Peabody City Zoning Code

CHAPTER 13

Interpretation, Enforcement, and Legal Status

Division 13.1.100 Interpretation

Sec. 13.1.101 Interpretation, Generally

Generally. The purpose of the regulation to be interpreted must be determined so that the protection that it is intended to provide the public is enforced. Therefore, this Code should be interpreted in the context of:
1. The general findings and purposes stated in Chapter 1, Title, Purpose, Authority, Jurisdiction, and Transitional Provisions; and
2. The goals and policies of the Comprehensive Plan.
Word Usage, Acronyms, and Definitions. Rules for construction of words and phrases, common acronyms, and defined words and phrases are set out in Chapter 14, Measurements and Words.
Illustrations. Illustrations are generally provided for explanatory purposes, and do not necessarily set out all options or alternatives for each standard. Where an illustration appears to set out different substantive requirements than the text of this Code, the text shall control.
Cross-References. Hyperlinked cross-references to internal provisions (e.g., between Chapters, Articles, Divisions, Sections, and Subsections) and external documents and regulations (e.g., Kansas Statutes Annotated and the Comprehensive Plan) are provided to increase the ease of use in complying with the intended regulations. Where a conflict exists between a given cross-reference (e.g., number or hyperlinked location) and the name of the cross-reference, the name shall control.
Quantifiable or Numeric Standards. If the provision to be interpreted has a quantifiable standard, no interpretation can result in a reduction of the standard. Standards listed as maximums shall be interpreted to allow any number equal to or lesser than the maximum standard listed. Standards listed as minimums shall be interpreted to allow any number equal to or greater than the minimum standard listed. By way of example, if the maximum density is listed as 3.0 units per acre, then it cannot be interpreted to allow 3.2 units per acre as-of-right.
Qualitative Standards. Non-numeric standards shall be construed in favor of the element being projected unless there is sufficient evidence to indicate that the alternative language will protect the public as well as provide the landowner with other options.
Land Usage. Interpretations of land uses shall be in accordance with Article 2.2, Land Uses.
Signs; Substitution of Noncommercial Speech for Commercial Speech. Notwithstanding anything contained in this Code to the contrary, any sign erected pursuant to the provisions of this Code, or otherwise lawfully existing with a commercial message may, at the option of the owner, contain a noncommercial message in lieu of a commercial message. The noncommercial message may occupy the allowable area of the sign face or any portion thereof. The sign face may be changed from commercial to noncommercial messages, or from one noncommercial message to another, as frequently as desired by the owner of the sign, provided that:
1. The sign is not a prohibited sign or sign-type;
2. The frequency of changes to the message is not greater than is allowed for digital message centers (see Section 7.2.105, Message Centers); and
3. The size, height, setback, and other dimensional criteria contained in this Code have been satisfied, or the sign is legally nonconforming.

Effective on: 8/31/2016

Sec. 13.1.102 Interpretation, Official

Generally. Any person may request an administrative interpretation of the terms, provisions, or requirements of this Code if the application of the terms, provisions, or requirements are not obvious.
Intent.
1. It is the intent of the City Commission that this Code be accessible and clear to the residents, business owners, and landowners in the City, and that the spirit of K.S.A. § 45-216, Public policy that records be open, be observed. As such, the Zoning Administrator, or designee, will provide:
  1. Requested public records that are related to the administration and enforcement of this Code (this may include reasonable fees for research and duplication, if necessary).
  2. References to the standards that may be applied to individual uses, buildings, or structures; and
  3. General information to residents, business owners, and landowners with respect to the zoning districts that apply to property.
2. It is not the intent of the City Commission that the Zoning Administrator, or designee, affirmatively evaluate the full development potential of individual properties or resolve other such detailed inquiries about specific properties or issues without a pending permit or development approval application.
Process. The interpretation is made by the Zoning Administrator, although the City is not obligated to render an interpretation. The interpretation is not subject to appeal, although related appeals may proceed as provided for in this Code (e.g., an administrative appeal after a decision has been rendered part of an official permit or development approval application). After an interpretation is issued, the Zoning Administrator may propose a text amendment to this Code to codify the interpretation, if necessary.
Application. Application requirements for official written interpretations shall be on a form approved by the Zoning Administrator, which at a minimum shall cite the regulatory provision for which the interpretation is sought, a description of a hypothetical situation or scenario to which the application of this Code are in question, and a statement of the nature of the interpretation sought.
Interpretation Criteria. The interpretation shall be based on:
1. The materials or scenario posed by the applicant;
2. The plain and ordinary meaning of the terms that are subject to the application for an interpretation as set out in Webster's Third New International Dictionary or other current and authoritative dictionaries;
3. The purpose statement for the Section of this Code that is subject to interpretation;
4. Any other provision of the Comprehensive Plan, the City's Code of Ordinances, state law, or federal law that are related to the same subject matter;
5. Any technical meanings of the words used in the provision subject to interpretation;
6. Other interpretations rendered by the City relating to the same or related provisions of this Code;
7. The consequences of the interpretation;
8. The legislative history;
9. The problem or issue that is addressed by the provision subject to interpretation; and
10. Sources outside of these regulatory provision that provide a related source for the definition, such as technical or professional literature.
Decision. Within a reasonable period after the application for an interpretation is filed, the Zoning Administrator shall make a good faith effort to interpret the provision that is the subject of the application and may consult with other City Staff and/or the City Attorney as necessary. The Zoning Administrator shall respond to the applicant in writing, and shall keep a copy of the response in a record of interpretations.
Effect of Decision.
1. No Legal Advice. The City does not provide legal advice to applicants or property owners. Private parties, including purchasers, lenders, title insurers, and others are advised to seek legal opinions from their attorneys with respect to specific potential applications of this Code. No interpretation provided by City Staff pursuant to this Section shall be construed as legal advice.
2. No Binding Effect. It is the policy of the City to evaluate applications for development approval comprehensively on their individual merits. Therefore, interpretations may be persuasive to the applicable development review bodies, but they are not binding on the City.
Recordkeeping. The Zoning Administrator shall keep records of interpretations made pursuant to this Section.

Effective on: 8/31/2016

Sec. 13.1.201 Enforcement Powers and Remedies

Generally. This Section sets out enforcement powers and remedies that may be used by the City to enforce this Code prior to, and in, a court of competent jurisdiction. This Section shall not limit the power of the City to pursue multiple or alternative actions, remedies, and penalties, or to pursue actions, remedies and penalties that are authorized by law but not listed in this Section.
Enforcement Powers. The City may enforce this Code prior to, and without, judicial process by:
1. Withholding Permits. The City may deny or withhold all permits, development approvals, or other forms of authorization on any land, building, or structure for which there is an uncorrected violation of a Section of this Code or of a condition of a permit, certificate, approval or other authorization previously granted by the City. In lieu of withholding or denying an authorization, the City may grant such authorization subject to the condition that the violation be corrected.
2. Suspension of Permits. The City may suspend permits, including exception permits, for a period of up to 60 days to allow for the correction of the violation or the judgment of a court of competent jurisdiction.
3. Stopping Work. With or without revoking permits, the City may stop work on any building or structure on any land on which there is an uncorrected violation of a Section or of a permit or other form of authorization issued, in accordance with its power to stop work under its building codes.
4. Revocation of Permits and Approvals.
  1. Revocation of Permits. Any permit, certificate of occupancy, or other approval required shall be revoked when it is determined that:
    1. There is a departure from the approved plans, specifications, limitations, or conditions as required under the permit or approval;
    2. The permit or approval was procured by false representation;
    3. The permit or approval was issued in error; or
    4. There is a violation of any provision of this Code.
  2. Notice and Opportunity to Correct. Written notice of revocation stating that such violation shall be corrected within 10 days shall be served upon the property owner, agent, applicant, or other person to whom the permit or approval was issued, or such notice may be posted in a prominent location at the place of violation.
  3. Effect of Notice. No work or construction shall proceed after service of the revocation notice unless such work is to correct a violation.
  4. Failure to Correct. If after the 10-day period, arrangements acceptable to the City have not been made, the Chief Building Official shall:
    1. File litigation in a court of competent jurisdiction; and / or
    2. Remove or correct such violation and cause to be placed a lien upon the property and / or improvements to the property in an amount to cover all costs related to correction or abatement of the violation.
Judicial Remedies. The City may seek the following judicial remedies to enforce this Code:
1. Injunctive Relief.
  1. The City may seek an injunction or other equitable relief in court to stop any violation of a permit, certificate or other form of authorization granted under this Code. Such relief may include revocation or termination of permits, including exception permits. In any court proceedings in which the City seeks a preliminary injunction, it shall be presumed that a violation or continued violation of this Code is, will, or may be an injury to the public health, safety or general welfare; that the public health, safety or general welfare will or may be irreparably injured by the continuation of the violation unless the violation is enjoined; and that there is no plain and adequate remedy at law for the subject violation.
  2. The City may seek an affirmative injunction to require the demolition or removal of a structure, or to allow the City to demolish or remove a structure and recover costs against the landowner, pursuant to K.S.A. §§ 12-1750 through 12-1756, or as otherwise provided for in the Kansas Annotated Statutes.
2. Abatement. The City may seek a court order in the nature of mandamus, abatement, or other action or proceeding to abate or remove a violation or to otherwise restore the premises in question to the condition in which they existed prior to the violation.
3. Civil Remedies. The City shall have the right to institute any appropriate civil action in a court of competent jurisdiction, to enforce, enjoin, prevent, restrain, correct or abate any violation of this Code, including any and all remedies available pursuant to state law. All court costs and reasonable attorney's fees incurred by the City in connection with any civil action shall be awarded to the City if it is the prevailing party.
4. Criminal Remedies. Any person who violates any section of this Code shall be guilty, upon conviction, of a separate offense for each day or portion of a day during which the violation continues, which shall be punishable by a fine of not to exceed $500 or by imprisonment for not more than six months for each offense or by both such fine and imprisonment (see K.S.A. § 12-761).
Floodplain Remedies. Violations of the Federal Emergency Management Agency (FEMA) floodplain regulations set forth in the adopted Unified Development Code, shall be subject to the following, in addition to the remedies provided by other Subsections of this Section:
1. The Federal Emergency Management Agency (FEMA) and the Chief Engineer of the Division of Water Resources of the Kansas Department of Agriculture shall be notified immediately in writing of any property or structure in violation of the floodplain regulations of the adopted Unified Development Code.
2. The City may apply FEMA to have a property added to the 1316 list so that it would be ineligible for flood insurance under the NFIP if it is in violation.
Other Remedies. The City shall have such other remedies as are and as may be from time to time provided by state law for the violation of regulations.
Remedies Cumulative. The remedies and enforcement powers set out in this Section shall not be considered exclusive remedies, but rather they shall be cumulative with all other remedies provided in this Code, in any other applicable ordinance, or by law.

(Ord. No. 4012, § 1, 7-14-2022)

Effective on: 7/14/2022

Sec. 13.1.202 Enforcement Procedures

Generally. The City may enforce the provisions set out in this Division, or as otherwise authorized by law.
Responsible Official. The Chief Building Official, or the City Manager, shall administer and enforce the provisions of this Code. The Chief Building Official and/or City Manager may consult with the City Attorney, the Director of Public Works and other officials in the exercise of this duty.
Right to Enter. The Chief Building Official, City Manager, or designee, will investigate and find as a matter of fact whether a violation has occurred, and in doing so, shall have the right to enter upon any premises at any reasonable time for the purpose of making inspection of buildings, structures, or premises necessary to carry out the duty to enforce this Code.
Filing a Complaint. Any person may allege a violation by a written and signed complaint that is filed with the Chief Building Official or City Manager. Such complaint shall state the factual basis for the alleged violation along with the complainant's name, address, and telephone number.
Notice of Violation. Upon investigation, with or without a complaint, the City may issue a written notice of violation to the owner of property upon which a violation exists. The Notice of Violation shall set forth the grounds upon which the notice is based, including the specific code section or sections at issue.
Correction of Violation.
1. For a first violation, the person responsible for the violation shall have a period of no more than 15 days to correct the violation. (Unless Subsection 13.1.202(F)(3) applies)
2. For a subsequent or continued violation, the person responsible for the violation shall correct the violation within 24 hours. (Unless Subsection 13.1.202(F)(3) applies)
3. Any violation that creates an immediate danger to the public safety shall be corrected immediately, regardless of whether it is a first violation, a continuing violation, or a subsequent violation.
Further Enforcement. If the code violation is not corrected in accordance with the requirements of Subsection F., above, then the City may enforce this Code in accordance with any and all enforcement actions and remedies as set out in this Division.
Records. The Chief Building Official shall maintain a record of all complaints of violations, including how they were resolved.

Effective on: 8/31/2016

13.1.203 Enforcement Procedures for Exception Permits

Generally. The provisions of this Section may be applied to enforce an exception permit.
Inspection. The City may:
1. Make inspections to determine compliance with the provisions of this Code and the exception permit, and initiate appropriate action as necessary; and/or
2. Keep a record of complaints, indicating any action taken. These records shall be made available where the Board of Zoning Appeals has been requested to review the exception for compliance.
Exception Permit Revocation. Upon determination of noncompliance with the provisions of the exception permit, the City will take actions as necessary to assure compliance. Such actions may include non-renewal or revocation of the permit as follows:
1. The Zoning Administrator shall provide a notice of violation to the record owner of the property upon which an exception is located, advising the owner that the use must be brought into compliance with this Code within 14 days from the date of the notice.
2. If total compliance has not occurred or a plan for compliance has not been submitted to the Zoning Administrator within 14 days from the date of notice, then the Zoning Administrator shall issue a cease-and-desist order and notify the record owner of a hearing date by the Board of Zoning Appeals to consider revocation of the exception permit.
3. The Board of Zoning Appeals shall revoke the exception permit if the use and/or property is/are not in total compliance. The Board of Zoning Appeals may grant up to a 14-day period for compliance. The exception permit shall remain in suspension and the cease-and-desist order shall remain in effect until total compliance is obtained.
4. At the end of a compliance period the Board of Zoning Appeals shall revoke the exception permit if total compliance has not been obtained.
5. If the use and property are brought into compliance, any further violation of terms of the exception permit within 90 days from the initial notice of violation are grounds for immediate revocation of the exception permit.
6. Revoked exception permits may only be reinstated by the Board of Zoning Appeals, which may impose conditions to ensure compliance.

(Ord. No. 4012, § 1, 7-14-2022)

Effective on: 7/14/2022

Sec. 13.1.204 Enforcement Procedures for Stormwater Management

Generally. It shall be the duty of the Stormwater Superintendent to bring to the attention of the City Attorney any violation or lack of compliance with the regulations and standards of this Code. The City Attorney may file the civil action deemed appropriate in the district court of the state to enforce the requirements of this Code. The City Attorney may also cause to be brought a prosecution in the municipal court of the City.
Violations; Criminal and Civil Penalties.
1. Criminal Penalties. Any person violating any of the provisions of Article 9.2, Stormwater Management, shall, upon conviction thereof, be deemed guilty of a misdemeanor punishable in accordance with Section 1-13 of the Code of Ordinances of the City of Hays, Kansas.
2. Civil Penalties. In the event an applicant or other responsible person fails to take the remedial measures set forth in a Notice of Violation described in Subsection F, Failure to Maintain, below, the Stormwater Superintendent shall assess a penalty against the property, as outlined below, for each day the violation remains unremedied after receipt of the notice of violation:
  1. For failure to submit a stormwater pollution prevention plan prior to construction, the fine shall be $500.00 for each day the violation remains unremedied.
  2. For failure to install stormwater BMPs as indicated on the site map required under the KDHE construction stormwater program, the fine shall be $750.00 for each day the violation remains unremedied.
  3. For failure to notify the Stormwater Superintendent before commencement of construction, the fine shall be $500.00 for each day the violation remains unremedied.
  4. For failure to maintain, repair, or replace construction stormwater BMP within 10 days of notification, the fine shall be $750.00 for each day after the tenth day following notification that the violation remains unremedied.
  5. For failure to cease illicit discharges, the fine shall be $500.00 for each day the violation remains unremedied.
  6. For dumping of material or liquids in the storm sewer system, the fine shall be $1,000.00 for each dumping occurrence. The person responsible for dumping shall also be liable for the reasonable costs to the City to abate the nuisance caused by the illegal dumping. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Inspection.
1. The Stormwater Superintendent shall be responsible for determining whether a stormwater management plan is in conformance with criteria specified, and whether development is proceeding in accordance with the approved drainage permit. Periodic inspection of the development site shall be made by the Stormwater Superintendent, or a designee. Through such periodic inspections, the Stormwater Superintendent shall ensure that the stormwater management plan is properly implemented and that the improvements are properly maintained.
2. Whenever the Stormwater Superintendent has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this Code, the Stormwater Superintendent shall have the right to enter the premises at any reasonable time for the purpose of conducting such inspections and sampling as may be necessary to determine whether any violations exist and to determine the nature and extent of any remedial actions necessary by virtue thereof. In the event the owner or occupant of the premises refuses such entry after a request to enter has been made, the Stormwater Superintendent is hereby empowered to seek assistance from a court of competent jurisdiction to permit or compel such entry.
3. The Stormwater Superintendent shall have the right to set up on any such premises such devices as may be deemed necessary to conduct sampling of any discharges or of the soils or any substances from which such discharges may occur.
4. Investigation of any such matter shall in no way relieve any party from liability or responsibility for any violations occurring before, during, or after the conduct of any such investigation. Nothing in this Section shall limit the authority of the Stormwater Superintendent to take any other action or actions, including emergency action or any other enforcement action, while also undertaking any such investigation. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Remedial Work. If it is determined through inspection that a development is not proceeding in accordance with the approved stormwater management plan and drainage permit, the Stormwater Superintendent shall immediately issue written notice to the permittee and the surety of the nature and location of the alleged noncompliance, accompanied by documentary evidence demonstrating noncompliance and specifying what remedial work is necessary to bring the project into compliance. The permittee so notified shall immediately, unless weather conditions or other factors beyond the control of the permittee prevent immediate remedial action, commence the recommended remedial action and shall complete the remedial work within 72 hours or within a reasonable time after receipt of such notice. Upon satisfactory completion of the remedial work, the Stormwater Superintendent shall issue a notice of compliance and the development may proceed. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Revocation of Permits and Stop Work Orders; Actions Without Prior Notice.
1. The Stormwater Superintendent, after giving written notice, may revoke a permit issued pursuant to the regulations of this Code for any project which is found upon inspection to be in violation of the provisions of the regulations of this Code, and for which the permittee has not agreed to undertake remedial work as provided in the regulations of this Code. Drainage permits may also be revoked if remedial work is not completed within the time allowed. Upon revocation of a drainage permit, the Stormwater Superintendent shall issue a stop work order. Such stop work order shall be directed to the permittee who shall immediately notify persons owning the land, the developer, and those persons actually performing the physical work of clearing, grading, and developing the land or constructing the project. The stop work order shall direct the parties involved shall cease and desist all or any portion of the work on the project which is not in compliance, except such remedial work necessary to bring the project into compliance.
2. The Stormwater Superintendent is authorized to enter upon any premises without prior notice, to issue stop-work orders as may be necessary, and to take such further actions as are necessary to prevent, eliminate or remediate any violations or Illicit Discharges in any of the following circumstances:
  1. If a violation constitutes an imminent or immediate danger to the environment or to the public health, welfare or safety;
  2. If a person to whom a Notice of Violation has been issued and has become final and such person has failed to comply with the directed corrective actions within the time provided therefor; or
  3. If all reasonable attempts to contact a responsible person as to a violation have failed.
3. The City may suspend, revoke, or modify the permit authorizing a land development project. A suspended, revoked, or modified permit may be reinstated after the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein, provided such permit may be reinstated upon such conditions as the City may deem necessary to enable the applicant or other responsible person to take the necessary remedial measures to cure such violations.
4. Upon suspension or revocation of a drainage permit, the Stormwater Superintendent shall issue a stop work order. Such stop work order shall be directed to the permittee and he/she shall immediately notify persons owning the land, the developer, and those persons or firms actually performing the physical work of clearing, grading and developing the land or constructing the project. The stop work order shall direct the parties involved to cease and desist all or any portion of the work on the project which is not in compliance, except such remedial work necessary to bring the project into compliance. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Failure to Maintain.
1. Notice of Violation; Time Limit to Abate; Hearing Request. Following a determination by the Stormwater Superintendent that the owner, occupant, or agent in charge of any lot or parcel of land on which a drainage control facility exists or abuts has failed to properly maintain such facility as previously set forth or has failed to meet any requirement of this Code of any approved stormwater pollution prevention plan or has failed to comply with any order issued by the Stormwater Superintendent as authorized under this Code, then the Stormwater Superintendent shall notify the owner, occupant, or agent in charge of the violation in writing. If the owner, occupant, or agent in charge fails, neglects, or refuses to comply with the requirements specified in the written notification within 10 days, the Stormwater Superintendent shall issue a notice of violation requiring the owner, or agent of the owner of the premises to repair, remove, and/or abate from the premises the thing therein described as a defect and/or nuisance and performing the necessary remedial work within a time, not exceeding 10 days, to be specified in the notice of violation. The notice of violation shall contain the name and address of the alleged violator, the date and location of the violation, a description of the violation, a description of the remedial measures necessary to restore compliance with this Code and a time schedule for the completion of each such remedial measure and a description of further enforcement actions which may be taken by the City. The notice of violation shall state that before the expiration of the waiting period, the recipient may request a hearing before the City Commission or its designated representative. The request for hearing before the City Commission, or its designated representative, shall in no way relieve any party from liability or responsibility for any violations occurring before, during, or after the conduct of any such hearing. Nothing in this Section shall limit the authority of the Stormwater Superintendent to take any other action, including emergency action or any other enforcement action while any such proceedings are pending.
2. Serving Notice Upon Owner. The notice of violation shall be served by personal service, by delivering a copy to the owner, occupant, or agent of such property, or if the same is unoccupied and the owner is a nonresident, then by mailing a notice by restricted mail to the last known address of the owner.
3. Failure to Comply; City to Cause Remedial Work to be Done. If the owner or agent fails to comply with the requirement of the notice of violation for a period longer than that named in the notice, then the City shall proceed to cause the necessary remedial work to be performed and thereby have the things described in the notice repaired, removed, and/or abated from the lot or parcel of ground.
4. Costs to be Paid by Owner; Assessment to Tax Roll. Whenever the City undertakes the correction or abatement of any violation, or the remediation of any damage caused by any violation, either under emergency circumstances, or due to a person's failure to comply with any lawful notices or orders issued by the Stormwater Superintendent or the City Commission, the person or persons responsible for such violation shall be liable to the City for the costs of such corrective, abatement, or remedial actions. The City shall give notice to the owner, occupant, or agent by restricted mail of the total cost of such repair, abatement, or removal incurred by the City. Such notice also shall state that payment of such cost is due and payable within 30 days following receipt of such notice. If the cost of such repair, removal, and/or abatement is not paid within the 30-day period, the cost shall be collected in the manner provided by this Code or shall be assessed and charged against the lot or parcel of ground on which the nuisance was located. If the cost is to be assessed, the City Clerk, at the time of certifying other city taxes to the County Clerk, shall certify the aforesaid costs, and the County Clerk shall extend the same on the tax roll of the county against the lot or parcel of ground, and it shall be collected by the County Treasurer and paid to the City as other city taxes are collected and paid. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Offenses. Upon the failure, neglect, or refusal of any owner to comply with the notice of violation, the Stormwater Superintendent shall notify the City Attorney who may cause a complaint to be filed against such owner for violation of the provisions of this Code in the municipal court. No such owner shall be exempted from prosecution for violation of such provisions by reason of lawfully transferring his ownership, tenancy, or interest in the premises upon which the nuisance exists after the giving of notice as herein provided. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Repair, Removal and/or Abatement by City. Upon the failure, neglect, or refusal of any owner to comply with notice of violation, the Stormwater Superintendent shall perform all necessary repairs, removal, and/or abatement. For the purpose of so doing, the Stormwater Superintendent may enter the premises upon which such nuisance exists, with or without the consent of the owner thereof, without being guilty of trespass. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Appeals. Any applicant or permittee aggrieved by a decision of the Stormwater Superintendent in the enforcement of this Code shall have the right to appeal any order, requirement, decision or determination in accordance with the following procedures:
1. A hearing before the Hays Area Board of Zoning Appeals may be requested in writing by the applicant or permittee within 10 days of a final order, requirement, decision or determination of the Stormwater Superintendent. The Hays Area Board of Zoning Appeals shall conduct the hearing within 45 days of receipt of the request from the aggrieved and shall consider any information offered by the aggrieved person bearing on the dispute and shall within 10 days render its final decision to the Stormwater Superintendent with an appropriate course of action: either reversal, modification, or confirmation. The Stormwater Superintendent, who shall be present at the hearing, shall immediately act on the recommendation in a manner consistent with his responsibilities under this Code.
2. Any applicant or permittee aggrieved by any final decision of the Stormwater Superintendent following review by the Hays Area Board of Zoning Appeals in the manner set out in Subsection I.1, above, may seek review by a court of competent jurisdiction in the manner provided by the laws of the state. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Violations Deemed a Public Nuisance. Notwithstanding the other enforcement processes, procedures, and penalties provided in this Code, any condition caused or permitted to exist in violation of any of the provisions of this Code is hereby declared to be a threat to the public health, welfare, and safety, and is hereby declared and deemed to be a public nuisance. Instead of or in addition to any other remedies or procedures hereunder, the City may commence a civil action to abate, enjoin, or otherwise compel the cessation of any such public nuisance. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Remedies Not Exclusive. The remedies listed in this Code are not exclusive of any other remedies available under any applicable federal, state or local law. (Ord. No. 3832, §§ 1, 2, 4-14-2011)

Effective on: 8/31/2016

Sec. 13.1.301 Severability

Generally. If any Chapter, Article, Division, Section, Subsection, paragraph, clause, provision, or portion of this Code are held unconstitutional or invalid by a court of competent jurisdiction, the remainder of this Code shall not be affected. If any application of this Code to a particular building or structure, land, or water is adjudged unconstitutional or invalid by a court of competent jurisdiction "as-applied," such judgment shall not be applicable to any other building, structure, land, or water not specifically included in said judgment.
Signs. With respect to Chapter 7, Signs, the following severability provisions shall apply:
1. Severability, Generally. If any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of this Code related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or this Code.
2. Severability Where Less Speech Results. Without diminishing or limiting in any way the declaration of severability set forth above in Subsection B.2., above, or elsewhere in this Section, this Code, or any adopting ordinance, if any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of this Code related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of said article or provision, even if such severability would result in a situation where there would be less speech, whether by subjecting previously exempt signs to permitting or otherwise.
3. Severability of Provisions Pertaining to Prohibited Signs and Sign Elements. Without diminishing or limiting in any way the declaration of severability set out above, if any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of the regulations related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, that pertains to prohibited signs or sign elements. It is the intent of the City Commission to ensure that as many prohibited sign types and sign elements as may be constitutionally prohibited continue to be prohibited.
4. Severability of Provisions if Adjudicated Stricken Due to a Content-Basis. It is the intent of the City Commission to regulate signage in a manner that implements the purposes of this Chapter 7, Signs, as expressed therein. The City finds that the purposes stated in Chapter 7, Signs, are legitimate, substantial, and compelling public interests, that the regulation of signage provided by Chapter 7, Signs, is unrelated to the suppression of free expression, and that the incidental restrictions on expression that may occur as a result of this Code is no more than is essential to the furtherance of the public interests. However, if a court of competent jurisdiction finds any regulation therein to be based upon content and, further, declares such regulation unconstitutional, then it is the intent of the City Commission that only that portion of the provision that is found to relate to content be severed from this Code, and if it is not possible for the court to strike only the portion of the provision that is found to relate to content, then it is the intent of the City Commission that all signs that would be subject to the stricken provision will instead be subject to the next surviving provision for a sign of like geometry and character that is more restrictive than the stricken provision in terms of, in descending order of priority:
  1. sign height; and
  2. sign area.

Effective on: 8/31/2016

Sec. 13.1.302 Conflicting Provisions

Generally. In the event that the provisions of this Code conflict with each other or with another provision from the City's Code of Ordinances, or another enforceable rule, regulation, or ordinance of the City:
1. The more restrictive provision shall control, if the provisions were adopted at the same time; or
2. The more recent provision shall control if the provisions were adopted at different times.
State and Federal Law. No part of this Code relieves any applicant from compliance with applicable provisions of state or federal law. If a use, building, structure, operational characteristic, construction technique, environmental impact, or other matter is prohibited by state or federal law, it is also prohibited in the City. Likewise, if a matter is regulated by state or federal law, then compliance with state or federal law does not relieve the applicant from compliance with this Code, unless the application of this Code is legally preempted.

Effective on: 8/31/2016

Sec. 13.1.303 Civil Liability

Neither the approval of a plan under the provisions of this Code, nor compliance with the provisions herein shall relieve any person from the responsibility for damage to any person or property otherwise imposed by law or equity, nor shall such approval and/or compliance operate to impose any liability upon the City for damage to any person or property.

Effective on: 8/31/2016

Peabody City Zoning Code

CHAPTER 13

Interpretation, Enforcement, and Legal Status

Division 13.1.100 Interpretation

Sec. 13.1.101 Interpretation, Generally

Generally. The purpose of the regulation to be interpreted must be determined so that the protection that it is intended to provide the public is enforced. Therefore, this Code should be interpreted in the context of:
1. The general findings and purposes stated in Chapter 1, Title, Purpose, Authority, Jurisdiction, and Transitional Provisions; and
2. The goals and policies of the Comprehensive Plan.
Word Usage, Acronyms, and Definitions. Rules for construction of words and phrases, common acronyms, and defined words and phrases are set out in Chapter 14, Measurements and Words.
Illustrations. Illustrations are generally provided for explanatory purposes, and do not necessarily set out all options or alternatives for each standard. Where an illustration appears to set out different substantive requirements than the text of this Code, the text shall control.
Cross-References. Hyperlinked cross-references to internal provisions (e.g., between Chapters, Articles, Divisions, Sections, and Subsections) and external documents and regulations (e.g., Kansas Statutes Annotated and the Comprehensive Plan) are provided to increase the ease of use in complying with the intended regulations. Where a conflict exists between a given cross-reference (e.g., number or hyperlinked location) and the name of the cross-reference, the name shall control.
Quantifiable or Numeric Standards. If the provision to be interpreted has a quantifiable standard, no interpretation can result in a reduction of the standard. Standards listed as maximums shall be interpreted to allow any number equal to or lesser than the maximum standard listed. Standards listed as minimums shall be interpreted to allow any number equal to or greater than the minimum standard listed. By way of example, if the maximum density is listed as 3.0 units per acre, then it cannot be interpreted to allow 3.2 units per acre as-of-right.
Qualitative Standards. Non-numeric standards shall be construed in favor of the element being projected unless there is sufficient evidence to indicate that the alternative language will protect the public as well as provide the landowner with other options.
Land Usage. Interpretations of land uses shall be in accordance with Article 2.2, Land Uses.
Signs; Substitution of Noncommercial Speech for Commercial Speech. Notwithstanding anything contained in this Code to the contrary, any sign erected pursuant to the provisions of this Code, or otherwise lawfully existing with a commercial message may, at the option of the owner, contain a noncommercial message in lieu of a commercial message. The noncommercial message may occupy the allowable area of the sign face or any portion thereof. The sign face may be changed from commercial to noncommercial messages, or from one noncommercial message to another, as frequently as desired by the owner of the sign, provided that:
1. The sign is not a prohibited sign or sign-type;
2. The frequency of changes to the message is not greater than is allowed for digital message centers (see Section 7.2.105, Message Centers); and
3. The size, height, setback, and other dimensional criteria contained in this Code have been satisfied, or the sign is legally nonconforming.

Effective on: 8/31/2016

Sec. 13.1.102 Interpretation, Official

Generally. Any person may request an administrative interpretation of the terms, provisions, or requirements of this Code if the application of the terms, provisions, or requirements are not obvious.
Intent.
1. It is the intent of the City Commission that this Code be accessible and clear to the residents, business owners, and landowners in the City, and that the spirit of K.S.A. § 45-216, Public policy that records be open, be observed. As such, the Zoning Administrator, or designee, will provide:
  1. Requested public records that are related to the administration and enforcement of this Code (this may include reasonable fees for research and duplication, if necessary).
  2. References to the standards that may be applied to individual uses, buildings, or structures; and
  3. General information to residents, business owners, and landowners with respect to the zoning districts that apply to property.
2. It is not the intent of the City Commission that the Zoning Administrator, or designee, affirmatively evaluate the full development potential of individual properties or resolve other such detailed inquiries about specific properties or issues without a pending permit or development approval application.
Process. The interpretation is made by the Zoning Administrator, although the City is not obligated to render an interpretation. The interpretation is not subject to appeal, although related appeals may proceed as provided for in this Code (e.g., an administrative appeal after a decision has been rendered part of an official permit or development approval application). After an interpretation is issued, the Zoning Administrator may propose a text amendment to this Code to codify the interpretation, if necessary.
Application. Application requirements for official written interpretations shall be on a form approved by the Zoning Administrator, which at a minimum shall cite the regulatory provision for which the interpretation is sought, a description of a hypothetical situation or scenario to which the application of this Code are in question, and a statement of the nature of the interpretation sought.
Interpretation Criteria. The interpretation shall be based on:
1. The materials or scenario posed by the applicant;
2. The plain and ordinary meaning of the terms that are subject to the application for an interpretation as set out in Webster's Third New International Dictionary or other current and authoritative dictionaries;
3. The purpose statement for the Section of this Code that is subject to interpretation;
4. Any other provision of the Comprehensive Plan, the City's Code of Ordinances, state law, or federal law that are related to the same subject matter;
5. Any technical meanings of the words used in the provision subject to interpretation;
6. Other interpretations rendered by the City relating to the same or related provisions of this Code;
7. The consequences of the interpretation;
8. The legislative history;
9. The problem or issue that is addressed by the provision subject to interpretation; and
10. Sources outside of these regulatory provision that provide a related source for the definition, such as technical or professional literature.
Decision. Within a reasonable period after the application for an interpretation is filed, the Zoning Administrator shall make a good faith effort to interpret the provision that is the subject of the application and may consult with other City Staff and/or the City Attorney as necessary. The Zoning Administrator shall respond to the applicant in writing, and shall keep a copy of the response in a record of interpretations.
Effect of Decision.
1. No Legal Advice. The City does not provide legal advice to applicants or property owners. Private parties, including purchasers, lenders, title insurers, and others are advised to seek legal opinions from their attorneys with respect to specific potential applications of this Code. No interpretation provided by City Staff pursuant to this Section shall be construed as legal advice.
2. No Binding Effect. It is the policy of the City to evaluate applications for development approval comprehensively on their individual merits. Therefore, interpretations may be persuasive to the applicable development review bodies, but they are not binding on the City.
Recordkeeping. The Zoning Administrator shall keep records of interpretations made pursuant to this Section.

Effective on: 8/31/2016

Sec. 13.1.201 Enforcement Powers and Remedies

Generally. This Section sets out enforcement powers and remedies that may be used by the City to enforce this Code prior to, and in, a court of competent jurisdiction. This Section shall not limit the power of the City to pursue multiple or alternative actions, remedies, and penalties, or to pursue actions, remedies and penalties that are authorized by law but not listed in this Section.
Enforcement Powers. The City may enforce this Code prior to, and without, judicial process by:
1. Withholding Permits. The City may deny or withhold all permits, development approvals, or other forms of authorization on any land, building, or structure for which there is an uncorrected violation of a Section of this Code or of a condition of a permit, certificate, approval or other authorization previously granted by the City. In lieu of withholding or denying an authorization, the City may grant such authorization subject to the condition that the violation be corrected.
2. Suspension of Permits. The City may suspend permits, including exception permits, for a period of up to 60 days to allow for the correction of the violation or the judgment of a court of competent jurisdiction.
3. Stopping Work. With or without revoking permits, the City may stop work on any building or structure on any land on which there is an uncorrected violation of a Section or of a permit or other form of authorization issued, in accordance with its power to stop work under its building codes.
4. Revocation of Permits and Approvals.
  1. Revocation of Permits. Any permit, certificate of occupancy, or other approval required shall be revoked when it is determined that:
    1. There is a departure from the approved plans, specifications, limitations, or conditions as required under the permit or approval;
    2. The permit or approval was procured by false representation;
    3. The permit or approval was issued in error; or
    4. There is a violation of any provision of this Code.
  2. Notice and Opportunity to Correct. Written notice of revocation stating that such violation shall be corrected within 10 days shall be served upon the property owner, agent, applicant, or other person to whom the permit or approval was issued, or such notice may be posted in a prominent location at the place of violation.
  3. Effect of Notice. No work or construction shall proceed after service of the revocation notice unless such work is to correct a violation.
  4. Failure to Correct. If after the 10-day period, arrangements acceptable to the City have not been made, the Chief Building Official shall:
    1. File litigation in a court of competent jurisdiction; and / or
    2. Remove or correct such violation and cause to be placed a lien upon the property and / or improvements to the property in an amount to cover all costs related to correction or abatement of the violation.
Judicial Remedies. The City may seek the following judicial remedies to enforce this Code:
1. Injunctive Relief.
  1. The City may seek an injunction or other equitable relief in court to stop any violation of a permit, certificate or other form of authorization granted under this Code. Such relief may include revocation or termination of permits, including exception permits. In any court proceedings in which the City seeks a preliminary injunction, it shall be presumed that a violation or continued violation of this Code is, will, or may be an injury to the public health, safety or general welfare; that the public health, safety or general welfare will or may be irreparably injured by the continuation of the violation unless the violation is enjoined; and that there is no plain and adequate remedy at law for the subject violation.
  2. The City may seek an affirmative injunction to require the demolition or removal of a structure, or to allow the City to demolish or remove a structure and recover costs against the landowner, pursuant to K.S.A. §§ 12-1750 through 12-1756, or as otherwise provided for in the Kansas Annotated Statutes.
2. Abatement. The City may seek a court order in the nature of mandamus, abatement, or other action or proceeding to abate or remove a violation or to otherwise restore the premises in question to the condition in which they existed prior to the violation.
3. Civil Remedies. The City shall have the right to institute any appropriate civil action in a court of competent jurisdiction, to enforce, enjoin, prevent, restrain, correct or abate any violation of this Code, including any and all remedies available pursuant to state law. All court costs and reasonable attorney's fees incurred by the City in connection with any civil action shall be awarded to the City if it is the prevailing party.
4. Criminal Remedies. Any person who violates any section of this Code shall be guilty, upon conviction, of a separate offense for each day or portion of a day during which the violation continues, which shall be punishable by a fine of not to exceed $500 or by imprisonment for not more than six months for each offense or by both such fine and imprisonment (see K.S.A. § 12-761).
Floodplain Remedies. Violations of the Federal Emergency Management Agency (FEMA) floodplain regulations set forth in the adopted Unified Development Code, shall be subject to the following, in addition to the remedies provided by other Subsections of this Section:
1. The Federal Emergency Management Agency (FEMA) and the Chief Engineer of the Division of Water Resources of the Kansas Department of Agriculture shall be notified immediately in writing of any property or structure in violation of the floodplain regulations of the adopted Unified Development Code.
2. The City may apply FEMA to have a property added to the 1316 list so that it would be ineligible for flood insurance under the NFIP if it is in violation.
Other Remedies. The City shall have such other remedies as are and as may be from time to time provided by state law for the violation of regulations.
Remedies Cumulative. The remedies and enforcement powers set out in this Section shall not be considered exclusive remedies, but rather they shall be cumulative with all other remedies provided in this Code, in any other applicable ordinance, or by law.

(Ord. No. 4012, § 1, 7-14-2022)

Effective on: 7/14/2022

Sec. 13.1.202 Enforcement Procedures

Generally. The City may enforce the provisions set out in this Division, or as otherwise authorized by law.
Responsible Official. The Chief Building Official, or the City Manager, shall administer and enforce the provisions of this Code. The Chief Building Official and/or City Manager may consult with the City Attorney, the Director of Public Works and other officials in the exercise of this duty.
Right to Enter. The Chief Building Official, City Manager, or designee, will investigate and find as a matter of fact whether a violation has occurred, and in doing so, shall have the right to enter upon any premises at any reasonable time for the purpose of making inspection of buildings, structures, or premises necessary to carry out the duty to enforce this Code.
Filing a Complaint. Any person may allege a violation by a written and signed complaint that is filed with the Chief Building Official or City Manager. Such complaint shall state the factual basis for the alleged violation along with the complainant's name, address, and telephone number.
Notice of Violation. Upon investigation, with or without a complaint, the City may issue a written notice of violation to the owner of property upon which a violation exists. The Notice of Violation shall set forth the grounds upon which the notice is based, including the specific code section or sections at issue.
Correction of Violation.
1. For a first violation, the person responsible for the violation shall have a period of no more than 15 days to correct the violation. (Unless Subsection 13.1.202(F)(3) applies)
2. For a subsequent or continued violation, the person responsible for the violation shall correct the violation within 24 hours. (Unless Subsection 13.1.202(F)(3) applies)
3. Any violation that creates an immediate danger to the public safety shall be corrected immediately, regardless of whether it is a first violation, a continuing violation, or a subsequent violation.
Further Enforcement. If the code violation is not corrected in accordance with the requirements of Subsection F., above, then the City may enforce this Code in accordance with any and all enforcement actions and remedies as set out in this Division.
Records. The Chief Building Official shall maintain a record of all complaints of violations, including how they were resolved.

Effective on: 8/31/2016

13.1.203 Enforcement Procedures for Exception Permits

Generally. The provisions of this Section may be applied to enforce an exception permit.
Inspection. The City may:
1. Make inspections to determine compliance with the provisions of this Code and the exception permit, and initiate appropriate action as necessary; and/or
2. Keep a record of complaints, indicating any action taken. These records shall be made available where the Board of Zoning Appeals has been requested to review the exception for compliance.
Exception Permit Revocation. Upon determination of noncompliance with the provisions of the exception permit, the City will take actions as necessary to assure compliance. Such actions may include non-renewal or revocation of the permit as follows:
1. The Zoning Administrator shall provide a notice of violation to the record owner of the property upon which an exception is located, advising the owner that the use must be brought into compliance with this Code within 14 days from the date of the notice.
2. If total compliance has not occurred or a plan for compliance has not been submitted to the Zoning Administrator within 14 days from the date of notice, then the Zoning Administrator shall issue a cease-and-desist order and notify the record owner of a hearing date by the Board of Zoning Appeals to consider revocation of the exception permit.
3. The Board of Zoning Appeals shall revoke the exception permit if the use and/or property is/are not in total compliance. The Board of Zoning Appeals may grant up to a 14-day period for compliance. The exception permit shall remain in suspension and the cease-and-desist order shall remain in effect until total compliance is obtained.
4. At the end of a compliance period the Board of Zoning Appeals shall revoke the exception permit if total compliance has not been obtained.
5. If the use and property are brought into compliance, any further violation of terms of the exception permit within 90 days from the initial notice of violation are grounds for immediate revocation of the exception permit.
6. Revoked exception permits may only be reinstated by the Board of Zoning Appeals, which may impose conditions to ensure compliance.

(Ord. No. 4012, § 1, 7-14-2022)

Effective on: 7/14/2022

Sec. 13.1.204 Enforcement Procedures for Stormwater Management

Generally. It shall be the duty of the Stormwater Superintendent to bring to the attention of the City Attorney any violation or lack of compliance with the regulations and standards of this Code. The City Attorney may file the civil action deemed appropriate in the district court of the state to enforce the requirements of this Code. The City Attorney may also cause to be brought a prosecution in the municipal court of the City.
Violations; Criminal and Civil Penalties.
1. Criminal Penalties. Any person violating any of the provisions of Article 9.2, Stormwater Management, shall, upon conviction thereof, be deemed guilty of a misdemeanor punishable in accordance with Section 1-13 of the Code of Ordinances of the City of Hays, Kansas.
2. Civil Penalties. In the event an applicant or other responsible person fails to take the remedial measures set forth in a Notice of Violation described in Subsection F, Failure to Maintain, below, the Stormwater Superintendent shall assess a penalty against the property, as outlined below, for each day the violation remains unremedied after receipt of the notice of violation:
  1. For failure to submit a stormwater pollution prevention plan prior to construction, the fine shall be $500.00 for each day the violation remains unremedied.
  2. For failure to install stormwater BMPs as indicated on the site map required under the KDHE construction stormwater program, the fine shall be $750.00 for each day the violation remains unremedied.
  3. For failure to notify the Stormwater Superintendent before commencement of construction, the fine shall be $500.00 for each day the violation remains unremedied.
  4. For failure to maintain, repair, or replace construction stormwater BMP within 10 days of notification, the fine shall be $750.00 for each day after the tenth day following notification that the violation remains unremedied.
  5. For failure to cease illicit discharges, the fine shall be $500.00 for each day the violation remains unremedied.
  6. For dumping of material or liquids in the storm sewer system, the fine shall be $1,000.00 for each dumping occurrence. The person responsible for dumping shall also be liable for the reasonable costs to the City to abate the nuisance caused by the illegal dumping. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Inspection.
1. The Stormwater Superintendent shall be responsible for determining whether a stormwater management plan is in conformance with criteria specified, and whether development is proceeding in accordance with the approved drainage permit. Periodic inspection of the development site shall be made by the Stormwater Superintendent, or a designee. Through such periodic inspections, the Stormwater Superintendent shall ensure that the stormwater management plan is properly implemented and that the improvements are properly maintained.
2. Whenever the Stormwater Superintendent has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this Code, the Stormwater Superintendent shall have the right to enter the premises at any reasonable time for the purpose of conducting such inspections and sampling as may be necessary to determine whether any violations exist and to determine the nature and extent of any remedial actions necessary by virtue thereof. In the event the owner or occupant of the premises refuses such entry after a request to enter has been made, the Stormwater Superintendent is hereby empowered to seek assistance from a court of competent jurisdiction to permit or compel such entry.
3. The Stormwater Superintendent shall have the right to set up on any such premises such devices as may be deemed necessary to conduct sampling of any discharges or of the soils or any substances from which such discharges may occur.
4. Investigation of any such matter shall in no way relieve any party from liability or responsibility for any violations occurring before, during, or after the conduct of any such investigation. Nothing in this Section shall limit the authority of the Stormwater Superintendent to take any other action or actions, including emergency action or any other enforcement action, while also undertaking any such investigation. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Remedial Work. If it is determined through inspection that a development is not proceeding in accordance with the approved stormwater management plan and drainage permit, the Stormwater Superintendent shall immediately issue written notice to the permittee and the surety of the nature and location of the alleged noncompliance, accompanied by documentary evidence demonstrating noncompliance and specifying what remedial work is necessary to bring the project into compliance. The permittee so notified shall immediately, unless weather conditions or other factors beyond the control of the permittee prevent immediate remedial action, commence the recommended remedial action and shall complete the remedial work within 72 hours or within a reasonable time after receipt of such notice. Upon satisfactory completion of the remedial work, the Stormwater Superintendent shall issue a notice of compliance and the development may proceed. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Revocation of Permits and Stop Work Orders; Actions Without Prior Notice.
1. The Stormwater Superintendent, after giving written notice, may revoke a permit issued pursuant to the regulations of this Code for any project which is found upon inspection to be in violation of the provisions of the regulations of this Code, and for which the permittee has not agreed to undertake remedial work as provided in the regulations of this Code. Drainage permits may also be revoked if remedial work is not completed within the time allowed. Upon revocation of a drainage permit, the Stormwater Superintendent shall issue a stop work order. Such stop work order shall be directed to the permittee who shall immediately notify persons owning the land, the developer, and those persons actually performing the physical work of clearing, grading, and developing the land or constructing the project. The stop work order shall direct the parties involved shall cease and desist all or any portion of the work on the project which is not in compliance, except such remedial work necessary to bring the project into compliance.
2. The Stormwater Superintendent is authorized to enter upon any premises without prior notice, to issue stop-work orders as may be necessary, and to take such further actions as are necessary to prevent, eliminate or remediate any violations or Illicit Discharges in any of the following circumstances:
  1. If a violation constitutes an imminent or immediate danger to the environment or to the public health, welfare or safety;
  2. If a person to whom a Notice of Violation has been issued and has become final and such person has failed to comply with the directed corrective actions within the time provided therefor; or
  3. If all reasonable attempts to contact a responsible person as to a violation have failed.
3. The City may suspend, revoke, or modify the permit authorizing a land development project. A suspended, revoked, or modified permit may be reinstated after the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein, provided such permit may be reinstated upon such conditions as the City may deem necessary to enable the applicant or other responsible person to take the necessary remedial measures to cure such violations.
4. Upon suspension or revocation of a drainage permit, the Stormwater Superintendent shall issue a stop work order. Such stop work order shall be directed to the permittee and he/she shall immediately notify persons owning the land, the developer, and those persons or firms actually performing the physical work of clearing, grading and developing the land or constructing the project. The stop work order shall direct the parties involved to cease and desist all or any portion of the work on the project which is not in compliance, except such remedial work necessary to bring the project into compliance. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Failure to Maintain.
1. Notice of Violation; Time Limit to Abate; Hearing Request. Following a determination by the Stormwater Superintendent that the owner, occupant, or agent in charge of any lot or parcel of land on which a drainage control facility exists or abuts has failed to properly maintain such facility as previously set forth or has failed to meet any requirement of this Code of any approved stormwater pollution prevention plan or has failed to comply with any order issued by the Stormwater Superintendent as authorized under this Code, then the Stormwater Superintendent shall notify the owner, occupant, or agent in charge of the violation in writing. If the owner, occupant, or agent in charge fails, neglects, or refuses to comply with the requirements specified in the written notification within 10 days, the Stormwater Superintendent shall issue a notice of violation requiring the owner, or agent of the owner of the premises to repair, remove, and/or abate from the premises the thing therein described as a defect and/or nuisance and performing the necessary remedial work within a time, not exceeding 10 days, to be specified in the notice of violation. The notice of violation shall contain the name and address of the alleged violator, the date and location of the violation, a description of the violation, a description of the remedial measures necessary to restore compliance with this Code and a time schedule for the completion of each such remedial measure and a description of further enforcement actions which may be taken by the City. The notice of violation shall state that before the expiration of the waiting period, the recipient may request a hearing before the City Commission or its designated representative. The request for hearing before the City Commission, or its designated representative, shall in no way relieve any party from liability or responsibility for any violations occurring before, during, or after the conduct of any such hearing. Nothing in this Section shall limit the authority of the Stormwater Superintendent to take any other action, including emergency action or any other enforcement action while any such proceedings are pending.
2. Serving Notice Upon Owner. The notice of violation shall be served by personal service, by delivering a copy to the owner, occupant, or agent of such property, or if the same is unoccupied and the owner is a nonresident, then by mailing a notice by restricted mail to the last known address of the owner.
3. Failure to Comply; City to Cause Remedial Work to be Done. If the owner or agent fails to comply with the requirement of the notice of violation for a period longer than that named in the notice, then the City shall proceed to cause the necessary remedial work to be performed and thereby have the things described in the notice repaired, removed, and/or abated from the lot or parcel of ground.
4. Costs to be Paid by Owner; Assessment to Tax Roll. Whenever the City undertakes the correction or abatement of any violation, or the remediation of any damage caused by any violation, either under emergency circumstances, or due to a person's failure to comply with any lawful notices or orders issued by the Stormwater Superintendent or the City Commission, the person or persons responsible for such violation shall be liable to the City for the costs of such corrective, abatement, or remedial actions. The City shall give notice to the owner, occupant, or agent by restricted mail of the total cost of such repair, abatement, or removal incurred by the City. Such notice also shall state that payment of such cost is due and payable within 30 days following receipt of such notice. If the cost of such repair, removal, and/or abatement is not paid within the 30-day period, the cost shall be collected in the manner provided by this Code or shall be assessed and charged against the lot or parcel of ground on which the nuisance was located. If the cost is to be assessed, the City Clerk, at the time of certifying other city taxes to the County Clerk, shall certify the aforesaid costs, and the County Clerk shall extend the same on the tax roll of the county against the lot or parcel of ground, and it shall be collected by the County Treasurer and paid to the City as other city taxes are collected and paid. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Offenses. Upon the failure, neglect, or refusal of any owner to comply with the notice of violation, the Stormwater Superintendent shall notify the City Attorney who may cause a complaint to be filed against such owner for violation of the provisions of this Code in the municipal court. No such owner shall be exempted from prosecution for violation of such provisions by reason of lawfully transferring his ownership, tenancy, or interest in the premises upon which the nuisance exists after the giving of notice as herein provided. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Repair, Removal and/or Abatement by City. Upon the failure, neglect, or refusal of any owner to comply with notice of violation, the Stormwater Superintendent shall perform all necessary repairs, removal, and/or abatement. For the purpose of so doing, the Stormwater Superintendent may enter the premises upon which such nuisance exists, with or without the consent of the owner thereof, without being guilty of trespass. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Appeals. Any applicant or permittee aggrieved by a decision of the Stormwater Superintendent in the enforcement of this Code shall have the right to appeal any order, requirement, decision or determination in accordance with the following procedures:
1. A hearing before the Hays Area Board of Zoning Appeals may be requested in writing by the applicant or permittee within 10 days of a final order, requirement, decision or determination of the Stormwater Superintendent. The Hays Area Board of Zoning Appeals shall conduct the hearing within 45 days of receipt of the request from the aggrieved and shall consider any information offered by the aggrieved person bearing on the dispute and shall within 10 days render its final decision to the Stormwater Superintendent with an appropriate course of action: either reversal, modification, or confirmation. The Stormwater Superintendent, who shall be present at the hearing, shall immediately act on the recommendation in a manner consistent with his responsibilities under this Code.
2. Any applicant or permittee aggrieved by any final decision of the Stormwater Superintendent following review by the Hays Area Board of Zoning Appeals in the manner set out in Subsection I.1, above, may seek review by a court of competent jurisdiction in the manner provided by the laws of the state. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Violations Deemed a Public Nuisance. Notwithstanding the other enforcement processes, procedures, and penalties provided in this Code, any condition caused or permitted to exist in violation of any of the provisions of this Code is hereby declared to be a threat to the public health, welfare, and safety, and is hereby declared and deemed to be a public nuisance. Instead of or in addition to any other remedies or procedures hereunder, the City may commence a civil action to abate, enjoin, or otherwise compel the cessation of any such public nuisance. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Remedies Not Exclusive. The remedies listed in this Code are not exclusive of any other remedies available under any applicable federal, state or local law. (Ord. No. 3832, §§ 1, 2, 4-14-2011)

Effective on: 8/31/2016

Sec. 13.1.301 Severability

Generally. If any Chapter, Article, Division, Section, Subsection, paragraph, clause, provision, or portion of this Code are held unconstitutional or invalid by a court of competent jurisdiction, the remainder of this Code shall not be affected. If any application of this Code to a particular building or structure, land, or water is adjudged unconstitutional or invalid by a court of competent jurisdiction "as-applied," such judgment shall not be applicable to any other building, structure, land, or water not specifically included in said judgment.
Signs. With respect to Chapter 7, Signs, the following severability provisions shall apply:
1. Severability, Generally. If any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of this Code related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or this Code.
2. Severability Where Less Speech Results. Without diminishing or limiting in any way the declaration of severability set forth above in Subsection B.2., above, or elsewhere in this Section, this Code, or any adopting ordinance, if any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of this Code related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of said article or provision, even if such severability would result in a situation where there would be less speech, whether by subjecting previously exempt signs to permitting or otherwise.
3. Severability of Provisions Pertaining to Prohibited Signs and Sign Elements. Without diminishing or limiting in any way the declaration of severability set out above, if any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of the regulations related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, that pertains to prohibited signs or sign elements. It is the intent of the City Commission to ensure that as many prohibited sign types and sign elements as may be constitutionally prohibited continue to be prohibited.
4. Severability of Provisions if Adjudicated Stricken Due to a Content-Basis. It is the intent of the City Commission to regulate signage in a manner that implements the purposes of this Chapter 7, Signs, as expressed therein. The City finds that the purposes stated in Chapter 7, Signs, are legitimate, substantial, and compelling public interests, that the regulation of signage provided by Chapter 7, Signs, is unrelated to the suppression of free expression, and that the incidental restrictions on expression that may occur as a result of this Code is no more than is essential to the furtherance of the public interests. However, if a court of competent jurisdiction finds any regulation therein to be based upon content and, further, declares such regulation unconstitutional, then it is the intent of the City Commission that only that portion of the provision that is found to relate to content be severed from this Code, and if it is not possible for the court to strike only the portion of the provision that is found to relate to content, then it is the intent of the City Commission that all signs that would be subject to the stricken provision will instead be subject to the next surviving provision for a sign of like geometry and character that is more restrictive than the stricken provision in terms of, in descending order of priority:
  1. sign height; and
  2. sign area.

Effective on: 8/31/2016

Sec. 13.1.302 Conflicting Provisions

Generally. In the event that the provisions of this Code conflict with each other or with another provision from the City's Code of Ordinances, or another enforceable rule, regulation, or ordinance of the City:
1. The more restrictive provision shall control, if the provisions were adopted at the same time; or
2. The more recent provision shall control if the provisions were adopted at different times.
State and Federal Law. No part of this Code relieves any applicant from compliance with applicable provisions of state or federal law. If a use, building, structure, operational characteristic, construction technique, environmental impact, or other matter is prohibited by state or federal law, it is also prohibited in the City. Likewise, if a matter is regulated by state or federal law, then compliance with state or federal law does not relieve the applicant from compliance with this Code, unless the application of this Code is legally preempted.

Effective on: 8/31/2016

Sec. 13.1.303 Civil Liability

Effective on: 8/31/2016

Peabody City Zoning Code

CHAPTER 13

Interpretation, Enforcement, and Legal Status

Division 13.1.100 Interpretation

Sec. 13.1.101 Interpretation, Generally

Generally. The purpose of the regulation to be interpreted must be determined so that the protection that it is intended to provide the public is enforced. Therefore, this Code should be interpreted in the context of:
1. The general findings and purposes stated in Chapter 1, Title, Purpose, Authority, Jurisdiction, and Transitional Provisions; and
2. The goals and policies of the Comprehensive Plan.
Word Usage, Acronyms, and Definitions. Rules for construction of words and phrases, common acronyms, and defined words and phrases are set out in Chapter 14, Measurements and Words.
Illustrations. Illustrations are generally provided for explanatory purposes, and do not necessarily set out all options or alternatives for each standard. Where an illustration appears to set out different substantive requirements than the text of this Code, the text shall control.
Cross-References. Hyperlinked cross-references to internal provisions (e.g., between Chapters, Articles, Divisions, Sections, and Subsections) and external documents and regulations (e.g., Kansas Statutes Annotated and the Comprehensive Plan) are provided to increase the ease of use in complying with the intended regulations. Where a conflict exists between a given cross-reference (e.g., number or hyperlinked location) and the name of the cross-reference, the name shall control.
Quantifiable or Numeric Standards. If the provision to be interpreted has a quantifiable standard, no interpretation can result in a reduction of the standard. Standards listed as maximums shall be interpreted to allow any number equal to or lesser than the maximum standard listed. Standards listed as minimums shall be interpreted to allow any number equal to or greater than the minimum standard listed. By way of example, if the maximum density is listed as 3.0 units per acre, then it cannot be interpreted to allow 3.2 units per acre as-of-right.
Qualitative Standards. Non-numeric standards shall be construed in favor of the element being projected unless there is sufficient evidence to indicate that the alternative language will protect the public as well as provide the landowner with other options.
Land Usage. Interpretations of land uses shall be in accordance with Article 2.2, Land Uses.
Signs; Substitution of Noncommercial Speech for Commercial Speech. Notwithstanding anything contained in this Code to the contrary, any sign erected pursuant to the provisions of this Code, or otherwise lawfully existing with a commercial message may, at the option of the owner, contain a noncommercial message in lieu of a commercial message. The noncommercial message may occupy the allowable area of the sign face or any portion thereof. The sign face may be changed from commercial to noncommercial messages, or from one noncommercial message to another, as frequently as desired by the owner of the sign, provided that:
1. The sign is not a prohibited sign or sign-type;
2. The frequency of changes to the message is not greater than is allowed for digital message centers (see Section 7.2.105, Message Centers); and
3. The size, height, setback, and other dimensional criteria contained in this Code have been satisfied, or the sign is legally nonconforming.

Effective on: 8/31/2016

Sec. 13.1.102 Interpretation, Official

Generally. Any person may request an administrative interpretation of the terms, provisions, or requirements of this Code if the application of the terms, provisions, or requirements are not obvious.
Intent.
1. It is the intent of the City Commission that this Code be accessible and clear to the residents, business owners, and landowners in the City, and that the spirit of K.S.A. § 45-216, Public policy that records be open, be observed. As such, the Zoning Administrator, or designee, will provide:
  1. Requested public records that are related to the administration and enforcement of this Code (this may include reasonable fees for research and duplication, if necessary).
  2. References to the standards that may be applied to individual uses, buildings, or structures; and
  3. General information to residents, business owners, and landowners with respect to the zoning districts that apply to property.
2. It is not the intent of the City Commission that the Zoning Administrator, or designee, affirmatively evaluate the full development potential of individual properties or resolve other such detailed inquiries about specific properties or issues without a pending permit or development approval application.
Process. The interpretation is made by the Zoning Administrator, although the City is not obligated to render an interpretation. The interpretation is not subject to appeal, although related appeals may proceed as provided for in this Code (e.g., an administrative appeal after a decision has been rendered part of an official permit or development approval application). After an interpretation is issued, the Zoning Administrator may propose a text amendment to this Code to codify the interpretation, if necessary.
Application. Application requirements for official written interpretations shall be on a form approved by the Zoning Administrator, which at a minimum shall cite the regulatory provision for which the interpretation is sought, a description of a hypothetical situation or scenario to which the application of this Code are in question, and a statement of the nature of the interpretation sought.
Interpretation Criteria. The interpretation shall be based on:
1. The materials or scenario posed by the applicant;
2. The plain and ordinary meaning of the terms that are subject to the application for an interpretation as set out in Webster's Third New International Dictionary or other current and authoritative dictionaries;
3. The purpose statement for the Section of this Code that is subject to interpretation;
4. Any other provision of the Comprehensive Plan, the City's Code of Ordinances, state law, or federal law that are related to the same subject matter;
5. Any technical meanings of the words used in the provision subject to interpretation;
6. Other interpretations rendered by the City relating to the same or related provisions of this Code;
7. The consequences of the interpretation;
8. The legislative history;
9. The problem or issue that is addressed by the provision subject to interpretation; and
10. Sources outside of these regulatory provision that provide a related source for the definition, such as technical or professional literature.
Decision. Within a reasonable period after the application for an interpretation is filed, the Zoning Administrator shall make a good faith effort to interpret the provision that is the subject of the application and may consult with other City Staff and/or the City Attorney as necessary. The Zoning Administrator shall respond to the applicant in writing, and shall keep a copy of the response in a record of interpretations.
Effect of Decision.
1. No Legal Advice. The City does not provide legal advice to applicants or property owners. Private parties, including purchasers, lenders, title insurers, and others are advised to seek legal opinions from their attorneys with respect to specific potential applications of this Code. No interpretation provided by City Staff pursuant to this Section shall be construed as legal advice.
2. No Binding Effect. It is the policy of the City to evaluate applications for development approval comprehensively on their individual merits. Therefore, interpretations may be persuasive to the applicable development review bodies, but they are not binding on the City.
Recordkeeping. The Zoning Administrator shall keep records of interpretations made pursuant to this Section.

Effective on: 8/31/2016

Sec. 13.1.201 Enforcement Powers and Remedies

Generally. This Section sets out enforcement powers and remedies that may be used by the City to enforce this Code prior to, and in, a court of competent jurisdiction. This Section shall not limit the power of the City to pursue multiple or alternative actions, remedies, and penalties, or to pursue actions, remedies and penalties that are authorized by law but not listed in this Section.
Enforcement Powers. The City may enforce this Code prior to, and without, judicial process by:
1. Withholding Permits. The City may deny or withhold all permits, development approvals, or other forms of authorization on any land, building, or structure for which there is an uncorrected violation of a Section of this Code or of a condition of a permit, certificate, approval or other authorization previously granted by the City. In lieu of withholding or denying an authorization, the City may grant such authorization subject to the condition that the violation be corrected.
2. Suspension of Permits. The City may suspend permits, including exception permits, for a period of up to 60 days to allow for the correction of the violation or the judgment of a court of competent jurisdiction.
3. Stopping Work. With or without revoking permits, the City may stop work on any building or structure on any land on which there is an uncorrected violation of a Section or of a permit or other form of authorization issued, in accordance with its power to stop work under its building codes.
4. Revocation of Permits and Approvals.
  1. Revocation of Permits. Any permit, certificate of occupancy, or other approval required shall be revoked when it is determined that:
    1. There is a departure from the approved plans, specifications, limitations, or conditions as required under the permit or approval;
    2. The permit or approval was procured by false representation;
    3. The permit or approval was issued in error; or
    4. There is a violation of any provision of this Code.
  2. Notice and Opportunity to Correct. Written notice of revocation stating that such violation shall be corrected within 10 days shall be served upon the property owner, agent, applicant, or other person to whom the permit or approval was issued, or such notice may be posted in a prominent location at the place of violation.
  3. Effect of Notice. No work or construction shall proceed after service of the revocation notice unless such work is to correct a violation.
  4. Failure to Correct. If after the 10-day period, arrangements acceptable to the City have not been made, the Chief Building Official shall:
    1. File litigation in a court of competent jurisdiction; and / or
    2. Remove or correct such violation and cause to be placed a lien upon the property and / or improvements to the property in an amount to cover all costs related to correction or abatement of the violation.
Judicial Remedies. The City may seek the following judicial remedies to enforce this Code:
1. Injunctive Relief.
  1. The City may seek an injunction or other equitable relief in court to stop any violation of a permit, certificate or other form of authorization granted under this Code. Such relief may include revocation or termination of permits, including exception permits. In any court proceedings in which the City seeks a preliminary injunction, it shall be presumed that a violation or continued violation of this Code is, will, or may be an injury to the public health, safety or general welfare; that the public health, safety or general welfare will or may be irreparably injured by the continuation of the violation unless the violation is enjoined; and that there is no plain and adequate remedy at law for the subject violation.
  2. The City may seek an affirmative injunction to require the demolition or removal of a structure, or to allow the City to demolish or remove a structure and recover costs against the landowner, pursuant to K.S.A. §§ 12-1750 through 12-1756, or as otherwise provided for in the Kansas Annotated Statutes.
2. Abatement. The City may seek a court order in the nature of mandamus, abatement, or other action or proceeding to abate or remove a violation or to otherwise restore the premises in question to the condition in which they existed prior to the violation.
3. Civil Remedies. The City shall have the right to institute any appropriate civil action in a court of competent jurisdiction, to enforce, enjoin, prevent, restrain, correct or abate any violation of this Code, including any and all remedies available pursuant to state law. All court costs and reasonable attorney's fees incurred by the City in connection with any civil action shall be awarded to the City if it is the prevailing party.
4. Criminal Remedies. Any person who violates any section of this Code shall be guilty, upon conviction, of a separate offense for each day or portion of a day during which the violation continues, which shall be punishable by a fine of not to exceed $500 or by imprisonment for not more than six months for each offense or by both such fine and imprisonment (see K.S.A. § 12-761).
Floodplain Remedies. Violations of the Federal Emergency Management Agency (FEMA) floodplain regulations set forth in the adopted Unified Development Code, shall be subject to the following, in addition to the remedies provided by other Subsections of this Section:
1. The Federal Emergency Management Agency (FEMA) and the Chief Engineer of the Division of Water Resources of the Kansas Department of Agriculture shall be notified immediately in writing of any property or structure in violation of the floodplain regulations of the adopted Unified Development Code.
2. The City may apply FEMA to have a property added to the 1316 list so that it would be ineligible for flood insurance under the NFIP if it is in violation.
Other Remedies. The City shall have such other remedies as are and as may be from time to time provided by state law for the violation of regulations.
Remedies Cumulative. The remedies and enforcement powers set out in this Section shall not be considered exclusive remedies, but rather they shall be cumulative with all other remedies provided in this Code, in any other applicable ordinance, or by law.

(Ord. No. 4012, § 1, 7-14-2022)

Effective on: 7/14/2022

Sec. 13.1.202 Enforcement Procedures

Generally. The City may enforce the provisions set out in this Division, or as otherwise authorized by law.
Responsible Official. The Chief Building Official, or the City Manager, shall administer and enforce the provisions of this Code. The Chief Building Official and/or City Manager may consult with the City Attorney, the Director of Public Works and other officials in the exercise of this duty.
Right to Enter. The Chief Building Official, City Manager, or designee, will investigate and find as a matter of fact whether a violation has occurred, and in doing so, shall have the right to enter upon any premises at any reasonable time for the purpose of making inspection of buildings, structures, or premises necessary to carry out the duty to enforce this Code.
Filing a Complaint. Any person may allege a violation by a written and signed complaint that is filed with the Chief Building Official or City Manager. Such complaint shall state the factual basis for the alleged violation along with the complainant's name, address, and telephone number.
Notice of Violation. Upon investigation, with or without a complaint, the City may issue a written notice of violation to the owner of property upon which a violation exists. The Notice of Violation shall set forth the grounds upon which the notice is based, including the specific code section or sections at issue.
Correction of Violation.
1. For a first violation, the person responsible for the violation shall have a period of no more than 15 days to correct the violation. (Unless Subsection 13.1.202(F)(3) applies)
2. For a subsequent or continued violation, the person responsible for the violation shall correct the violation within 24 hours. (Unless Subsection 13.1.202(F)(3) applies)
3. Any violation that creates an immediate danger to the public safety shall be corrected immediately, regardless of whether it is a first violation, a continuing violation, or a subsequent violation.
Further Enforcement. If the code violation is not corrected in accordance with the requirements of Subsection F., above, then the City may enforce this Code in accordance with any and all enforcement actions and remedies as set out in this Division.
Records. The Chief Building Official shall maintain a record of all complaints of violations, including how they were resolved.

Effective on: 8/31/2016

13.1.203 Enforcement Procedures for Exception Permits

Generally. The provisions of this Section may be applied to enforce an exception permit.
Inspection. The City may:
1. Make inspections to determine compliance with the provisions of this Code and the exception permit, and initiate appropriate action as necessary; and/or
2. Keep a record of complaints, indicating any action taken. These records shall be made available where the Board of Zoning Appeals has been requested to review the exception for compliance.
Exception Permit Revocation. Upon determination of noncompliance with the provisions of the exception permit, the City will take actions as necessary to assure compliance. Such actions may include non-renewal or revocation of the permit as follows:
1. The Zoning Administrator shall provide a notice of violation to the record owner of the property upon which an exception is located, advising the owner that the use must be brought into compliance with this Code within 14 days from the date of the notice.
2. If total compliance has not occurred or a plan for compliance has not been submitted to the Zoning Administrator within 14 days from the date of notice, then the Zoning Administrator shall issue a cease-and-desist order and notify the record owner of a hearing date by the Board of Zoning Appeals to consider revocation of the exception permit.
3. The Board of Zoning Appeals shall revoke the exception permit if the use and/or property is/are not in total compliance. The Board of Zoning Appeals may grant up to a 14-day period for compliance. The exception permit shall remain in suspension and the cease-and-desist order shall remain in effect until total compliance is obtained.
4. At the end of a compliance period the Board of Zoning Appeals shall revoke the exception permit if total compliance has not been obtained.
5. If the use and property are brought into compliance, any further violation of terms of the exception permit within 90 days from the initial notice of violation are grounds for immediate revocation of the exception permit.
6. Revoked exception permits may only be reinstated by the Board of Zoning Appeals, which may impose conditions to ensure compliance.

(Ord. No. 4012, § 1, 7-14-2022)

Effective on: 7/14/2022

Sec. 13.1.204 Enforcement Procedures for Stormwater Management

Generally. It shall be the duty of the Stormwater Superintendent to bring to the attention of the City Attorney any violation or lack of compliance with the regulations and standards of this Code. The City Attorney may file the civil action deemed appropriate in the district court of the state to enforce the requirements of this Code. The City Attorney may also cause to be brought a prosecution in the municipal court of the City.
Violations; Criminal and Civil Penalties.
1. Criminal Penalties. Any person violating any of the provisions of Article 9.2, Stormwater Management, shall, upon conviction thereof, be deemed guilty of a misdemeanor punishable in accordance with Section 1-13 of the Code of Ordinances of the City of Hays, Kansas.
2. Civil Penalties. In the event an applicant or other responsible person fails to take the remedial measures set forth in a Notice of Violation described in Subsection F, Failure to Maintain, below, the Stormwater Superintendent shall assess a penalty against the property, as outlined below, for each day the violation remains unremedied after receipt of the notice of violation:
  1. For failure to submit a stormwater pollution prevention plan prior to construction, the fine shall be $500.00 for each day the violation remains unremedied.
  2. For failure to install stormwater BMPs as indicated on the site map required under the KDHE construction stormwater program, the fine shall be $750.00 for each day the violation remains unremedied.
  3. For failure to notify the Stormwater Superintendent before commencement of construction, the fine shall be $500.00 for each day the violation remains unremedied.
  4. For failure to maintain, repair, or replace construction stormwater BMP within 10 days of notification, the fine shall be $750.00 for each day after the tenth day following notification that the violation remains unremedied.
  5. For failure to cease illicit discharges, the fine shall be $500.00 for each day the violation remains unremedied.
  6. For dumping of material or liquids in the storm sewer system, the fine shall be $1,000.00 for each dumping occurrence. The person responsible for dumping shall also be liable for the reasonable costs to the City to abate the nuisance caused by the illegal dumping. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Inspection.
1. The Stormwater Superintendent shall be responsible for determining whether a stormwater management plan is in conformance with criteria specified, and whether development is proceeding in accordance with the approved drainage permit. Periodic inspection of the development site shall be made by the Stormwater Superintendent, or a designee. Through such periodic inspections, the Stormwater Superintendent shall ensure that the stormwater management plan is properly implemented and that the improvements are properly maintained.
2. Whenever the Stormwater Superintendent has cause to believe that there exists, or potentially exists, in or upon any premises any condition which constitutes a violation of this Code, the Stormwater Superintendent shall have the right to enter the premises at any reasonable time for the purpose of conducting such inspections and sampling as may be necessary to determine whether any violations exist and to determine the nature and extent of any remedial actions necessary by virtue thereof. In the event the owner or occupant of the premises refuses such entry after a request to enter has been made, the Stormwater Superintendent is hereby empowered to seek assistance from a court of competent jurisdiction to permit or compel such entry.
3. The Stormwater Superintendent shall have the right to set up on any such premises such devices as may be deemed necessary to conduct sampling of any discharges or of the soils or any substances from which such discharges may occur.
4. Investigation of any such matter shall in no way relieve any party from liability or responsibility for any violations occurring before, during, or after the conduct of any such investigation. Nothing in this Section shall limit the authority of the Stormwater Superintendent to take any other action or actions, including emergency action or any other enforcement action, while also undertaking any such investigation. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Remedial Work. If it is determined through inspection that a development is not proceeding in accordance with the approved stormwater management plan and drainage permit, the Stormwater Superintendent shall immediately issue written notice to the permittee and the surety of the nature and location of the alleged noncompliance, accompanied by documentary evidence demonstrating noncompliance and specifying what remedial work is necessary to bring the project into compliance. The permittee so notified shall immediately, unless weather conditions or other factors beyond the control of the permittee prevent immediate remedial action, commence the recommended remedial action and shall complete the remedial work within 72 hours or within a reasonable time after receipt of such notice. Upon satisfactory completion of the remedial work, the Stormwater Superintendent shall issue a notice of compliance and the development may proceed. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Revocation of Permits and Stop Work Orders; Actions Without Prior Notice.
1. The Stormwater Superintendent, after giving written notice, may revoke a permit issued pursuant to the regulations of this Code for any project which is found upon inspection to be in violation of the provisions of the regulations of this Code, and for which the permittee has not agreed to undertake remedial work as provided in the regulations of this Code. Drainage permits may also be revoked if remedial work is not completed within the time allowed. Upon revocation of a drainage permit, the Stormwater Superintendent shall issue a stop work order. Such stop work order shall be directed to the permittee who shall immediately notify persons owning the land, the developer, and those persons actually performing the physical work of clearing, grading, and developing the land or constructing the project. The stop work order shall direct the parties involved shall cease and desist all or any portion of the work on the project which is not in compliance, except such remedial work necessary to bring the project into compliance.
2. The Stormwater Superintendent is authorized to enter upon any premises without prior notice, to issue stop-work orders as may be necessary, and to take such further actions as are necessary to prevent, eliminate or remediate any violations or Illicit Discharges in any of the following circumstances:
  1. If a violation constitutes an imminent or immediate danger to the environment or to the public health, welfare or safety;
  2. If a person to whom a Notice of Violation has been issued and has become final and such person has failed to comply with the directed corrective actions within the time provided therefor; or
  3. If all reasonable attempts to contact a responsible person as to a violation have failed.
3. The City may suspend, revoke, or modify the permit authorizing a land development project. A suspended, revoked, or modified permit may be reinstated after the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein, provided such permit may be reinstated upon such conditions as the City may deem necessary to enable the applicant or other responsible person to take the necessary remedial measures to cure such violations.
4. Upon suspension or revocation of a drainage permit, the Stormwater Superintendent shall issue a stop work order. Such stop work order shall be directed to the permittee and he/she shall immediately notify persons owning the land, the developer, and those persons or firms actually performing the physical work of clearing, grading and developing the land or constructing the project. The stop work order shall direct the parties involved to cease and desist all or any portion of the work on the project which is not in compliance, except such remedial work necessary to bring the project into compliance. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Failure to Maintain.
1. Notice of Violation; Time Limit to Abate; Hearing Request. Following a determination by the Stormwater Superintendent that the owner, occupant, or agent in charge of any lot or parcel of land on which a drainage control facility exists or abuts has failed to properly maintain such facility as previously set forth or has failed to meet any requirement of this Code of any approved stormwater pollution prevention plan or has failed to comply with any order issued by the Stormwater Superintendent as authorized under this Code, then the Stormwater Superintendent shall notify the owner, occupant, or agent in charge of the violation in writing. If the owner, occupant, or agent in charge fails, neglects, or refuses to comply with the requirements specified in the written notification within 10 days, the Stormwater Superintendent shall issue a notice of violation requiring the owner, or agent of the owner of the premises to repair, remove, and/or abate from the premises the thing therein described as a defect and/or nuisance and performing the necessary remedial work within a time, not exceeding 10 days, to be specified in the notice of violation. The notice of violation shall contain the name and address of the alleged violator, the date and location of the violation, a description of the violation, a description of the remedial measures necessary to restore compliance with this Code and a time schedule for the completion of each such remedial measure and a description of further enforcement actions which may be taken by the City. The notice of violation shall state that before the expiration of the waiting period, the recipient may request a hearing before the City Commission or its designated representative. The request for hearing before the City Commission, or its designated representative, shall in no way relieve any party from liability or responsibility for any violations occurring before, during, or after the conduct of any such hearing. Nothing in this Section shall limit the authority of the Stormwater Superintendent to take any other action, including emergency action or any other enforcement action while any such proceedings are pending.
2. Serving Notice Upon Owner. The notice of violation shall be served by personal service, by delivering a copy to the owner, occupant, or agent of such property, or if the same is unoccupied and the owner is a nonresident, then by mailing a notice by restricted mail to the last known address of the owner.
3. Failure to Comply; City to Cause Remedial Work to be Done. If the owner or agent fails to comply with the requirement of the notice of violation for a period longer than that named in the notice, then the City shall proceed to cause the necessary remedial work to be performed and thereby have the things described in the notice repaired, removed, and/or abated from the lot or parcel of ground.
4. Costs to be Paid by Owner; Assessment to Tax Roll. Whenever the City undertakes the correction or abatement of any violation, or the remediation of any damage caused by any violation, either under emergency circumstances, or due to a person's failure to comply with any lawful notices or orders issued by the Stormwater Superintendent or the City Commission, the person or persons responsible for such violation shall be liable to the City for the costs of such corrective, abatement, or remedial actions. The City shall give notice to the owner, occupant, or agent by restricted mail of the total cost of such repair, abatement, or removal incurred by the City. Such notice also shall state that payment of such cost is due and payable within 30 days following receipt of such notice. If the cost of such repair, removal, and/or abatement is not paid within the 30-day period, the cost shall be collected in the manner provided by this Code or shall be assessed and charged against the lot or parcel of ground on which the nuisance was located. If the cost is to be assessed, the City Clerk, at the time of certifying other city taxes to the County Clerk, shall certify the aforesaid costs, and the County Clerk shall extend the same on the tax roll of the county against the lot or parcel of ground, and it shall be collected by the County Treasurer and paid to the City as other city taxes are collected and paid. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Offenses. Upon the failure, neglect, or refusal of any owner to comply with the notice of violation, the Stormwater Superintendent shall notify the City Attorney who may cause a complaint to be filed against such owner for violation of the provisions of this Code in the municipal court. No such owner shall be exempted from prosecution for violation of such provisions by reason of lawfully transferring his ownership, tenancy, or interest in the premises upon which the nuisance exists after the giving of notice as herein provided. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Repair, Removal and/or Abatement by City. Upon the failure, neglect, or refusal of any owner to comply with notice of violation, the Stormwater Superintendent shall perform all necessary repairs, removal, and/or abatement. For the purpose of so doing, the Stormwater Superintendent may enter the premises upon which such nuisance exists, with or without the consent of the owner thereof, without being guilty of trespass. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Appeals. Any applicant or permittee aggrieved by a decision of the Stormwater Superintendent in the enforcement of this Code shall have the right to appeal any order, requirement, decision or determination in accordance with the following procedures:
1. A hearing before the Hays Area Board of Zoning Appeals may be requested in writing by the applicant or permittee within 10 days of a final order, requirement, decision or determination of the Stormwater Superintendent. The Hays Area Board of Zoning Appeals shall conduct the hearing within 45 days of receipt of the request from the aggrieved and shall consider any information offered by the aggrieved person bearing on the dispute and shall within 10 days render its final decision to the Stormwater Superintendent with an appropriate course of action: either reversal, modification, or confirmation. The Stormwater Superintendent, who shall be present at the hearing, shall immediately act on the recommendation in a manner consistent with his responsibilities under this Code.
2. Any applicant or permittee aggrieved by any final decision of the Stormwater Superintendent following review by the Hays Area Board of Zoning Appeals in the manner set out in Subsection I.1, above, may seek review by a court of competent jurisdiction in the manner provided by the laws of the state. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Violations Deemed a Public Nuisance. Notwithstanding the other enforcement processes, procedures, and penalties provided in this Code, any condition caused or permitted to exist in violation of any of the provisions of this Code is hereby declared to be a threat to the public health, welfare, and safety, and is hereby declared and deemed to be a public nuisance. Instead of or in addition to any other remedies or procedures hereunder, the City may commence a civil action to abate, enjoin, or otherwise compel the cessation of any such public nuisance. (Ord. No. 3832, §§ 1, 2, 4-14-2011)
Remedies Not Exclusive. The remedies listed in this Code are not exclusive of any other remedies available under any applicable federal, state or local law. (Ord. No. 3832, §§ 1, 2, 4-14-2011)

Effective on: 8/31/2016

Sec. 13.1.301 Severability

Generally. If any Chapter, Article, Division, Section, Subsection, paragraph, clause, provision, or portion of this Code are held unconstitutional or invalid by a court of competent jurisdiction, the remainder of this Code shall not be affected. If any application of this Code to a particular building or structure, land, or water is adjudged unconstitutional or invalid by a court of competent jurisdiction "as-applied," such judgment shall not be applicable to any other building, structure, land, or water not specifically included in said judgment.
Signs. With respect to Chapter 7, Signs, the following severability provisions shall apply:
1. Severability, Generally. If any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of this Code related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or this Code.
2. Severability Where Less Speech Results. Without diminishing or limiting in any way the declaration of severability set forth above in Subsection B.2., above, or elsewhere in this Section, this Code, or any adopting ordinance, if any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of this Code related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of said article or provision, even if such severability would result in a situation where there would be less speech, whether by subjecting previously exempt signs to permitting or otherwise.
3. Severability of Provisions Pertaining to Prohibited Signs and Sign Elements. Without diminishing or limiting in any way the declaration of severability set out above, if any Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, or any other provision of the regulations related to signage, is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, the declaration of such unconstitutionality shall not affect any other Chapter, Article, Division, Section, Subsection, paragraph, subparagraph, sentence, phrase, clause, term, or word of Chapter 7, Signs, that pertains to prohibited signs or sign elements. It is the intent of the City Commission to ensure that as many prohibited sign types and sign elements as may be constitutionally prohibited continue to be prohibited.
4. Severability of Provisions if Adjudicated Stricken Due to a Content-Basis. It is the intent of the City Commission to regulate signage in a manner that implements the purposes of this Chapter 7, Signs, as expressed therein. The City finds that the purposes stated in Chapter 7, Signs, are legitimate, substantial, and compelling public interests, that the regulation of signage provided by Chapter 7, Signs, is unrelated to the suppression of free expression, and that the incidental restrictions on expression that may occur as a result of this Code is no more than is essential to the furtherance of the public interests. However, if a court of competent jurisdiction finds any regulation therein to be based upon content and, further, declares such regulation unconstitutional, then it is the intent of the City Commission that only that portion of the provision that is found to relate to content be severed from this Code, and if it is not possible for the court to strike only the portion of the provision that is found to relate to content, then it is the intent of the City Commission that all signs that would be subject to the stricken provision will instead be subject to the next surviving provision for a sign of like geometry and character that is more restrictive than the stricken provision in terms of, in descending order of priority:
  1. sign height; and
  2. sign area.

Effective on: 8/31/2016

Sec. 13.1.302 Conflicting Provisions

Generally. In the event that the provisions of this Code conflict with each other or with another provision from the City's Code of Ordinances, or another enforceable rule, regulation, or ordinance of the City:
1. The more restrictive provision shall control, if the provisions were adopted at the same time; or
2. The more recent provision shall control if the provisions were adopted at different times.
State and Federal Law. No part of this Code relieves any applicant from compliance with applicable provisions of state or federal law. If a use, building, structure, operational characteristic, construction technique, environmental impact, or other matter is prohibited by state or federal law, it is also prohibited in the City. Likewise, if a matter is regulated by state or federal law, then compliance with state or federal law does not relieve the applicant from compliance with this Code, unless the application of this Code is legally preempted.

Effective on: 8/31/2016

Sec. 13.1.303 Civil Liability

Effective on: 8/31/2016