The provisions contained in this appendix are not mandatory unless specifically referenced in the adopting ordinance.
The provisions of this appendix shall supplement the provisions of Chapter 1 and provide procedures to enforce continued compliance of buildings, structures and building sites constructed and protected under the provisions of this code.
This appendix shall be construed to secure its expressed intent, which is to ensure public health, safety and welfare and protection of the environment insofar as they are affected by the continued occupancy and maintenance of buildings and building sites. Existing buildings, structures and building site improvements that do not comply with these provisions shall be altered or repaired to restore compliance with this code.
Equipment, systems, devices, safeguards and protections required by this code or a previous code under which the buildings, structures and building site was constructed, altered or repaired; or under which portions of the building site were protected; shall be maintained.
D102.2 Owner responsibility.
Except as otherwise specified in this code, the owner or the owner’s designated agent shall be responsible for the maintenance of buildings, structures and building site. No owner, operator, or occupant shall cause any service, facility, equipment or utility that is required under this code to be removed or shut off from or discontinued.
D102.3 Existing remedies.
The provisions of this chapter shall not be construed to abolish or impair existing remedies of the jurisdiction or its officers or agencies relating to the removal or demolition of any structure or building site improvement that is dangerous, unsafe or causing irreparable harm to environmental systems.
The following words and terms shall, for the purposes of this appendix, have the meanings shown herein. Refer to Chapter 2 of this code for general definitions.
OPERATOR. Any person who has charge, care or control of a building, structure and building site that is let or offered for occupancy.
OWNER. Any person, agent, operator, firm or corporation having a legal or equitable interest in a building site; or recorded in the official records of the state, county or municipality as holding title to the building site; or otherwise having control of the building site, including the guardian of an estate of any person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court.
STRICT LIABILITY OFFENSE. An offense in which the prosecution in a legal proceeding is not required to prove criminal intent as a part of its case. It is enough to prove that the defendant either did an act that is prohibited, or failed to do an act that the defendant was legally required to do.
DUTIES AND POWERS OF THE CODE OFFICIAL
The code official is hereby authorized and directed to enforce the provisions of this appendix.
The code official is authorized to make all inspections necessary for administration of this appendix, to ensure compliance with maintenance requirements of this code and to resolve identified violations.
D104.3 Right of entry.
Where it is necessary to make an inspection to enforce the provisions of this code, or whenever the code official has reasonable cause to believe there exists in a building or structure or on a building site a condition in violation of the code, the code official is authorized to enter the building site, and if needed to enter the building or structure at reasonable times to inspect or perform the duties imposed by this code. Where the building site or building is occupied, the code official shall present identification credentials to the occupant and request entry. If the building site or building is unoccupied, the code official shall first make a reasonable effort to locate the owner or other person having charge or control of the building site or building and request entry. If entry is refused, the code official shall have recourse to the remedies provided by law to secure entry.
The code official shall carry proper identification credentials when inspecting a building or building site in the performance of duties under this code.
D104.5 Notices and orders.
The code official shall issue all necessary notices or orders to ensure compliance with this code.
D105.1 Unlawful acts.
It shall be unlawful for an owner or an owner’s designated agent to be in conflict with, or violation of, any of the provisions of this code.
D105.2 Notice of violation.
The code official shall serve notice of the violation or issue an order in accordance with Section D106.
D105.3 Prosecution of violation.
Any person failing to comply with a notice of violation or order served in accordance with Section D106 shall be deemed guilty of a misdemeanor or civil infraction as determined by the jurisdiction, and the violation shall be deemed a strict liability offense. If the notice of violation or order is not complied with, the code official shall institute the appropriate preceding at law or in equity to restrain, correct or abate the violation. The expenses incurred by the jurisdiction during action taken by the jurisdiction on the building site or in the building shall be charged against the real estate of the building site and shall be a lien upon such real estate.
D105.4 Violation penalties.
Any person who violates the provisions of this code, or fails to comply with the provisions of this code, shall be prosecuted within the limits provided by the laws of the state and jurisdiction. Each day that a violation continues after notice has been served in accordance with Section D106 shall be deemed a separate violation and offense.
D105.5 Abatement of violation.
The imposition of penalties under the provisions of this code shall not preclude the legal officer of the jurisdiction from instituting appropriate action to restrain, correct or abate a violation, or to prevent illegal occupancy of a building, structure or building site, or to stop an illegal act, conduct, business or utilization of a building, structure or building site.
NOTICES AND ORDERS
D106.1 Notice of violation.
Whenever the code official determines that there has been a violation of this code or has grounds to believe that a violation has occurred, notice shall be given in the form and manner prescribed in Sections D106.2 and D106.3.
D106.2 Form of notice.
A notice of violation prescribed in Section D106.1 shall be in accordance with the following:
1. Be in writing;
2. Include a real estate description of the building site sufficient for identification;
3. Include a statement of the violation or violations and why the notice is being issued;
4. Include a correction order allowing a reasonable time to make repairs and improvements required to bring the building, structure and building site into compliance with the provisions of this code;
5. Inform the property owner and those receiving the notice and order of the right to appeal; and
6. Include a statement of the right of the jurisdiction to file a lien in accordance with Section D105.3.
D106.3.1 Recipient of notice.
The notice of violation and order to comply shall be served on the person responsible for the violation of the code. When the person responsible for the violation is someone other than the owner of the building and building site, a copy of the notice shall also be served on the property owner.
D106.3.2 Method of service.
Such notice and order to comply shall be deemed to be properly served if a copy is:
1. Delivered personally; or
2. Sent by certified or first-class mail addressed to the last known address.
3. If a notice served by mail is returned showing that the letter was not delivered, a copy of the notice and order shall be posted in a conspicuous place in or about the building, structure or building site affected by the notice.
D106.4 Unauthorized tampering.
Notices, orders, signs, tags or seals posted or affixed by the code official shall not be mutilated, destroyed or tampered with, or removed without authorization from the code official.
Penalties for noncompliance with notices and orders shall be as set forth in Section D105.4.
D106.6 Transfer of ownership.
It shall be unlawful of the owner of any building, structure or building site who has received a compliance order or upon whom a notice of violation has been served, to sell, transfer, mortgage, lease or otherwise dispose of the building, structure or building site to another until the provisions of the compliance order or notice of violation have been complied with, or until such owner shall first furnish the grantee, transferee, mortgagee or lessee a true copy of any compliance order or notice of violation issued by the code official and shall furnish to the code official a signed and notarized statement from the grantee, transferee, mortgagee or lessee, acknowledging the receipt of such compliance order or notice of violation and fully accepting the responsibility without condition for making corrections or repairs required by such compliance order or notice of violation.
EMERGENCY MEASURES AND ABATEMENT
D107.1 Imminent hazard.
When, in the opinion of the code official, there is an imminent hazard to the building site or to surrounding public and private property resulting from the failure of a building or building site system, including but not limited to: stormwater management systems; erosion control measures; gray water or rainwater collection systems; or dry vegetation used for vegetative roofs or hardscape shading; which endangers life or which will cause irreparable harm to environmental systems on, or adjacent to, the building site, the code official is hereby authorized and empowered to order immediate repair of these systems and measures to restore proper operation.
D107.2 Temporary safeguards.
Notwithstanding other provisions of this code, whenever, in the opinion of the code official, there is an imminent hazard due to the failures of systems and measures, the code official shall order the necessary work done, whether or not the legal procedures specified in this chapter has been instituted; and shall cause such other action to be taken as the code official deems necessary to resolve the hazard.
D107.3 Closing streets.
When necessary for public safety, the code official shall temporarily close or order the authority having jurisdiction to close sidewalks, streets, public ways and bicycle pathways, adjacent to the hazardous location.
D107.4 Emergency repairs.
For the purposes of this section, the code official shall employ the necessary labor and materials to perform the required work as expeditiously as possible.
D107.5 Costs of emergency repairs.
Costs incurred in the performance of the emergency work shall be paid by the jurisdiction. The legal counsel of the jurisdiction shall institute appropriate action against the owner of the building site for the recovery of the costs.
Any person ordered to take emergency measures shall comply with such order forthwith. Any person affected thereafter, upon application to the board of violation appeals shall be afforded a hearing as described in this code.
MEANS OF APPEAL
In order to hear and decide appeals of notices of violation and orders of compliance issued by the code official pursuant to this chapter, there shall be and is hereby created a board of violation appeals. Where the board of appeals established under Section 108 is in compliance with the provisions of Sections D108.1 through D108.6, the board of appeals shall be permitted to serve as the board of violation appeals.
D108.2 Board of violation appeals.
The board of violation appeals shall be appointed by the applicable governing authority and shall hold office at its pleasure.
D108.2.1 Membership of the board.
The board of violation appeals shall consist of a minimum of three members who are qualified by experience and training to pass on matters regulated by this code. Members shall be appointed to serve staggered and overlapping terms. Members of the board shall not be employees of the jurisdiction. The code official shall be an ex-officio member but shall have no vote on any matter before the board.
D108.2.2 Alternate members.
The governing authority shall appoint two or more alternate members who shall be called by the chair of the board to hear appeals during the absence or disqualification of a member. Alternate members shall possess the qualifications required for board membership.
D108.2.3 Board chair.
The board shall annually select one of its members to serve as chair.
D108.2.4 Disqualification of member.
A member shall not hear an appeal in which that member has a personal, professional or financial interest.
The code official shall designate a qualified person to serve as secretary to the board. The secretary shall file a detailed record of all proceedings in the office of the code official.
D108.3 Application for appeal.
Any person receiving a notice of violation issued by the code official pursuant to this chapter, shall have the right to appeal to the board of violation appeals. The application for appeal shall be in writing and filed within 20 days after the day the notice of violation was served. An application for appeal shall be based on a claim that the requirements of this code are adequately satisfied.
D108.4 Stays of enforcement.
Other than notices of imminent hazard, appeals of notices and orders shall stay the enforcement of the notice and order until the appeal is heard by the board of violation appeals.
The board shall meet upon notice from the chair, within 20 days of the filing of an appeal, or at stated periodic meetings. Notice of the board meeting shall be published in the newspaper of record for the jurisdiction. Written notice shall be provided to the owner of the building site subject to the notice of violation as well as any person cited in the notice of violation.
D108.5.2 Open hearing.
All hearings before the board shall be open to the public. The appellant, the appellant’s representative, the code official and any person whose interests are affected shall be given an opportunity to be heard.
A quorum shall consist of not less than two-thirds of the board membership. A quorum shall be present in order for a hearing to proceed.
D108.5.4 Hearing procedures.
The board shall adopt and make available to the public through the secretary procedures under which a hearing will be conducted. The procedures shall not require compliance under strict rules of evidence, but shall mandate that only relevant information be received.
D108.5.5 Postponement of hearing.
When the full board is not present to hear an appeal, either the appellant or the appellant’s representative shall have the right to request postponement of the hearing.
D108.6 Board decision.
The board of violations appeal shall either uphold, modify or reverse the decision of the code official. The board shall modify or reverse the decision of the code official only by a concurring vote of a majority of the total number of appointed board members. The decision of the board to uphold, modify or reverse the decision of the code official shall be in writing and shall direct actions appropriate to implement the decision.
D108.6.1 Records and copies.
The decision and directive of the board shall be recorded. Copies shall be furnished to the appellant, the owner of the building site and to the code official.
The code official shall take immediate action in accordance with the decision of the board.
D108.7 Court review.
Any person, whether or not a previous party of the appeal, shall have the right to apply to the appropriate court for a writ of certiorari to correct errors of law. Application for review shall be made in the manner and time required by law.