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Junk Ordinance of Marshal
County
Section 1 – Purpose and
Authority
Pursuant to the authority granted to
the Marshall County Commission under Code of Alabama 1975, § 11-3A-1
et seq. upon approval by its citizens in a referendum held on June
6, 2006, therefore be it ordained by the Marshall County Commission
as follows: The Marshall County Commission finds that it is in the
best interest of the citizens of the county to adopt and implement
rules and regulations regarding junk in order to protect its
citizens from public nuisances relating to public welfare, health,
and safety within the unincorporated areas of the county. In order
to address these concerns and pursuant to the authority granted to
the Marshall County Commission under Code of Alabama 1975, § 11-3A-1
et seq., the Marshall County Commission has adopted the following
Ordinance on junk on February 12, 2007 at the regular commission
meeting of the Marshall County Commission, which adoption is
evidenced by Resolution No. 2007-1, attached hereto as addendum A.
Section 2 -- Jurisdiction
This Ordinance shall only apply within the unincorporated areas of
the county, and shall in no way be in effect or in force within the
municipal limits of any municipality within the county unless
amended with the approval of the appropriate city council and the
Marshall County Commission. Additionally, this Ordinance shall in no
way affect any protections granted to any persons or businesses
pursuant to Code of Alabama 1975, § 6-5-127 or Code of Alabama 1975,
§ 11-3A-1 et seq.
Section 3 -- Definitions
For the purpose of this Ordinance, the following terms shall have
the following meaning:
Junk -- Old or scrap copper, brass, rope, rags, batteries, paper
trash, rubber debris, waste or junked, dismantled or wrecked
automobiles, or parts thereof, iron, steel, and other old or scrap
ferrous or nonferrous material.
Junkyard – As defined in Code of Alabama 1975, § 11-80-10, any
establishment or place of business which is maintained, operated, or
used for storing, keeping, buying, or selling junk as defined herein
or for the maintenance or operation of an automobile graveyard.
Junkyard Nuisance – An accumulation of junk or a licensed junkyard
which creates a public nuisance as provided in this Ordinance.
Waste or junked, dismantled, or wreck automobiles -- Any vehicle,
including travel trailers, mobile homes, motor homes, motorcycles,
boats and buses, which meets any of the following criteria:
a) Is apparently inoperable;
b) Is without valid license or current license plates;
c) Is extensively damaged, including but not limited to
windows, missing wheels, motors, tires, transmission, or other
major parts; or
d) Has a fair market value equal only to the approximate value of
the scrap in it.
Section 4 – Establishment of Junk Nuisance
It shall be unlawful for property owners to allow the accumulation
of junk in a manner that presents a threat to public welfare, health
and safety such that the junk constitute a public nuisance as
defined in Code of Alabama 1975, § 6-5-120 and § 6-5-121. Absent
other welfare, health, and safety threats, the mere presence of junk
on property in the unincorporated areas of Marshall County shall not
constitute a public nuisance if:
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'We messed up' - Commissioner says
By DAVID BREWER
Times Staff Writer
June 24 2008 - GUNTERSVILLE - Marshall
County District 3 Commissioner C.W. "Buddy" Allen said a
junk ordinance he and the rest of the commission adopted
last year is illegal.
"We messed up," he said at Monday's
commission's meeting in Guntersville. "I'm firmly convinced
we're breaking the law."
Allen said he now wants the commission to
correct the ordinance. He did not specify during the meeting
what he believes is wrong with the ordinance and declined to
provide any details when asked by reporters after the
meeting.
The commission took no action on Allen's
request.
District 2 Commissioner R.E. Martin and
District 4 Commissioner Tim Bollinger said after the meeting
the ordinance may need some refining, but that there's
nothing illegal about it.
"I think he's out in left field," Martin
said.
District 1 Commissioner Bill Stricklend
declined to comment.
Allen said he had been told that the
commission did a bad job of writing the ordinance.
"I think it's imperative this commission
address the ordinance," he said during the meeting. "We
don't need an ordinance that's going to be this divisive.
The general public needs to be involved."
Bollinger said after the meeting the
ordinance was not written by the commission but by state
officials in Montgomery.
Passed by the Legislature in 2005, the
Alabama Limited Self-Governance Act allows a referendum on
granting county commissions the power to address nuisances
in unincorporated areas. The act restricts home rule to
litter, noise, sewage, junkyards, pollution, animal control
and overgrown weeds. The law does not give commissions the
power to levy taxes or pass zoning laws.
Sonny Brasfield, assistant director of
the Association of County Commissions of Alabama, said in
June 2006 the association's staff would develop procedures
and model laws for counties to follow in adopting their own
ordinances.
Brasfield said the association had tried
for 20 years to get home rule passed for local government.
The association succeeded when it excluded the taxation and
land zoning issues from the bill and dealt only with health
and safety.
Paul Brothers of the Marshall County
Citizens for Property Rights told the commission in May that
the group wants the junk ordinance repealed because it takes
away property owners' rights. He said if county voters knew
what they were voting for in the 2006 referendum that gave
the commission limited home rule it wouldn't have passed. |
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a) an automobile is being retained primarily as an antique
collector’s item and
is registered under state law as an antique vehicle; or
b) the junk is completely screened from public view through the use
of fencing, landscaping, berms or other acceptable means that block
the items from public view; or
c) the junk is being stored on land that is properly licensed as a
junkyard business under Alabama’s licensing laws and is completely
screened from public view through the use of fencing, landscaping,
berms or other acceptable means that block the items from public
view; or
d) the junk is being stored in an enclosed building which is not in
violation of any other state, local or federal regulations; or
e)
the junk has been stored on the property for less than 30 days.
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Inserted for Reader Clarity
- not a section in this ordinance
Code of Alabama defines a
'nuisance' is anything that works hurt, inconvenience, or damage
to another. The fact that the act done may otherwise be lawful
does not keep it from being a nuisance. The inconvenience
complained of must not be fanciful, or such as would affect
only one of a fastidious taste, but it should be such as
would affect an ordinary reasonable man.
Opinion:
The reasonable man is a phantom
reflecting a certain ideal on the part of the tribunal, whether
judge or jury or as the case of the Marshal County Junk
Ordinance, it seems to solely be the opinion of the Junk
Enforcement Officer. Generally, the ordinary reasonable
man is a personification of
the governments social judgment and, therefore, does not exist
in reality and cannot, therefore be used as a measure of
standard behavior. |
Section 5 -- Investigation and Enforcement
The Marshall County Commission shall appoint one or more persons as
Ordinance Enforcement Officer [hereinafter “Officer”] charged with
the administration and enforcement of the provisions of this
Ordinance. This officer may be an employee of the county or may be
someone performing these duties under contract with the county
commission. Such officer shall patrol the unincorporated areas of
the county on a regular basis in an effort to monitor for compliance
with this Ordinance by the citizens of the county. Additionally, any
citizen with a complaint alleging a violation of one or more of the
provisions of this Ordinance may contact the officer and request
that the matter be investigated. The officer shall only investigate
upon a citizen complaint where sufficient information is provided
and where the citizen provides the officer with his or her name,
address, and telephone number and agrees to sign a formal written
complaint, if requested to do so. For the purpose of discharging the
duties imposed by this Ordinance and to enforce its provisions and
abate a nuisance as determined by the Marshall County Commission,
the officer is empowered to enter upon any premises upon which junk
is maintained in a manner that is consistent with the creation of a
public nuisance as defined in Code of Alabama 1975, § 6-5-120 and §
6-5-121, but only as necessary to investigate any alleged violation
of this Ordinance or to issue notices and citations for any
violation thereof. Whenever the officer ascertains that junk is
present upon the premises in such manner as to be a public nuisance,
he or she shall cause a notice of sufficient size and
weatherproofing to be placed upon the property. In addition to said
posting, he or she shall mail such notice by certified mail, return
receipt requested, to the owner of the premises upon which the junk
is located as shown by the county's real estate tax records and to
the address of the premises on upon which the junk is located. The
Notice required shall be substantially in the following form:
NOTICE TO THE OWNER
AND ALL PERSONS INTERESTED IN THE ATTACHED PROPERTY.
This property located at (set forth street address and brief
description of property location) contains improperly stored junk
creating a public nuisance in violation of Section 4 of Marshall
County Ordinance No. ___. Said junk, consisting of (provide brief
description of the junk), must be removed or properly stored
within ten (10) days from the date of this notice. If said junk is
not removed or properly stored within ten (10) days from the date
of this notice as required under Section 4 of Marshall County
Ordinance No. ___, a citation for violation of said Ordinance
shall be issued to the owner of this property who shall be subject
to fines and to administrative fees equal to any costs incurred by
Marshall County in the abatement of said junk nuisance. Any
questions regarding this notice should be directed to (insert name
telephone number of Ordinance Officer).
Such notice shall not be
less than eight (8) inches by ten (10) inches and shall be
sufficiently weatherproof to withstand normal exposure to the
elements for a period of ten (10) days. If the junk described in the
notice is removed or properly stored within ten (10) days after
posting of the notice, there shall be no citation issued and no
fines or administrative fees assessed. However, if a second
violation of this Ordinance is found on the same property within
twelve months from the date of notice of the first violation, the
owner of the property upon which the violation is found shall be
issued a citation as provided herein and shall not be granted the
opportunity to avoid payment of fines and administrative fees by
abating the nuisance prior to issuance of the citation. If at the
end of ten (10) days after posting such Notice, the owner of the
property upon which the junk described in such notice is located has
not removed or properly stored the junk, the Officer shall issue a
citation to the owner in a form approved by the Marshall County
Commission, which citation shall state with specificity: a) the
alleged violation for which the citation is issued; b) the process
and procedures for abatement of the public nuisance and payment of
any assessed fines and administrative fees; c) information advising
that the matter will be presented to the Marshall County Commission
for consideration of the alleged violation and fines and
administrative fees; and d) information regarding the owner’s right
to appear before the Marshall County Commission when it considers
the alleged violation and fines and administrative fees and appeal
the issuance of the citation. Copies of all notices and citations
shall be provided to the Marshall County Commission, which shall set
a date for action on the citation no less than 45 days following the
issuance of the citation. The property owner shall be notified by
certified mail, return receipt requested, of the date, time, and
place of the County Commission meeting at which action will be
taken. Notice shall also be posted in a public location within the
courthouse. When considering action on the citation, the officer
shall present to the Marshall County Commission all relevant
information supporting the citation. The owner of the property shall
also be given the opportunity to speak and to contest the issuance
of the citation should he or she be present at the meeting.
Following the receipt of information from the officer as well as
from the property owner, the Marshall County Commission shall take
action on the citation, which shall include a determination that the
presence of junk on the property constitutes a public nuisance which
has not been properly abated or that the citation should be
dismissed.
Section 6 -- Corrective Action
If the Marshall County Commission determines that the presence of
junk constitutes a public nuisance which has not been properly
abated, the owner of the property shall be subject to a fine for the
determination of the nuisance of not more than $150 and an
administrative fee equal to the amount expended thus far by the
county in enforcing this Ordinance. Following such determination,
the following shall apply for the abatement of the continuing
nuisance.
1. The owner shall be
given thirty (30) days to eliminate the nuisance and avoid the
assessment of additional administrative fees equal to the cost of
the county abating the nuisance by either: a) Taking all action
necessary to qualify under one of the exceptions listed in Section
4, or b) Removing the junk to the satisfaction of the Officer The
owner shall notify the Officer immediately of the date on which he
or she believes that the nuisance has been abated. The Officer
shall then verify that appropriate action has been taken and
report accordingly to the Marshall County Commission. Each day in
which the violation is not abated as provided herein shall
constitute a separate public nuisance and subject the owner to
additional fines in the amount of $150 per day. Upon verification
by the Officer that the nuisance has been properly abated, the
Officer shall advise the owner of the additional amount due for
fines as set out herein, and upon the payment of all assessed
fines and administrative fees, the matter shall be closed.
2. If the nuisance is not
abated by the owner within thirty (30) days of the determination
of the nuisance by the Marshall County Commission, the Officer
shall take steps necessary to abate the nuisance. An
administrative fee equal to the cost of such abatement, plus the
fine of $150 per day from the date of the determination of the
nuisance to the date of its abatement shall be assessed against
the property owner. All fines and administrative fees shall be
paid to the administrator of Marshall County who shall provide the
Officer with verification of all payments made. In addition to all
other remedies available pursuant to this Ordinance, in the event
that an owner who has been assessed fines and administrative fees
for the violation of any provision of this Ordinance fails to pay
such fines and administrative fees due within thirty (30) days of
issuance, the officer may, on behalf of the county, bring action
against the owner for the unpaid fines and administrative fees in
the Marshall County Circuit Court.
Section 7 -- Records
It shall be the duty of the Officer to keep, or cause to be kept,
accurate and detailed records of:
a) The impoundment and
disposition of all junk coming into the officer’s custody;
b) All incidents and
investigations conducted under this Ordinance, including but not
limited to, all notices and citations issued, all correspondence
to and from persons noticed or cited under this Ordinance, and
minutes of all county commission proceedings relevant to any and
all notices and citations issued; and
c) All monies collected
and expended in the administration and enforcement of this
program. All such records shall be open to the public for
inspection at reasonable times, shall be available to such persons
responsible for similar records of the county, and shall be
audited in the same manner as other county records are audited
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