HomeMy WebLinkAboutOrdinance 018-2014 Ordinance No. 18-14
An Ordinance amending Division 1 of Article VI of Chapter 22 of the Code of
Ordinances of the City of Brookings and pertaining to Licensing of Rental Dwelling Units in the
City of Brookings, South Dakota.
Be It Ordained and Enacted by the Council of the City of Brookings, State of South
Dakota, as follows:
I.
DIVISION 1. -GENERALLY
Sec. 22-371. - Definitions.
Sec. 22-372. - Exception.
Sec. 22-373. -A�ent required/Appointment procedure.
Sec. 22-374. - Maximum occupancv limits.
Sec. 22-375. -Violations and enforcement.
Secs. 22-376-22-400. - Reserved.
Sec. 22-371.- Definitions.
The following words,terms and phrases, when used in this article, shall have the meanings
provided in this section, except where the context clearly indicates a different meaning:
Agent means a person who physically resides within the County of Brookings or a business
which has a staffed office located in the County of Brookings, and who represents an owner of a
leased dwelling unit.
Community Development Director means any person designated by the city manager who shall
be charged with the administration and enforcement of this article.
Dwelling means a building or a portion thereof used exclusively for permanent residential
occupancy, including one-family dwellings,two-family dwellings, apartments, condominiums,
townhouses,fraternities, sororities, boardinghouses and mobile homes.
Dwelling unit means one or more rooms in a dwelling which are arranged, designed, used or
intended for use as living quarters for one family or in the case of an apartment,fraternity,
sorority or boardinghouse, by one or more people. A dwelling unit functions independently
from all other dwelling units within a building. A dwelling unit includes all of the following:
(1) A living room;
(2) A sleeping area;
(3) A separate eating area containing a kitchen sink with hot and cold running water and
operational cooking and refrigeration appliances connected to a power source; and
(4) A separate bathroom containing a water closet, lavatory and bathtub or shower.
Owner means an owner, manager, landlord, agent or other person having control of any leased
dwelling unit.
(Code 1996, § 19-30; Ord. No. 2-99, § 19-30, 1-26-1999)
Cross reference— Definitions generally, § 1-2.
Sec. 22-372.- Exception.
This article does not apply to facilities licensed by the State, nor to any dormitory operated by
an educational institution, nor hotels, motels or other structures designed or used primarily for
transient residents.
(Code 1996, § 19-43)
Sec. 22-373. -Agent required/Appointment procedure.
Each owner of a leased dwelling unit who does not reside within the county shall appoint an
agent residing within the County of Brookings. In addition, if the owner of a leased dwelling unit
is a corporation, limited liability company, partnership or similar entity which is required to file
organizational documents to become a recognized entity and which is either formed under the
laws of South Dakota or possesses a Certificate of Authority to transact business in the State of
South Dakota, it shall also appoint an agent residing within the County of Brookings if the
entity's registered agent does not physically reside within the County of Brookings. The
appointment of an agent shall be made upon the application for the dwelling unit rental
license, and shall include the name, address and telephone number of the agent.The city may
serve notices pertaining to the administration of this article or of any provisions of the city's
laws, rules, regulations, resolutions, ordinances and codes pertaining to such dwelling unit
upon the agent and service upon the agent will constitute service upon the owner.
(Code 1996, § 19-42)
Sec. 22-374- Maximum occupancy limits.
(1) Maximum Occupancy.The maximum occupancy of a dwelling unit shall be one family
per dwelling unit.The term "Family" is defined in subsection (3) below, and in the
Brookings Zoning Ordinance.
(2) Violations. No person shall occupy, nor shall the owner or operator of any rental
dwelling allow any persons to occupy any dwelling unit in excess of the maximum
occupancy permitted in this Article.
(3) Definition of Familv. An individual or two or more persons related by blood or law
occupying a dwelling unit and living as a single household entity or two or more persons
related by blood or law occupying a dwelling unit and living as a single household entity
together with the number of unrelated adults so that the family contains no more than
three adults who are unrelated by blood or law or not more than three unrelated adults
occupying a dwelling unit and living as a single household entity. IN addition to persons
actually related by blood or law,the following persons shall be considered related by blood
or law for the purposes of this Article:
(a) Persons residing with the family for the purpose of adoption.
(b) Not more than six persons under 18 years of age residing in a foster home
licensed or approved by a governmental agency.
(c) Not more than four persons 19 years of age or older residing with the family for
the purpose of receiving foster care,which is licensed or approved by a
governmental agency.
(d) Persons living with a family at the direction of a court.
Sec. 22-375 -Violations and enforcement.
(1) Violations.
(a) A violation of any provision of this Article is punishable as provided in Chapter 1
of this Code and in accordance with any Resolution establishing proposed fines for
violations of Ordinances of the City.
(b) In addition, a rental license for the leased dwelling unit which is the subject of
the violation may be suspended or revoked upon the determination of the
Community Development Director or its authorized representative that such
violation directly affects the health, safety and welfare of the occupants. !n the
event of the suspension or revocation of the rental license,the dwelling unit shall
comply with the provisions of this Article before the license is reinstated or a new
license may be issued.
(c) In addition, in the event of a violation, a rental license for the leased dwelling
unit which is the subject of an over-occupancy violation may be suspended or
revoked upon a determination of the Community Development Director or its
authorized representative that a previous verified incident of over-occupancy
concerning the dwelling unit has occurred while the leased dwelling unit was
owned by the present owner.
(2) Enforcement.
(a) Notices and Orders.
(1) Notice to person responsible. Whenever the Community Development
Director determines there is a veri�ed incident of over-occupancy, notice may be
given as provided below to the person responsible for the violation.
(2) Form. Notices shall be in accord with all of the following:
(a) Be in writing.
(b) Include a description of the real estate sufficient for identification.
(c) Include a statement of the violation or violations and why the notice
is being issued.
(d) Include a correction order allowing thirty (30) days to correct the
over-occupancy of the dwelling unit.
(e) Inform the property owner or agent of the right to appeal.
(3) Method of service. Such notice shall be deemed to be properly served if a
copy thereof is:
(a) Delivered personally to the owner or agent; or
(b) Sent by certified or first-class mail addressed to the last known
address of the owner or agent; or
(c) If the notice is returned showing that the letter was not delivered, a
copy thereof shall be posted in a conspicuous place in or about the
structure affected by such notice; or
(d) Serviced by the Sheriff, Police Department or a duly authorized
process server.
(4) Notice of suspension or revocation of rental housin� license. Upon
suspension or revocation of the Rental Housing License,the Community
Development Department shall notify the owner and the occupants in writing.
The notice shall state the reason for the suspension or revocation of the rental
housing license, a statement of required corrective actions or, alternatively,that
the dwelling must be vacated within 30 days of the date of notice, and notice
that the owner may appeal the suspension or revocation of the rental dwelling
license in the manner provided in this Article.
(5)A Rental Housing License may be suspended or revoked upon a
determination of the Community Development Department that a previous
verified incident of over-occupancy concerning the leased dwelling unit occurred
while the leased dwelling unit was owned by the present owner.
(b) Appeals.
(1)Application for Appeal. The owner of a rental dwelling unit which is the
subject of a decision or order of the Community Development Department
concerning the suspension or revocation of a rental housing license shall have
the right to appeal.The party who wishes to appeal is referred to as the
"appellant." An independent hearing examiner,who must be a member in good
standing of the State Bar of South Dakota, shall be assigned by the City to hear
the appeal.
(2) Appeals shall be commenced by filing a written notice of appeal with the
Community Development Department of the City of Brookings either in person
or postmarked within 15 days of the decision of the Community Development
Director to suspend or revoke a rental dwelling lic4ense.The written notice of
appeal shall be printed legibly or typed and shall contain the following
information:
(i)A description of the decision being appealed;
(ii)The reasons the appellant believes the decision is
objectionable, incorrect or illegal;
(iii)The name, address and telephone number of the appellant;
(iv) If the appellant is to be represented by a legal representative,
the name, address and telephone number of the representative;
and
(v)The signature of the appellant, legal representative or agent.
(3) If the appellant complies with the jurisdictional requirements for an appeal,
then the city will take no further action to enforce the penalty or result until the
hearing examiner renders a final decision. However,the provisions for prior
notice and hearing may be dispensed with when, in the opinion of the
Community Development Director, immediate action is necessary to summarily
abate a dangerous condition on public or private property or there is an
imminent threat to life or safety on public or private property.The director shall
take only such action as is reasonably necessary to summarily abate the danger,
and then the city will take no further action to enforce the penalty or result until
the hearing examiner renders a final decision.
(4)The Community Development Director, or their designee, shall immediately
deliver a copy of the appeal to the city attorney who will act as legal counsel for
the City.
(5)Time of hearin�and notice. Upon the suspension or revocation of the rental
housing license,the Community Development Director shall notify the owner
and the occupants of the leased rental unit in writing.The notice shall state the
reason for the suspension or revocation, a statement of required corrective
actions,that the dwelling must be vacated within 30 days of the date of notice,
and that the owner may appeal to the Board in the manner provided in this
Article. A hearing shall be held on all appeals within 30 days after the filing of the
appeal, unless a later date is scheduled by the hearing examiner upon a showing
of good cause why the matter should be scheduled beyond that date. The city
attorney's office shall cause written notice of the date,time and place of the
hearing to be served upon the appellant by personal service, certified or first
class mail to the address set forth in the notice of appeal at least 15 days before
the hearing date. If the notice of hearing is sent by certified mail and is returned
unsigned,then service shall be deemed effective pursuant to first class mail,
provided the notice of hearing sent by first class mail is not returned.
(6) Hearin� procedur.es. The following rutes shall govern the procedures for the
hearing of the Appeal.
(i) Hearings and administrative appeals shall be governed by the
rules of civil procedure and the rules of evidence as set forth in
the South Dakota Codified Laws (SDCL). However, the
foundational requirements of SDCL 19-16-10 and SDCL 19-16-12
will not be required as long as the hearing examiner is reasonably
satisfied regarding the source of the document(s).
(ii) Oral evidence shall be taken only on oath or afFirmation.
(iii)The hearing examiner shall administer oaths or affirmations to
witnesses.
(iv)The city bears the burden of proof at the hearing. The
standard of proof to be used by the hearing examiner is by a
preponderance of the evidence.
(v)The proponent of any testimony to be offered by a party or
witness who does not proficiently speak the English language shall
provide an interpreter. The interpreter shall be approved by the
independent hearing examiner conducting the proceeding as
proficient in the English language and the language in which the
witness will testify. The cost of the interpreter is to be paid by the
party providing the interpreter.
(7) Ri�hts of parties at hearin�. The appellant,the Community Development
Director, and any other party to an appeal shall have these rights among others:
(i)To call and examine witnesses on any matter relevant to the
issues of the hearing;
(ii)To introduce documentary and physical evidence;
(iii)To cross examine opposing witnesses on any matter relevant
to the issues of the hearing;
(iv)To rebut evidence;
(v)To subpoena witnesses to appear and give testimony on that
party's behalf or to produce records, books, papers and
documents relating to any matters related to the hearing.Any
application for a subpoena shall be submitted to the hearing
examiner for consideration at least ten days in advance of the
hearing. The hearing examiner shall not unreasonably refuse to
issue the requested subpoena. Any subpoena must be issued and
served no later than five days before the scheduled time of the
hearing. All costs related to the subpoena, including the witness
fee and mileage fee at the rate provided by statute, SDCL Ch. 19-
5, shall be paid by the party requesting the subpoena;
(vi) Any party who fails to appear at the hearing is deemed to
waive the right to a hearing and the adjudication of the issues
related to the hearing, provided that proper notice of the hearing
has been provided; and
(vii)The hearing examiner shall cause to be made a record of the
hearing, either stenographically or by sound or video recording,
and shall make available a recording of the hearing to any person
upon request and payment in advance of the estimated cost of
the recording.
(8) Decision. After each appeal hearing,the hearing examiner shall perform the
following:
(i) Make written findings of fact; and
(ii) Based upon the written findings and conclusions, either
sustain, remand for further hearing or action or rescind the
decision of the Community Development Department.
(9) Reports, costs. A written report of the decision, including the findings of fact,
shall be served either in person or by first class mail upon the appellant and
upon the City within 15 working days from the date the appeal hearing is
concluded. The city and the appellant shall bear their own respective costs of the
appeal proceeding, except as specifically provided herein.
(10) Subiect to iudicial review. The final decision of the hearing examiner may be
subject to judicial review as provided by law. If judicial review has been
commenced by the aggrieved party within 30 days after the final decision has
been entered by the hearing examiner, or as otherwise provided by law,the city
will take no further action to enforce the suspension or revocation of the rental
dwelling license until the civil action is completed with the exception of those
matters which require immediate abatement as set forth in 22-375(1)(b).
(11) Filin�fees.The filing fee for an appeal shall be $100.00 for each appeal filed
by an owner, payable to the City of Brookings.
Secs. 22-376-22-400. -Reserved.
II.
Any or all ordinances in conflict herewith are hereby repealed.
First Reading: July 22, 2014
Second Reading: August 12, 2014
Published: August 15, 2014
CITY OF BROOKINGS, SD
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Tim Reed, Mayor
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A' ornes, City Clerk