AGENDA #4n

MEMORANDUM

TO:                  Mayor and Town Council

FROM:            W. Calvin Horton, Town Manager

SUBJECT:       Post-towing Hearings for Junked Cars

DATE:             August 28, 2000

The attached ordinance would clarify that the post-towing hearing procedure currently available for vehicles towed for parking and other ordinance violations also applies to vehicles which are towed as health or safety hazards.

DISCUSSION

In response to recent concerns raised by citizens, particularly in the Northside community, Town staff has begun inspecting  private property looking for abandoned, junked vehicles. 

Under Section 11.26 of the Town Code, upon determining that a junked vehicle constitutes a health or safety hazard, the Town may tow a vehicle from private property.  Several such vehicles have been identified by Town staff and are likely candidates for towing by the Town in the near future. 

State law requires that a procedure be provided to allow a hearing after such a vehicle has been towed by the Town if an owner wishes to contest the Town’s actions. 

The Town has a hearing procedure in place for vehicles which are towed for traffic or parking violations.   Please see attached ordinance.  (Chapter 21, Article IIIA of Code of Ordinances.) 

The purpose of the proposed amendment to Section 11.26 of the Code is to clarify that this same hearing procedure is also available for owners of vehicles towed from private property, without the owners’ consent, as health or safety hazards.

We would propose to make reference to the hearing procedure in the notice placed on any vehicle prior to its being towed by the Town.  Under the procedure used by the Town, a notice would be placed on a vehicle for 30 days prior to its being removed from private property.  A copy of the notice is attached. 

RECOMMENDATION

That the Council enact the attached ordinance clarifying that the post towing hearing procedures apply to vehicles towed as health or safety hazards.

ATTACHMENTS

1.                  Chapter 21, Article IIA of the Town Code (p. 3).

2.                  Section 11.26 of the Town Code (p. 7).

3.                  Copy of Notice (p. 8).

ATTACHMENT 1

 ARTICLE IIIA. TOWING PROCEDURES*

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            *Editor's note‑‑Ord. No. 92-8-24/O-1, § 2, adopted Aug. 24, 1992, amended Art. IIIA to read as herein set out in §§ 21-18.2‑‑21-18.7. Prior to inclusion of said ordinance, Art. IIIA, §§ 21-18.2‑‑21-18.7 pertained to similar subject matter and derived from Ord. No. O-82-17, § 1, adopted March 8, 1992.

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Sec. 21-18.2. Towing of illegally parked vehicles.

(a)        The police and transportation departments of the Town of Chapel Hill are hereby authorized to remove to a storage garage or area any vehicle which has been left upon a street or highway or sidewalk within the town in violation of any state law prohibiting parking.

(b)        The police and transportation departments of the Town of Chapel Hill are hereby authorized to remove to a storage garage or area any vehicle which has been left upon a street or highway or sidewalk within the town in violation of any of the following provisions of the Town Code prohibiting or regulating parking:

The listing of specific sections in this subsection does not limit the authority of the town to tow and impound vehicles where that authority is otherwise specifically stated in a provision of state law or town ordinance.

(c)        The police and transportation departments of the Town of Chapel Hill are hereby authorized to remove to a storage garage or area any vehicle which has been left upon a street or highway or sidewalk within the town in violation of any other provision of the town Code prohibiting or regulating parking if, upon determination of a violation and checking of the records of the town, it is determined that there are four (4) or more outstanding violations of any town parking regulations for the same vehicle which have not been paid or otherwise cleared of record.

(d)        The police and transportation departments of the Town of Chapel Hill are hereby authorized to remove to a storage garage or area any vehicle which is parked in a town-owned parking lot in violation of any ordinance adopted regulating the parking in said lot; provided, however, that said lot is clearly marked by a sign no smaller than twenty-four (24) inches by twenty-four (24) inches, displayed at the entrance to said lot, stating the ordinance regulations with respect to that lot.

(Ord. No. 92-8-24/O-1, § 2)

Sec. 21-18.3. Post-towing notice procedures.

(a)        Whenever a vehicle has been removed, towed in and impounded under this article, the town manager or his designee shall immediately notify the last known registered owner of the vehicle. If the vehicle has a North Carolina registration plate or registration, notice shall be given to the owner within twenty-four (24) hours. If the vehicle is not registered in this state, notice shall be given to the owner within seventy-two (72) hours. This notice shall, if feasible, be given by telephone. Whether or not the owner is reached by telephone, notice shall be mailed by certified mail to his or her last known address unless the owner or the owner's agent waives this notice in writing. A record of the form and manner of notice to the owner shall be maintained in the town's records.

(b)        The notice required shall include the following:

            (1)        A description of the vehicle, including any license plate number;

            (2)        The location from which it was towed and the location where the vehicle is stored;

            (3)        A summary of this article, including the procedures for requesting a hearing and reacquiring possession of the impounded vehicle.

            (4)        A statement that the vehicle is alleged to have violated a traffic or parking ordinance of the town or state and the specific violation alleged;

(c)        If reasonable means fail to locate the owner or the owner's agent, the notice required by this section shall be given by publication in a newspaper of general circulation in Orange County.

(Ord. No. 92-8-24/O-1, § 2)

Sec. 21-18.4. Post-towing procedures for return of vehicle and hearing.

(a)        The owner of a vehicle impounded under this article, or his agent, may request an administrative hearing within seven (7) days after the delivery of the notice, or the equivalent publication thereof, or seven (7) days after he learns such vehicle has been impounded, whichever occurs first, to determine if there was probable cause to impound the vehicle under this article. The hearing shall be conducted before an official designated by the town manager, who shall not be any person who is in the chain of command of the town employee effecting the impoundment. The hearing shall be conducted as soon as possible, but in any event within forty-eight (48) hours after a request for it unless a later time is agreed to in writing by the person requesting the hearing.

Failure of the owner or his agent to request or attend a scheduled hearing shall waive his right to such hearing.

(b)        The hearing officer shall determine only if there was probable cause to impound the vehicle under the provisions of this article. "Probable cause to impound" shall mean such a state of facts as would lead a person of ordinary care and prudence to believe that there was a sufficient breach of local, state or federal law to grant legal authority for the removal of the vehicle and that all required procedures were followed. The person requesting the hearing shall have the burden of establishing his right to possession of the vehicle. The officer effecting the tow shall have the burden of establishing that there was probable cause to impound the vehicle.

The hearing officer shall render his decision in writing and provide a copy to the person requesting the hearing.

            (c)        (1)

If no probable cause is found, the hearing officer shall refund or cause to be refunded any bond previously posted and shall direct in writing that the vehicle be released from impoundment to its owner or his agent. If no probable cause is found, towing and storage fees shall be paid by the town in accordance with its contractual arrangements for such services. If the vehicle's owner or his agent fails to claim it from impoundment by 5:00 p.m. on the first working day after the date of the decision, he shall assume liability for all subsequent storage charges.

                        (2)        If probable cause is found to have impounded the vehicle, the hearing officer shall so notify the town manager or his designee in writing and shall direct that the vehicle be released only upon payment to the town of its towing and storage fees and related notification costs.

(d)        If no hearing is requested or if it is waived, the owner of an impounded vehicle or his agent may regain possession of the vehicle by paying to the town its towing and storage fees and related notification costs.

(e)        The owner of a vehicle impounded under this article, or his agent, may regain possession of it prior to the hearing by posting a cash bond in the amount of the town's towing and storage fees and related notification costs. The cash bond shall be forfeited to the town if such person does not request a hearing hereunder or if he fails to attend a scheduled hearing.

(f)         All witnesses at the hearing shall be sworn before a notary public or other such official authorized to administer oaths. The hearing officer's decision shall be based on material, substantial and competent evidence presented at the hearing. The owner or his agent shall be given the opportunity to present evidence and arguments and to ask questions of persons who testify. A record of the hearing officer's decision shall be made that contains his decision and a brief, concise statement of the reason for it.

(g)        Any decision of the hearing officer may be appealed to Orange County District Court as provided by N.C.G.S. Sec. 160A-303(d)(2)(c).

(Ord. No. 92-8-24/O-1, § 2)

Sec. 21-18.5. Storage and towing fees and related notification costs.

(a)        All storage and towing fees and related notification costs incurred by the town or imposed upon the owner of the vehicle or his agent as a result of its towing-in and impoundment shall constitute a lien upon such vehicle. The vehicle may not be released until these costs have been paid or until the owner or his agent has posted the appropriate bond under this article, unless the hearing official conducting a hearing under section 21-18.4 determines that no probable cause to tow and impound the vehicle exists.

(b)        In the event any vehicle towed under the provisions of this article is not returned to the owner following a hearing, or as a result of fees and charges being paid, the town may proceed to sell or otherwise dispose of said vehicle as authorized by N.C.G.S. Sec. 160A-303(d)(2)(e).

(Ord. No. 92-8-24/O-1, § 2)

Secs. 21-18.6, 21-18.7. Reserved.

ATTACHMENT 2

Sec. 11-26. Junked, dilapidated vehicles.

            It shall be unlawful for any person to allow or permit to remain on a lot owned, occupied or controlled by him, any exposed motor vehicle or part thereof in a junked or dilapidated condition for more than thirty (30) days after written notice by the town manager to remove same. Such notice shall not be given except upon a finding by the health department or the building inspector that such situation exists and constitutes or will be likely to constitute a health or safety hazard. Health or safety hazard as used herein shall include, but not be limited, to the accumulation of rubbish, underbrush, or weeds around said vehicle, the presence of snakes, rats or other similar animals, the accumulation of stagnant water therein so as to serve as a breeding ground for insects, or such physical conditions as may be likely to cause injury to persons coming in contact therewith.

            In the event said junked or dilapidated vehicle or part thereof is not removed within said thirty (30) day period, the town manager shall have the authority to remove and dispose of same.

(Ord. of 9-11-67, § 1)

            Cross reference(s)‑‑Traffic, Ch. 21.

            State law reference(s)‑‑Junked, abandoned vehicles, G.S. § 160-200 (43), (44).