Chapter 8.16 NUISANCES

“Business” includes any sole proprietorship, partnership, corporation, business trust, unincorporated association, and any legal entity created for the purposes of engaging in commercial activity.

“Business premises” includes all real property on which the business is located and any buildings erected on such property.

“Customer” includes any person who patronizes a business. The term “customer” also includes those persons who are going to the business premises to patronize the business or coming from the business premises.

“Disruptive activity” means any act or acts that constitute a violation of one of the following state statutes:

1. ORS 163.160, 163.165, 163.175, 163.185, or 163.190, relating to assault or menacing;

2. ORS 163.415, 163.425, 163.435, or 163.445, relating to sexual abuse, contributing to the delinquency of a minor, and sexual misconduct;

3. ORS 163.465, relating to public indecency;

4. ORS 166.025, relating to disorderly conduct;

5. ORS 166.065, relating to harassment;

6. ORS 164.345, 164.354, or 164.365, relating to criminal mischief;

7. ORS 164.245 or 164.255, relating to criminal trespass;

8. ORS 164.805, relating to littering;

9. ORS 467.020, relating to noise limits; or

10. ORS 471.405, 471.410, or ORS 471.412, relating to alcoholic liquor violations.

“Employee” includes any owner, officer, partner, director, agent, or employee of a business. The term “employee” also includes independent contractors who work on the business premises.

“Pattern of disruptive activity” means three or more incidents of disruptive activity within a period of a year. No relationship or similarity among the incidents need be shown to establish a pattern.

“Person in charge of property” means an agent, occupant, lessee, contract purchaser, tenant, or person other than an owner, having possession or control of the property.

“Person responsible” for abating a nuisance shall include:

1. The owner.

2. The person in charge of property, as defined in this section.

3. The person who causes to come into or continue in existence a nuisance, as defined in this chapter.

“Public place” means a building, place, or accommodation, whether publicly or privately owned, open and available to the general public. [Ord. 441-2006 § 1(1.200)].

8.16.020 Public health.

No owner or person in charge of property may permit or cause a nuisance affecting public health and safety. As used in the foregoing, “nuisances affecting public health and safety” include the following:

A. Privies. Open vaults or privies constructed and maintained within the city, except those constructed or maintained in connection with construction projects in accordance with appropriate State of Oregon Health Division regulations.

B. Odor. Premises, substances, or conditions that are in such a state as to cause an offensive odor.

C. Debris on Private Property. Accumulations of debris, rubbish, manure and other refuse located on private property that are not removed within a reasonable time and that affect the health, safety or welfare of the city.

D. Stagnant Water. Stagnant water that affords a breeding place for mosquitoes and other insect pests.

E. Water Pollution. Pollution of a body of water, well, spring, stream or drainage ditch by sewage, industrial waste or other substances placed in or near such water in a manner that will cause harmful material to pollute the water.

F. Food. Decayed or unwholesome food that is offered for human consumption.

G. Surface Drainage or Release. Drainage of liquid waste from private premises or drainage or release of rainwater, ice or snow from private premises onto or across a street or sidewalk. Snow and ice shall be removed or covered pursuant to DMC 8.16.070.

H. Garbage Containers. Garbage and noncombustible refuse that is not stored in flytight, watertight and rodent-proof containers that are kept clean and in good repair.

I. Building Material. Lumber, wood, sawdust, bricks, sand, gravel and other building materials not stored off the ground or which are stored in a manner so as to invite rats or other rodents to nest therein.

J. Livestock. The keeping of livestock.

K. Pets. The keeping of pets (or buildings for housing pets) in such a manner as to be a breeding place or likely breeding place for rodents or pests.

L. Dead Animals or Birds. Any dead animals or birds (whether on private property or on public street(s) or place(s)) exposed for any period longer than reasonably necessary to accomplish the removal or disposal of the carcass. The owner or person in control of the animal or bird shall be responsible for the removal or disposal.

M. Sanitation. A business or residence that is kept or maintained in such a condition as to permit rats, rodents, vermin, or other pests to burrow or live therein.

N. Artificial Light Nuisance. Any artificial light fixture(s) or illuminated signage located on private property allowed to be maintained and/or directed so to create an objectionable direct glare source which, as a result, unreasonably interferes with the use of other property.

O. Poultry and Rabbits. The keeping of poultry and rabbits, except the keeping of six or fewer chicken hens and the keeping of six or fewer rabbits, and the offspring under the age of four months thereof. [Ord. 488-2009 § 1; Ord. 482-2009 §§ 1, 2; Ord. 441-2006 § 1(1.202)].

8.16.030 Noise.

Repealed by Ord. 522-2013. [Ord. 441-2006 § 1(1.204)].

8.16.040 Garbage removal.

The person in charge of each business establishment or dwelling unit within the city is responsible for removing refuse, garbage, trash and combustible material from the premises on a not less than weekly basis and before it becomes a hazard, nuisance or causes an unsanitary or offensive condition. [Ord. 441-2006 § 1(1.206)].

8.16.050 Creating a hazard.

No person shall create a hazard by:

A. Maintaining or leaving in a place accessible to children a container with a compartment of more than one-and-one-half cubic feet capacity and a door or lid which blocks or fastens automatically when closed and that cannot be easily opened from the inside;

B. Being the person responsible for property upon which there is a well, cistern, cesspool, excavation, or other hole of a depth of four feet or more and a top width of 12 inches or more, and failing or refusing to cover or fence it with suitable protective construction; and

C. Maintaining filth, rubbish, waste material, and any other substance that may endanger or injure neighboring property, passersby, or the health, safety or welfare of the public. All persons must keep the sidewalk and half of the street or streets abutting their property free from earth, rock and other debris and from projecting or overhanging bushes, brush, and dead and decaying trees and limbs that might obstruct or render unsafe the passage of persons or vehicles except as provided in DMC 8.16.100. [Ord. 441-2006 § 1(1.208)].

8.16.060 Attractive nuisances.

A. No owner or person in charge of property may permit:

1. Unguarded machinery, equipment or other devices on the property that are attractive, dangerous and accessible to children.

2. Lumber, logs or pilings placed or stored on the property in a manner that is attractive, dangerous and accessible to children.

3. An open pit, quarry, cistern or other excavation without erecting appropriate safeguards or barriers to prevent the places from being used by children.

B. This section does not apply to permitted construction projects if safeguards are maintained designed to prevent injury or death to children and the construction meets the requirements of DMC 8.16.100. [Ord. 441-2006 § 1(1.210)].

8.16.070 Snow and ice removal.

No owner or person in charge of property, improved or unimproved, abutting a public sidewalk, shall permit:

A. Snow to remain on the sidewalk for a period longer than the first six hours of daylight after snow has fallen.

B. Ice to cover or remain on a sidewalk, after the first six hours of daylight after the ice has formed. The person shall remove ice accumulating on the sidewalk or cover the ice with sand, ashes, or other suitable material to assure safe travel. [Ord. 441-2006 § 1(1.212)].

8.16.080 Nuisances – Open storage of junk.

No owner, tenant, person in possession, or person in charge of or having the care of any real property may deposit, store, maintain or keep on any real property within the city (outside a site-obscuring enclosure, building or garbage receptacle) any of the following:

A. Inoperable, unusable, partially dismantled automobiles, cars, trucks, trailers and other vehicular equipment or parts thereof in a state of disrepair for more than 10 days as to any one automobile, car, truck, trailer or piece of vehicular equipment.

B. Used or dismantled household appliances, furniture or parts thereof, or discards, garbage, debris, rubbish, junk, trash or refuse for more than five days.

C. This section does not apply to junk kept in a duly licensed recycling facility or automobile wrecking business, or to a business offering new or used vehicles for sale or offering vehicle repair service, or to those materials reasonably necessary during a reasonable time on construction sites except as limited by DMC 8.16.100. [Ord. 441-2006 § 1(1.214)].

8.16.085 Vehicles treated as discarded.

A vehicle that meets subsection (B) of the definition of “discarded” under DMC 10.04.030, but does not meet subsection (A) of the definition, may be treated as discarded, at the discretion of city officers, if the following conditions occur:

A. The vehicle is located upon any public right-of-way, city street, alley, road, or highway within the city, or on public property for a period exceeding seven days; and

B. The city sends to the vehicle owner, or person in charge of the vehicle, written notice – by first class mail – to the address provided in the vehicle’s registration stating that the vehicle may be held in violation of this chapter if the condition of the vehicle is not corrected within 30 days of the date of the written notice. The notice shall be affixed to the discarded vehicle. [Ord. 589-2024 § 1 (Exh. A)].

8.16.090 Rubbish.

No person shall throw, dump or deposit upon public or private property injurious or offensive substance(s) or any rubbish, trash, debris, refuse or substance(s) that may mar the appearance, create a stench, detract from the cleanliness or safety of the property, or would be likely to injure an animal, vehicle or person traveling on a public way. [Ord. 441-2006 § 1(1.216)].

8.16.100 Nuisances – Maintenance of construction sites.

No lumber, debris, building materials, or any equipment other than work trucks or cars will be stored on the city street at any time during construction. Any drop boxes placed on the street for collection of debris should have reflectors on all sides so as not to constitute a safety hazard. Open ditches, trenches or other traffic hazards must be marked with reflectors and barriers. Streets must be cleaned on a not less than weekly basis or more frequently if deemed appropriate by the city administrator. [Ord. 441-2006 § 1(1.218)].

8.16.110 Nuisances – Noxious vegetation.

A. The owner or person in possession of any real property (improved or unimproved) must cut, remove and keep cut and removed from their property, and half of the street or streets abutting the property, all noxious vegetation.

B. For purposes of this section, “noxious vegetation” means:

1. Vegetation that is, or is likely to become:

a. A health hazard;

b. A fire hazard;

c. A traffic hazard, because it impairs the view of the public thoroughfare, or otherwise makes use of the thoroughfare hazardous.

2. Poison oak (Toxicodendron diversiloba).

3. Poison ivy (Toxicodendron radicans).

4. Blackberry bushes and ivy extending into a public way, pathway frequented by pedestrians, or across a property line.

5. Grass or weeds more than 12 inches high.

6. Scotch broom (Cytisus scoparius), Himalayan blackberry (Rubus procerus), hogweed (Heracleum mantegazzianum), knotweed (Polygonum cuspidatum) and purple loosestrife (Lythrum salicaria).

7. All other vegetation included in the Oregon Department of Agriculture Noxious Weed Control Policy and Classification System (see OAR 603-052-1200).

C. An owner or person in charge of property shall cut down, remove or destroy noxious vegetation as often as needed to prevent it from becoming a health or fire hazard, or in the case of weeds or other noxious vegetation, from maturing or from going to seed. [Ord. 441-2006 § 1(1.220)].

8.16.115 Landing or takeoff of helicopter or aircraft.

A. No person shall cause or permit the landing or takeoff of any helicopter or manned aircraft on property within the city, except at an airport or heliport registered with the State of Oregon Department of Aviation, in an emergency, or as allowed with a variance granted pursuant to this section.

B. The city council may grant a variance of limited duration from the particular requirements of this section for a specific event or activity if the city council determines that not granting the variance would produce hardship without equal or greater benefit to the public.

C. Any person requesting a variance shall make the request in writing to the city administrator and state in a concise manner the facts to show why such variance should be granted. The city administrator will place the application on the city council’s agenda for the next regular meeting after the date the city administrator receives the application.

D. A variance granted may be revoked by the city administrator in the case of an emergency or safety hazard, or if the conditions of the variance granted are violated. The person whose variance is revoked may appeal the revocation to the city council. [Ord. 549-2016 § 1; Ord. 548-2016 § 1].

8.16.120 Radio and television interference.

A. No person shall operate or use an electrical, mechanical or other device, apparatus, instrument or machine that unreasonably interferes with radio or television reception. However, this only applies if the radio or television receiver interfered with is of good engineering design.

B. This section does not apply to electrical and radio devices licensed, approved and operated under the rules and regulations of the Federal Communications Commission. [Ord. 441-2006 § 1(1.222)].

8.16.130 Notice and advertisements.

No person shall attach or cause to be attached a placard, bill or poster upon real or personal property, whether public or private, without first securing permission from the owner or person in control of the property. This section does not amend or repeal any city regulation of the use and location of the signs. [Ord. 441-2006 § 1(1.224)].

8.16.140 Disruptive activity.

If a business’s owner, customers, employees or person in charge of property engages in a pattern of disruptive activity either on the business premises or within 300 feet of the business premises, then the business will be deemed a public nuisance. [Ord. 441-2006 § 1(1.226)].

8.16.150 General nuisance.

A. In addition to the nuisances defined in DMC 8.16.010 through 8.16.140, every other thing, substance or act that is determined to be injurious or detrimental to the public health, safety or welfare is declared to be a nuisance and may be abated by the nonexclusive remedies as provided herein.

B. The acts, conditions, or objects specifically described in DMC 8.16.010 through 8.16.140 are declared to be public nuisances and may be abated by the nonexclusive remedies provided in DMC 8.16.160 through 8.16.220.

C. Nothing contained in DMC 8.16.010 through 8.16.160 permits any activity otherwise proscribed or regulated by any ordinance or resolution of the city. [Ord. 441-2006 § 1(1.228)].

8.16.160 Abatement – Notice.

A. Upon a determination by the city administrator that a nuisance defined by DMC 8.16.020 through 8.16.140 exists, or upon a determination by the city council under DMC 8.16.150(A) that a nuisance exists, the nuisance shall be verified by the city administrator, Dundee public works, Dundee fire department or the Newberg-Dundee police department. The city administrator or city council will cause a notice to be posted on the premises where the nuisance exists, directing the person responsible to abate the nuisance. The notice will be in substantially the following form:

NOTICE TO REMOVE NUISANCE

To the owner, person responsible, and person in charge of the following described real property: __________, in the city of Dundee, Oregon: You are given notice to remove and abate the nuisance existing on the described property within ten (10) days from the date of this notice. The nuisance consists of: __________ or you may show to the Dundee City Council that no nuisance exists under DMC 8.16.020 through 8.16.160. If you fail to remove this nuisance within the 10 days, you will be subject to fine and the City of Dundee will abate the nuisance and charge the cost of the abatement against the property described.

DATED: __________

_________________

City Administrator

B. The city administrator will mail a copy of the notice so posted, postage prepaid, to the person responsible, directed to the address of such person responsible as is shown in the property records of Yamhill County.

C. The city administrator may delegate posting, publishing and mailing to any city employee and said person will file with the city administrator a certificate stating the date and place of such mailing, publishing and posting.

D. If the person responsible is not the owner, an additional notice will be sent to the owner (as the same is shown in the property records of Yamhill County) by certified mail, return receipt requested, stating that the cost of abatement not paid by the person responsible may be assessed to and become a lien on the property.

E. An error in the name or address of the owner or person responsible or the use of a name other than that of the true owner or person responsible will not invalidate the notice. In such case, the posted notice will be deemed sufficient. Variations in the form of the notice will not invalidate posted notice and such notice will be deemed sufficient provided its substance is as set out in subsection (A) of this section. [Ord. 441-2006 § 1(1.230)].

8.16.170 Abatement by person responsible.

A. Within 10 days after the latter of either the posting and mailing or publishing of the notice as provided in DMC 8.16.160, the person responsible shall remove or otherwise abate the nuisance or show that no nuisance exists.

B. An owner or a person responsible, protesting that no nuisance exists, must file a written statement with the city administrator stating the basis for protesting the existence of the nuisance not later than 10 days of the date of the mailing of the notice.

C. The city administrator will refer the statement to the city council not later than 30 days after receipt thereof and notice of the time and place of the council’s consideration of the matter will be given to the person filing the statement not less than five days prior to said consideration. At the time set, the person protesting may appear and be heard and council will determine whether a nuisance exists. The determination will be entered in the city council minutes.

D. If the city council determines that a nuisance exists, the person responsible must abate (or otherwise cause the abatement of) the nuisance within 10 days after city council determination. [Ord. 441-2006 § 1(1.232)].

8.16.180 Abatement by city.

A. If, within the 10 days (or such further time as the city administrator or council deem appropriate), the nuisance has not been abated, the city may, through the offices of the city administrator, cause the nuisance to be abated, and the costs reasonably incurred (including costs for staff, contractor, and consultant time) thereby may be charged as an assessment lien upon the property.

B. The person charged with abatement of the nuisance has the right at reasonable times to enter into or upon property to investigate or cause the removal of a nuisance.

C. The city administrator will keep an accurate record of the expenses incurred by the city in abating the nuisance and an additional charge of 20 percent for administrative overhead. After the abatement of the nuisance, city staff, consultant(s) or other person charged with the abatement on behalf of the city will file a statement of all abatement expenses with the city administrator. [Ord. 441-2006 § 1(1.234).

8.16.190 Abatement – Assessment of costs.

A. Upon receipt of the statement referred to in DMC 8.16.180(C), the city administrator will send, by registered or certified mail, postage prepaid, the owner and the person responsible a notice stating:

1. The total expense of abatement, including the administrative overhead and other costs and materials.

2. That the total expense as stated will be assessed to and become a lien against the property unless paid within 30 days from the date of the notice.

3. That if the owner or person responsible objects to the cost of the abatement as stated, a written statement of objection must be filed, if at all, with the city administrator not more than 10 days from the date of the receipt of the notice, setting out in reasonable specificity the basis for any objection to the abatement. If a statement of objection is received, the city administrator shall set the matter down for review by the council.

B. Not later than 60 days from the city administrator’s receipt of an objection, the city council will hear and determine the objections to the expenses to be assessed. The decision of the council on the objections will be final.

C. If the costs of the abatement are not paid within 30 days from the date of the notice, or if objections were filed and a hearing by the council had, not later than 30 days from the date of the council’s hearing, an assessment of the costs as stated or as determined by the city administrator or city council, whichever is appropriate, will be made by resolution and entered in the docket of city liens. When the entry is made, the assessment will become an assessment lien upon the property from which the nuisance was removed or abated.

D. The lien will be enforced and collected in the same manner as liens for street improvements, and bear simple interest at the rate of 12 percent per annum. The interest will begin to run from the date of the entry of the lien in the lien docket.

E. An error in the name of the owner or person responsible will not void the assessment, nor will a failure to receive the notice of the proposed assessment render the assessment void. The assessment will remain a valid lien against the property. [Ord. 441-2006 § 1(1.236)].

8.16.200 Abatement – Summary.

A. The procedures provided by DMC 8.16.160 through 8.16.190 are not exclusive; in addition the city administrator, fire chief or any police officer may summarily abate a health or other nuisance that creates an imminent danger to human life or property, after determining that the summary abatement is the only adequate method to reduce or eliminate the danger.

B. When summary abatement is authorized, notice to the owner or person responsible prior to abatement is not required. Following summary abatement, the city administrator will post upon the property liable for the abatement of the nuisance a notice describing the action taken to abate the nuisance and send a copy of said posted notice by certified mail, return receipt requested, to the owner of record of the property as shown by the property records of Yamhill County.

C. “Summary abatement,” as used in this section, means abatement of the nuisance by the city or a contractor employed by the city, by any act(s) necessary to abate the nuisance and without prior notice to the owner, agent, or occupant of the property of said abatement.

D. When a pre-abatement hearing cannot be held due to the nature of the nuisance and the necessity for the use of a summary abatement, an owner or other person responsible may file a request for a post-abatement hearing, under DMC 8.16.190. [Ord. 441-2006 § 1(1.238)].

8.16.210 Violation – Civil.

A. The abatement procedures provided herein are not exclusive, and the council may authorize the city attorney to institute and prosecute, on behalf of the city and in its name, an appropriate legal action to enjoin and abate the creation, maintenance or continuance of any nuisance as defined by DMC 8.16.020 through 8.16.150. Such action will seek recovery of all city costs and the trial court and an appellate court on appeal may allow reasonable attorneys’ fees.

B. Any person injured by a business operating in violation of DMC 8.16.140 may institute civil proceedings in circuit court to enjoin or abate the nuisance and to recover damages caused by a pattern of disruptive activities. Such person need not have suffered a unique injury to seek injunctive or monetary relief. If a judgment is entered in favor of such person, that person will be entitled to recover all attorneys’ fees and costs reasonably incurred.

C. On proof by a preponderance of the evidence that a business is operating in violation of DMC 8.16.140 or is highly likely to do so, and after entry of specific findings that the business is operated or is highly likely to operate in violation of DMC 8.16.140, any judgment may include:

1. Enjoining and Abating the Nuisance. The order of abatement may direct the effectual closing of the business, business premises, building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released.

2. Awarding plaintiffs in the legal action under subsection (B) of this section all damages resulting from the operation of a business in violation of DMC 8.16.140, together with costs and attorneys’ fees reasonably incurred.

D. Any person affected by a violation of the terms of DMC 8.16.020 through 8.16.150 may, after giving not less than 10 days’ written notice by certified mail, return receipt requested, to the person responsible or business alleged to be in violation of said provision(s), bring an action to enforce the terms of the provision(s) violated in a court of competent jurisdiction. Any person bringing an action to enforce the terms of DMC 8.16.020 through 8.16.150 may, in the court’s discretion, be entitled to the award of their reasonable attorneys’ fees and such injunctive or other relief (including damages) as the court deems fair, appropriate, just and equitable. [Ord. 441-2006 § 1(1.240)].

8.16.220 Penalties.

A. A violation of any provision of this chapter is punishable by a fine not to exceed $1,000. Each day of violation is a separate offense.

B. The abatement of a nuisance is not a penalty for a violation of this chapter, but rather an additional remedy. Furthermore, imposition of a penalty under this chapter does not relieve a person of the duty to abate the nuisance. [Ord. 441-2006 § 1(1.242)].