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HomeMy WebLinkAbout2007-23 Deleting Section 5-1-5 of the Vail Town Code Regarding Abatement of the Mountain Pine Beetle; Amending Title 5 with the Addition of Chapter 10 "Abatement of the Mountain Pine Beetle and Wildfire Fuels Reduction" ORDINANCE N0.23 Series of 2007 AN ORDINANCE DELETING SECTION 5-1-5, VAIL TOWN CODE, REGARDING ABATEMENT OF THE MOUNTAIN PINE BEETLE; AMENDING TITLE 5 VAIL TOWN CODE WITH THE ADDITION OF CHAPTER 10 "ABATEMENT OF THE MOUNTAIN PINE BEETLE AND WILDFIRE FUELS REDUCTION"; AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail (the `Town"), in the County of Eagle and State of Colorado, is a home rule municipal corporation duly organized and existing under laws of the State of Colorado and the Town Charter (the "Charter"); and WHEREAS, the members of the Town Council of the Town of Vail (the "Council") have been duly elected and qualified; and WHEREAS, within the State of Colorado and within the Town there exists a growing mountain pine beetle epidemic which threatens health, safety and welfare of our state and our community; and WHEREAS, the presence of the mountain pine beetle and beetle infested trees within the Town presents a real and substantial risk to the public health, safety and welfare, including the increased risk of rapidly spreading wildfire. In addition, the presence of dead or substantially dead trees, regardless of the cause, also presents an increased risk and danger of rapidly spreading wildfire; and WHEREAS, certain text amendments are necessary to the Town Code, as they relate to the abatement of the mountain pine beetle, dead or substantially dead trees and other wildfire fuels to protect the health, safety and welfare of the Town and its inhabitants; and WHEREAS, the inspection provisions contained in this Chapter are necessary in the interest of public safety within the meaning of Rule 241(b)(2) of the Colorado Municipal Court Rules of Procedure. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. Section 5-1-5 of the Municipal Code of the Town of Vail is hereby deleted in its entirety. Ordinance No. 23, Series of 2007 1 Section 2. Title 5 of the Municipal Code of the Town of Vail is hereby amended by the addition of Chapter 10 to read as follows: CHAPTER 10 ABATEMENT OF THE MOUNTAIN PINE BEETLE AND WILDFIRE FUELS REDUCTION Section: 5-10-1: Definitions 5-10-2: Duty of Landowner and Occupant to Permit Inspection 5-10-3: Inspection for Mountain Pine Beetle and Wildfire Fuels 5-10-4: Notice of Violation 5-10-5: Abatement Order 5-10-6: Permit for Removal of Beetle Infested Trees and Wildfire Fuels 5-10-7: Unlawful Acts 5-10-8: Violation; Penalty 5-10-1: DEFINITIONS: For purpose of this Chapter 10, the following words shall have the following meanings, unless the context clearly requires otherwise: BEETLE INFESTED TREE: A tree, alive or dead, which is or has been infested with the Mountain Pine Beetle (Dendroctonus ponderosae). DIRECTOR: The Town of Vail Director of Public Works, or his designee. MOUNTAIN PINE BEETLE: The species Dendroctonus ponderosae. OCCUPANT: Any person in physical possession of any lot, tract or parcel of real property located within the Town of Vail limits who are not the owner of such property. For the purposes of this Chapter 10, "occupant" does not include the owner of an easement or right-of-way across property. OWNER OR LANDOWNER: Any person who owns any lot, tract or parcel of real property located within the corporate limits of the Town of Vail. PROPERTY: Any lot, tract or parcel of real property located within the corporate limits of the Town of Vail. WILDFIRE FUELS: (i) A tree, alive or dead, which is or has been a beetle infested tree; (ii) Any species or variety of tree which is dead or substantially dead and determined to be a wildfire fuel hazard by the Town of Vail Director of Public Works, or his designee. 5-10-2: DUTIES OF LANDOWNER AND OCCUPANT TO PERMIT INSPECTION: An owner or occupant whose property contains one or more beetle infested trees or any fire fuels shall allow the Director to enter such property for the purpose of immediate inspection of the trees located upon such property when at least one of the following events has occurred: A. The owner or occupant has requested the inspection; or Ordinance No. 23, Series of 2007 2 B. A neighboring landowner or occupant has reported a suspected beetle infested trees or other wildfire fuels and requested an inspection; or C. The Director has made a visual observation from a public right-of-way or area and has reason to believe that beetle infested trees or other wildfire fuels exist on the property of the owner or occupant. 5-10-3: INSPECTION FOR MOUNTAIN PINE BEETLE AND WILDFIRE FUELS: A. Subject to the requirements and limitations of this Chapter, The Director shall have the right to enter upon any property, whether public or private, during reasonable hours for the purpose of inspecting for the existence of a beetle infested tree or any other wildfire fuels when at least one of the three events described in section 5-10-2 has occurred. However, no agent or employee of the Town shall enter upon any property to inspect for a beetle infested tree or other wildfire fuels without the permission of the owner or occupant, or without an inspection warrant issued pursuant to this Chapter. B. If verbal permission to inspect the property from the affected owner or occupant is not obtained, the Town shall send written notice to the landowner and any occupant of the property advising that the Director desires to inspect the property for a beetle infested tree and/or other wildfire fuels. The notice shall be sent by certified mail. The notice may be sent to the landowner at the address to which tax notices are sent according to the records of the Eagle County Treasurer, and to the occupant at the property address. Alternatively, the Director may personalty serve such notice upon the affected owner or occupant. Where possible, inspections shall be scheduled and conducted with the concurrence of the owner or occupant. C. If permission to enter upon and inspect the property is not obtained within ten (10) days after the notice described in subsection B of this section has been received, or within ten (10) days of the date of service if the notice was personally served, the Director may request that an inspection warrant be issued by the Municipal Court. The Municipal Court Judge shall issue an inspection warrant upon presentation by the Director of an affidavit satisfying the requirements of Rule 241(b)(2) of the Colorado Municipal Court Rules of Procedure. D. In the case of an emergency involving imminent danger to the public health, safety or welfare, the Director may enter upon any property to conduct an emergency inspection without a warrant and without complying with the requirements of this section. 5-10-4: NOTICE OF VIOLATION: A. If the Director determines that property contains one or more beetle infested trees or other wildfire fuels, the Director shall notice the owner and any occupant of the property. Such notice shall be given either by certified mail or personal delivery. B. The notice shall: 1. advise the owner and/or the occupant that the property contains one or more trees infested with mountain pine beetle and/or other wildfire fuels; Ordinance No. 23, Series of 2007 3 2. advise the owner and/ or the occupant of Town approved methods far the removal or destruction of beetle infested trees and/or other fire fuels; and 3. advise the owner and/or the occupant that all trees infested with mountain pine beetle and/or other wildfire fuels must be removed within a minimum of thirty (30) days following receipt of the notice, or that an acceptable plan and schedule for removal of the beetle infested trees or other wildfire fuels must be submitted to the Director within such thirty (30) day period. C. If the owner or occupant disputes that the property contains one or more beetle infested trees or other wildfire fuels as determined by the Director, the owner or occupant shall notify the Director of such dispute within thirty (30) days of receipt of the Director's notice. If a timely notice of dispute is given, the Town shall not file an application for an abatement order until the Director has met with the disputing party in an effort to resolve the dispute. If the Director meets with disputing party and is unable to resolve the dispute, the Town may file an application for an abatement order pursuant to section 5- 10-5 below. 5-10-5: ABATEMENT ORDER: A. In the event the owner and/or the occupant fails to comply with the Director's notice as described in Section 5-10-4 by removing the beetle infested trees and/or other wildfire fuels or by submitting an acceptable schedule for such removal within the applicable thirty (30) day period, the Town has the authority to provide for and to complete the removal by obtaining and acting on an abatement order. B. Upon the expiration of the notice period, or at any time thereafter if the required action has not taken place, the Town may apply to the Municipal Court for an abatement order. C. An application for an abatement order shall be accompanied by an affidavit affirming that: 1. The Director has determined that the subject property has one or more beetle infested trees or other wildfire fuels; 2. The Director has complied with the notice requirements of Section 5-10-4; and 3. The owner or occupant has failed to either remove the beetle infested trees or other wildfire fuels, or has failed to submit an acceptable plan and schedule such removal within the required time. D. The Town shall give notice to the owner and any occupant of the property of its application for an abatement order either by certified mail or by personal service of the notice. The notice of application for an abatement order shall include a copy of the Town's application and its affidavit in support thereof, as well as the date, time, and place at which the Town will appear before the Municipal Court to request entry of the abatement order. E. At the stated time, date and place, the Municipal Court judge shall review the Town's application for an abatement order, the affidavit, any statement of the Town offered in support thereof, as well as any statement and evidence presented by the owner or occupant, if present. F. The Municipal Court Judge is authorized to enter an order permitting the Town to enter Ordinance No. 23, Series of 2007 4 upon the subject property, remove beetle infested trees or other wildfire fuels and to recover its costs as provided in subsection I of this section, if the Municipal Court Judge finds that: 1. The subject property has one or more beetle infested trees or other wildfire fuels; 2. The Director has complied the notice requirements of Section 5-10-4; and 3. The owner or occupant has failed to either remove the beetle infested trees or other wildfire fuels, or has failed to submit an acceptable plan and schedule such removal within the required time. G. An owner is responsible under this Chapter for any beetle infested trees permitted to remain on the owner's property by an occupant after the Director has given notice of a violation pursuant to Section 5-10-4. H. In the case of an emergency involving imminent danger to public health, safety or welfare, the Town may authorize the immediate removal of any beetle infested trees or other wildfire fuels without notice or an abatement order. I. The owner shall be assessed twice the whole cost of removal of the beetle infested trees or other wildfire fuels from the subject property, including administrative fees. If all costs and charges incurred by the Town are not paid within thirty (30) days from the date of the assessment, the unpaid costs shall be certified to the Eagle County Treasurer for collection in the same manner as real property taxes. 5-10-6: PERMIT FOR REMOVAL OF BEETLE INFESTED TREES AND WILDFIRE FUELS: A design review application for a permit must be filed with the Town of Vail Community Development Department by any owner or occupant desiring to remove one or more beetle infested trees or other wildfire fuels from his or her property. There shall be no application fee for the permit. The application shall contain a written narrative describing the type, size, quantity and general location of the beetle infested trees and/or wildfire fuels proposed to be removed. The Director may perform a site visit prior to taking any action on permit application. 5-10-7: UNLAWFUL ACTS: A. It shall be unlawful for any owner to fail or refuse to remove all beetle infested trees or other wildfire fuels from their property within the time period provided for in a notice of violation sent by the Director pursuant to section 5-10-4 of this section. B. It shall be unlawful for an owner or occupant to deny the Director access to their property if the Director presents an inspection warrant or abatement order issued pursuant to this Chapter 10. C. It shall be unlawful for any person to sell, expose for sale, offer for sale, transfer, give away or offer to give away any tree which is, at the time of the transfer, infested by the mountain pine beetle. 5-10-8: VIOLATION; PENALTY: Any person convicted of violating any of the provisions of this Chapter shall be punished as provided in Section 1-4-1 of this Code; provided, that each separate act in violation of the provisions of this Chapter, or each and every day or portion thereof during which any separate act in violation of this Chapter is committed, continued, or permitted, shall be deemed a separate offense. Ordinance No. 23, Series of 2007 5 Section 3. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 4. The Town Council hereby finds, determines and declares that this ordinance is necessary and proper for the health, safety and welfare of the Town of Vail and the inhabitants thereof. Section 5. The amendment of any provision of the Town Code as provided in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or any ordinance previously repealed or superseded unless expressly stated herein. Section 6. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 16th day of October, 2007, and a public hearing for second reading of this Ordinance set for the 6th day of November, 2007, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. ~F~VAI~ ~~G~~ ? Rodney E.`Slifer, Tc~fi~nin Mayor Att st: ~ ' _ ~ ~ ~ Lo lei onaldson, down Clerk READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED IN FULL this 6th day of November, 2007. ~~~~~.~.~,0 Rodney E. Slifer, Mayor ,CO~ W • ~;c L A E SE . A ' L' Or ance No. 23, Series of 2007 6 ~ D~ORADG. Lorelei Donaldson, Town Clerk Ordinance No. 23, Series of 2007 ~