/20104) Page 9 (2) Depositing the notice in the United States mail addressed to the owner at the owner's post office address; or If personal service cannot be obtained and the owner's post office address is unknown, by: (1) Publishing the notice at least twice within a ten day period in a newspaper of general circulation in the county in which the building is located,; and (2) Posting the notice on or near the front door of the building if personal service cannot be obtained and the owner's post office address is unknown; and In addition to the above, depositing notice in the United States mail to all lienholders and mortgagees who can be determined from a reasonable search of instruments on file in the office of the county clerk. (d) Notice. The notice must contain: (1) An identification, which is not required to be a legal description, of the building and the property on which it is located; (2) A description of each of the violations of the minimum standards present in the building; (3) A statement that the city will secure or has secured, as the case may be, the building, or that the city has taken or will take the action ordered pursuant to subsection 4.5- 172(b) above; (4) An explanation of the owner's entitlement to request a hearing about any matter relating to the city's securing, removing, demolishing or repairing of the building. (e) Hearing The board or the City Council shall conduct a hearing at which the owner, lienholder and mortgagee may testify or present witnesses or written information about any matter relating to the city's securing, repairing, removing or demolishing of the building, if, within thirty (30) days after the date the city has taken action pursuant to subsections 4..5- 172(a) or (b) above, the owner files with the city a written request for the hearing. The hearing shall be conducted within twenty (20) days after the date the request is filed. (f) Lien_ If the city incurs expenses under this section, such expenses incurred shall be a personal obligation of the property owner in addition to a priority lien upon the property, and costs shall be recovered as provided by section 4.5170 of this article. (g) Violation. It shall be unlawful to fail to comply with an order issued pursuant to this section. (Ord, No. 876, § XI, 7- 20 -04) (06122/06) Page 10 SECTION 7. AMENDMENT OF SECTION 4.5 -173 Subsection (d) of Section 4.5 -173 of Article IX of Chapter 4.5 of the Southlake City Code is hereby amended to provide as follows: Sec. 4.5 -173. Civil penalty. (d) Notice of administrative hew -ing. Not less than ten days prior to the date on which the administrative hearing is set, the property owner shall be sent a notice of the hearing by certified mail /return receipt requested. The notice shall contain: (1) A copy of the order issued by the board to section 4.5 -167 of this article; (2) A statement that the building official has determined that the property owner committed an act in violation of that order, or failed to take an action necessary for compliance with that order, together with a description of the acts that violated the order, or a description of what actions the owner failed to take that were necessary for compliance with the order; (3) A statement that at the administrative hearing the board may assess a civil penalty not to exceed One Thousand Dollars ($1,000.00) per day for each violation or, if the owner shows that the property is the owner's lawful homestead, in an amount not to exceed ten dollars ($10.00) per day for each violation; and (4) Notice of the time and place ofthe hearing. The remainder of Section 4.5 -173 shall remain unchanged. (Ord. No., 576, § XIII, 7- 20 --04) SECTION S. PROVISIONS CUMULATIVE This ordinance shall be cumulative of all provisions of ordinances of the City of Southlake, Texas, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances, in which event the conflicting provisions of such ordinances are hereby repealed. Specifically, Ordinance No. 697 is repealed_ (05120!04) Page 11 SECTION 9. PROVISIONS SEVERABLE It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid ,judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. SECTION 10. PENALTY Any person, firm or corporation who violates, disobeys, omits, neglects or refuses to comply with or who resists the enforcement of any of the provisions of this ordinance shall be fined not more than Two Thousand Dollars ($2,000.00) for each offense. Each day that a violation is permitted to exist shall constitute a separate offense. SECTION 11. RIGHTS AND REMEDIES SAVED All rights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of Chapter 4.,5 of the City Code, Ordinance No. 697, Ordinance No., 876, or any other ordinances affecting the abatement of dangerous or substandard buildings which have accrued at the time of the effective date of this ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this ordinance but may be prosecuted until (06/22/06) rage 12 final disposition by the courts. SECTION 12. PUBLICATION IN PAMPHLET FORM The City Secretary of the City of Southlake is hereby authorized to publish this ordinance in book or pamphlet form for general distribution among the public, and the operative provisions of this ordinance as so published shall be admissible in evidence in all courts without further proof than the production thereof; SECTION 13. PUBLICATION The City Secretary of the City of Southlake is hereby directed to publish the proposed ordinance or its caption and penalty together with a notice setting out the time and place for a public hearing thereon at least ten (10) days before the second reading of this ordinance, and if this ordinance provides for the imposition of any penalty, fine or forfeiture for any violation of any of its provisions, then the City Secretary shall additionally publish this ordinance or its caption and penalty in the official City newspaper one time within ten (10) days after passage of this ordinance, as required by Section 3.13 of the Charter of the City of Southlake. SECTION 14. EFFECTIVE DATE This ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. PASSED AND APPROVED ON THIS DAY OF , 2006. The Honorable Andy Wambsganss, Mayor (05120104) Page 13 EFFECTIVE DATE: APPROVED AS TO FORM AND LEGALITY: City Attorney ATTEST: Lori Farwell, City Secretary (06/22106) Page 14