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Ordinance 2009-29 ORDINANCE NO. 2009-29 AN ORDINANCE OF THE CITY OF WYLIE, TEXAS, AMENDING ORDINANCE NO. 2006 -16 AND CHAPTER 74, ARTICLE VII (GRAFFITI VANDALISM) OF THE WYLIE CODE OF ORDINANCES, FOR THE PURPOSE OF REVISING REGULATIONS RELATING TO THE REMOVAL OF GRAFFITI ON PRIVATE PROPERTY; PROVIDING FOR A PENALTY FOR THE VIOLATION OF THIS ORDINANCE; PROVIDING FOR REPEALING, SAVINGS AND SEVERABILITY CLAUSES; PROVIDING FOR AN EFFECTIVE DATE OF THIS ORDINANCE; AND PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF. WHEREAS, the City Council of the City of Wylie, Texas "City Council has investigated and determined that it would be advantageous and beneficial to the citizens of the City of Wylie, Texas "Wylie to amend Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) of the Wylie Code of Ordinances for the purpose of revising regulations relating to the removal of graffiti on private property. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS: SECTION 1: Findings Incorporated. The findings set forth above are incorporated into the body of this Ordinance as if fully set forth herein. SECTION 2: Amendment of Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) of the Wylie Code of Ordinances. Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) of the Wylie Code of Ordinances, is hereby amended as follows: "CHAPTER 74 ARTICLE VII. GRAFFITI VANDALISM Sec. 74 -121. Purpose and intent. Sec. 74 -128. Removal of graffiti by property owner or city; offense. If graffiti is not removed by the perpetrator according to section 74 -127, graffiti shall be removed pursuant to the following provisions: Ordinance No. 2009 -29 Amending Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) Page 1 556835.v I MANN (1) Property owner responsibility. It shall be an offense for any person who is the owner of property in the City to permit property that is defaced with graffiti to remain defaced after: a. receiving the City's offer to remove the graffiti from the property free of charge; b. refusing to accept the City's offer; and c. failing to remove the graffiti on or before the fifteenth (15 day after receiving the notice described in subsection 74- 128(2). If the property owner fails to remove the graffiti on or before the fifteenth (15` day after receiving the notice described in subsection 74- 128(2), the City may remove the graffiti and charge the expenses of eradication to the property owner in accordance with subsection 74- 128(6) and Wylie's Consolidated Fee Ordinance, as amended. (2) Notice to property owner. The notice to the property owner shall contain the following: a. The street address and /or legal description of the property sufficient for identification of the property; b. A statement that the property is a potential graffiti nuisance property with a concise description of the conditions leading to the finding; c. A statement that the graffiti must be removed within fifteen (15) days after receipt of the notice and that if the graffiti is not abated within that time the City will declare the property to be a public nuisance, subject to the abatement procedures in this Chapter; and d. An information sheet identifying any graffiti removal assistance programs available through the City and private graffiti removal contractors. (3) Means of providing notice to property owner. The notice required in subsection 74- 128(2) shall be given: a. personally to the property owner in writing; b. by letter sent by certified mail, addressed to the property owner at the property owner's address as contained in the records of the appraisal district in which the property is located; or c. if service cannot be obtained under subsection (a) or (b): Ordinance No. 2009 -29 Amending Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) Page 2 556835.v1 (i) by publication at least once in a newspaper of general circulation in the City; (ii) posting the notice in or near the front door of each building on the property to which the notice relates; or (iii) by posting the notice on a placard attached to a stake driven into the ground on the property to which the notice relates. (4) Exceptions to property owner responsibility. a. The property owner lacks the financial ability to remove the defacing graffiti; b. The property owner has an active program for the removal of graffiti and has scheduled the removal of the graffiti as part of that program, in which case it shall be unlawful to permit such property to remain defaced with graffiti for a period of fifteen (15) days after service of notice of the defacement; c. The graffiti is located on transportation infrastructure; or d. The removal of the graffiti would create a hazard for the person performing the removal. (5) Right of City to remove. a. Use of public funds. Whenever the City becomes aware or is notified and determines that graffiti is located on publicly or privately owned property viewable from a public or quasi public place, the City shall be authorized to use public funds for the removal of the graffiti, or for the painting or repairing of the graffiti, but shall not authorize or undertake to provide for the painting or repair of any more extensive an area than that where the graffiti is located, unless the City Manager, or the designee of the City Manager, determines in writing that a more extensive area is required to be repainted or repaired in order to avoid an aesthetic disfigurement to the neighborhood or community, or unless the property owner or responsible party agrees to pay for the costs of repainting or repairing the more extensive area. b. Right of entry on private property. Prior to entering upon private property or property owned by a public entity other than the City for the purpose of graffiti removal, the City shall attempt to secure the consent of the property owner and a release of the City from liability for property Ordinance No. 2009 -29 Amending Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) Page 3 556835.vl damage or personal injury. If the property owner fails to remove the offending graffiti within the time specified by this Article, or if the City has requested consent to remove or paint over the offending graffiti and the property owner or responsible party has refused consent for entry on terms acceptable to the City and consistent with the terms of this Article, the City shall commence abatement and cost recovery proceedings for the graffiti removal according to the provisions specified below. (6) Abatement and cost recovery proceedings. a. Notice of due process hearing. The City Manager, or the designee of the City Manager, serving as the Hearing Officer, shall provide the property owner of record not less than seventy -two (72) hours notice of the City's intent to hold a due process hearing at which the property owner shall be entitled to present evidence and argue that the property does not constitute a public nuisance. Notice shall be served in the same manner as a summons in a civil action brought in a Collin County Court at law. If the owner of record cannot be found after a diligent search, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation published in the area in which the property is located. Any published notice shall include the street address or legal description of the property, that the hearing is being held pursuant to this Article, the purpose of the hearing and the date, place and time of the hearing. b. Determination of hearing officer. The determination of the Hearing Officer after the due process hearing shall be final and not appealable. If, after the due process hearing, regardless of the attendance of the property owner or its respective agent, the Hearing Officer determines that the property contains graffiti viewable from a public or quasi public place, the Hearing Officer shall give written notice in an eradication order that, unless the graffiti is removed within ten (10) days, the City shall enter upon the property, cause the removal, painting over (in such color as shall meet with the approval of the Hearing Officer), or such other eradication thereof as the Hearing Officer determines appropriate, and shall provide the property owner thereafter with an accounting of the costs of the eradication effort on a full cost recovery basis. c. Eradication effort. Not sooner than the time specified in the order of the Hearing Officer, the City Manager, or the designee of the City Manager, shall implement the eradication order and shall provide an accounting to the property owner of the costs thereof. d. Cost hearing. The property owner may request a cost hearing before the Hearing Officer within fourteen (14) business days of the City providing Ordinance No. 2009 -29 Amending Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) Page 4 556835.v1 the eradication accounting by certified mail or hand delivery, and appropriate due process must be extended to the property owner. If following the cost hearing or, if no hearing is requested, after the implementation of the eradication order, the Hearing Officer determines that all or a portion of the costs are appropriately chargeable to the eradication effort, the total amount set forth in the eradication accounting, or an amount thereof determined as appropriate by the Hearing Officer, shall be due and payable by the property owner within thirty (30) days of the City providing the eradication accounting by certified mail or hand delivery. Any amount of eradication charges assessed by the Hearing Officer that are less than the total amount set forth in the eradication accounting shall be explained by written letter from the Hearing Officer to the City Council. e. Lien/Statement of expenses. As to such property that is not a homestead, if all or any portion of the assessed eradication charges remain unpaid after thirty (30) days of the City providing the eradication accounting by certified mail or hand delivery, the portion thereof that remains unpaid shall constitute a lien on the property that was the subject of the eradication effort. The Director of Public Services shall present a Resolution of Lien, including a statement of expenses which contains the name of the property owner, if known, the legal description of the property and the amount of expenses incurred under subsection 74- 128(6), to the City Council, and upon passage and adoption thereof, shall cause a certified copy of the Lien to be recorded with the County Clerk's Office of the county in which the property is located. Secs. 74 -130 74.150. Reserved." SECTION 3: Savings /Repealing Clause: Ordinance No. 2006 -16 shall remain in full force and effect, save and except as amended by this or any other Ordinance. All provisions of any ordinance in conflict with this Ordinance are hereby repealed, but such repeal shall not abate any pending prosecution for violation of the repealed ordinance, nor shall the repeal prevent a prosecution from being commenced for any violation if occurring prior to the repeal of the ordinance. Any remaining portions of said ordinance shall remain in full force and effect. SECTION 4: Severability: Should any section, subsection, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid by a court of competent jurisdiction, it is expressly provided that any and all remaining portions of this Ordinance shall remain in full force and effect. Wylie hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional or invalid. Ordinance No. 2009 -29 Amending Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) Page 5 556835.v 1 SECTION 5: Penalty Provision: Any person, firm, corporation or entity violating this Ordinance or Ordinance No. 2006 -16 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined as set forth in section 74 -124 of Wylie's Code of Ordinances. Each unlawful act or continuing day's violation under this Ordinance or Ordinance No. 2006 -16 shall constitute a separate offense. The penal provisions imposed under this Ordinance shall not preclude Wylie from filing suit to enjoin the violation. Wylie retains all legal rights and remedies available to it pursuant to local, state and federal law. SECTION 6: Effective Date: This Ordinance shall become effective from and after its adoption and publication as required by law the City Charter and by law. DULY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS on this 8th day of September, 2009. Eric Hogue, Mayor 1 ATTESTED TO AND C CORRECTLY RECORDED BY: Carole Ehrlich, Ci Secretary oeurn Date of publication in The Wylie News September 16, 2009 Ordinance No. 2009 -29 Amending Ordinance No. 2006 -16 and Chapter 74, Article VII (Graffiti Vandalism) Page 6 556835.vl C8S Media, Inc. �be jfarmer�bitle �ime5 Nlurphy l�ionitor The Princeton Herald The Sachse News THE WYLIE NEWS �i �1r.�. STATE OF TEXAS r COUNTY OF COLLIN r� Before me, the undersigned authority, on this day personally appeared Chad Engbrock, publisher of The Wylie News, a newspaper regularly published in Collin County, Texas and having general circulation in Collin County, Texas, who being by me duly sworn, deposed and says that the foregoing attached City of Wylie Ordinance No.2009-24, 2009-25, 2009-27, 2009-28, 2009-29 was published in said newspaper on the following dates, to-wit: September 16, 2009 tl Chad Engbrock, Publisher Subscribed and sworn before me on this, the day of 2009 to certify which witness my hand and seal of office. ��`i �t'��' eL���;" Notary Public n and for The State of Texas My commission expires ���f E .s Y p� Sorna A Duggan My Commission Explres q��'e 09/02.�2012 �OF't� :w.y .w._. .:��,r_.' Murphy/Sachse/Wyiie Office I 10 N. Ballard P.O. Box 369 Wylie, TX 75098 972-442-5515 fax 972-442-4318 Farmersville/Pnnceron Oftice 101 S. Main P.O. Box 512 Farmersville, TX 754-12 973-784-b397 fax 972-782-7(723 September 16 17, 2009 $C ORDIlV�NCE N0.1A04-29 AN ORDI�IANCE OF T,HE CITY UF WY�.IE; TEXAS, AIVIEI�dDING ORDI- NANCE N0. �006-16 ANI� CHAPTER ?4, ARTICT,E VII (GRAF- FITI VANDALISM) OF THE WYLI� COD� OF ORI�T- NA�tCES, FQR 'FKEE 1'URPOSE OF REVIS- ING REGULATiONS REI;ATINC� TO THE REMOVAL OF GRAFFITI ON PRT- VA'TE P�tOPERT'Y; PROVIDI1tTG F(�R A PEI�4I.T'Y FC?R `TI=IE VIOI.,AiTI()N O�'THIS ORDINANCE; PRC)- VIDING Ft?R REPEALING, SA"�'- INGS AND SEVER- A�ILTTY CLAUSES; PROVIDINGFOR AN EF�'ECTIVE D,i1TE OF TH�S ORDI- NANCE; AND PRO= VIDING FOR THE PUBLICATION UF THE CAPTION HEREOR Eric Hpgue, �Mayor� AT'�ES�': Catole .Ehrlich; �ty Secretary 18-1t-�39-�5