HomeMy WebLinkAbout04/06/2010 15 Chronic Nuisance Properties - Set Public Hearing DateBUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
ITEM NO. k' i.S
FOR MEETING OF: April 6, 2010
ITEM TITLE: Set date of Public Hearing for April 20, 2010, to consider a "Chronic Nuisance
Properties" ordinance
SUBMITTED BY: Dick Zais, City Manager
Jeff Cutter, City Attorney
CONTACT PERSON / TELEPHONE: Jeff Cutter, City Attorney, 575-6030
SUMMARY EXPLANATION:
At the January 20, 2010 Council Public Safety Committee meeting, the committee
recommended forwarding a draft "chronic nuisance property" ordinance to the full Council for
review in a study session. This took place on March 30, and following a lengthy discussion,
Council agreed to move this forward to a public process to gain citizen input on the subject.
The draft ordinance is modeled after an ordinance that was recently enacted by the City of
Seattle to address the existence of certain properties within the city that have been associated
with recurring illegal or undesirable occurrences.
Resolution Ordinance_ Contract _ Other (Specify)
Funding Source
APPROVAL FOR SUBMITTAL: �L
—_—)City Manager
STAFF RECOMMENDATION: Set the date -for a public hearing on April 20., 2010, to consider a
"chronic nuisance property" ordinance.
BOARD RECOMMENDATION: The Council Public Safety Committee recommended
forwarding the draft ordinance to the full Council for review.
COUNCIL ACTION:
•
MEMORANDUM
TO: Honorable Mayor Cawley and City Council Members
Dick Zais, City Manager
FROM: Jeff Cutter, City Attorney
DATE: March 25, 2010
SUBJ: Draft Chronic Nuisance Property Ordinance for Council Study Session
The attached Draft Ordinance is provided at the City Council's request for consideration as
a proposed means of addressing the existence of certain properties within the city that have
been associated with recurring illegal or undesirable occurrences. The draft ordinance is
modeled after an ordinance that was recently enacted by the City of Seattle to address
similar concerns. This draft was reviewed by the Public Safety Committee on January 20,
2010 and at that meeting it was decided that the ordinance should be reviewed by the full
Council during a study session. No other recommendation was made by the Committee at
that time. There have been several minor revisions to the draft since that meeting, most
noteworthy of which is a change in the responsible City official from the Codes Manager to
the Chief of Police.
The proposed ordinance creates a new definition for what are considered "chronic nuisance
properties" and provides a process by which those properties may be abated to stop the
undesirable occurrences that give rise to that classification. It has been the view that these
"chronic nuisance properties" present a public health, safety and welfare concern toward
the City's residents that the City must address. The concepts proposed by this ordinance
are relatively untested within Washington and the opportunity for guidance from Seattle's
experience is limited at this point. The ACLU has initially indicated that its view of the
action proposed by the ordinance is over -reaching.
The draft ordinance provides definitions for its application and interpretation, specific
notice requirements to inform those associated with a problem property of the concerns and
actions necessary to address them, opportunities for the "person in charge" to cooperatively
respond to the problem and ultimately provides remedies, including judicial action, to
address instances where compliance is not accomplished voluntarily. The draft ordinance
also establishes an annual reporting requirement whereby City staff must fully advise the
City Council of the properties subject to the operation of the ordinance during a given year
and what the outcome of the City's action was.
Finally, to address the proposed remedies associated with business licensing and operation
of properties determined to be "chronic nuisance properties" when licensing is required, the
proposed ordinance adds two sections to YMC Title 5, the business licensing Title, to
authorize denial or revocation of a business license if a property owner fails to comply with
the City's abatement requirements.
It is important to be aware that the utilization of this proposed ordinance will result in
economic and personnel costs associated with the required notices involved, title searches
to identify property owners, and the administrative obligations necessary to comply with
lawful process. Ultimately, litigation is also a distinct possibility as a result of applying the
ordinance.
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ORDINANCE NO. 2010 -
AN ORDINANCE relating to abatement of and penalties, including license
suspension or revocation, for public nuisances; amending
Title 11 of the Yakima Municipal Code entitled
"BUILDINGS", adding a new Chapter 11.45 entitled "Chronic
Nuisance Properties"; and adding Yakima Municipal Code
Sections 5.01.060 and 5.01.070 as a new Sections.
WHEREAS, RCW 35.22.280 empowers first class cities to define and
abate nuisances and impose fines upon' persons responsible for creating or
allowing nuisances; and
WHEREAS, the Yakima City Council finds that people should be able to
enjoy ownership, use and possessionof property without the negative impacts
caused by chronic nuisance properties; and
WHEREAS, some persons who own or control property in the City of
Yakima allow their properties to be used for illegal purposes, with the result that
these properties have become chronic nuisance properties; and
WHEREAS, the current nuisance provisions of Yakima Municipal Code
do not provide adequate tools for abating chronic nuisances resulting from the
use of properties for illegal purposes; and
WHEREAS, chronic nuisance properties present serious health, safety
and welfare concerns and interfere with the quality of life, comfort and solitude of
other persons residing in the neighborhood; and
WHEREAS, chronic nuisance properties cause a financial burden upon
the City by the numerous calls for service to the properties because of the illegal
activities that repeatedly occur or exist on such properties; Now, Therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Section 11.45 entitled "Chronic Nuisance Properties" is added as a new Section
to the Yakima Municipal Code and reads as follows:
CHAPTER 11.45 CHRONIC NUISANCE PROPERTIES
Sections:
11.45.010 Definitions.
11.45.020 Violation.
11.45.030 Declaration of Chronic. Nuisance Property and
Procedure.
11.45:035 Owner Cooperation.
11.45.040 Correction Agreement.
11.45.050 Penalties.
11.45.060 Commencement of Action --Enforcement.
11.45.070 Burden of Proof.
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11.45.080 Remedies.
11.45.085 Additional remedies.
11.45.090 Suspension or Revocation of Business License.
11.45.010 Definitions For purposes of this chapter, the following words or
phrases shall have the meaning prescribed below:
"Abate" means to repair, replace, remove, destroy, or otherwise remedy a
condition which constitutes a violation of this chapter by such means and in
such a manner and to such an extent as the Chief of Police determines is
necessary in the interest of the general health, safety and welfare of the
community.
"Chief of Police" means the Chief of the Yakima Police Department or his or
her designees.
"Control" means the power or ability to direct or determine conditions, conduct,
or events occurring on a property.
"Chronic nuisance property" means:
A. a property on which three or more nuisance activities as described in
YMC 11.45.010(5) exist or have occurred during any sixty-day period or seven
or more nuisance activities have occurred during any twelve-month period, or
B. a property which, upon a request for execution of a search warrant,
has been the subject of a determination by a court two or more times within a
twelve-month period that probable cause exists that illegal possession,
manufacture or delivery of a controlled substance or related offenses as
defined in RCW Chapter 69.50 has occurred on the property.
"Nuisance activity" includes:
A. a "most serious offense" as defined in RCW 9.94A;
B. a "drug related activity" as defined in RCW 59.18.130;
C. any of the following activities, behaviors or criminal conduct:
Assault, Fighting, Harassment or Reckless Endangerment, as
defined in YMC Title 6;
Promoting, advancing or profiting from prostitution as defined in
Chapter 9A.88 RCW;
Prostitution, as defined in YMC Title 6;
Permitting Prostitution, as defined in YMC Title 6;
Obstructing pedestrian or vehicular traffic, as defined in YMC Title
6;
Public Disturbance Noise, as defined in YMC Title 6;
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Weapons violations, as defined in YMC Title 6 or the Revised Code
of Washington;
Drug Traffic Loitering and/or Loitering for purposes of Prostitution,
as defined in YMC Title 6;
Criminal street gang -related offense and/or pattern of criminal
street gang activity, as defined in YMC Title 6.
"Owner" means any person who, alone or with others, has title or interest in
any property.
"Person" means an individual, group of individuals, corporation, partnership,
association, club, company, business trust, joint venture, organization, or any
other legal or commercial entity or the manager, lessee, agent, officer or
employee of any of them.
"Person in charge" of a property means the owner and, if different than the
owner, any other person in actual or constructive possession of a property,
including but not limited to, a lessee, tenant, occupant, agent, or manager of a
property under his or her control.
"Property" means any land and that which is affixed, incidental or appurtenant
to .land, including but not limited to any business or residence, parking area,
loading area, landscaping, building or structure or any separate part, unit or
portion thereof.
"RCW" means the Revised Code of Washington.
"YMC" means the Yakima Municipal Code.
11.45.020 Violation.
A. Any property within the City of Yakima which is a chronic nuisance
property is in violation of this Chapter and subject to its remedies;
B. Owners and other persons in charge who permit property to be a chronic
nuisance property shall be in violation of this chapter and subject to its
remedies; and
C. An owner who fails to comply with YMC 11.45.035 is in violation of this
chapter and may be subject to penalties pursuant to YMC Chapter 5.52.
11.45.030 Declaration of Chronic Nuisance Property and Procedure.
A. The Chief of Police may declare that a property is a chronic nuisance
property, as defined in this chapter, when there are specific facts and
circumstances documenting (1) the occurrence of three or more nuisance
activities on a property within sixty days or seven or more nuisance activities
within a twelve month period, or (2) activity on a property as described in YMC
11.45.010(4)(b). The Chief of Police shall provide written notice of this
declaration to the persons in charge of the property. The notice shall be sent
by first class mail or personally served, and a copy shall, be sent by certified
mail. The notice shall contain:
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1. the street address or a legal description sufficient for identification
of the property;
2. a declaration that the Chief of Police has determined the property
has become a chronic nuisance property with a concise description of the
nuisance activities that exist or that have occurred;
3. a notice that the owner and other persons in charge of the property
are subject to monetary penalties as set forth in YMC 11.45.050.
4. a demand that the owner and other persons in charge respond to
the Chief of Police within seven days of service of the notice to discuss a
course of action to correct the nuisance;
5. a notice that, if the person in charge does not respond to the Chief
of Police as required in this section, or if the matter is not voluntarily corrected
to the satisfaction of the Chief of Police, the City may file an action to abate the
property as a chronic nuisance property pursuant to YMC 11.45.060 and/or
take other action against the property or person in charge.
B. When a notice is issued pursuant to this section to a person in charge,
other than an owner or an owner's agent, who has permitted a property to
become a chronic nuisance property, a copy of such notice shall also be sent
by first class mail or personally served on the owner of the property, and a
copy shall be sent by certified mail.
C. If the owner or person in charge responds as required by the notice
issued pursuant to YMC 11.45.030A and agrees to a course of action to abate
the nuisance activities, a written correction agreement conforming to the
requirements of YMC 11.45.040 shall be executed.
D. If (1) the agreed course of action does not result in the abatement of
nuisance activities to the satisfaction of the Chief of Police within thirty days of
issuance of the notice pursuant to YMC 11.45.030A, or within such longer
period as permitted in writing by the Chief of Police or (2) the person in charge
fails to respond as required by the notice, the Chief of. Police may refer the
matter to the City Attorney for initiation of proceedings pursuant to
YMC 11.45.060.
11.45.035 Owner Cooperation.
An owner who receives a copy of a notice pursuant to YMC 11.45.030B
describing a chronic nuisance property permitted by a person in charge other
than the owner or the owner's agent, shall promptly take all reasonable steps
requested in writing by the Chief of Police to assist in abatement of the
nuisance property. Such reasonable steps may include the owner taking all
actions and pursuing all remedies, including pursuing eviction of the person in
charge, that are (1) available to the owner pursuant to any lease or other
agreement, and (2) consistent with state and local laws, including but not
limited to RCW 59.18.580, the Victim Protection Limitation on Landlord's
Rental Decisions.
11.45.040 Correction Agreement.
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A. A correction agreement is a contract between the City and the person in
charge of the chronic nuisance property in which such person agrees to
promptly take all lawful and reasonable actions, which shall be set forth in the
agreement to abate the nuisance activities within a specified time and
according to specified conditions. The agreement shall be signed by the
person in charge and, if different, the owner. The agreement shall include the
following:
1. The name and address of the person(s) in charge of the property;
2. The street address or a description sufficient for identification of the
property, building, structure, or land upon or within which the nuisance is
occurring;
3. A description of the nuisance activities;
4. The necessary corrective action to be taken, and a date or time by which
correction must be completed;
5. An agreement by the person in charge that the City may inspect the
property as may be necessary to determine compliance with the correction
agreement;
6. An agreement by the person in charge that the City may abate the
nuisance and recover its costs, expenses and monetary penalties pursuant to
this chapter from the person in charge for abating the nuisance if the terms of
the correction agreement are not met; and
7. When a person in charge, other than an owner or an owner's agent, has
permitted a property to be a chronic nuisance property, an agreement by the
owner to promptly take all acts and pursue all remedies requested by the Chief
of Police pursuant to YMC 11.45.035.
11.45.050 Penalties.
A. Except as provided in this section, in addition to any other sanction or
remedial procedure that may be' available, the person in charge is subject to a
penalty of up to $500 dollars per day from the date of the notice issued
pursuant to YMC 11.45.030A until the Chief of Police confirms that the
property is no longer a chronic nuisance property.
B. If the agreed course of action results in the abatement of nuisance
activities to the satisfaction of the Chief of Police within thirty days of the notice
issued pursuant to YMC 11.45.030A, or such longer period allowed by the
Chief of Police pursuant to YMC 11.45.030D, the matter shall not be referred
to the City Attorney and the person in charge shall not be subject to any
penalty pursuant to this Chapter.
C. An owner who fails to comply with YMC 11.45.035 is subject to a civil
penalty of up to $25,000.
11.45.060 Commencement of Action --Enforcement.
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Upon referral pursuant to YMC 11.45.030, the City Attorney mayinitiate an
action in any court of competent jurisdiction to abate a chronic nuisance
property, to impose penalties pursuant to this chapter, to seek alternative
remedies under city or state laws and seek any other relief authorized by law.
11.45.070 Burden of Proof.
In an action against a person in charge to abate a chronic nuisance property
or to recover penalties authorized by this chapter, the City shall have the
burden of proof to show by a preponderance of the evidence that the property
is a chronic nuisance property pursuant to this chapter.
In an action against an owner to recover penalties authorized by
YMC 11.45.050D, the City shall have the additional burden to prove by a
preponderance of the evidence that the owner failed to comply with
YMC 11.45.035. Copies of police incident reports and reports of other city
departments documenting nuisance activities shall be admissible in such
actions. Additionally, evidence of a property's general reputation and the
reputation of persons residing in or frequenting the property shall be
admissible in such actions.
11.45.080 Remedies.
A. If the Court determines a property is a chronic nuisance property pursuant
to this chapter the court may order any of the following: (1) order the person in
charge to immediately abate nuisance activity from occurring on the property,
(2) order that the Chief of Police shall have the right to inspect the property to
determine if the court's orders have been complied with, (3) impose a penalty
of up to $500 per day against the person in charge for each day from the date
the notice pursuant to YMC 11.45.030A was issued until the Chief of Police
confirms that the property is no longer a chronic nuisance property, (4) make
any other order that will reasonably abate nuisance activities from occurring on
the property, including authorizing the City to take action to abate nuisance
activities from occurring upon the property if other court orders are not
complied with or do not abate nuisance activity on the property and providing
that the costs of such City action are to be paid for by the person in charge of
the property.
B. If the court finds that an owner failed to take all reasonable steps
requested in writing pursuant to YMC 11.45.035, the court may impose a civil
penalty up to $25,000.
11.45.085 Additional remedies.
A. In addition to the remedies authorized by YMC 11.45.080, if as part of its
order abating a chronic nuisance property, the court orders a person in charge
to cease renting or leasing a property, the court may order the person in
charge to pay relocation assistance not to exceed $3,300 to any tenant (1) who
must relocate because of the order of abatement, and (2) the court finds not to
have caused or participated in nuisance activities at the property.
B. For purposes of this section, YMC 11.45.085, the term "tenant" shall have
the meaning as set forth in RCW 59.18.030(8).
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11.45.090 Suspension or Revocation of Business License.
In addition to any other remedy that is authorized by this chapter or other
laws, upon the finding by a court that a property is a chronic nuisance property
pursuant to this chapter, the person in charge is subject to the suspension or
revocation of a business license or other license issued by the City and
required at such property, including, but not limited to licenses issued pursuant
to YMC Title 5.
YMC 11.45.090 Annual Reporting Required.
The Chief of Police, with assistance of the City Attorney, shall provide an
annual report on the implementation of this ordinance. The report shall list
each instance in which the Chief of Police declared a property to be a chronic
nuisance property and provided written notice to the persons in charge of the
property. For each instance, the report shall describe:
A. The location and use of the property (i.e., whether residential or
commercial, and if residential the number of units, and if commercial, the size
and nature of the commercial use).
B. The nuisance activities on which the declaration was based.
C. The administrative and legal process resulting from the notice, including:
1). whether the notice resulted in a written correction agreement;
2) whether the notice resulted in the abatement of nuisance activities to the
satisfaction of the Chief of Police; and, if not,
3) whether the Chief of Police referred the matter to the City Attorney for
initiation of proceedings; and, if so,
4) whether the City Attorney initiated proceedings; and, if so,
5) whether a court determined the property to be a chronic nuisance
property; and, if so,
6) what orders the court made, including penalties, other orders to abate the
nuisance activities, or relocation assistance to tenants; and
7) whether the City revoked any business licenses on the property.
D. A summary of the consequences of the declaration to date, including
actions taken by persons in charge to abate the nuisance activities, whether
these included the eviction of tenants, and whether the nuisance activities
appear to be permanently abated.
The report shall also include brief assessments by the Chief of Police and the
City Attorney on the overall effectiveness of the ordinance in reducing the
problems resulting from chronic nuisance properties.
The Chief of Police and City Attorney shall provide the report to the City
Council in February of each year on the chronic nuisance property declarations
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in the prior calendar year. Any declarations not fully resolved by the end of the
calendar year shall be described again in the following year's report.
Section 2. Yakima Municipal Code Section 5.01.060 is hereby added as a new Section, to
read as follows:
5.01.060 Revocation of, or Refusal to Renew Business License.
A. The codes administration manager, or his or her designee, has the power
and authority to deny, revoke or refuse to renew any business license issued
under the provisions of this Title. The codes administration manager, or his or
her designee, shall provide notice to said licensee in writing by certified mail of
the denial or revocation of, or refusal to renew, his or her license and. on what
grounds such a decision was based. The codes administration manager may
deny, revoke or refuse to renew any license issued under this Title on one or
more of the following grounds:
1. The license was procured by fraud or false representation of fact.
2. The licensee has failed to comply with any provisions of this chapter.
3. The licensee has failed to comply with any provisions of this Title.
4. The licensee is in default in any payment of any license fee or tax required
by this Title.
5. The property at which the business is located has been determined by a
court to be a chronic nuisance property as provided in YMC 11.45.
6. Upon the conviction of the person holding such a license of a felony or
misdemeanor involving moral turpitude or an intent to defraud, or the
conviction of any agents or employees of any felony, or misdemeanor involving
an attempt to defraud committed while acting within the scope of their
employment.
7. If the licensee, any of his/her servants, or agents or employees, while
acting within the scope of their employment:
a. violates any law or ordinance relating to:
1) the sale or possession of intoxicating liquor;
2) the use, possession, or sale of narcotic drugs;
3) discrimination against any person because of religion, race, age, political
ideology, creed, ancestry, color, national origin, sex, sexual orientation, gender
identity, marital status, or the. presence of any sensory, mental or physical
handicap; or
4) public morality and decency;
5) conducting the business or activity for.which such license was issued in a
disorderly or improper manner;
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6) the business or activity for which such license was issued.
b. is of unfit character to conduct the business or -activity.
4. If the purpose for which the license was issued is being abused to the
detriment of the public.
5. If such license is being used for a purpose different from that for which it
was issued.
6. If the licensee is in default in any payment of any fee or tax required under
YMC Title 3 or Title 5.
7. If the property at which the business is located has been determined by a
court to be a chronic nuisance property as provided in YMC Chapter 11.45.
B. No license issued under YMC Title 5 shall be revoked, denied or refused
renewal by the codes administration manager except in accordance with the
procedure and on the grounds provided in this Title. Parties aggrieved by the
codes administration manager's decision to revoke, deny or refuse renewal of
a license issued under this Title shall have the same opportunity for appeal,
under the same procedure as is described in YMC 5.52.120.
The period of denial, revocation or non -renewal shall be at least one year,
and the licensee or any person (as defined in YMC Section 5.52.020) in which
the licensee is a principal shall not again be licensed during such period.
Section 3. Yakima Municipal Code Section 5.01.070 is hereby added as a new Section to
read as follows:
5.01.070 License -- Denial, Revocation, or Refusal to Renew --Grounds.
A license may be denied, revoked, or not renewed for violation of any
ordinance or law that regulates licensed activity in order to further the public
interest in public health, safety, and welfare. A license .may also be denied,
revoked, or not renewed upon a finding that any applicant or licensee, or any
owner, officer or agent thereof:
A. Has omitted to disclose any material fact necessary to make a statement
not misleading, in any application for the license; or
B. Has charges pending against her/him or has been convicted of a crime or
offense that directly relates to the activity for which the license is required, and
the time elapsed since the date of conviction or release from jail or prison,
whichever is more recent, is less than ten years; or has been convicted of
several crimes including at least one within the last ten years; provided,
however, that any licensee whose license is revoked because of charges
pending against her/him may engage in the activity for which the license is
required, pending a final decision on the charges; or
C. Has been subject to an adverse finding in any judgment or order which
directly relates to the activity for which the license is required, in any judicial or
administrative proceeding in which fraud, deceit, coercion, breach of trust,
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unfair method of competition, unfair or deceptive trade act or practice, or
assertion of unconscionable contractual provisions, or other similar act,
practice, or conduct, on the part of the licensee -applicant is proven, and the
time elapsed since the judgment or order is Tess than ten years; or
D. Has violated or failed to comply with any applicable provisions of this Code
or rule or regulation prescribed under this Title; provided, that failure to obtain
a license shall not be grounds for license denial; or
E. Is in default in any payment of any fee or tax required under Title 3 or Title
5 of the Yakima Municipal Code; or
F. Has been subject to an adverse finding in any judgment or order, in any
judicial or administrative proceeding for violation of any provision of a City
ordinance or rule or regulation prescribed thereunder pertaining to fire,
building, health, sanitation, zoning, weights and measures, consumer
protection, environmental protection, or any other ordinance or law and that is
applicable to the licensed activity or licensed premises; or
G. Has been determined to have discriminated against any person because
of race, color, age, sex, marital status, sexual orientation, gender identity,
political ideology, creed, religion, ancestry, national origin, or the presence of
any sensory, mental, or physical handicap, in the course of licensed activity, in
violation of a City ordinance, law, rule or regulation prescribed thereunder; or
H. Has violated or failed to comply with any final order of the codes
administration manager or Hearing Examiner; or
I. Has failed to complete the application for a license as required by this
Code; or
J. Has failed to obtain a license or permit required by state or other law
necessary to engage in the licensed activity; or
K. Has failed to comply with RCW Chapters 49.12 and 28A.28, and rules and
regulations promulgated pursuant thereto, regarding employment of minors; or
L. Any licensee has permitted or authorized his/her agent to violate or fail to
comply with any provision of this Code; or
M. The property at which the business is located has been determined by a
court to be a chronic nuisance property as provided in YMC Chapter 11.45.
Section 4. Severability. Each separate provision of the ordinances set forth herein
shall be deemed independent of all other provisions. If any provision of YMC Chapters 11.45,
5.01.060 or 5.01.070, or any part thereof, be declared invalid, all other provisions, • or parts
thereof, shall remain valid and enforceable.
Section 5. This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter.
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PASSED BY THE CITY COUNCIL, signed and approved this _ day of ,2010.
ATTEST: Micah Cawley, Mayor
City Clerk
Publication Date:
Effective Date:
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