ORDINANCE: O-2001-50

SUBJECT: An ordinance amending Section 9.80.100 relating to nuisance abatement which will allow code enforcement officers to obtain a municipal court entry warrant to allow entrance onto private property to abate a nuisance.

RECOMMENDATION: Adopt the Ordinance amending Section 9.80.100 of the Lakewood Municipal Code, which will provide a mechanism for issuing entry warrants in the Municipal Court.

SUMMARY AND BACKGROUND OF SUBJECT MATTER: The City of Lakewood currently has a nuisance abatement ordinance similar to most cities in the Denver Metropolitan area. The Ordinance sets forth those matters which are prohibited, such as the outside storage of junk cars and the accumulation of weeds. The Ordinance also provides a procedure by which a landowner is notified of a zoning violation and which allows the City to abate the violation after an administrative hearing with the landowner or after the time for the landowner to appeal has expired.

Generally, the nuisance abatement procedure has worked successfully. A problem arises, however, in those situations in which the City has a legal right to abate a nuisance on private property but the landowner will not permit City staff to enter the property. In such a situation, a warrant is needed to enter the property.

The ordinance to be adopted grants authority to the Municipal Court to issue a warrant to enter upon private property for the purpose of abating a nuisance. The municipal court currently possesses the authority to issue search warrants and arrest warrants upon a showing of probable cause. The purpose of this warrant is simply to allow access to the property in question.

DATE OF FIRST READING: December 10, 2001

DATE OF SECOND READING: January 14, 2002

ORIGINATED BY: Barb Brown, Code Enforcement Supervisor, 303-987-7565
Paul Kennebeck, Deputy City Attorney, 303-987-7461

STAFF PERSON RESPONSIBLE: Barb Brown and Paul Kennebeck

DOCUMENTS ATTACHED: Ordinance O-2001-50

SUBMITTED BY:

Vincent Harris, Manager of Development Review & Enforcement
Frank Gray, Director of Community Planning & Development

REVIEWED BY:

Joni D. Inman, Director of the Mayor and City Manager's Office
Michael J. Rock, City Manager

0-2001-50

A BILL FOR AN

ORDINANCE AMENDING SECTION 9.80.100 OF THE LAKEWOOD MUNICIPAL CODE RELATING TO NUISANCE ABATEMENT

WHEREAS, it is occasionally necessary for Code Enforcement Officers and other City agents to enter upon privately-owned real property for the purposes of enforcing the City nuisance abatement ordinance; and,

WHEREAS, unless the owner of real property grants permission to a Code Enforcement Officer or other agents of the City to enter upon the property it is necessary to obtain a warrant for the purposes of entering the property; and,

WHEREAS, it is necessary to provide a process by which the Lakewood Municipal Court can issue a warrant to allow for the entry onto private property for nuisance abatement.

NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Lakewood, Colorado, that:

SECTION 1. Section 9.80.100 of the Lakewood Municipal Code is amended to read as follows:

9.80.100 Right of Entry

A. It is lawful for the Director or his designee or a police officer or code enforcement officer to go upon private property for enforcement of this chapter if:
1. Emergency conditions dangerous to the public health, safety or welfare exist;
2. The Director or police officer or code enforcement officer has obtained a search warrant or entry warrant;
3. The Director or police officer or code enforcement officer has obtained the consent of the person in possession of the property.

B. A judge of the Lakewood Municipal Court shall have power to issue an entry warrant for the abatement of a nuisance only on an affidavit sworn to or affirmed before the judge and relating facts sufficient to:
1. Identify or describe, as nearly as possible, the premises to be entered; and,
2. Establish probable cause to believe that:
a. A notice of a violation of Chapter 9.80 has been provided to a property owner or occupant of real property and the owner or occupant has not appealed the notice within the time allowed; or
b. A Lakewood administrative hearing officer has found property to be in violation of Chapter 9.80 and that finding has been appealed within the time allowed.

C. The affidavit required by this section may include sworn testimony reduced to writing and signed under oath by the witness giving the testimony before issuance of the entry warrant. A copy of the affidavit for an entry warrant shall be attached to the entry warrant filed with the court.
D. If the judge is satisfied that grounds for the application of the entry warrant exist, or that there is probable cause to believe they exist, the judge shall issue a warrant identifying the property to be entered. The warrant shall be directed to any city police agent or code enforcement officer. It shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer or agent to enter upon the property specified. The entry warrant may be served at any time.

E. The entry warrant may be executed and returned only within ten days after its date. The officer or agent executing this entry warrant shall give to the person whose property was entered a copy of the warrant and a receipt for any property taken or shall leave the copy and receipt at the place entered.

F. This section shall not require the issuance of a warrant for emergencies as set forth in the Lakewood Municipal Code or in any other case where warrants are not required by law.

Section 2. This Ordinance shall take effect thirty (30) days after final publication.

I hereby attest and certify that the within and foregoing ordinance was introduced and read on first reading at a regular meeting of the Lakewood City Council on the 10th day of December, 2001; published in full in the Lakewood Sentinel on the 13th day of December, 2001; set for public hearing on the 14th day of January, 2002 read, finally passed and adopted by the City Council on the day of , 2002; and
signed and approved by the Mayor on the day of , 2002.

Stephen A. Burkholder, Mayor

ATTESTED AND CERTIFIED:

Margy Greer, City Clerk

Approved as to form:

City Attorney

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