Ordinance Review - July 9th 2013

ORDINANCE REVIEW COMMITTEE
MEETING MINUTES
Mayfield
Village
July 9, 2013    

The Ordinance Review Committee met in regular session on Tues, July 9, 2013 at 5:00 p.m. at the Mayfield Village Civic Center Conference Room. Chairman Bill Marquardt presided.       

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ROLL CALL:

Present: Mr. Bill Marquardt (Chairman), Mr. Jerry Catalano, Mrs. Mary Ann Wervey, and Mr. John Marrelli

Also Present: Ms. Diane Calta (Law Department) and Ms. Deborah Garbo (Secretary)

Absent: Dr. Stephan Parker (Council Alternate) and Mr. Tom Cappello (Village Engineer)

CONSIDERATION OF MEETING MINUTES:  May 14, 2013            

Mrs. Wervey, seconded by Mr. Catalano made a motion to approve the minutes of May 14, 2013.         

ROLL CALL

Ayes: All                               

Nays: None                           

Motion Carried. Minutes Approved As Written. 

PROPOSALS:

  1. Dangerous, Nuisance & Vicious Dogs
    Section 505.11
    (Law & Police Dept)
  2. Dangerous, Dead Trees
    Section 1353.07; Exterior Property Areas
    (Bldg & Service Dept)

 

OPEN PORTION:

Chairman Marquardt called the meeting to order beginning with vicious dogs.

Dangerous, Nuisance & Vicious Dogs

Ms. Calta said following up on our discussion at the last meeting on what had happened at the State level and the amendments back in 2012, I took a look at other communities. They were making some revisions to their ordinances. I then talked to our Police Chief and looked at this whole line of thinking that Pit Bulls being designated by breed as vicious and why it was being taken out of the law.

The Committee’s concern was, why would we take it out? It seems like we’d have more protection if we kept it in. What’s happening is believe it or not, there’re very strong advocates for certain breeds. They’re going around and attacking ordinances that specify breeds as being vicious without any protocol, just because of their breed. Knowing that and knowing there’s a chance leaving it on the books would cause problems with its enforcement and looking what the State did, looking at what we had, it seemed to make more sense to put in place what mirrors the State Code.

You have 3 levels of dogs; Nuisance Dogs, Dangerous Dogs & Vicious Dogs. There’re definitions for each of those. Nuisance being the least, vicious being the worse and dangerous being in between.

I talked to the Prosecutor about it too. Lyndhurst is doing this with other communities where they’ll designate your dog as nuisance, dangerous or vicious and they keep track of that. If there are additional offenses at any level, it becomes increasingly more severe as far as penalties, up to the point where a vicious dog can be immediately destroyed. You’re also looking at a felony of the 4th degree. 

Mr. Marrelli asked if these labels are put on the animal after it’s attacked vs. by perception.

Ms. Calta replied yes, by what happens. That’s why it’s important any incident gets recorded. 

Chairman Marquardt asked who classifies the dog.

Ms. Calta said the court does, based on events. The Chief was not able to be here tonight, but one of his points was that it mirrors the State Law. I took our ordinance and everything I added is in green, everything I deleted is on the right. 

Mr. Marrelli commented that if it’s dangerous or vicious it still has to be heavily chained or locked in a pen.

Chairman Marquardt said that’s after the incident/event. It’s not proactive.

Mr. Marrelli asked, this is because Pit Bulls are stereotyped and they have a good advocacy group?

Ms. Calta said we no longer define vicious dog to immediately and automatically include a Pit Bull, but there’s still Section 505.13 RUNING AT LARGE.

Chairman Marquardt said main thing is this is a reactive adjustment of the law.

Ms. Calta said by taking out the definition of Pit Bull under vicious, I wouldn’t classify it as that, but it does give more teeth though because of the lingering effect. A dangerous dog can become a vicious dog just by continuous repeated problems.

Mr. Marrelli asked if the Chief or Animal Warden has any input on the number of dogs allowed per resident. I get calls on that often.

Ms. Calta will check into it. I think Cleve Hts has a limit of 3 per household.

Mr. Marrelli getting back to the dangerous dogs, said people should know that when an incident happens, they should report it.

Ms. Calta said there’s also the State provision that once you’re classified as one of these, then you have to register your dangerous dog.

Chairman Marquardt asked if we know where all these dogs live in the Village.

Ms. Calta said you could probably get that information from the County.

Chairman Marquardt said it might be prudent to give a copy of whatever we adopt for their information. It’s something that’s quasi proactive. 

Ms. Calta will note that we should provide notice to all owners of licensed dogs.

Mrs. Wervey thinks it seems kind of crazy a vicious dog is a dog that has killed someone. It seems like it shouldn’t get to that.

Ms. Calta said yes, it makes it look the reverse, something has to happen first, but then if you look at the nuisance dog, if there are enough offenses, they become a dangerous dog.

“Nuisance dog” means a dog that without provocation and while off the premises of its owner, keeper, or harborer has chased or approached a person in either a menacing fashion or an apparent attitude of attack or has attempted to bite or otherwise endanger any person.    

“Dangerous dog” means a dog that without provocation has done any of the following;

(i) Caused injury, other than killing or serious injury, to any person.

(ii) Killed another dog.

(iii) Been the subject of a third or subsequent violation.

“Serious injury” means any of the following:

(A) Any physical harm that carries a substantial risk of death:

(B) Any physical harm that involves a permanent incapacity, whether partial or total, or a temporary substantial incapacity;

(C)  Any physical harm that involves a permanent disfigurement or a temporary, serious disfigurement;

(D) Any physical harm that involves acute pain of a duration that results in substantial suffering or any degree of prolonger or intractable pain.

NEXT STEP:

  1. Law Dept to research the number of dogs allowed per household.
  2. Provide Notice to owners of licensed dogs to say that this is the law.
  3. Vote on Dog Ordinance next meeting.

 

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Dangerous, Dead Trees

Mr. Marrelli said apparently last summers drought has done a number on a lot of older trees. What’s happening is Service & Building departments are getting calls; “My next door neighbor has a dead tree. It could fall on wires or on my house, etc” We have no provision in our code for handling such issues as a tree that’s presumably going to fall on a home, a car, or wires. I come to you with no information as far as our present code except in our Property Maintenance Section that says dangerous or hazardous conditions that we can cite on. Under our Building Code, we were using this catch all phrase; Section 1353.07 Exterior Property Areas:

“Exterior property areas of all premises shall be kept free of any object, material or conditions which may create a health, accident or fire hazard or adversely affect the value of surrounding properties”.

A dead tree ready to fall on somebody’s house I would call an accident/hazard. I’d notify the owner if I could figure out which person owns the tree that’s right on the property line. I think when in doubt, both owners should get a notice.

The way I perceive this to work is somebody will get a call in either Service or Building. We’ll send out our Arborist who we really don’t have that position of Arborist in our code, i.e. Fire or Police Chief. We have no classification but we do have one of the guys in the Service Dept that is a Certified Arborist. After the call comes in, we’d have Frank our Arborist go out and confirm either a) the tree is dead b) the fall line could cause damage either to a home or to taking wires down.

Once that determination is made then I’d send out a citation to let the owner or owners (in the event it’s on the property line) that this tree has to be removed.

Right now we don’t have an ordinance that allows me to have Frank go out and look at a tree and deem it necessary to come down. I don’t have; What’s the protocol? What does the citation look like? How much time do they have? We have to invent this whole thing.

I pulled up Highland Hts & Bedford Hts on how their tree laws read. They read “City Arborist” who has an office, etc. We don’t have that. I’m mostly interested in how the order/process plays out. We’ll have to write something up. Right now we’re asking people nicely to take the tree down and so far so good. I have nothing in the books to back that up except that I deem it an exterior property maintenance hazard. If I were challenged it would be tough.

Chairman Marquardt is not in support of an appointment of an Arborist.

Mr. Marrelli doesn’t think the Service Director is in favor of carving out an appointed position such as an Arborist either.

Mr. Marrelli thinks we’re going to probably be looking at dead tree removal for the next 3 – 5 years at this point. I was asked if neighbor ‘A’ has the tree and neighbor ‘B’ gets hit by the tree, whose insurance company pays for it?

Ms. Calta said that happened with my neighbor. The neighbor who owned the tree had to get the tree out of there, but neighbor ‘B’s’ insurance covered because he had really good insurance. He had to have an entire slate roof replaced.  

Mr. Marrelli said in the alternate, if somebody has a dead tree and has been notified that their tree is dead and it falls on the neighbor, I think it’s the opposite. We need the process written, approved & codified.

Ms. Calta said if we don’t have an appointed Arborist, which I don’t have a problem with, we still would want to have a Certified Arborist to be able to make the call upon which you would then issue the order for removal. The other thing is a disclaimer. If we send the Arborist out, the concept is we’re not consulting on a public property owner’s trees, except for we’re consulting on their trees that may cause a hazard to another residence. Let’s say the Arborist goes out and says the tree is fine and then it falls down, there’s all sorts of liability. The thought was to have the Arborist when he goes out to have the property owner sign a disclaimer.

Mr. Marrelli asked if we’d have municipal immunity over that. That might require the Arborist to be classified as an appointed position.

Ms. Calta will look into the liabilities. A disclaimer would be the easy way to do it, but if we don’t have an appointed position and we don’t have that disclaimer, let me see if we’re covered. We probably are, but I’ll make sure we’re not overstepping. You might send the Arborist out to look at a tree, next thing you’ll have the owner asking if he can look at their other trees.

NEXT STEP:

  • Law Dept to research process to identify dead trees.

 

ADJOURNMENT:

Mr. Catalano, seconded by Mrs. Wervey made a motion for adjournment. 

ROLL CALL

Ayes: All                                                         

Nays: None                             

Motion Carried. Meeting adjourned at 5:35 p.m.