Fillmore Municipal Code Ch. 5.38 Post-Disaster Demolition

This chapter establishes demolition criteria for all buildings and structures damaged as a result of a disaster for which a local emergency has been declared by the city council.

(Ord. 697 § 2 (part), 1994)

The provisions of this chapter are applicable to all buildings and structures regulated by the city.

(Ord. 697 § 2 (part), 1994)

For the purposes of this chapter, the following definitions apply:

(a) "Event" means any natural occurrence which results in the declaration of a disaster by the city council, including but not limited to, wind storms, earthquakes, and floods.

(b) "Historic building or structure" means any building or structure included on the national, state, county, or city, or the register of points of interest. Historic buildings and structures shall also include those buildings and structures within a recognized historic district.

(c) "State Historic Preservation Officer (SHPO) " means the person appointed by the Governor, pursuant to Section 101(b)(1) of the National Historic Preservation Act of 1966, as amended, to administer the State Historic Preservation Program.

(d) "Building official" means the officer or other designated authority charged with the administration and enforcement of this chapter, or duly authorized representative.

(Ord. 697 § 2 (part), 1994)

(a) Within ten days after the event, any building or structure determined by the building official to be an imminent hazard to public health and safety, or to pose an imminent threat to the public right of way, may be condemned and immediately demolished.

(b) Notice and Order. If the circumstances and time permit, the building official shall post the structure and notify, by hand-delivery, telephone, telegram, facsimile or other reasonable means, the property owner, and any other party of record with an equitable or legal interest in said property, that the structure is an imminent hazard and danger and, as such, constitutes a public nuisance and must be abated. The notice shall set forth those factors which, in the opinion of the building official, make the structure an imminent hazard and danger. The notice shall provide that within forty-eight hours from the time of issuance of the notice, the owner or other party of record shall submit an acceptable abatement plan, as defined herein, to the building official. Reasonable efforts shall be undertaken by the property owner to allow tenants to remove their contents from the building before any demolition occurs.

No prior notice shall be required, where the building official, after a consideration of all the facts, determines in writing that the structure is an imminent hazard and danger and that it must be abated immediately and that time and circumstances do not permit the giving of prior notice to the owner. In those cases where time and circumstances do not permit the city to give the owner notice prior to abatement, the building official may cause the public nuisance to be abated by the city with city forces or city contractors and the cost of abatement shall constitute a special assessment against the subject real property. The assessment shall be made and collected in the manner set forth in this chapter. In all other cases, the city, at the time of giving notice, shall record a copy of the notice against the subject property in the records of the county recorder.

(c) Appeal. The decision of the building official determining a structure to be an imminent hazard and danger may be appealed by the property owner or other interested party of record to the city council. Any such appeal shall indicate the basis of error by the building official and shall be hand-delivered to the building official within forty-eight hours of the time of issuance of the notice given pursuant to this chapter. No appeal shall be considered filed, or effective, unless the appellant files a timely abatement plan with the building official. To be considered timely, the abatement plan must be filed within the time required by this chapter. Failure to appeal within the required forty-eight-hour appeal time period shall constitute a waiver of the right to appeal to the city council and the building official's determination and order shall stand.

(d) Form of Appeal. All appeals of the building official's notice and order to abate shall:

(1) Indicate the basis of error by the building official; and

(2) Contain the telephone number (business and residence), home address and business address of the appellant.

(e) Hearing. At the time of receiving a valid appeal, the building official shall schedule an appeal hearing before the city council. The appellant shall be notified of the date, time and place of the hearing at the time the appeal is filed. Whenever practicable, the hearing shall be held within twenty-four hours of the time a valid appeal is filed.

At the hearing, the appellant shall have the right to call witnesses, submit evidence and to cross-examine the witnesses of the city. All witnesses shall be sworn. A record of the entire proceedings shall be made by tape recording. Any relevant evidence may be admitted regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in the courts of the state.

At the close of the hearing, the city council shall act to either uphold, overrule or modify the determination and order of the building official. The determination and order of the building official shall be upheld, unless the city council finds, based upon the evidence in the record, that the building official erred in determining that the structure is an imminent hazard and danger. The decision of the city council, with the reasons therefor, may be given orally on the record. If given orally, the decision shall be memorialized in writing and served upon the appellant within twenty-four hours of the time the oral decision is rendered.

If the city council upholds the decision of the building official, the property owner or other interested party of record shall be ordered to abate the public nuisance within the time set forth in the order. If the structure is determined not to be an imminent hazard and danger, the building official's determination and order shall be vacated. The decision of the city council shall be final on the date it is rendered.

(f) Abatement Plan. In those cases that the city provides notice and receives a timely abatement plan, the building official shall review the plan immediately and shall determine whether the plan is acceptable. To be acceptable, the plan must be reasonably calculated to cause immediate abatement of the public nuisance. If the abatement plan is approved, the owner or other interested party of record, within twenty-four hours of obtaining approval of the plan from the building official or director of public works, or his designee, shall abate the public nuisance in accordance with the order of the building official or the director of public works, or his designee, and terms of the plan. Within twenty-four hours of completion of the abatement work, the owner or other interested party of record shall provide the building official with a written certification from the owner's architect, structural or civil engineer which certifies that "the public nuisance," as described in the building official's abatement notice, has been abated.

If the work performed pursuant to the abatement plan amounts to temporary abatement, the owner or other party of record, prior to proceeding with permanent repairs, shall obtain required permits and file a damage assessment report with the building official. The damage assessment report shall be reviewed and approved by the building official before permanent repairs are performed.

In those instances where the property owner or other interested party of record either does not respond to the building official's notice of abatement, responds untimely, responds timely but fails to abate the public nuisance within the required time period, the imminent hazard and danger structure shall be subject to abatement by the building official. In all such cases that the city determines to exercise its abatement powers under this chapter, the costs of abatement incurred by the city shall constitute a special assessment against the real property abated.

At the time the building official or the director of public works orders abatement work to be done by the city or the city's contractors, the building official shall record a notice of prospective lien against the subject property. Such notice shall include a description of the proposed abatement work and an estimate of its costs.

Immediately upon completion of any abatement work, including but not limited to preparatory work and inspections, by the city or the city's contractor, the building official shall prepare a report of assessment. Said report shall describe the work performed, the date(s) on which it was performed and the costs incurred by the city. The building official shall cause a copy of said report to be served on the subject property owner and all other interested parties of record. Said report shall be accomplished by a notice of the date, time and place of the confirmation hearing before the city council. Said notice shall provide the owner or other interested party with at least five working days prior notice of said confirmation hearing. In those cases in which the city abates the public nuisance without providing the owner or other party of record with prior notice, the notice shall state why the immediate imminent hazard and danger structure was abated.

The notice and report shall be placed in a sealed envelope, postage prepaid, addressed to the owner or other interested party at his/her last known address as the same appears on the last assessment roles of the county, and deposited, registered or certified mail, return receipt requested in the United States mail. Service shall be deemed completed at the time of deposit in the United States mail.

A copy of the report of assessment shall be posted in the office of the city clerk at least three days prior to the time when the report will be submitted to the city council.

At the time set forth in the notice, the city council shall hear the matter and either modify or confirm the assessment report. The council shall confirm the report as presented by the building official, unless the council, after a review of the evidence in the record, finds that either the work assessed was not performed or that there was an error made in calculating the amount owed. After the assessment is made and confirmed, it shall be a lien on the said property, until said sum, with interest at the maximum legal rate per annum, has been paid in full. Interest shall begin to run on the date the amount is confirmed.

Such lien attaches upon recordation in the office of the county recorder, by certified copy of the resolution of confirmation. After confirmation of the report, a certified copy shall be filed with the county auditor, within thirty days after confirmation. The description of the parcel reported shall be that used for the parcel as the county assessor's map books for the current year. The county assessor shall enter each assessment on the county tax roll opposite the parcel of land. The amount of the assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure for foreclosure and sale in case of delinquencies as provided for ordinary municipal taxes.

(g) Public Nuisance. All structures or portions thereof which, after inspection by an authorized city official, are determined to be an imminent hazard and danger either to the public, occupants of the subject structure or any adjacent structure are hereby declared to be public nuisances and shall be abated by the owner in accordance with the procedure specified in this chapter.

(h) Suspension of Abatement Work. Notwithstanding any provisions herein to the contrary, the building official shall be authorized to suspend abatement work by the city, or the city's contractor, and allow the property owner or other interested party to complete the abatement work. The property owner or other interested party shall pay for all costs incurred by the city prior to the suspension, including inspection, abatement and monitoring costs.

(i) Change of Status. Once the conditions making a structure an imminent hazard and danger have been abated pursuant to this chapter, the structure shall no longer be considered an imminent hazard and danger. However, if the abatement work is temporary in nature, as determined by the building official, the structure shall remain subject to the provisions of this chapter.

(j) If, after ten days, any building or structure is determined by the building official to represent a hazard to the health or safety of the public, or to pose a threat to the public right of way, the building official may initiate a condemnation proceeding in accordance with Section 5.04.110 of this code.

(k) If the owner of any building or structure has decided to demolish rather than repair, the owner, or the owner's representative, shall obtain a demolition permit.

(Ord. 697 § 2 (part), 1994)

(a) Within ten days after the event, the building official may notify the State Historic Preservation Officer that one of the following actions will be taken regarding any historic building or structure determined by the building official to represent an imminent hazard to the health or safety of the public, or to pose an imminent threat to the public right of way:

(1) Whenever possible, as determined by the building official, the building or structure may be braced or shored in such a manner as to mitigate the hazard to public health or safety or the hazard to the public right-of-way.

(2) Whenever bracing or shoring is determined to be an unreasonable alternative, the building official may cause the building or structure to be condemned and immediately demolished. Such condemnation and demolition may be performed in the interest of public health or safety without a condemnation hearing as otherwise required by Section 5.04.110 of this code.

(b) If, ten days after the event and less than thirty days after the event, a historic building or structure is determined by the building official to represent a hazard to the health or safety of the public or to pose a threat to the public right of way, the building official may initiate condemnation proceedings in accordance with Chapter 15.36 of this code. The building official may also notify the Federal Emergency Management Agency, in accordance with the National Historic Preservation Act of 1966, as amended, of its intent to hold a condemnation hearing.

(c) If the building official, and the owner of any historic building or structure have agreed that such building or structure should be demolished, the building official shall submit a request to demolish to the Federal Emergency Management Agency, in accordance with the National Historic Preservation Act of 1966, as amended. Said request shall include all substantiating data.

(Ord. 697 § 2 (part), 1994)

Any person receiving notices pursuant to this chapter may file a written appeal and follow the procedures set forth in the Uniform Code for the Abatement of Dangerous Buildings, as adopted by reference in Section 5.04.110.

(Ord. 697 § 2 (part), 1994)