Chapter 8.32
CHRONIC NUISANCE PROPERTY
Sections:
8.32.040 Civil action – Penalty.
8.32.060 Burden of proof – Defenses – Mitigation of civil penalty.
8.32.070 Closure during pendency of action.
8.32.080 Enforcement of closure order and costs.
8.32.010 Purpose and intent.
The purpose of this chapter is to establish a process and a means to hold property owners and persons in charge of property accountable for adverse conditions and activities that repeatedly occur in connection with their property that are detrimental to the quality of life in the community. [Ord. 523-2013 § 1 (Exh. A)].
8.32.020 Definitions.
As used in this chapter, the following mean:
“Chronic nuisance property” means:
1. Property on which three or more nuisance activities exist or have occurred during any 60-consecutive-day period;
2. Property within 300 feet of which any person associated with the property has engaged in three or more nuisance activities during any 60-consecutive-day period; or
3. Property on which six nuisance activities exist or have occurred over a six-consecutive-month period.
“Nuisance activities” are defined as any of the following activities, behaviors, or conduct:
1. Public drinking of alcohol, DMC 9.28.160.
2. Prostitution or related offenses, ORS 167.002 through 167.027.
3. Violation of Chapter 8.28 DMC on noise.
4. Assault, ORS 163.160, 163.165, 163.175, or 163.185.
5. Menacing, ORS 163.190.
6. Reckless endangerment, ORS 163.195.
7. Sexual abuse, ORS 163.415, 163.425, or 163.427.
8. Public indecency, ORS 163.465.
9. Criminal trespass, ORS 164.245 or 164.255.
10. Criminal mischief, ORS 164.345, 164.354, or 164.365.
11. Disorderly conduct, ORS 166.025.
12. Harassment, ORS 166.065.
13. Furnishing liquor to minors, ORS 471.410.
14. Minor in possession of alcohol, ORS 471.430.
15. Unlawful sale of tobacco to minors and/or unlawful possession of tobacco by minors, ORS 163.575.
16. Unlawful manufacture, delivery, or possession of a controlled substance, ORS 475.752.
17. Public urination/defecation, DMC 9.04.080.
“Person in charge” means an agent, occupant, lessee, contract purchaser, tenant, or person other than an owner having possession or control of the property. [Ord. 523-2013 § 1 (Exh. A)].
8.32.030 Violations.
In addition to any other remedy available by law, property that is a chronic nuisance property or an owner or person in charge who allows property to be a chronic nuisance property is in violation of this chapter and subject to the civil penalties and closure of the chronic nuisance property. [Ord. 523-2013 § 1 (Exh. A)].
8.32.040 Civil action – Penalty.
The city may commence a civil action in any court of competent jurisdiction for a determination that a property is a chronic nuisance property. Upon a determination that a chronic nuisance property exists the court may order any or all of the following pursuant to DMC 8.32.080:
A. Remedy. That the chronic nuisance property be closed and secured against all use and occupancy for up to 180 days or any other remedies deemed appropriate to abate the chronic nuisance property;
B. Penalty. Imposition of civil penalties upon the owner or person in charge in an amount not to exceed $500.00 per day for each day the person had actual knowledge that the property was deemed a chronic nuisance property by the city and allowed the conditions to persist. [Ord. 523-2013 § 1 (Exh. A)].
8.32.050 Procedure.
A. When the city administrator determines that a property has become a chronic nuisance property, the city administrator will cause a notice to be prominently posted on the property and mailed by first-class mail to both the owner and person in charge of the chronic nuisance property. If the owner and person in charge of the property cannot be located by the city, the notice will be by posting only.
B. The notice will contain:
1. The street address and a description sufficient for identification of the property; and
2. A statement that the city administrator has determined the property to be a chronic nuisance property with a concise description of the conditions leading to that determination.
C. The city administrator will execute and keep on file a certificate of service stating the date of posting and mailing of the notice under subsection (A) of this section.
D. The failure of an owner or person in charge to receive the notice under subsection (A) of this section will not invalidate or otherwise affect the proceedings.
E. Concurrent with the notification procedures under subsection (A) of this section, the city administrator may authorize the commencement of a civil action under DMC 8.32.040. [Ord. 523-2013 § 1 (Exh. A)].
8.32.060 Burden of proof – Defenses – Mitigation of civil penalty.
In a civil action regarding a chronic nuisance property:
A. The city will have the initial burden of proof to show by a preponderance of evidence that the property is a chronic nuisance property;
B. It is a defense to an action that the owner or person in charge at the time in question could not, in the exercise of reasonable care and diligence, determine the property had become a chronic nuisance property or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the finding that the property is a chronic nuisance property; and
C. The court may consider any of the following factors, as they may be appropriate, and will cite those found applicable in establishing the amount of a civil penalty:
1. The actions taken by the owner or person in charge to mitigate or correct the conditions constituting a chronic nuisance;
2. The financial condition of the owner or person in charge;
3. Whether the conditions constituting a chronic nuisance were repeated or continuous;
4. The magnitude or gravity of the conditions constituting a chronic nuisance;
5. The cooperativeness of the owner or person in charge with the city;
6. The cost to the city of investigating and correcting or attempting to correct the condition constituting a chronic nuisance; and
7. Any other factor deemed by the court to be relevant. [Ord. 523-2013 § 1 (Exh. A)].
8.32.070 Closure during pendency of action.
If, in the good faith discretion of the city administrator, it is determined that a chronic nuisance property is an immediate threat to public health, safety, peace and welfare the city may apply to the court for such interim relief that the manager deems appropriate to alleviate the immediacy of the threat. In such an event, DMC 8.32.050 does not apply and the city may immediately commence a civil action to abate. [Ord. 523-2013 § 1 (Exh. A)].
8.32.080 Enforcement of closure order and costs.
A. In addition to the remedies under DMC 8.32.040(A), if the court determines that the owner or person in charge had knowledge of the activities or conditions constituting a chronic nuisance and nonetheless suffered or allowed these conditions to occur, the court may order the imposition of the penalty therein.
B. The court may authorize the city to physically secure the property against use or occupancy if the owner or person in charge fails to do so within the time specified by the court.
C. In the event that the city is authorized to and secures the property, all costs reasonably incurred by the city for the physical act of effecting closure may become a lien upon the property. [Ord. 523-2013 § 1 (Exh. A)].
8.32.090 Liens.
A. Liens imposed by this chapter 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.
B. Any person who is assessed costs or a civil penalty under this chapter will be personally liable for payment thereof to the city. [Ord. 523-2013 § 1 (Exh. A)].