For purposes of this chapter the following definitions shall apply:

(a)   Diseased Tree - means a tree or shrub that has been determined by any competent city, state, or federal authority based upon a laboratory test or other supporting evidence to be infected or infested with or harbor any tree or plant disease or insect or larvae, the uncontrolled presence of which may constitute a hazard to or result in damage or extinction of other trees or shrubs in the community.

(b)   Maintenance - means, without limitation, the protecting, spraying, fertilizing, treating, pruning, abatement of infestation and trimming of trees or shrubs.

(c)   Nuisance - means the doing of an act, failure to perform a legal duty, or the allowance or creation of a condition which injures, endangers, hinders or unreasonably interferes with the public health, safety or welfare in the use and enjoyment of right-of-way or other public property by the general public. Examples include, but are not limited to, brush and limbs, trees and shrubs which are dead, diseased or infested which present a harmful or dangerous condition to the public, and encroachments of trees and shrubs in the right-of-way or other public property which create a safety hazard.

(d)   Owner - means any person, agent, operator, firm or corporation having a legal or equitable interest in the (real) property; or recorded in the official records of the Republic County Register of Deeds office as holding title to the property; or otherwise having control of the property, including the guardian of the estate of any such person, and the executor or administrator of the estate of such person if ordered to take possession of real property by a court.

(1)   Abutting Owner - means an Owner of property that directly abuts the right-of-way where the tree or shrub requiring maintenance or removal is located.

(e)   Right-of-way - means the area on, below or above the present and future city streets, alleys, bridges, bikeways, parkways and sidewalks dedicated or acquired as right-of-way.

(f)   Shrub - means a low, usually several-stemmed, woody plant. For the purposes of this Chapter, it shall also include ornamental and native grasses used in place of shrubs.

(g)   Tree - means a woody plant having a well-defined stem or trunk, a more or less definite crown, a height at maturity of at least eight feet, and the trunk diameter exceeds two inches.

(Ord. 923; Code 2016; Ord. 987; Code 2021)

The Governing Body shall designate a public officer to be charged with the administration and enforcement of this ordinance.

(Ord. 987; Code 2021)

(a)   Maintenance or Removal. Whenever the public officer determines that any tree or shrub on private property endangers, hinders or obstructs the use of public or private property, is a nuisance, is diseased, or in any other way endangers the public health, safety and welfare, the Code Enforcement Officer shall issue an order of violation to order the maintenance or removal of the tree or shrub by the Owner as set forth in Section 8.32.050.

(b)   Emergency Action. In the event the public officer, with assistance of a forester, determines that the existing condition of any tree or shrub on private property constitutes an immediate hazard to the public health, safety and welfare or otherwise endangers persons or property, then the city shall proceed, without delay, to take steps to abate the situation and without prior notice to or hearing of the Owner, occupant or agent. The cost of such action shall be assessed as set forth in Section 8.32.100.

(c)   Right to Inspect. The public officer, or other designee, is hereby authorized to enter on private property for the purpose of inspecting trees or shrubs where there appears to be a nuisance or a threat to public or private property or to the public, health, safety and welfare. This entry and inspection may be done without the prior permission of the Owner, occupant or agent if the threat is imminent and if such notification is not feasible under the circumstances.

(Ord. 987; Code 2021)

(a)   Maintenance. Abutting Owners are responsible for maintaining the trees and shrubs within or encroaching within the abutting right-of-way in a manner which promotes safe and healthy trees and shrubs and which protects the health, safety, and welfare of the public with respect to the same. The Abutting Property Owners shall not allow such trees and shrubs to hinder or obstruct the right-of-way, create a nuisance, be diseased, or threaten life or property within the right-of-way. Any tree overhanging any right-of-way shall be pruned and trimmed so as not to obstruct the light from any street lamp or obstruct the view of any street intersection and so that there shall be a clear space of at least fifteen (15) feet above the surface of the right-of-way. Notwithstanding, the city shall always maintain the right to perform any necessary maintenance of any tree or shrub in right-of-way and the city staff or the city’s contractor may perform the maintenance.

(b)   Removal. When applicable, this duty of the Abutting Owner shall also include the responsibility to remove trees and/or shrubs within the abutting right-of-way when any tree or shrub endangers, hinders or obstructs the use of the right-of-way, is a nuisance, is diseased or in any other way endangers the public health, safety and welfare, and such Abutting Owner has received a notice in accordance with Section 8.32.050.

(c)   Notice to Owner. Whenever the public officer determines that any such tree or shrub endangers, hinders or obstructs the use of the right-of-way, is a nuisance, is diseased, or in any other way endangers the public health, safety and welfare, the public officer shall issue a notice of violation to order the maintenance or removal of the tree or shrub by the Owner in accordance with Sections 8.32.050 and 8.32.060.

(d)   City Assistance. An Abutting Owner may contact the city to request the city’s assistance with the removal of a diseased, hazardous, or dead tree in the right-of-way. An Abutting Owner may also request the city’s assistance with the removal of storm damage from right-of-way trees to ensure that the right-of-way is kept clear for vehicular and pedestrian traffic and that public safety, health and welfare is maintained. The city may assess the costs of such work against the Abutting Owner in accordance with Section 8.32.100.

(Ord. 987; Code 2021)

(a)   The governing body shall serve upon the owner, any agent of the owner of the property or any other person, corporation, partnership or association found by the public officer to be in violation of Section 8.32.030 or 8.32.040 an order stating the violation.  The order shall be served on the owner or agent of such property by certified mail, return receipt requested, or by personal service.  If the property is unoccupied and the owner is a nonresident, then by mailing the order by certified mail, return receipt requested, to the last known address of the owner. 

(b)   If the owner or the agent of the owner of the property has failed to accept delivery or otherwise failed to effectuate receipt of a notice or order sent pursuant to this section during the preceding twenty-four month period, the governing body of the city may provide notice of the issuance of any further orders to abate or remove a nuisance from such property or provide notice of the order by such methods including, but not limited to, door hangers, conspicuously posting notice of such order on the property, personal notification, telephone communication or first class mail.  If the property is unoccupied and the owner is a nonresident, notice provided by this section shall be given by telephone communication or first class mail. 

(Ord. 987; Code 2021)

The order of violation shall state:

(a)   The common or legal description of the property, or both;

(b)   That the property is in violation of this chapter;

(c)   A description of the violation that would reasonably allow the Owner, occupant or agent to determine the nature of the violation to allow for self-abatement;

(d)   That the violation must be abated by the Owner, occupant or agent within 30 days from the date of the notice of violation, provided that extensions of the time period shall be granted if the Owner, occupant or agent demonstrates that due diligence is being exercised in abating the violation;

(e)   That within ten (10) days of the date of service of the notice, the Owner, occupant or agent may request in writing a hearing before the governing body;

(f)   That failure to comply with the order of violation shall result in the city abating the violation, with the assessment of costs (including the cost of all notices) made against the property and the Owner, occupant or agent;

(g)   That failure to pay such assessments within thirty (30) days of the notice of costs shall result in the filing of a special assessment against the property; and

(h)   That separate and independent of any abatement of the violation by the city, such violation is subject to prosecution in Municipal Court.

(Ord. 987; Code 2021)

Should the person, corporation, partnership or association fail to comply with the order to abate the nuisance or request a hearing the public officer may file a complaint in the municipal court of the city against such person, corporation, partnership or association and upon conviction of any violation of provisions of Section 8.32.010, be fined in an amount not to exceed $100 or be imprisoned not to exceed 30 days or be both fined and imprisoned.  Each day during or on which a violation occurs or continues after notice has been served shall constitute an additional or separate offense.

(Ord. 987; Code 2021)

In addition to, or as an alternative to prosecution as provided in Section 8.32.070, the public officer may seek to remedy violations of this ordinance in the following manner.  If a person to whom an order has been served pursuant to Section 8.32.050 has neither alleviated the conditions causing the alleged violation nor requested a hearing before the governing body within the time periods specified in Section 8.32.060, the public officer may present a resolution to the governing body for adoption authorizing the public officer or other agents of the city to abate the conditions causing the violation at the end of 10 days after passage of the resolution.  The resolution shall further provide that the costs incurred by the city shall be charged against the lot or parcel of ground on which the nuisance was located as provided in Section 8.32.100.  A copy of the resolution shall be served upon the person in violation in one of the following ways:

(a)   Personal service upon the person in violation;

(b)   Certified mail, return receipt requested; or

(c)   In the event the whereabouts of such person are unknown and the same cannot be ascertained in the exercise of reasonable diligence, an affidavit to that effect shall be made by the public officer and filed with the city clerk, and the serving of the resolution shall be made by publishing the same once each week for two consecutive weeks in the official city newspaper and by posting a copy of the resolution on the premises where such condition exists.

(Ord. 987; Code 2021)

If a hearing is requested within the 10 day period as provided in Section 8.32.060, such request shall be made in writing to the governing body. Failure to make a timely request for a hearing shall constitute a waiver of the person’s right to contest the findings of the public officer. The hearing shall be held by the governing body or its designated representative as soon as possible after the filing of the request therefore, and the person shall be advised by the city of the time and place of the hearing at least five days in advance thereof.  At any such hearing, the person may be represented by counsel, and the person and the city may introduce such witnesses and evidence as is deemed necessary and proper by the governing body or its designated representative.  The hearing need not be conducted according to the formal rules of evidence. Upon conclusion of the hearing, the findings of the governing body or its designated representative shall be prepared in resolution form, adopted by the governing body, and the resolution shall be served upon the person in the manner provided in Section 8.32.080.

(Ord. 987; Code 2021)

If the city abates or removes the nuisance pursuant to Section 8.32.080, the city shall give notice to the owner or his or her agent by certified mail, return receipt requested, of the total cost of the abatement or removal incurred by the city.  The notice shall also state that the payment is due within 30 days following receipt of the notice.  The city also may recover the cost of providing notice, including any postage, required by this section.  The notice shall also state that if the cost of the removal or abatement is not paid within the 30-day period, the cost of the abatement or removal shall be collected in the manner provided by K.S.A. 12-1,115, and amendments thereto, or shall be assessed as special assessments and charged against the lot or parcel of land on which the nuisance was located and the city clerk, at the time of certifying other city taxes, shall certify the unpaid portion of the costs and the county clerk shall extend the same on the tax rolls of the county against such lot or parcel of land and it shall be collected by the county treasurer and paid to the city as other city taxes are collected and paid.  The city may pursue collection both by levying a special assessment and in the manner provided by K.S.A. 12-1,115, and amendments thereto, but only until the full cost and applicable interest has been paid in full

(Ord. 987; Code 2021)