§ 8-6-18. Accumulation of stagnant water, filth, weeds, brush, and debris on lots.

(A)

Prohibited accumulations:

1.

It shall be unlawful for any person or entity, who shall own, occupy, or possess any lot, lots, or other premises, except natural lake beds or playas, in the City, to permit or allow holes or places on that lot or other premises where water may accumulate and become stagnant, or to permit the same to remain. For purposes of this Subsection, "possess" means to have actual care, custody, control or management over the property.

2.

It shall be unlawful for any person or entity, who shall own, occupy, or possess any lot, lots, or other premises, except natural lake beds or playas, in the City, to permit or allow the accumulation of stagnant water thereon, or to permit the same to remain.

3.

It shall be unlawful for any person or entity, who shall own, occupy, or possess any house, building, establishment, lot, or yard in the City to permit or allow any carrion, filth, or other impure or unwholesome matter to accumulate or remain thereon. For purposes of this Subsection "filth or other impure or unwholesome matter" shall mean any organic or inorganic substance whether gaseous, solid or liquid, which shall be likely to harbor disease causing organisms, or attract rodents or reptiles, or shall create a nuisance or an attractive nuisance as defined by common law.

4.

It shall be unlawful for any person or entity who shall own, occupy, or possess any lot, lots, or premises in the City to allow weeds, tall grass, rubbish, brush, animal refuse, industrial or commercial waste, spoiled foodstuffs, construction or remodeling wastes, or unsanitary matter to accumulate or grow on that property. For purposes of this Subsection the term "brush" shall include mesquite trees, greasewood, or any other tree or shrubbery occurring naturally in the area.

5.

It shall be unlawful for any person or entity who shall own, occupy, or possess any lot, lots, or premises in the City to permit or allow debris to accumulate or remain thereon. For purposes of this Subsection the term "debris" shall include such material as brick, broken concrete, cinder blocks, lumber, construction materials, cinders, plaster, automobile frames, dead trees, demolished or partly demolished structures or buildings, structures or buildings destroyed by fire, and other bulky heavy material, automobile parts, furniture, trunks, televisions, mattresses, box-springs, appliances, sinks, toilets, bath-tubs, doors, heating and air-conditioning units, fans, heaters, barrels, metal, pipe, carpet, drywall, ducts, roofing products/material, insulation, plumbing fixtures, vacuum cleaners, sewing machines, rugs, exercise equipment, weights, lawn mowers, lawn equipment, water heaters, office equipment, tires, tanks, trash bags, portable swimming pools and accessories, wood/chain fence panels, wood/metal fence posts, cardboard boxes, water coolers, bicycles/bicycle parts, toys, motorcycles/motorcycle parts, swing sets, clothing, tree limbs, Christmas trees, plastic waste/containers/products, paint cans/paint products, discarded pallets, discarded brick/stone/concrete block, tin and aluminum cans, batteries, oil, electronic equipment, glass, mirrors, windows curtains/valances, books/magazines, electrical cords, planting containers, bar-b-q pits/equipment, dinnerware, bedding material, water softener tanks and accessories, landscaping implements, and trailers.

6.

For purposes of this Section, it shall be presumed that the following individual or entity owns, occupies or possesses the property, lot, lots or premises:

1.

The individual or entity whose name is on the City's water bill for the lot, lots, property or premises in question;

2.

The individual or entity who is paying the taxes or owns the property according to records of the Midland Central Appraisal District;

3.

The individual or entity who is paying the taxes or owns the property according to records of Midland County, Texas;

4.

An individual who is physically present on the lot, lots, property or premises in question; or

5.

An individual who is physically present in any structure on the lot, lots, premises or the property in question.

(B)

Affirmative defenses: It is an affirmative defense to prosecution if any of the following apply:

1.

The weeds or tall grass are less than eighteen inches (18") tall, and the brush is less than two feet tall.

2.

The weeds, tall grass, or brush are located on a City Council approved wildlife sanctuary or on land that is zoned Agriculture-Estate as defined by Section 11-1-6 of this Code and is devoted to livestock grazing.

3.

The tall grass is located on land in an Agriculture-Estate zoned district as defined by Section 11-1-6 of this Code and the grass is being cultivated for agricultural purposes.

4.

The brush has a central trunk with a girth of ten inches or more at its base.

5.

The weeds, tall grass, and brush are located more than 175 feet from any property line of a public park or of any tract of land under unitary ownership which is developed with growing crops or with one or more buildings or structures, and from any building, structure or any improvement to the realty, and more than 35 feet from the curb of any street or, if there is no curb, the edge of the pavement or traveled portion of the street.

6.

The weeds, tall grass, and brush are located on an undeveloped area and are more than 35 feet from the curb of any street or, if there is no curb, the edge of the pavement or traveled portion of the street. "Undeveloped area" means any unplatted land, which may or may not be under unitary ownership, which is in an undisturbed native biome for this part of the State of Texas, which is not less than 7.5 acres in area and has continuous width of at least 300 feet, and which has no streets, roads, commercial or residential improvements, or crops located thereon.

7.

The weeds, tall grass, and brush are located on public property owned by the State of Texas, or any of its subdivisions, and such governmental entity has determined that it is in the public interest that such property should remain in its natural, undisturbed condition, and the vegetation on such property is in its native biome, and the condition of such property does not present a danger or hazard to abutting properties.

8.

The debris is shielded from view by a screening fence or structure from any alley, street, public property or other private property with a different owner or occupant, and does not constitute a fire or health hazard or a violation of the zoning ordinance. Automotive service garages, wrecking and salvage yards shall be subject to the requirements of sections relating to those businesses as set forth in the City Code.

9.

The construction materials are stored on residential property during a period of active construction or repair as evidenced by a current building-permit where applicable.

10.

The person is actively engaged in a legally permissible garage or estate sale.

(C)

Penalty and judicial notice: Any person, corporation, or association who shall violate any of the provisions of this Section shall be guilty of a misdemeanor, and upon conviction shall be fined in a sum not to exceed $500.00. Each day on which the violation shall exist shall constitute a separate and distinct offense. A culpable mental state is not required. A culpable mental state is not required to prove a criminal offense under this Chapter. It is hereby declared, that for all offenses under this Chapter, that the culpable mental state required by Section 6.02 of the Texas Penal Code is specifically negated and clearly dispensed with.

Judicial notice:

(a)

The City of Midland Municipal Court upon its own motion may, or upon the motion of a party shall, take judicial notice of this Section.

b)

The City of Midland Municipal Court upon its own motion may, or upon the motion of a party shall, take judicial notice of records in the City's Customer Service Division.

(c)

The City of Midland Municipal Court upon its own motion may, or upon the motion of a party shall, take judicial notice of all records of Midland County, Texas; all records of the Midland Central Appraisal District; and all records of the City of Midland, Texas.

(D)

Abatement:

1.

Should any owner of such lot, lots or other premises that have places thereon where stagnant water may accumulate or which are not properly drained, or the owner of any premises or building upon which carrion, filth or other impure or unwholesome matter may be, fail or refuse to drain or fill the lot, lots or other premises or remove such filth, carrion or other impure or unwholesome matter as the case may be, after receiving notice from the City to do so according to the procedures set forth in Subsection (F) of this Section, then the City may do such filling or draining, or removal of filth, carrion or any other unsightly, objectionable or unsanitary matter, or cause the same to be done. The City may then charge the expenses it incurred in doing such work, or making such improvements, to the owner of the lot, lots or premises on which the work was performed, according to the methods provided for in Subsection (E) of this Section.

2.

Should any owner of any lot, lots, or premises within the City, permit or allow debris, as defined in Subpart (A)(5) of this Section, to accumulate thereon, fail or refuse to remove such debris after having received notice from the City to do so according to the procedures set forth in Subsection (F) of this Section, then the City may enter upon the premises and remove such debris or cause the same to be removed and may pay therefor. The City may then charge the owner of the premises for the expenses incurred in doing such work, or having such work done or improvements made, according to the provisions set forth in Subsection (E) of this Section.

3.

Should any owner of any lot, lots or other premises within the City who shall allow weeds, tall grass, rubbish, brush or other unsightly, objectionable or unsanitary matter to grow and accumulate thereon, fail or refuse to cut down or remove such weeds, tall grass, rubbish, brush or other unsightly, objectionable or unsanitary matter, after having received notice from the City to do so according to the procedures set forth in Subsection (F) of this Section, then the City may enter upon the premises and do such cutting down or removing of weeds, tall grass, rubbish, brush or other unsightly, objectionable or unsanitary matter, or cause the same to be done and may pay therefor. The City may then charge the owner of the premises on which the work was done for the expenses incurred in doing such work or having such work done or improvements made according to the provisions set forth in Subsection (E) of this Section. No lien or other encumbrance shall attach to any property for any matter which could not be criminally prosecuted under Subsection (A) of this Section due to the availability of a defense listed in Subpart (A)(6) of this Section.

(E)

Filing of a lien. After the City has entered upon and performed services upon any lot pursuant to the powers granted the City in Subsection (D) of this Section, the Mayor, municipal health authority or municipal official designated by the Mayor of the City shall file a statement of the expenses incurred in such operations with the county clerk of Midland County, Texas stating the name of the owner, if known, the legal description of the property, the amount of such expenses and the date on which the work was done or improvements made. The City shall then have a privileged lien on the property upon which the work was done or improvements made, to secure the expenditures so made, in accordance with the provisions of V.T.C.A, Health & Safety Code § 342.007. That lien shall be second only to tax liens and liens for street improvements. The amount of that lien shall bear ten percent per annum interest from the date of payment by the municipality. The Mayor, municipal health authority or municipal official designated by the Mayor add to any lien filed pursuant to this Section the amount of the filing fee charged by the county clerk for filing that lien. It is further provided that for any such expenditures, and interest, as aforesaid, suit may be instituted and recovery and foreclosure of that lien may be had in the name of the City, and the statement of expenses so made, or a certified copy thereof, shall be prima facie proof of the amount expended for such work or improvements.

(F)

Notice and hearing.

1.

Before exercising any of the powers granted in Subsections (D) and (E) of this Section, the City must send notices in writing to the owner of the lot, lots or other premises on which the City proposes to enter pursuant to Subsection (D) of this Section, at least ten days prior to the City's entry upon the same. The notice must be given:

(a)

Personally to the owner in writing;

(b)

By letter addressed to the owner's post office address; or

(c)

If personal service cannot be obtained or the owner's post office address is unknown:

(1)

By publication at least twice within ten consecutive days;

(2)

By posting the notice on or near the front door of each building on the property to which the violation relates; or

(3)

By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates, if the property contains no buildings.

The municipality in the notice of a violation may inform the owner by certified mail, return receipt requested, that if the owner commits another violation of the same kind or nature that poses a danger to the public health and safety on or before the first anniversary of the date of the notice, the municipality without further notice may correct the violation at the owner's expense and assess the expense against the property. If a violation covered by a notice under this Subsection occurs within the one-year period, and the municipality has not been informed in writing by the owner of an ownership change, then the municipality without notice may do the work and make the improvements required and pay for the work done or improvements made and charge the expenses to the owners of the property and then access its expenses as provided for in Subsection (E).

The notice shall communicate the following information:

(a)

The name of the owner, if known, of the premises proposed to be entered upon by the City;

(b)

The address or legal description of the premises proposed to be entered upon by the City;

(c)

The offending conditions existing on the lot;

(d)

A demand that the owner remedy such conditions;

(e)

The day on which the City shall enter upon the premises and remedy the same should the owner not sooner do so;

(f)

The City shall attach a lien to the property to secure payment for the services rendered;

(g)

The customer has the right to appear and be heard at a hearing to contest the proposed entry, clearing and attachment of lien;

(h)

The means by which the lot owner may arrange for such a hearing;

(i)

The date by which the lot owner must request and set the hearing in order to receive it, which deadline may be no earlier than nine days after the giving of notice.

2.

Should any owner request a hearing to review the decision to enter upon and clear that owner's lot, the hearing shall be presided over by the City manager or his designated appointee, who shall be a fair and impartial person who did not participate in the original decision to enter upon the owner's premises, hereafter in this context known as the hearing officer. The hearing shall be set by the next business day after being so requested by the lot owner, unless the hearing officer, in his discretion, sees fit to delay the hearing for up to five days upon showing of good cause by the lot owner. At the hearing, the owner shall be given the opportunity to be heard in person to present the owners case, to present testimony from other persons and to admit documents. The owner may be represented by counsel. The owner shall be given the opportunity to confront and cross examine any witnesses appearing against him at the hearing. However the rules of evidence for civil or criminal trials need not be enforced. The City's reasons for entering upon the owner's lot and clearing the same shall be stated at the hearing. Upon reaching a final decision, the hearing officer shall state his reasons for reaching that decision and state the evidence on which he relied in reaching his conclusions. Should the hearing officer find in favor of the lot owner, the City shall not enter upon, nor clear, nor attach a lien to that lot. Should the hearing officer find against the lot owner, the City may enter upon, clear and attach a lien to that lot at any time before 60 days following the hearing.

(Ord. No. 7764, § 1, 9-8-1998; Ord. No. 9046, §§ 1—3, 8-14-2012)