Nuisance Ordinance

ORDINANCE NO. ARTICLE 5 7-5-1 through 7-1-14

	SECTION 1. SHORT TITLE.  This ordinance shall be known as the “Town of Estancia Nuisance Ordinance.”

	SECTION 2.  AUTHORITY.  This Ordinance is enacted under the Authority of the New Mexico Municipal Code, NMSA 1978, § 3-17-1 et seq., NMSA 1978, § 3-18-5 (1965, as amended), and NMSA 1978 §§ 30-8-1 through 30-8-14 (1963, as amended).

	SECTION 3.  REPEAL.  Ordinance No. Article 5 7-5-1 through 7-5-5, being the Nuisance Code of the City of Estancia adopted on February 4, 2013, shall be and hereby is repealed on the effective date of this Ordinance.

	SECTION 4.  PURPOSE.

		A.  It is the purpose of this ordinance to protect the health, safety, morals or welfare of the residents of the Town by eliminating public nuisances and protecting property from blight and deteriorating conditions by establishing minimum standards governing the maintenance, appearance, and condition of all residential and non-residential premises.

		B.  This Ordinance shall apply to all persons present within the Town of Estancia, and to all buildings, structures, and lands within the Town without regard to use, date of construction, improvement, or alteration.

		C.  This Ordinance conveys to the Town administration, in accordance with the procedures set out hereafter, all necessary and proper powers to abate a public nuisance, discipline responsible parties, and charge the costs of such abatement to those responsible and against the properties themselves.  This Ordinance is an exercise of the Town's police power, and it shall be liberally construed to effect this purpose.

	SECTION 5.   DEFINITIONS.  For the purpose of this Ordinance, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

		A. “Code Enforcement Officer.”  An authorized Town official who is empowered to enforce the provisions of this Ordinance, and who is duly authorized by the Mayor to conduct code enforcement, including, but not limited to, a Town police officer, the Town's designated zoning officer, and the Town’s fire chief or designee.

		B. “Fire Hazard.”  A condition which acts, by itself or in conjunction with other factors, to increase the hazard or menace of fire, as described in the Town's current fire code.

		C. “Health Hazard.”  The presence of items that adversely impact or jeopardize the well-being or health of an individual. Such items include, but are not limited to, human waste, medical or biological waste, injection syringes, gaseous or combustible materials, radioactive waste, dangerous or corrosive chemicals or liquids, flammable or explosive materials, friable asbestos, offal, and decayed matter.

		D. “Inoperable Vehicle.”  Any motor vehicle that by reasons of dismantling, disrepair, or other cause, is incapable of being propelled under its own power.

		E. “Person.”  “Person” as used in this Ordinance shall mean a human being or a corporation.  A person may include the parent of a child to the extent permitted by NMSA 1978, Section 32A-2-27 (1993, as amended). 

		F. “Public Nuisance.”  As specified in NMSA 1978, § 30-8-1 (1963), a public nuisance consists of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either: (i) injurious to public health, safety, morals or welfare; or (ii) interferes with the exercise and enjoyment of public rights, including the right to use public property.  

		G. “Public Right-Of-Way.”  A paved or unpaved street maintained by the Town or upon which the public has obtained a right of access, together with adjoining public real property, alleys, drainage, gutter, or other public easements, and lined or unlined drainage channels which comprise the municipal storm drainage system.

		H. “Solid Waste.”   Includes, but is not limited to, any garbage, litter, refuse, rubbish, special waste, discarded appliances, debris and other discarded materials originating from residential, commercial, or industrial sources, and including any solid waste which requires special handling or a special sign (such as incinerator ash, infectious and non-infectious medical waste, petroleum products, hazardous waste, and tires). 

	SECTION 6.  PUBLIC NUISANCE.  It shall be unlawful for any person to cause, permit, maintain, or allow the creation of a public nuisance, as defined herein.  

	SECTION 7.  NUISANCES DECLARED.  The maintaining, using, placing, depositing, leaving, or permitting to be or remain on any public or private property of any of the following items, conditions, or actions, is declared to be and constitute a public nuisance:

		A.  Overgrown vegetation that impedes passage of or endangers vehicular or pedestrian traffic on public rights of way, that creates a fire hazard, that produces dangerous or noxious branches, thorns, seeds, or other growth that may be blown or otherwise distributed onto neighboring property, or that otherwise endangers the health, safety and welfare of the public;

		B.  Accumulations of rubbish, trash, refuse, litter, junk, or abandoned materials;

		C.  Any condition that provides harbor for rats, mice, snakes, or other vermin, except for the natural activity of bees, rabbits, or other insects and animals except as otherwise provided herein; 

		D.  Any building or other structure that is in such dilapidated condition that it is unfit for human habitation, or kept in such an unsanitary condition that it is a menace to the health, safety or welfare, or that constitutes a fire hazard;
 
		E.  Any condition that is attractive and dangerous to children, such as a vacant and accessible building, uncovered excavation, dilapidated or unsafe wall or fence, or poorly secured stack of wood or other materials;

		F.  All foul and obnoxious odors, fumes, smoke, gas, soot, or cinders, as well as the conditions, substances, or other causes which give rise to the emission or generation of such products;

		G.  The carcasses of animals or fowl not disposed of within a reasonable time after death;

		H.  The pollution of any public well or cistern, lake, or body of water by sewage, industrial waste, or other substances;

		I.  Any accumulation of stagnant water permitted or maintained on any lot or piece of ground;

		J.  The keeping or harboring of bees, including Africanized Honey Bees, when such bees interfere with the normal use of public or private property or have shown unusual aggressive behavior toward a person or animal;

		K.  The obstruction of any fire hydrant, fire department connection, or fire protection system control valve that would prevent the equipment from being immediately discernible or in any other manner deter or hinder firefighters from gaining immediate access to the equipment; or

		L.  Regular or repeated overflow or escape of water used for irrigation or any other purpose onto adjacent property or rights of way.

	SECTION 8.  DUTY TO MAINTAIN.

		A.  In General.  Every person having an immediate possessory interest in a residence or other private property within the Town shall maintain, manage, and supervise the property and all persons thereon in a manner so as to avoid creating a public nuisance.

		B.  Building And Structures.  All structures, and all exposed exterior surfaces, shall be kept safe, structurally sound, and maintained so that they do not constitute a hazard, blight, condition of disrepair, and therefore constitute a public nuisance.  Examples include, but are not limited to, leaning or deteriorating fences, graffiti, peeling paint, and deteriorating, rotting, or damaged materials.

		C.  Exterior Premises And Vacant Land.

			1.  General, land.  All land, including exterior premises and vacant land, whether improved or unimproved, shall be maintained free from any accumulation of debris or blight, which includes, but it not limited to, graffiti on walls, fences, or mail boxes, accumulation of litter, rubbish, refuse, waste material, bottles, paper, glass, cans, organic or inorganic material, inoperable or disabled vehicles, piles of mixed materials, dry vegetation, rags, empty barrels, boxes, crates, packing cases, mattresses, bedding, lumber not neatly piled or stored in front yards, scrap iron, tin, and other metal not neatly piled, or anything whatsoever in which insects, rodents, snakes, or other harmful pests may live, breed, or multiply, or which may otherwise create a health hazard.

			2.  Streets, alleys, and sidewalks.  Land abutting a sidewalk, alley, or street shall be maintained the same in the same manner as provided in the previous paragraph.  

			3.  Solid waste receptacles. All solid waste receptacles shall be maintained in a clean and sanitary condition by the owner or person using the receptacle, emptied regularly, and shall be located only in places as shall be readily accessible for removing and emptying the same, but shall not be placed in a place or position as may constitute a public nuisance or obstruction to vehicular or pedestrian traffic.

			4.  Unoccupied or Vacant Structures. An unoccupied or vacant building or structure, or any part thereof, shall be kept secured by the owner against unauthorized entry and water damage.

		D.  Ruined, Damaged, And Dilapidated Buildings And Structures.  New Mexico Statutes Annotated (1978), Section 3-18-5 (1965, as amended), concerning the ability of a municipality to require the removal of a building or structure that is ruined, damaged, and dilapidated, shall be incorporated by reference into this Ordinance and considered to be a part hereof.

	SECTION 9.  VEHICLES.

		A.  General prohibition.  It shall be unlawful for any person to store on, place on, or permit to be stored or placed on, or allow to remain on any occupied or unoccupied land within the Town, a dismantled, partially dismantled, or inoperative motor vehicle, or any parts of a motor vehicle, except in areas where such activity is within the contemplated purposes of duly licensed and properly zoned businesses, or where such vehicles or parts are kept in wholly enclosed garages or structures. Vehicles shall not be used for storage unless enclosed within a garage or structure.

		B.  Exceptions. The general prohibition against outdoor storage of inoperable or abandoned vehicles or parts thereof does not apply under the following circumstances:

			1.  One (1) inoperable vehicle may be stored upon property within the Town when not in an enclosed structure, if fully covered and placed in a side or back yard. Such vehicle must be at least five (5) feet from any property line or permanent structure.

			2.  One (1) inoperable vehicle being repaired or awaiting repair may be stored without cover in a side or back yard on residential property within the Town for a period not to exceed two (2) weeks, if the vehicle is registered in the resident's name.

	SECTION 10.  ENFORCEMENT. 

		A.  Written Complaint.  A person aggrieved by a violation or apparent violation of this ordinance may file a written complaint with a code enforcement officer of the Town, who shall investigate the complaint. 

		B.  Notice to abate.  Any code enforcement officer, either responding to a complaint made under the previous paragraph, or upon observing any violation of this ordinance, may issue a notice to abate a public nuisance.  Nothing herein shall prohibit a code enforcement officer from engaging in informal means to abate the public nuisance, such as discussing the nuisance the with the person responsible, serving a notice of violation or warning on a person, or employing other informal means to achieve compliance.

		C.  Contents of notice.  The notice to abate a public nuisance described in Subsection B above shall contain:

			1.  An order to abate the public nuisance within the time frame specified in the notice;

			2.  The location of the public nuisance, if the same is stationary;
	
			3.  A description of what constitutes the public nuisance, with reference to the subsection of this ordinance that describes the public nuisance;

			4.  A statement of acts necessary to abate the public nuisance;

			5.  A statement that if the public nuisance is not abated as directed and no request for hearing is made within the prescribed time, the Town may choose to abate such public nuisance and assess the cost thereof against such person and any other applicable party, or to initiate a civil action against them in the municipal court.

		D.  Service of notice.  A notice to abate a nuisance shall be issued under the provisions of the Rules of Civil Procedure applicable to the District Courts of the State of New Mexico.  

		E.  Extension of time.  Any person who has been issued a written notice of violation of this ordinance may submit a written request to the appropriate code enforcement officer for a reasonable extension of time of the period for abatement and/or removal of the nuisance, not to exceed an additional thirty (30) days, which may be granted in the reasonable discretion of the code enforcement officer.

		F.  Request for Hearing; Hearing.  Any person receiving notice of a notice to abate a nuisance may request a hearing before the Estancia Board of Trustees within the period specified in the notice to abate, by filing a written request for hearing with the Estancia Town Clerk. The Clerk will schedule the hearing as a part of a regular session of the Board of Trustees as soon as practicable.  In considering the appeal during the hearing, the Board must consider the public health, safety, morals and welfare and may consider the individual circumstances of the persons and property involved in order to effect the purpose of this ordinance.

		G.  Abatement by Town.  Upon the failure of the person upon whom a notice to abate a public nuisance was served, the Town may proceed to abate such public nuisance and shall prepare a statement of costs incurred in the abatement thereof.  Any and all costs incurred by the Town in the abatement of a public nuisance under this Ordinance shall constitute a lien against the property upon which such nuisance existed.  Notice of such lien shall be filed for record in Torrance County and shall be notice to all persons from the time of its recording, and the costs declared in the notice of lien shall bear interest at ten percent (10%) per annum thereafter until satisfied.

		H.  Abatement by the Courts.  The Town may elect to seek relief from the courts as an alternative to abating the public nuisance itself.  A civil action to abate a nuisance may be brought in the municipal court or in the district court against any person who shall create, perform, or maintain a public nuisance.  If judgment is rendered against any person for a public nuisance, that person shall be adjudged to pay all court costs.  In all such proceedings, the Rules of Civil Procedure applicable in the District Courts of the Statement of New Mexico, shall be used.

	SECTION 11.  PENALTIES.

		A.  Whenever in this Ordinance an act is prohibited or is made or declared to be unlawful, or whenever in this Ordinance the doing of any act is required, and the failure to do any act is declared to be unlawful, and no specific penalty is provided therefor, the violation of any such provision or the failure to perform any such act shall be punishable by a fine of not exceeding five hundred dollars ($500.00), or by imprisonment not to exceed ninety (90) days, or by both such fine and imprisonment, in the discretion of the court.

		B.  Each day any such violation or failure to perform such act shall continue shall constitute a separate offense and a separate violation of the ordinance, unless otherwise specifically provided.
		
		C.  A code enforcement officer, when a public nuisance exists as set forth in this ordinance, may maintain a complaint in District Court in the name of the Town to enjoin all persons from maintaining or permitting the nuisance and to abate the same.

	SECTION 12.  SUCCESSIVE OWNERS LIABLE.  Each person who succeeds to a present possessory interest in property on which a public nuisance exists or is maintained and who neglects to abate a continuing nuisance upon, or in the use of such property, shall be liable therefore in the same manner as the person who first created the nuisance.

	SECTION 13.  SEVERABILITY.   The sections of this ordinance are severable. The invalidity of a section shall not affect the validity of the remaining sections.

	SECTION 14. EFFECTIVE DATE.  This ordinance shall become effective five days following publication pursuant to NMSA 1978, 3-17-5(B) (1965).

PASSED, APPROVED, AND ADOPTED ON THIS 17th DAY OF November, 2014.

Sylvia Chavez, Mayor

Attest:
Michelle Dunlap, Deputy Clerk