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2008-19 ORDINANCE NO. 2008 - 19 AN ORDINANCE AlVIENDING C:H:APTER 38, ARTICLE II OF T:H:E CODE OF T:H:E CITY OF FAIRFAX., VIRGINIA, REGARDING ENFORCElVIENT OF T:H:E ABATElVIENT OF PUBLIC :H:EALT:H: AND SAFETY lVIENACES. NO"", BE IT ORDAINED by 1:he Cit:y Council of t:he Cit:y of Fairfax, Virginia, 1:hat: Chapt:er 106, Art:icle II of t:he Code of t:he Ci1:y of Fairfax is hereby repealed and res't:a't:ed in t:he DC"'" Chap1:er 38, Ar"ticle IV, and Chapt:er 38 DC 'the Code oC 1::he Cit:y oC Fairfax., is hereby repealed and res"t:at:ed as "'ollo",,"s: ARTICLE L IN GENERAL Sec. 1-10 Reserved ARTICLE II. NOISE Sec. 38-11. Lo....d, dis"t:urbing and unnecessary noises. (a) It shall be unlavvful for any person to make, continue". or cause to be made or continued a.n.y loud". unnecessary or unusual noise or any noise vvhich either annoys", disturbs". injures or endangers the comfort" repose, health". peace or safety of others vvithin the city. (b) The follovving acts,. among others". are declared to be lou.d,. disturbing and unnecessary noises in violation of this section" but such enumeration shall not be deemed to be exclusive,. and any person charged '-Vi1:h a violation of this section shall bear 1:he burden of demonstrating that the noise is not a loud,. disturbing an..d unnecessary noise: (1) Fforns and signaling devices. The sounding of aI1Y vehicular or other ham or other audible signaling device on any automobile,. motorcycle,. truck or other vehicle,. or of any such device not attached to a vehicle,. except as a danger '-Vaming or other emergency '-Vaming signal or for reasons of public safety; the creation by means aT any such signaling device of any unreasonably loud or harsh sound; and the sounding of any such device for an unnecessary and unreasonable period of time; the use of any signaling device except one operated by hand or electricity; the use of any ham,. VV'histle or other device operated by engine exhaust; and the use of any such signaling device VV'"hen traffic is for any reason held up. (2) Radios~ phonographs~ cape players~ nlusical instrunlents~ ecc. The using,. operating or playing or permitting 1:0 be played" used or operated,. of any radio or television", sound amplifier,. phonograph", tape player" compact disc player" digital audio tape (DAT) player,. drum or other musical ins1:rument", bell,. VV'"histle" loudspeaker" or any similar device", VV'hether or not attached 1:0 a vehicle", motorized or othervvise,. operating on any street in the city" for the producing or reproducing of sound in such a maxmer as to disturb the peace,. quiet and comfort of the neighboring inhabitants or at any time VV'ith louder volume than is necessary for convenient hearing for the persons that are in the room" vehicle or chamber in VV'hich such machine or device is operated and vvho are voluntary listeners thereto. The operation of ar1Y such radio or television,. sound amplifier, phonograph, tape player, compact disc player, DAT player, drum or other musical instrument, bell, whistle, loudspeaker or any similar device enumerated and generally described in this subsection between the hours of 11:00 p.m. and 7:00 a.m. in such a manner as to be plainly audible at a distance of 50 feet from the building, structure or vehicle in which it is located shall be prima facie evidence of a violation of this section. The provisions of this subsection shall not apply to vehicles, instruments or devices, as described in this subsection, utilized in a duly authorized parade or other city-sponsored event. (3) Loudspeakers or amplifiers for advertising. The using, operating or permitting to be played, used or operated, of any machine, instrument or device for the production or reproduction of sound which is cast upon the public streets for the purpose of commercial advertising or attracting the attention of the public to any building or structure, including auction sales, unless a permit therefor is issued by the city manager. (4) Yelling, shouting, loud talking, singing, etc. Yelling, shouting, hooting, whistling, singing, or any similar activity or other noise disturbance on the public streets, particularly between the hours of 11 :00 p.m. and 7:00 a.m., or at any time or place so as to annoy or disturb the quiet, comfort, or repose of persons in any office or in any dwelling, hotel or other type of residence or of any persons in the vicinity of such activity or noise disturbance. (5) Animals, birds, etc. The owning, harboring, or possessing of any animal or bird which, by causing frequent or long continued noise, shall disturb the comfort or repose of any persons across a real property boundary or within a nearby dwelling unit. (6) Steam whistles. The blowing of any locomotive steam whistle or steam whistle attached to any stationary boiler, except to give notice of the time to begin or stop work or as a warning of fire or danger, or upon request of proper city authorities. (7) Exhausts, mufflers, motor vehicles and motorcycles. The discharge into the open air of the exhaust of any steam engine, stationary internal combustion engine or motor vehicle, except through a muffler or other device which will effectively prevent loud or explosive noises emanating therefrom. The operation of any motor vehicle or motorcycle not equipped with a muffler or other sound dissipative device in good working order and in constant operation, in accordance with federal and state laws or regulations. The removal or rendering inoperative of any muffler or sound dissipative device, or otherwise defeating the design purpose of any noise suppression system or device by installing therein or thereon any part or component which does not meet the minimum design specifications for such system or device, other than for purposes of maintenance, repair or replacement, on a motor vehicle or motorcycle. The selling or offering for sale of a muffler without interior baffle plates or other effective muffling device or any gutted muffler, muffler cutout or straight exhaust and the operation of any motorcycle or motor vehicle so equipped. The operation of any motorcycle or other motor vehicle so out of repair so as to cause thereby loud and unnecessary grating, grinding, rattling or any other nOise disturbance. The operation of any motorcycle or other motor vehicle under the following conditions: a. Unnecessarily racing the motor of such motorcycle or motor vehicle while standing or moving and thereby causing a noise disturbance; b. Unnecessarily retarding the spark to the motor of such motorcycle or motor vehicle and thereby causing a noise disturbance; c. In starting a motorcycle or motor vehicle from a stationary position, the practice of accelerating unnecessarily rapidly and thereby causing a noise disturbance; d. In stopping a motorcycle or motor vehicle, the practice of coming to an unnecessarily quick stop and thereby causing grinding of brakes or screeching of tires or any other noise disturbance; e. With respect to a commercial motor vehicle, the running of the engine of such vehicle for more than three minutes when the vehicle is parked, left unattended, or is stopped for other traffic or maintenance reasons, except when the propulsion engine provides auxiliary services (refrigerating or heating of the contents of the vehicle). (8) Defect in vehicle or load. The use of any automobile, motorcycle or vehicle so out of repair, so loaded or in such manner as to create loud and unnecessary grating, grinding, rattling or other noise disturbance. (9) Loading and unloading. The creation of any loud and excessive noise, or any noise disturbance, in connection with loading or unloading any vehicle or the opening and destruction of bales, boxes, crates or other containers. The loading or unloading of any truck in the outdoors within 100 yards of a residence between the hours of 10:00 p.m. and 8:00 a.m. (10) Construction or repair of buildings. The erection (including excavating), demolition, alteration or repair of any building before 7:00 a.m. and after 6:00 p.m. on weekdays, before 8:30 a.m. and after 5:00 p.m. on Saturdays and federal and state holidays, and at any time on Sundays, except in the case of urgent necessity in the interest of public health and safety, and then only when authorized by the building official, which authorization may be granted for a period not to exceed three days while the emergency continues and which authorization may be renewed for periods of three days or less while the emergency continues. Interior work which does not generate noise discernible at the property line shall not constitute a prohibited act. (11) Pile drivers, hammers, etc. The operation before 7:00 a.m. and after 6:00 p.m. on weekdays, before 8:30 a.m. and after 5:00 p.m. on Saturdays and federal and state holidays, and at any time on Sundays of any pile driver, steam shovel, pneumatic hammer, derrick, steam or electric hoist or other appliance, the use of which is attended by loud or unusual noise. (12) Blowers. The operation of any noise-creating blower or power fan or any internal combustion engine, the operation of which causes noise due to the explosion of operating gases or fluids, unless the noise from such blower or fan is muffled and such engine is equipped with a muffler device sufficient to deaden such noise. This subsection is not intended to impose additional limits on the use of "leaf blowers" properly equipped with mufflers. (13) Schools, courts, churches and hospitals. The creation of any excessive noise or any other noise disturbance on any street adjacent to any school, institution of learning, church or court, while the same are in use, or adjacent to any hospital at any time, which unreasonably interferes with the workings of such institution or which unduly disturbs or annoys patients in a hospital, provided conspicuous signs are displayed in such streets indicating that the same is a school, hospital or court street. (14) Hawkers and peddlers. The shouting and crying of peddlers, hawkers and vendors which disturbs the peace and quiet of the area. (15) Trash and refuse. The collection of trash or refuse with or without a refuse vehicle, before 7:00 a.m. or after 7:00 p.m. on any weekday or weekend day. (c) Penalty: Violations of this article shall be unlawful and subject to the provisions of section 1-11 of this Code. ARTICLE III. PUBLIC HEALTH OR SAFETY MENACES Sec. 38-31. Definition. The following definitions shall apply to this Article: (a) Bulk waste: Appliances, furniture, bedding material, automobile parts, mechanical equipment, mechanical parts, carpet or similar material. (b) Commercial waste: All materials or substances from any retail, wholesale, or commercial establishment. (c) Designated Enforcement Officer: The Director of Code Administration or his designee, any city law enforcement officer, or duly designated sworn special police officer. (d) Dump: To dump, throw, release, spill, leak, discard, place, deposit or dispose of or allow to be dumped, thrown, released, spilled, leaked, discarded, placed, deposited or disposed. (e) Hazardous waste: Insecticides, poisons, corrosives, combustibles, caustics, acids, infectious materials, explosives, compressed gases, biological and chemical materials, radioactive materials, flammable materials, and petroleum products, or similar materials. (j) Industrial waste: All materials or substances related to manufacturing, processing or production. (g) Litter: Any can, bottle, box, carton, container, paper, wrapper, tobacco product, rag, cloth or newspaper. (h) Person: Any individual, firm, owner, sole proprietorship, partnership, corporation unincorporated association, governmental body, municipal corporation, executor, administrator, trustee, guardian, agent, occupant or other legal entity. (i) Public Health or Safety Menace: Any condition that may be injurious to the public health or safety including, but not limited to: (1) unburied dead animals,; (2) accumulations of water causing mosquito or other vector breeding or proliferation; (3) unsanitary disposal of sewage, debris, or solid wastes; rodent and insect infestations; (4) the accumulation of fowl and animals in such a manner as to create a condition that may be injurious to the public health or safety; (5) the accumulation of solid waste in such a manner as to create a condition that may be injurious to the public health or safety; (6) open excavations, open wells, pits, trees or parts thereof in danger of falling; (7) unsecured vacant structures,; or (8) habitation for bats, wasps or other venomous pests; CD Solid waste: Litter, garbage, trash, industrial waste, bulk waste, yard waste, commercial waste, hazardous waste, structural waste, tires, or any other condition, substance, material, product or thing which may be detrimental or potentially harmful to health, safety, comfort and general welfare of the public or the environment. (k) Structural waste: All building materials resulting from erecting, removing, repairing, remodeling or razing buildings or other structures. (1) Yard waste: All materials derived from trees, shrubbery, leaves, fallen branches, lawn trimmings, and other woody waste. Sec. 38-32. Nuisances; maintenance prohibited. It shall be unlawful for any person to create or maintain within the city anything which is deemed a nuisance under the common law or the statutes of the state. Each violation of this section shall be a class 4 misdemeanor, and the court may, in addition to a fine, order the nuisance to be abated or removed, prescribing the time within which such order shall be executed. Should the nuisance not be abated or removed in accordance with the court's order, the offending person shall be guilty of a class 4 misdemeanor, and the court may cause such nuisance to be abated or removed at the cost of the offending person. Sec. 38-33. Public Health or Safety Menaces Prohibited. (a) After receipt of the written notice, as required by Section 38-34, it is unlawful for the owner, lessee, occupant or person in control of the land or premises on which a Public Health or Safety Menace exists, to fail to abate, correct or eliminate the Public Health or Safety Menace within such time as such written notice requires. Upon a good faith showing that a longer period of time is required to abate, correct or eliminate the condition, the Designated Enforcement Officer may allow a longer period of time, not to exceed 10 days. If the owner, lessee, occupant or person in control of such land or premises shall neglect or refuse to abate, correct or eliminate the condition within the time required, he shall be guilty of a class 3 misdemeanor. Sec. 38-34 Inspection and Notices of a Public Health and Safety Menace. (a) Inspection. The Designated Enforcement Officer is authorized to inspect occupied or vacant land or premises to ascertain the existence of health or safety menaces on such land or premises. The Designated Enforcement Officer shall inspect the land or premises at reasonable daylight times in a reasonable manner. If the owner, lessee, occupant or person in control of the land or premises denies the Designated Enforcement Officer free access for such purposes, the Designated Enforcement Officer may inspect after obtaining a search warrant from a Virginia Court of competent jurisdiction. (b) Notice. When any condition that constitutes a public health or safety menace is found on occupied or vacant land or premises, the Designated Enforcement Officer shall notify in writing the owner, lessee, occupant or person in control of such land or premises. Such written notice shall contain a description of the Public Health or Safety Menace; the time within which the menace shall be abated, corrected or eliminated; a statement that the owner or occupant may request a hearing within ten days of the receipt of the notice; and an address and/or telephone number at which information may be obtained concerning such Public Health or Safety Menace. The amount of time allowed to abate, correct or eliminate the condition shall be 48 hours, unless modified per Section 38-33. Notice sent to the last known address of the owner as shown on the current real estate tax assessment books shall be deemed compliance with the notice requirement to the owner. (c) Posting. When the written notice as provided for in this Section is undeliverable, or if an emergency is found to exist the Designated Enforcement Officer shall cause a public notice, as described by this section, to be posted on the land or premises on which the public health or safety menace exists. Sec. 38-35. Abatement of a Public Health and Safety Menace by the City (a) If the written notice is undeliverable, or if, after the receipt of the written notice, the owner, lessee, occupant or person in control of the land or premises on which the condition exists fails to abate, correct or eliminate the condition the Designated Enforcement Officer, after granting such owner, lessee, occupant or person in control an opportunity to be heard, may take reasonable steps to abate, correct or eliminate the condition whether the land or premises are occupied or vacant. If the owner or occupant of the land or premises denies free access for such purposes, the Designated Enforcement Officer may proceed after obtaining a search warrant from a Virginia Court of competent jurisdiction. (b) Costs and expenses incurred by the City shall be assessed against the owner, lessee, occupant or person in control of the land or premises, and shall be recoverable from the owner in the same way as taxes. (c) Every charge under by this section with which the owner of any such property shall have been assessed and which remains unpaid shall constitute a lien against such property ranking on a parity with liens for unpaid local taxes and enforceable in the same manner as provided in Code of Virginia, SS 58.1-3940 et seq. and 58.1-3965 et seq. The city may waive such liens in order to facilitate the sale of the property. Such liens may be waived only as to a purchaser who is unrelated by blood or marriage to the owner and who has no business association with the owner. All such liens shall remain a personal obligation of the owner of the property at the time the liens were imposed. Sec. 38-36. Emergency procedure for a Public Health and Safety Menace Violation. In the case of an emergency, the Designated Enforcement Officer may take reasonable steps to abate, correct or eliminate, to the extent immediately necessary, a Public Health and Safety Menace without providing the owner, lessee, occupant or person in control of the land or premises an opportunity to be heard until afterwards. In such an emergency, any request for hearing must be made within ten days after the condition is abated, corrected or eliminated. Sec. 38-37. Hearing and Appeal Procedure for Public Health and Safety Menace Violations. All hearing requests for an appeal of a violation of Section 38-33 shall be in writing, shall state the reasons for the hearing request, and shall be directed to the Designated Enforcement Officer who shall forward the request to the board of housing hygiene within two regular working days of receipt. All hearings shall be before the board of housing hygiene. The board of housing hygiene shall set a time and place for the hearing, which shall occur within 15 days of the request for the hearing, and shall so notify Designated Enforcement Officer and the appellant. Suchl5-day period may be extended upon agreement of the board of housing hygiene, the Designated Enforcement Officer and the appellant. After the hearing, the board of housing hygiene may affirm, amend or overturn the requirements of the Designated Enforcement Officer. Any person who fails, refuses or neglects to comply with an order of the board of housing hygiene shall be guilty of a violation of this chapter. The decision of the board of housing hygiene may be appealed to a court of competent jurisdiction no later than 15 days after the decision is rendered. Sec. 38-38. Accumulations of Solid Waste Prohibited. (a) No person owning or having possession or charge of-any premises, vacant lot, private roadway, whether in use or not, or other lands within the city, shall permit to accumulate or remain accumulated thereon any Solid Waste, trash, garbage, refuse, litter, and other substances which might endanger the health or safety of other residents of the city. (b) It shall be the joint and several responsibility of the owner and occupant of any residential, commercial or industrial lands or buildings to provide a sufficient number of containers for storage of refuse to prevent overflow between times of collection, and to maintain the premises in accordance with the standards of this chapter. Such containers shall be equipped with a tight fitting lid and shall be watertight, rodent proof and fly proof. (c) The owners and occupants of all developed commercial or industrial property within the limits of the city are hereby required to install and maintain refuse receptacles on the edge of all sidewalks or other designated pedestrian walkways within such property. These receptacles shall be placed at a maximum of 60 feet apart, unless the Designated Enforcement Officer determines that this distance is not practicable. Such receptacles shall be of a type and size suitable for the purpose and clearly designated as receptacles of refuse. Sec. 38-39 Abatement of Accumulation of Solid Waste by the City; Unpaid costs to constitute a lien on the property (a) The Designated Enforcement Officer may give notice in writing to the owner of land in the city found to be in violation of Section 38-38 that such violation must be corrected within 10 days from the date of the notice or the city will abate the violation, bill the owner for the costs and collect the costs like taxes in the event of nonpayment by the owner. Such notice shall be sent by registered or certified mail to the last known address ofthe owner as shown on the current real estate tax assessment books and shall be posted on the property for a period of ten days stating the nature of the violation, the action which is being taken to correct or eliminate the violation and an address and/or telephone number where additional information can be obtained concerning the violation. (b) If the written notice is undeliverable or if, after receipt of the written notice the owner refuses, neglects or fails to abate the violation, the violation may be abated by the city. If the person owning or having possession or charge of the property denies free access for such purposes, the Designated Enforcement Officer or his designee may proceed after obtaining a warrant from a Virginia Court of competent jurisdiction. Costs and expenses incurred by the city shall be assessed against the person owning the property and shall be recoverable from the person owning the property in the same way as taxes and levies. (c) Abatement of the violation by the city pursuant to this Section shall preclude the subsequent imposition of a civil or criminal penalty for the same violation. Sec. 38-40. Appeal of Accumulation of Solid Waste violation Any person owning or having possession or charge of the property may appeal any action of the Designated Enforcement Officer pursuant to a violation of Section 38-38 within ten days of such action. All hearing requests shall be in writing and directed to Designated Enforcement Officer, who shall forward the request to the city manager within two days of receipt. All hearings shall be before the city manager or his designee. The city manager shall set a time and place for the hearing, which shall occur within ten days of the request for the hearing, and shall so notify the Designated Enforcement Officer and the appellant. After the hearing, the city manager may order the appellant to correct or eliminate the violation in the same manner as the Designated Enforcement Officer or may require other action or may direct that no further action is necessary. Section 38-41. Penalty for Accumulation of Solid Waste violation (a) Any owner who commits or permits any violation of Section 38-38, whether by act or omission, shall be subject to a civil penalty of $50 for the first violation or any subsequent violations arising from the same set of operative facts. The civil penalty for subsequent violations not arising from the same set of operative facts within 12 months of the first violation shall be $200. Each business day during which the same violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same set of operative facts result in civil penalties that exceed a total of $3,000 in a 12-month period. (b) Except as provided in this subsection, the issuance of a civil penalty shall be in lieu of criminal penalties and shall preclude prosecution of such violation as a misdemeanor. In the event three (3) civil penalties have previously been imposed on the same defendant for the same or similar violation, not arising from the same set of operative facts, within a 24-month period, any subsequent violation not arising from the same set of operative facts shall be a Class 3 misdemeanor. Classifying such subsequent violations as criminal offenses shall preclude the imposition of civil penalties for the same violation. ARTICLE IV. WEEDS AND GRASS Sec. 38-51. Definition. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Weeds means vegetative growth generally deemed to exhale unpleasant and noxious odors; to be foreign growth, undesirable, rank or detrimental to the public health or safety; or to have minimal use or value. Sec. 38-52. Cutting required. The person owning or having possession or charge of any premises, vacant lot, private roadway, whether in use or not, or other lands within the city, within 500 feet of any inhabited building or dwelling, shall cut the grass and weeds on such property when such grass or weeds reach a height of 6 inches or greater. Sec. 38-53. Abatement by the City; Unpaid costs to constitute a lien on the property (a) When grass or weeds with a height of 6 inches or greater are found on such property, the director of Code Administration or his designee may give written notice to the person owning or having possession or charge of such property, indicating that such violation must be corrected within 10 days from the date of the notice or the city will abate the violation, bill the owner for the costs and collect the costs like taxes in the event of nonpayment by the owner. Such notice shall be sent by registered or certified mail to the last known address of the owner as shown on the current real estate tax assessment books and shall be posted on the property for a period of ten days stating the nature of the violation, the action which is being taken to correct or eliminate the violation and an address and/or telephone number where additional information can be obtained concerning the violation. (b) If the written notice is undeliverable or if, after receipt of the written notice, the person owning or having possession or charge of the property on which the violation exists fails to cut such grass or weeds, the director of Code Administration or his designee shall cut such grass or weeds, whether the property is occupied or vacant. If the person owning or having possession or charge of the property denies free access for such purposes, the director of Code Administration or his designee may proceed after obtaining a warrant from a Virginia Court of competent jurisdiction. Costs and expenses incurred by the city shall be assessed against the person owning or having possession or charge of the property and shall be recoverable from the person owning or having possession or charge in the same way as taxes and levies. (c) Abatement of the violation by the city pursuant to this Section shall preclude the subsequent imposition of a civil or criminal penalty for the same violation. Sec. 38-54. Appeal Any person owning or having possession or charge of the property may appeal any action of the director of Code Administration or his designee under this section within ten days of such action. All hearing requests shall be in writing and directed to the director of Code Administration or his designee, who shall forward the request to the city manager within two days of receipt. All hearings shall be before the city manager or his designee. The city manager shall set a time and place for the hearing, which shall occur within ten days of the request for the hearing, and shall so notify the director of Code Administration or his designee and the appellant. After the hearing, the city manager may order the appellant to correct or eliminate the violation in the same manner as the director of Code Administration or his designee or may require other action or may direct that no further action is necessary. Sec. 38-55. Penalty. (a) Any owner who commits or permits any violation of this Article, whether by act or omission, shall be subject to a civil penalty of $50 for the first violation. The civil penalty for subsequent violations not arising from the same set of operative facts within 12 months ofthe first violation shall be $200. Each business day during which the same violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same set of operative facts result in civil penalties that exceed a total of$3,000 in a 12-month period. (b) Except as provided in this subsection, the issuance of a civil penalty shall be in lieu of criminal penalties and shall preclude prosecution of such violation as a misdemeanor. In the event three (3) civil penalties have previously been imposed on the same defendant for the same or similar violation, not arising from the same set of operative facts, within a 24-month period, any subsequent violation not arising from the same set of operative facts shall be a Class 3 misdemeanor. Classifying such subsequent violations as criminal offenses shall preclude the imposition of civil penalties for the same violation. ARTICLE V. AIR POLLUTION Article III. Air Pollution is hereby restated in its entirety, including the Section numbering, and re-named Article V. Air Pollution. The remainder of this ordinance shall become effective as provided by law. City Council Public Hearing: September 23,2008 ADOPTED: September 23, 2008 Attest: ~ ayo /o/~'t ~/ The vote on the motion to approve was recorded as follows: VOTE: Councilwoman Cross Councilman Drummond Councilman Greenfield Councilman Meyer Councilman Rasmussen Councilman Stombres Aye Aye Aye Aye Aye Absent ~