Item No: 5L.

Meeting Date: August 27, 2012

From: William Chrisman, Chief of Police

Ordinance adding to Chapter 13 of the Code of Ordinances - Junked, Wrecked, Abandoned Property - pertaining to foreclosed and vacant homes and require mortgagees to provide the City with the most up to date accurate data and information for contacting a responsible party to bring the property into compliance with this division.

Staff Recommendation:

Staff recommends approval to add additional articles to Chapter 13 of the Code of Ordinances, registration of abandoned real property as defined in the city code and to levy fees and fines.

Analysis:

The addition to Chapter 13 will establish a process to limit and reduce the deterioration of property located within the City of Leesburg, where property is in foreclosure, or where ownership has been transferred to lender or mortgagee by any legal method. It is further intended to establish a registration program as a mechanism to protect neighborhoods from becoming blighted through the lack of inadequate maintenance of abandoned and vacated properties subject to a mortgage or properties subject to mortgages that are in default.

Options:

1. Approve the addition of an article to the Junked, Wrecked, Abandoned Property – Chapter 13 of the Code of Ordinances.

2. Such alternative action as the Commission may deem appropriate

Fiscal Impact:

The fee schedule resolution will be presented at the second reading of the Ordinance. An increase in the general fund is dependent upon revenue collected from any fines assessed.

Submission Date and Time: 8/23/2012 11:46 AM____

Department: _Police__________________ Prepared by: ___Lisa Carter_______ Attachments: Yes_x___ No ______ Advertised: ____Not Required ______ Dates: __________________________ Attorney Review : Yes___ No ____ _________________________________ Revised 6/10/04

Reviewed by: Dept. Head ________ Finance Dept. __________________ Deputy C.M. ___________________ Submitted by: City Manager ___________________

Account No. 001-0000-354-0100___ Project No. ___________________ WF No. ______________________ Budget ______________________ Available _____________________

ORDINANCE NO._________

AN ORDINANCE OF THE CITY OF LEESBURG, FLORIDA, PERTAINING TO ABANDONED REAL PROPERTY SUBJECT TO PENDING FORECLOSURE; SETTING FORTH LEGISLATIVE FINDINGS; CREATING A REGISTRY OF FORECLOSURE PROPERTIES; REQUIRING REGISTRATION OF REAL PROPERTY SUBJECT TO MORTGAGE FORECLOSURE PROCEEDINGS; PROVIDING DEFINITIONS; SPECIFYING THE APPLICABILITY OF THE ORDINANCE; PROVIDING FOR ENFORCEMENT AND PENALTIES; IMPOSING RESPONSIBILITY FOR MAINTENANCE AND SECURITY OF ABANDONED REAL PROPERTY SUBJECT TO FORECLOSURE; REPEALING CONFLICTING ORDINANCES; PROVIDING A SAVINGS CLAUSE; AND PROVIDING AN EFFECTIVE DATE.

WHEREAS, the presence within the City of Leesburg of run down, overgrown and ill maintained real property and structures thereon, which are the subject of pending mortgage foreclosure actions, has become a serious problem, a threat to the public health, safety and welfare, and an aesthetic blight, leading to the deterioration of surrounding property and a decline in the fair market value of other real property in the City; and

WHEREAS, the existence of such abandoned real property has in the past, and will continue to, create both public and private nuisances, foster crime and lawlessness, and constitute an impediment to the sale and purchase of nearby real property, and

WHEREAS, despite having the means and resources to maintain this abandoned real property, foreclosing lenders have in many instances failed or refused to maintain and secure the abandoned real property in accordance with the applicable codes and ordinances of the City, and

WHEREAS, the City owes to its residents the duty to take such steps as are necessary, desirable and lawful to persuade foreclosing lenders to maintain abandoned real property and thereby to protect its residents from the decline and devaluation associated therewith, and

WHEREAS, the City Commission declares it necessary, to remedy the evils aforesaid, to adopt procedures by which the City can ascertain the extent and location of abandoned real property subject to foreclosure, determine the party or parties responsible for maintenance and security of abandoned real property, and institute a method by which the City may monitor and enforce requirements for such maintenance and security,

NOW THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF LEESBURG, FLORIDA:

SECTION I.

Sections 13 – 20 through 13 – 30 of the Code of Ordinances of the City of Leesburg, Florida, are hereby created to read as set forth below:

Sec. 13-20. Purpose and intent.

It is the purpose and intent of this Ordinance to establish a process to limit and reduce the deterioration of property located within the City of Leesburg, which property is in foreclosure, or where ownership has been transferred to lender or mortgagee by any legal method. It is further intended to establish a registration program as a mechanism to protect neighborhoods from becoming blighted through the lack of inadequate maintenance of abandoned and vacated properties subject to a mortgage or properties subject to mortgages that are in default. The registration process will require mortgagees to provide the city with the most up to date accurate data and information for contacting a responsible party to bring the property into compliance with this division.

Sec. 13-21. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them, except where the context clearly indicates a different meaning. Where the context will permit and no definitions are provided herein, the definitions provided in the Florida Building Code shall apply.

Abandoned real property means any real property that is vacant and/or is under a public notice of default, notice of foreclosure sale, pending tax assessor's lien sale and/or properties that have been the subject of a foreclosure sale where title is retained by the mortgagee, and any properties transferred under a deed-in-lieu of foreclosure sale, a short sale or any other legal means.

Accessible property means a property that is accessible through a compromised/breached gate, fence, wall, and the like.

Accessible structure means a structure or building that is unsecured and/or breached in such a way as to allow access to the interior space by unauthorized persons.

Default means that the mortgagee files a foreclosure action or public notice of default on the mortgage. A mortgage shall be considered in default at such time as the mortgagee declares said mortgage to be in default either in writing, by recording a lis pendens, or by its actions, or commences foreclosure proceedings.

Enforcement officer means any fulltime law enforcement officer, building official, fire inspector or code enforcement officer employed by the City of Leesburg.

Evidence of vacancy means any condition that on its own, or combined with other conditions present would lead a reasonable person to believe that the property is vacant. Such conditions may include, but are not limited to: overgrown and/or dead vegetation; electricity, water or other utilities turned off; stagnant swimming pool; statements by neighbors, passers-by, delivery agents or government agents.

Foreclosure means the judicial process by which a property, placed as security for a mortgage loan, is requested by the mortgagee to be sold at an auction to satisfy a debt upon which the borrower has defaulted.

Mortgagee shall mean, for purposes of this Ordinance, the record holder of a mortgage declared in default or as to which a foreclosure action has been filed, and shall also include the named plaintiff in a pending foreclosure action, and the record owner of the abandoned real property named in a certificate of title issued by the Clerk of the Circuit Court as a result of a foreclosure sale, if such record owner is the plaintiff in the case, or an assignee of the final judgment of foreclosure.

Property management company means a local property manager, property maintenance company or similar entity responsible for the maintenance of abandoned real property.

Residential building means any improved real property, or portion thereof, situated in the City, designed or permitted to be used for dwelling purposes, and shall include the buildings and structures located on such improved real property.

Vacant means any building or structure that is not lawfully occupied or inhabited by human beings as evidenced by the conditions set forth in the definition of "evidence of vacancy" above.

Sec. 13-22. Scope of Ordinance.

(a) This Ordinance applies to abandoned and vacant real property that is or has been subject to a mortgage determined by the mortgagee to be in default. A legal duty is hereby imposed on the mortgagee to comply fully with all terms of this Ordinance.

(b) This Ordinance will not apply to dwellings and structures located within a multi-family structure if:

(1) The multi-family structure has a property manager on the premises; and

(2) The multi-family structure has an active owners' association responsible for the management and maintenance of the property.

Sec. 13-23. Penalties

Violations of this division shall be subject to enforcement by any of the enforcement means available to the City of Leesburg, including but not limited to referral to the Code Enforcement process and hearing before the Special Magistrate. If the mortgagee fails to register the abandoned real property as required, or to renew the registration annually, then in addition to the fees due hereunder the mortgagee shall pay a penalty at the time of registration or renewal, in the amount of $50.00 for any registration or renewal not more than 30 days delinquent; $75.00 for any registration delinquent more than 30 days but not more than 90 days, and $100.00 for any registration more than 90 days delinquent.

Sec. 13-24. Registration of real property mortgagee holding mortgages in default.

(a) Any mortgagee who holds a mortgage on real property located within the City of Leesburg shall perform an inspection of the property upon default by the mortgagor or prior to the issuance of a notice of default. If the property is found to be vacant or shows evidence of vacancy, it shall be deemed abandoned real property and the mortgagee shall, within fifteen (15) calendar days of the inspection, register the property with the City of Leesburg and appoint a local property manager to oversee the maintenance and upkeep of the property. If the property was not vacant at the time of default but becomes vacant sometime thereafter, the mortgagee shall register the property with the City of Leesburg and appoint a local property manager, no later than fifteen (15) calendar days after the date the mortgagee discovers or is notified the property in default is vacant.

(b) If the property is occupied but remains in default, it shall be inspected by the mortgagee, or his/her designee, monthly until:

(1)     The mortgagor or other party remedies the default; or

(2) It is found to be vacant or shows evidence of vacancy, at which time it is deemed abandoned real property, and the mortgagee shall, within ten (10) days of that inspection, register the property with the City.

(c) Registration pursuant to this section shall contain at a minimum the name of the mortgagee, the mailing address of the mortgagee, e-mail address for a responsible person in the employ of the mortgagee who can address issues pertaining to abandoned real property, and telephone number and name of the local property manager and said person's address and e-mail address. The local property manager shall be responsible to inspect, secure and maintain the property. The local property manager named in the registration shall be available to be contacted by the City, Monday through Friday between 9:00 a.m. and 5:00 p.m., except for recognized national holidays. The local property manager shall respond to any report of a violation of this ordinance, or violations of any other City ordinances, within twenty-four (24) hours of notice. The City of Leesburg shall charge a fee for the registration as set by resolution of the Leesburg City Commission. A registration shall have a term of twelve months from the date it is filed with the City, and must be renewed annually for so long as the parcel constitutes abandoned real property as defined in this Ordinance. At the time of renewal, the mortgagee shall verify the identity of the local property manager and of the person in the employ of the mortgagee who can address issues pertaining to the abandoned real property.

(d) A separate registration and fee is required for each vacant property that is subject to this Ordinance and for each renewal of a prior registration for the same property.

(e) This section shall also apply to properties that have been the subject of a foreclosure sale where title is transferred to the mortgagee as well as any properties transferred to the mortgagee under a deed in lieu of foreclosure.

(f) Properties subject to this section shall be under an annual registration requirement as long as they remain abandoned real property as defined herein, or subject to having been declared by a mortgagee to be in default.

(g) Any person or other legal entity that has registered a property under this division must report any change of information contained in the registration within fifteen (15) calendar days of the change.

(h) Failure of the mortgagee and/or property owner of record to register under this Ordinance, or to revise from time to time the registration to reflect a change of circumstances as required by this Ordinance, is a violation of the Code of Ordinances of the City of Leesburg and shall be subject to enforcement by any of the enforcement means available to the City of Leesburg.

(i) Pursuant to a finding and determination that any abandoned real property is in violation of the Code of Ordinances of the City of Leesburg, the City may take the necessary action to ensure compliance with its ordinances, including entering abandoned real property to mow, clean and secure it, and place a lien on the property for the cost of the work performed to benefit the property and to bring it into compliance, which lien shall bear the same priority as a lien for unpaid ad valorem taxes.

(j) Registration of the property will no longer be required upon the occurrence of either of the events set forth below. There will not be a refund of any registration fee already paid to the City. Upon the occurrence of either event listed below, the mortgagee shall notify the City in writing of that fact together with the name, address and telephone number of an individual authorized to act on behalf of the purchaser or occupant with respect to the property and its condition.

(1) The property is transferred from the mortgagee to a third party in an arm's length transaction and proof of the transfer is provided to the City.

(2) The property becomes occupied and evidence of occupancy is provided to the City. If the property subsequently becomes vacant prior to transfer of the property as contemplated in paragraph (j)(1) above, registration of the property will again be required.

Sec. 13-25. Maintenance requirements.

(a) Properties subject to this Ordinance shall be kept free of weeds, overgrown brush, dead vegetation, trash, junk, debris, building materials, any accumulation of newspapers, circulars, flyers, notices, except those required by federal, state, or local law, discarded personal items including, but not limited to, furniture, clothing, large and small appliances, or any other items that give the appearance that the property is abandoned or not being properly maintained. Weeds, overgrown brush or dead vegetation over ten (10) inches tall are prohibited.

(b) The property shall be maintained free of graffiti or similar markings by removal or painting over with an exterior grade paint that matches the color of the exterior structure. Yards shall be landscaped and maintained pursuant to the standards set forth in the City of Leesburg Code. Landscaping shall include, but not be limited to, grass, ground cover, bushes, shrubs, hedges or similar plantings, decorative rock or bark or artificial turf/sod designed specifically for residential, commercial or industrial installation, as applicable. Landscaping shall not include weeds, broken concrete, asphalt or similar material.

(c) Maintenance shall include, but not be limited to, cutting and mowing of required landscaping, and removal of all trimmings and weeds, together with maintenance of fences, gates and buffers so they are in sufficient condition to serve their intended purposes of excluding access to the property..

(d) Pools and spas shall be kept in working order so that pool and spa water remains free and clear of pollutants and debris, the water clarity shall be such that the lowest part of the swimming pool or spa can be seen from the pool or spa deck, and the water quality shall be such that it does not create a breeding ground for mosquitoes or other insects. In addition, any screen enclosures, fences or other pool barriers required by Florida statute must be maintained in adequate condition so as to serve their intended purpose of preventing free access to the pool.

(e) Failure of the mortgagee and/or property owner of record to properly maintain the property is a violation of the Code of Ordinances of the City of Leesburg and may be subject to enforcement by any of the enforcement means available to the City of Leesburg. Pursuant to a finding and determination, the City of Leesburg may take the necessary action to ensure compliance with its ordinances and place a lien(s) on the property and assign it as provided herein, having a priority equal to the lien for unpaid ad valorem taxes.

Sec. 13-26. Security requirements.

(a) Properties subject to this division shall be maintained in a secure manner so as not to constitute an accessible property or accessible structure as defined herein.

(b) A "secure manner" shall include, but not be limited to, the maintenance, closure and locking of windows, doors, fences, buffers, gates and other openings of such size that may allow a child or adult to access the interior of the property and/or structure. Broken windows shall be secured by reglazing or boarding.

(c) If a mortgage on the property is in default and the property has become vacant or abandoned, a local property manager shall be designated by the mortgagee to perform the work necessary to bring the property into compliance with the Code of Ordinances and the local property manager must perform weekly inspections to verify compliance with the requirements of this section, and any other applicable laws or ordinances of the City of Leesburg.

(d) When the property becomes vacant or abandoned, it shall be posted with the name and twenty-four-hour contact telephone number of the local property manager. The sign shall be placed in a window facing the street and shall be visible from the street. The posting shall be no less than eighteen (18) inches × twenty-four (24) inches, and shall be of a font that is legible from a distance of forty-five (45) feet. The posting shall contain the following language:

THIS PROPERTY IS MANAGED BY ____________ ____________ AND IS INSPECTED ON A REGULAR BASIS. THE PROPERTY MANAGER CAN BE CONTACTED BY TELEPHONE AT ____________ OR BY EMAIL AT ____________.

(e) The posting shall be placed on the interior of a window facing the street to the front of the property so that it is visible from the street, or secured to the exterior of the building/structure facing the street to the front of the property so that it is visible from the street or if no such area exists, on a stake of sufficient size to support the posting in a location that is at all times visible from the street to the front of the property but not readily accessible to vandals. Exterior posting shall be constructed of and printed with weather-resistant materials.

(f) Failure of the mortgagee and/or property owner of record to properly inspect and secure the property, and post and maintain the signage noted in this section, is a violation of this Ordinance and shall be subject to enforcement by any of the enforcement means available to the City of Leesburg. Pursuant to a finding and determination, the City of Leesburg may take the necessary action to ensure compliance with this section, and place a lien on the property and assign it as provided herein, having a priority equal to the lien for unpaid ad valorem taxes.

Sec. 13-27. Additional authority.

(a) If the City's director of code enforcement has reason to believe that a property is subject to the provisions of this division is posing a serious threat to the public health, safety and welfare, he or she may bring the violations before the City's Code Enforcement Special Magistrate as soon as possible to address the conditions of the property.

(b) If there is a finding that the condition of the property is posing a serious threat to the public health, safety and welfare, then the Special Magistrate may direct the City to abate the violations and charge the mortgagee with the cost of abatement.

(c) If the mortgagee does not reimburse the City for the cost of abatement within thirty (30) days of the City sending the mortgagee the invoice, then the City may lien the property with the cost of abatement, along with an administrative fee, such lien to have the same priority as the lien for unpaid ad valorem taxes.

(d) If the Special Magistrate finds that vagrancy or vandalism is occurring on the property and that the presence of a security guard may deter the vagrancy or vandalism, the Special Magistrate shall have authority to require the mortgagee and/or owner of record of any property affected by this division to provide an on-site security guard. The failure to provide an on-site security guard, as ordered by the Special Magistrate, shall constitute a separate violation of this Ordinance and shall be subject to enforcement by any of the enforcement means available to the City of Leesburg.

Sec. 13-28. Supplemental provisions.

Nothing contained in this division shall prohibit the City of Leesburg from enforcing its codes by any other means, including, but not limited to, injunction, abatement or as otherwise provided by Code.

Sec. 13-29. Applicability.

This Ordinance shall apply to:

(1) Any abandoned real property subject to a foreclosure filed on or after the effective date of this Ordinance;

(2) Any abandoned real property, as to which a foreclosure which was filed before the effective date of this Ordinance, remains pending for more than twelve months, measured from the date the foreclosure was filed, until a certificate of title is issued in the pending foreclosure.

Sec. 13-30. Powers of City.

(a) Whoever opposes, obstructs, or resists any City officer or any person authorized by the City in the discharge of duties as provided in this section, shall, upon conviction, be punished as provided herein.

(b)      Any Code Enforcement Officer, or any person authorized by the City to act pursuant to the City's Code of Ordinances or state law, shall be immune from prosecution, civil or criminal, for reasonable, good faith trespass upon real property while in the discharge of duties imposed by this section.

(c)      The City's Code Enforcement Administrator, his/her designee, or the City's authorized representative shall have authority to require the mortgagee and/or owner of record of any property affected by this section, to implement additional maintenance and/or security measures, including but not limited to, securing any and all doors, windows or other openings, employment of an on-site security guard, or other measures as may be reasonably required to help prevent further decline of the property.

(d)     The City Manager, consistent with his/her duties and authorities under the City Charter, including those duties and authorities relating to emergency situations, is authorized and empowered to expend City funds as may be reasonably necessary and available to carry out the terms of this Ordinance, the expenditure of such funds being declared a proper municipal purpose.

SECTION II.

All ordinances or part of ordinances which are in conflict with this Ordinance are hereby repealed, to the extent necessary to alleviate the conflict, but shall continue in effect insofar as they are not in conflict herewith, unless repeal of the conflicting portion destroys the overall intent and effect of any of the conflicting ordinance, in which case those ordinances so affected shall be hereby repealed in their entirety.

SECTION III.

If any portion of this Ordinance is declared invalid or unenforceable, and to the extent that it is possible to do so without destroying the overall intent and effect of this Ordinance, the portion deemed invalid or unenforceable shall be severed herefrom and the remainder of the ordinance shall continue in full force and effect as if it were enacted without including the portion found to be invalid or unenforceable.

SECTION IV.

This Ordinance shall become effective upon its passage and adoption according to law.

PASSED AND ADOPTED at the regular meeting of the City Commission of the City of Leesburg, Florida, held on the day of , 2012.

THE CITY OF LEESBURG, FLORIDA

BY: ________________________________ MAYOR

ATTEST:

_______________________________________

CITY CLERK