§ 10-139. Administrative actions for enforcement and abatement.

(a)

Emergency abatement or corrective action. Whenever the manager determines that a violation of this article is an imminent hazard to life, health, property, or public welfare, the manager may order the owner to immediately abate or correct the condition causing the imminent hazard or may abate or correct the condition causing the imminent hazard. Within twenty (20) days of abating the imminent hazard, the manager shall notify the owner:

(1)

That the city took an abatement or corrective action,

(2)

The fee of the abatement or corrective action, and

(3)

That under section 12-19 of the Code, the owner may appeal the manager's decisions and the fee for any abatement or corrective action the city took.

(b)

Notice of violation. Except as provided in subsection (a) of this section, whenever the manager finds that any owner has violated or is violating this article, or any rules and regulations established hereunder, the manager may issue a written notice to the owner stating the nature of the violation, the possible penalties, and any required remedial action and referring to the appeal process under section 12-19. For a neglected or derelict historic property, the landmark preservation commission or lower downtown design review board may request the manager to proceed with an administrative enforcement and abatement action.

(c)

Remedial plan.

(1)

Whenever the manager issues a notice of violation under subsection (b), the owner shall submit a written remedial plan, in a form acceptable to the city, within thirty (30) days of the date of the notice or shorter period of time as stated in the notice. The remedial plan must include all work necessary to abate the violation and deadlines for completing all work in the remedial plan.

(2)

A remedial plan for a historic property proposing to demolish or alter the exterior of a historic structure is neither approvable nor allowed to be implemented, without the landmark preservation commission or the lower downtown design review board's prior written approval.

(3)

Except for placement on the neglected and derelict building list in accordance with section 10-141(b) and the requirements under section 10-143, all further enforcement action under this article will be stayed if the manager approves the remedial plan and the owner:

(A)

Complies with the approved remedial plan;

(B)

Complies with all property related provisions of the Code (with regard to that property); and

(C)

Pays all fees and penalties related to or arising out of any violation of section 10-138(c).

(d)

Determinations eligible for appeal. The owner may appeal the notice of violation, requirement to post no trespassing signs, rejection of a remedial plan, the manager's determination that the owner has failed to comply with an approved remedial plan, and the manager's determination to order or take emergency abatement action. Placement on the neglected and derelict building list, assessment of the neglected and derelict building fees, and the requirements to designate an agent and file a registration statement under section 10-143, however, are ministerial acts or requirements that may be considered as part of an determination eligible for appeal, but are not a separate basis for filing an appeal.

(e)

Order to show cause. If the owner does not submit a remedial plan within thirty (30) days of the date of notice or the shorter time period set forth in the notice, or if the owner submits a remedial plan within the prescribed time but the manager rejects it or the owner does not comply with the approved remedial plan, the manager may order any owner of the neglected or derelict property to show cause before the manager why the proposed enforcement action should not be taken. If the owner appeals the notice of violation, requirement to post signs, rejection of the remedial plan, or a determination that the owner has not complied with an approved remedial plan, the manager may consolidate the hearing on the appeal and the show cause hearing and issue a decision determining all issues under this article raised at the hearing.

(f)

Notice of show cause hearing. Notice of show cause hearing must be served on the owner specifying:

(1)

The time and place of a hearing regarding the violation,

(2)

The reasons why the action is to be taken, and

(3)

The proposed enforcement action.

The notice must direct the owner to show cause why the proposed enforcement action should not be taken. If the manager consolidates the show cause hearing and an appeal, the notice must indicate that the hearings have been consolidated.

(g)

Service of notices.

(1)

A notice of violation, placement on the neglected and derelict building list under section 10-141(b), and the show cause hearing must be served on the owner. The notice of violation and notice of placement on the neglected and derelict building list may be served by hand delivery to the owner or by sending it first-class mail, postage prepaid and by posting them on a conspicuous place on the property. Service of the notice of show cause hearing may be made by hand delivery to the owner, or by certified mail postage prepaid, or by the methods provided in the Colorado Rules of Civil Procedure. Service of any of these notices by mail must be addressed to the owner as shown in the records of the assessor's office. The notice of show cause hearing must be served at least ten (10) days before the hearing.

(2)

A notice of violation and notice of placement on the neglected and derelict building list that is mailed in accordance with these requirements is complete upon placement in the mail. A notice of the show cause hearing that is mailed in accordance with these requirements is considered served on the date mailed unless it is returned as undeliverable. (For purposes of this article, unclaimed or refused mail is not undeliverable.)

(3)

If service of the notice of show cause hearing cannot be accomplished by any of the above methods, service may be made by posting it in a conspicuous place on the property for at least ten (10) days before the hearing and publishing it once in a daily newspaper of general circulation at least ten (10) days and no more than twenty (20) days before the hearing.

(h)

Show cause hearing. The hearing must be conducted in accordance with rules and regulations issued by the manager. If the notice of show cause hearing has been served in compliance with section 10-139(g), the hearing will take place regardless of whether the owner appears.

(i)

Presumption. The owner has the burden of proving the correctness of its position by a preponderance of the evidence. All of the manager's determinations and findings are presumed to be correct until sufficient evidence is introduced that would support a contrary finding.

(j)

Designation of hearing officer. The manager may hold the hearing or designate a hearing officer. For purposes of deciding any preliminary matter related to a hearing; conducting a hearing; making any determination and finding; issuing subpoenas and orders; and assessing civil penalties and fees, the hearing officer has all the powers and authority vested in the manager under this article.

(k)

Determination/final order. The manager shall:

(1)

Make a determination, which must be reduced to writing and sent to the owner within thirty (30) days of the hearing. The determination is the final order and is reviewable under Rule 106(a)(4) of the Colorado Rules of Civil Procedure. Each party may file a motion for correction to or clarification of the order, which must be filed within seven (7) days of the date the order is issued. Unless a motion for correction or clarification is timely filed, the time period to file an appeal under Rule 106(b) commences on the date the final order is issued. If a motion for clarification or correction is filed, that time period commences on the date the correction or clarification to the final order is issued.

(2)

Include in the final order:

(A)

Findings of fact and a determination as to whether any violation has occurred;

(B)

Identification of any mitigating or aggravating circumstances;

(C)

The amount of any civil penalty, fee, cost, or combination thereof assessed under sections 10-139(m), 10-141, and 10-142 and the costs of the hearing; and

(D)

Set a deadline for any required abatement action to be performed.

(l)

Service of the written determination and final order. The written determination and final order must be sent to the owner by first-class mail, postage prepaid.

(m)

Civil penalties. The manager may assess a civil penalty of not more than nine hundred ninety-nine dollars ($999.00) per day for each day the owner is found to have violated this article, any order issued by the authority of this article, any rules and regulations adopted by the manager, or permit issued for work related to an approved remedial plan. In imposing any civil penalty for a violation of section 10-138(c), the manager may consider the history of violations, whether the owner was deliberate or negligent, whether the neglected or derelict property is a historic property, the gravity of the violation, the demonstrated good faith of the owner in attempting to achieve timely compliance after notification of a violation. Additionally, when the neglected or derelict property is lawfully used for commercial purposes, the manager may consider the effect of civil penalties on the owner's ability to continue the business. Unless otherwise expressly stated in the final order, civil penalties assessed under this article are due and payable within thirty (30) days of date of invoice, which must be sent first-class mail, postage prepaid, to the address shown in the records of the assessor's office, the address the owner provides to the city (including under section 10-143), or an address for the owner the city discovers through its own efforts.

(n)

Judicial enforcement. In addition to all other remedies set forth in this article, the city may petition the district court for the issuance of a preliminary or permanent injunction, or both, restraining any person from continued violation of this article. In that action, the city may seek recovery of any unpaid civil penalties, abatement costs, and other fees and costs provided for in this article.

(o)

Posting of no trespassing signs and other warning signs. Upon or after issuing a notice of violation under section 10-138(c), the city may, or may require the owner to, post a sign near each possible access point to the property prohibiting trespassing and warning the public of danger. If a sign is required to be posted under this article, within the time period requested by the manager, the owner shall post the sign(s) and provide written authorization to the manager allowing the arrest of any trespassers.

(Ord. No. 90-95, § 3, 2-6-95; Ord. No. 638-98, §§ 1(c)—(f), 9-14-98; Ord. No. 807-03, §§ 4—7; Ord. No. 499-12, § 2, 10-8-12)