CHAPTER 92: NUISANCES
General Provisions
Section
92.01 Definitions
92.02 Common law and statutory nuisances
92.03 Certain conditions declared a nuisance
92.04 Abatement procedure
92.05 Nuisance created by others
Noise Control
92.20 Definitions
92.21 Exceeding established sound levels prohibited
92.22 Determination of violation
92.23 Exceptions
92.24 Variances
Braking Devices
92.30 Dynamic braking devices
92.99 Penalty
Cross-reference:
Noisy animals, see § 90.02
Statutory reference:
Private nuisances, see KRS 411.500 - 411.570
GENERAL PROVISIONS
§ 92.01 DEFINITIONS.
For the purpose of this subchapter the following definitions shall apply unless the context clearly indicates or requires a different meaning.
AUTOMOBILE PARTS. Any portion or parts of any motor driven vehicle as detached from the vehicle as a whole.
MOTOR VEHICLE. Any style or type of motor driven vehicle used for the conveyance of persons or property.
MOTOR VEHICLE IN AN INOPERATIVE CONDITION. Those motor vehicles which are unable to move under its own power due to defective or
missing parts, which lack parts or equipment necessary to make that vehicle readily operable, and/or that cannot be safely operated on the public roads and highways by virtue of defective, missing or improper parts or equipment and/or not properly registered or insured as required by state statutes.
NUISANCE. Public nuisance.
SCRAP METAL. Pieces or parts of steel, iron, tin, zinc, copper,
aluminum, or any alloy thereof, whether covered with porcelain or any other material, whether intact or in parts, which has served its usefulness in its original form and can no longer be used for its originally intended purpose.
UNFIT FOR FURTHER USE. In a dangerous condition; having defective or missing parts; or in such a condition generally as to be
unfit for further use as a conveyance.
(Am. Ord. 96-22, passed 7-8-96)
§ 92.02 COMMON LAW AND STATUTORY NUISANCES.
In addition to what is declared in this chapter to be a public nuisance, those offenses which are known to the common law and statutes of Kentucky as public nuisances may be treated as such and be proceeded against as is provided in this chapter or in accordance with any other provision of law.
Penalty, see § 92.99
§ 92.03 CERTAIN CONDITIONS DECLARED A_NUISANCE.
It shall be unlawful for the owner, occupant, or person having control or management of any land within the city to permit a public nuisance to develop thereon. The following conditions are declared to be public nuisances:
(A) Dangerous trees or other objects adjoining street. Any tree,
stack, or other object standing in such a condition that it will, if the condition is allowed to continue, endanger the life, limb, or property of, or cause hurt, damage, or injury to persons or property upon the public streets or public ways adjacent thereto, by the falling thereof or of parts thereof.
(B) Accumulation of rubbish. An accumulation on any premises of filth, refuse, trash, garbage, or other waste material which endangers the public health, welfare, or safety, or materially interferes with the peaceful enjoyment by owners or occupants of adjacent property because of the danger that it will catch or communicate fire, attract and propagate vermin, rodents, or insects, or blow rubbish into any street, sidewalk, or property of another.
(C) Noxious odors or smoke. Emission into the surrounding atmosphere of odor, dust, smoke, or other matter which renders ordinary use or physical occupation of other property in the vicinity uncomfortable or impossible.
(D) Storage of explosives. The storage of explosive material which creates a safety hazard to other property or persons in the vicinity.
(E) Weeds. The existence of thistles, burdock, jimson weeds, ragweeds, milkweeds, poison ivy, poison oak, iron weeds, and all other noxious weeds and rank vegetation in excess of a height of 12 inches.
(F) Open wells. The maintenance of any open, uncovered, or insecurely covered cistern, cellar, well, pit, excavation, or vault situated upon private premises in any open or unfenced lot or place.
(G) Trees and shrubbery obstructing streets and sidewalks. The growing and maintenance of trees with less than 14 feet clearance over streets or less than eight feet over sidewalks, or the growing and maintenance of shrubbery in excess of three feet in height within the radius of 20 feet from the point where the curb line of
any street intersects the curb line of another street. No shrub shall be planted between the curb line and the property line of any street within a radius of 20 feet from the point where the curb line of any street intersects with the curb line of another street.
(H) Keeping of animals. The failure to keep an animal's pen, yard, lot, or other enclosure in a sanitary condition and free from preventable offensive odors.
(I) Junk; scrap metal; motor vehicles. The storage of motor vehicles in an inoperative condition, motor vehicles unfit for further use, automobile parts, or scrap metal within the city limits except on premises authorized by the city for such purposes. Penalty, see § 92.99
( J ) Exterior use or storage of indoor furniture or appliances is prohibited. No person owning, leasing, occupying or having charge of any premises shall allow the use or storage of furniture or appliances which is upholstered or not designed for outdoor use in an uncovered or exposed area where it is likely to decay, decompose, or retain moisture causing a health hazard or diminution in the value of neighboring properties.
Cross-reference:
Tree Commission, see §§ 35.125 - 35.129
§92.04 ABATEMENT PROCEDURE.
(A) It shall be the duty of the Building Inspector to serve or cause to be served a notice upon the owner or occupant of any premises on which there is kept or maintained any nuisance in violation of the provisions of this chapter and to demand the abatement of the nuisance within five days unless the nuisance constitutes an immediate danger to the health and well-being of the community. If such danger is present, the nuisance may be abated immediately by the city. Absent such immediate danger, and prior to the abatement of any nuisance and/or demolition of any structure which has been deemed to be unfit or unsafe by the Building Inspector as set forth in § 154.29 of this Code, the following procedural process shall be followed:
(1) Notice shall be served upon persons by certified
mail, but if the whereabouts of the persons is unknown and cannot be ascertained in the exercise of reasonable diligence, the city shall make an affidavit to that effect, and the serving of notice may be made by publication in a newspaper of general circulation for two consecutive publications.
(2) A copy of the notice shall be posted in a conspicuous place on the premises affected by the notice and it shall be recorded in the office of the Carroll County Court Clerk.
(3) Pursuant to K.R.S. 381.770, the property owner shall be afforded a public hearing prior to the abatement of any nuisance and/or demolition of any unfit or unsafe structure. Provided, however, that such hearing must be requested in writing by the property owner themselves, a copy of which shall be served in the City Clerk/Treasurer not later than seven working days following receipt of notice as set forth above. The City Clerk/Treasurer shall thereafter fix the time and place for a hearing which shall be held not later than two weeks thereafter, with notice of said hearing to be immediately provided to the property owner. The Clerk/Treasurer shall notify the Mayor and all members of the City Council of the time and place of the hearing not less 24 hours in advance thereof. The majority of the City Council members shall constitute a quorum to hear the appeal. The property owner shall be present and shall be heard following presentation to the Council of the facts which necessitate enforcement through this section by the Building Inspector. The public shall also be entitled to be heard on any matter which may tend to impact the decision of the City Council. If, after hearing, a majority of the members of the City Council present at the meeting declare in favor of the property owner,
such abatement shall not occur, and the Council shall make recommendations to the property owner to abate the nuisance or make any building fit for human habitation, occupancy or use. Should the majority of the members present at the meeting decide that such abatement is necessary, demolition, and/or other abatement shall immediately occur.
(4) The city shall have a lien against the property for the reasonable value of labor and materials used in remedying the situation. The affidavit of the responsible officer shall constitute prima facie evidence of the amount of the lien and the regularity of the proceedings pursuant to this statute, and shall be recorded in the office of the County Clerk. The lien shall be notice to all persons from the time of its recording and bear interest thereafter until paid. The lien created shall take precedence over all other subsequent liens, except state, county, school board, and city taxes, and may be enforced by judicial proceeding.
(5) In addition to the remedy prescribed in subsection (4) of this section or any other remedy authorized by law, the owner of a property upon which a lien has been attached pursuant to this section shall be personally liable for the amount of the lien, including all interest, civil penalties, and other charges and the city may bring a civil action against the owner and shall have the same remedies as provided for the recovery of a debt owned.
(B) If the person so served does not abate the nuisance within the specified time, the city may proceed to abate the nuisance, keeping an account of the expense of the abatement, and the expense shall be charged to and paid by the owner or occupant.
(C) Charges for nuisance abatement shall be a lien upon the premises. Whenever a bill for charges remains unpaid for 60 days after it has been rendered, the City Clerk/Treasurer may file with the County Clerk a statement of lien claims. This statement shall contain a legal description of the premises, the expenses and costs incurred, the date the nuisance was abated, and a notice that the city claims a lien for this amount. Notice of the lien claim shall be mailed to the owner of the premises if his address is known. However, failure to record the lien claim or to mail the notice, or the failure of the owner to receive the notice, shall not affect the right to foreclose the lien for charges as provided in division (D) below. The lien shall be notice to all persons from the time of its recording and shall bear interest at 6% per annum thereafter until paid.
(D) Property subject to a lien for unpaid nuisance abatement charges shall be sold for nonpayment and the proceeds of the sale shall be applied to pay the charges after deducting costs, as is the case in the foreclosure of statutory liens. This foreclosure shall be in equity in the name of the city.
(E) The City Attorney is authorized and directed to institute such proceedings, in the name of the city, in any court having jurisdiction over the matter, against any property for which the bill has remained unpaid 60 days after it has been rendered.
('78 Code, § 9-1) (Ord., passed 5-5-71; Am. Ord. 91-05, passed 3-27-91; Am. Ord. 91-07, passed 5-8-91; Am. Ord. 97-12, passed 7-16-97)
§ 92.05 NUISANCE CREATED BY OTHERS
For the purposes of this chapter, it shall not be essential that the nuisance be created or contributed to by the owner, occupant, or person having control or management of the premises, but merely that the nuisance be created or contributed to by licensees, invitees, guests, or other persons for whose conduct the owner or operator is responsible, or by persons for whose conduct the owner or operator is not responsible, but by the exercise of reasonable care ought to have become aware of.
NOISE CONTROL
§ 92.20 DEFINITIONS.
All terminology used in this subchapter and not defined below shall be in conformance with applicable American National Standards Institute Publications. For the purpose of this subchapter the following definitions shall apply unless the context clearly indicates or requires a different meaning.
A-WEIGHTED SOUND PRESSURE LEVEL. The sound pressure level as measured with a sound level meter using the A-weighted network. The standard notation is dB(A) or dBA.
CUMULATIVE PERIOD. An additive period of time composed
individual time segments which may be continuous or interrupted.
DECIBEL (dB). A unit for describing the loudness of sound, equal to 20 times the logarithm to the base 10 of the ratio of the pressure of the sound measured to the reference pressure, which is 20 micropascals (20 micronewtons per square meter). Zero decibels is the threshold of human hearing. Ten decibels is ten times as loud as zero, 20 decibels is 100 times as loud as zero, and 130 decibels is the threshold of pain.
NOISE. Any sound which is unwanted or which causes or tends to cause an adverse psychological or physiological effect on human beings.
REAL PROPERTY LINE. An imaginary line along the surface, and its vertical plane extension, which separates the real property owned, rented, or leased by one person from that owned, rented, or leased by another person, excluding intra-building residential property division.
SOUND. The manifestation in air of a longitudinal wave created by a pressure fluctuation, which evokes an auditory sensation and can be measured with suitable instrumentation.
SOUND LEVEL METER. An instrument which includes a microphone, amplifier, RMS detector, integrator or time averager, output meter, and weighting networks used to measure sound pressure levels. The output meter reads sound level when properly calibrated, and the instrument must be of Type 2 or better, as specified in the American National Standards Institute publications.
(Ord. passed 3-23-81)
§92.21 EXCEEDING ESTABLISHED SOUND LEVEL__PROHIBITED_
(A) It shall be unlawful for any person to make or continue or cause to be made or continued any stationary source of sound in such a manner as to create a noise level which exceeds the limits set forth in this section. The following table of sound levels shall be the levels by which violation of this section is measured.
TABLE 1
Receiving land use 7:00 a.m.-10:00 p.m. 10:00 p.m.-7:00 a.m.
Residential 55 50
Commercial 60 55
Industrial 65 65
(B) The sound levels set forth in this section shall be exceeded when anyone or more of the following occur:
(1) The sound or noise at anyone point in time exceeds any of the established land use limits in Table 1 by measured sound level of 15 dBA; or
(2) The sound or noise exceeds any of the established land use limits in Table 1 by a measured sound level of ten dBA for accumulated total of one minute or more out of any ten-minute period; or
(3) The sound or noise exceeds any of the established land use limits in Table 1 continually for a period of five minutes, or a total of five minutes out of any ten-minute period.
(C) The following acts, and the causing or permitting thereof are declared to be in violation of this section:
(1) Operating, playing, or permitting the operation or playing of any radio, television, phonograph, drum, musical instrument, or similar device which produces or reproduces sound level in violation of division (B) above.
(2) Using or operating for any purpose any loudspeaker, loudspeaker system, or similar device in such a manner as to be in violation of the provisions of division (B) above.
(Ord., passed 3-23-81) Penalty, see § 92.99
§ 92.22 DETERMINATION OF_VIOLATION.
Violation of the limits set forth in § 92.21 shall be determined by the taking of a sound level meter reading at the boundary line or at any point within the property affected by the noise or sound. If a noise source can be measured in more than one land use category and its sound level meter reading is within the limits set forth in § 92.21 when measured at its property boundary line, the noise source shall not be in violation of this subchapter even though its sound level meter reading exceeds the limits when measured in the more restrictive area. (Ord., passed 3-23-81)
§ 92.23 EXCEPTIQNS.
The provisions of this subchapter shall not apply to:
(A) The lawful use of sound by governmental units;
(B) The use of sound by houses of religious worship;
(C) The operation of any tools or equipment used in construction, drilling, repair, alteration, or demolition work between the hours of 7:00 a.m. and 9:00 p.m.
(D) The operation of any power equipment used for home or building repair or grounds maintenance, including, but not limited to power saw, chain saw, sander, lawn mower, garden equipment, or snow removal equipment in residential or commercial zones between the hours of 7:00 a.m. and 9:00 p.m.
(Ord., passed 3-23-81)
§ 92.24 VARIANCE.
The City Council may grant variances for exception from any provision of this subchapter, subject to limitations as to area, noise levels, time limits, and other terms and conditions as it determines are appropriate to protect the public health, safety, and welfare from the noise emanating there from. In determining whether to grant or deny a variance, the Council shall balance the hardship on the applicant, the community, and other persons of not granting the variance against the adverse impact on the health, safety, and welfare of persons affected, the adverse impact on property affected, and any other adverse impacts of granting the variance. A variance shall not exceed 365 days from the date on which it was granted, but the applicant may
request a new variance at that time.
(Ord., passed 3-23-81)
BRAKING DEVICES
§ 92.30 DYNAMIC BRAKING DEVICES.
(A) Definition. A "DYNAMIC BRAKING DEVICE" (commonly referred to as Jake Brakes, Jacobs Brake, Engine Brakes or Compression Brakes) is defined as a device primarily on trucks for the conversion of the engine from an internal combustion engine to an air compressor for the purpose of braking without the use of wheel brakes.
(B) Use prohibited. It is unlawful for any person to operate any motor vehicle with a dynamic braking device engaged within the city limits, where posted, except for emergency situations for the purpose of avoiding a collision with another object or vehicle, but excluding the 600 to 700 block of Park Avenue, commonly referred to as "Gap Hill."
Penalty, see § 92.99 (Ord. 03-21, passed 10-8-03)
§ 92.99 PENALTY.
(A) Whoever violates any provision of this chapter for which another penalty is not provided shall be guilty of a misdemeanor and shall be fined not more than $500 or imprisoned for not more than 30 days, or both, for each offense. Each day's continued violation shall constitute a separate offense.
(B) Any person who violates any provision of §§ 92.20 through 92.24 shall be guilty of a violation and shall be fined not less than $25 for each offense. Any person who willfully or knowingly violates any provision of §§ 92.20 through 92.24 shall be guilty of a misdemeanor and shall be fined for each offense a sum of not less than $100 and not more than $500, imprisoned for a period of not more than 30 days, or both. Each day of violation shall constitute a separate offense.
(Ord., passed 3-23-81)