Chapter 8.12
CHRONIC NUISANCE PROPERTY
Sections:
8.12.030 Chronic nuisance property prohibited.
8.12.060 Commencement of actions – Burden of proof – Defenses – Mitigation of civil penalty.
8.12.070 Closure during pendency of action.
8.12.080 Enforcement of closure order – Costs – Civil penalty.
8.12.090 Assessment lien created.
8.12.010 Title.
This chapter shall be known as the Fairview Chronic Nuisance Code. (Ord. 3-2019 § 1 (Exh. A))
8.12.020 Definitions.
As used in this chapter unless the context requires otherwise:
A. “City manager” means the city manager or designee.
B. “Chief of police” or “police chief” means the chief of police or the chief’s designee.
C. “Chronic nuisance property” means any property where:
1. Three or more nuisance activities have occurred at or near the property during any 30-day period;
2. Four or more of the nuisance activities have occurred at or near the property during any 90-day period; or
3. Five or more of the nuisance activities have occurred at or near the property during any 365-day period.
D. “Nuisance activity” means any of the following activities, behaviors, or conduct:
1. Driving under the influence of intoxicants as defined under state law (currently ORS 813.010);
2. Unlawful prostitution procurement activities, prostitution, or related offenses as defined under state law (currently ORS 167.007 through 167.017);
3. Noise as defined under Chapter 9.25 FMC;
4. Assault or menacing as defined under state law (currently ORS 163.160 through 163.190);
5. Recklessly endangering another person as defined under state law (currently ORS 163.195);
6. Assaulting a public safety officer as defined under state law (currently ORS 163.208);
7. Endangering the welfare of a minor as defined under state law (currently ORS 163.575);
8. Sexual abuse, contributing to the delinquency of a minor, or sexual misconduct as defined under state law (currently ORS 163.415 through 163.445);
9. Public indecency as defined under state law (currently ORS 163.465);
10. Criminal trespass as defined under state law (currently ORS 164.243 through 164.265);
11. Criminal mischief as defined under state law (currently ORS 164.345 through 164.365);
12. Graffiti-related offense as defined under FMC 8.10.050 and under state law (currently ORS 164.381 through 164.386);
13. Unlawful use of an electrical stun gun, tear gas or mace as defined under state law (currently ORS 163.212 and 163.213);
14. Disorderly conduct as defined under state law (currently ORS 166.023 and 166.025);
15. Riot as defined under state law (currently ORS 166.015);
16. Harassment as defined under state law (currently ORS 166.065 through 166.070);
17. Interfering with peace officer as defined under state law (currently ORS 162.247);
18. Alcoholic liquor violations as defined under state law (currently ORS 471.105 through 471.482);
19. Unlawful manufacture, delivery, or possession of a controlled substance or related offenses as defined under state law (currently ORS 167.203, 475.005 through 475.285, and/or 475.752 through 475.979);
20. Intimidation as defined under state law (currently ORS 166.155 through 166.165);
21. Unlawful discharge of a firearm as defined under Chapter 9.10 FMC;
22. Possession and use of weapons as defined under state law (currently ORS 166.180 through 166.250);
23. Offensive littering as defined under Chapter 8.05 FMC and under state law (currently ORS 164.805);
24. Theft as defined under state law (currently ORS 164.015 through 164.140);
25. Arson or related offenses as defined under state law (currently ORS 164.315 through 164.335);
26. Animal offenses as defined under state law: animal abuse or neglect (currently ORS 167.315 through 167.330); animal abandonment (currently ORS 167.340); animal fighting (currently ORS 167.355); or dog fighting (currently ORS 167.365);
27. Curfew as defined under Chapter 9.05 FMC;
28. Homicide/murder as defined under state law (currently ORS 163.005 through 163.095);
29. Any violation of ORS Chapter 163 not enumerated above; or
30. Any attempt to commit (as defined in ORS 161.405) and/or conspiracy to commit (as defined in ORS 161.450 and 161.455) any of the above activities, behaviors, or conduct.
Any of the above activities will be deemed to have occurred on the property for purposes of this definition if engaged in within 300 feet of the property by any person associated with the property.
E. “Person in charge” means any person in actual or constructive possession of a property, including but not limited to an owner or occupant of property under his or her ownership or control. (Ord. 8-2021 § 1; Ord. 3-2019 § 1 (Exh. A))
8.12.030 Chronic nuisance property prohibited.
In addition to any other remedy available by law, any property that becomes chronic nuisance property or any owner or person in charge who permits property to be a chronic nuisance property shall be in violation of this chapter and subject to civil penalties and closure of the property pursuant to this section. (Ord. 3-2019 § 1 (Exh. A))
8.12.040 Remedy.
The city may commence a civil action in any court of competent jurisdiction for a determination that property has become chronic nuisance property. The court may order any or all of the following:
A. That the property be closed and secured against all use and occupancy for a period of not less than 30 but not more than 180 days;
B. Impose civil penalties upon the owner or person in charge in an amount up to $500.00 per day for each day the person had actual knowledge the property was chronic nuisance property and permitted or allowed the property to remain so; and
C. Any other remedy deemed appropriate to abate the nuisance. (Ord. 3-2019 § 1 (Exh. A))
8.12.050 Procedure.
A. When the chief determines that property is chronic nuisance property, the chief shall cause a notice to be prominently posted on the property and mail a copy thereof by first-class mail to both the person in charge of the property where the nuisance exists and to the owner, if different. If the person in charge of the property is not the owner, a copy of the notice shall be sent by first-class mail to the person listed as the owner on the county’s tax records.
B. The notice shall contain the following:
1. The street address and description sufficient for identification of the property; and
2. A statement that the chief of police has determined the property to be chronic nuisance property with a concise description of the condition(s) leading to the determination.
C. The chief shall execute a statement setting out the date of posting and mailing of the notice. The failure of any person or owner to receive actual notice of the determination that the property is chronic nuisance property by the chief of police shall not invalidate or otherwise affect the proceedings under this chapter.
D. Concurrent with the procedures set forth above, the chief of police shall send a copy of the notice to the city manager as well as such other documentation the chief believes appropriate to support their determination and any recommendation concerning closure of the property and imposition of civil penalties. The city manager shall review the material submitted and may, if it is deemed by the city manager to be appropriate, authorize the city attorney to commence judicial proceedings seeking a declaration that the property is a chronic nuisance property and any such remedy(ies) as are described in FMC 8.12.040 that are deemed by the city manager to be appropriate. (Ord. 8-2021 § 1; Ord. 3-2019 § 1 (Exh. A))
8.12.060 Commencement of actions – Burden of proof – Defenses – Mitigation of civil penalty.
A. In an action seeking the closure of a chronic nuisance property, the city shall have the initial burden of proof to show by a preponderance of evidence that the property is chronic nuisance property.
B. It is a defense to an action seeking closure of chronic nuisance property 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 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 chronic nuisance property.
C. In establishing the amount of any civil penalty requested, the court may consider any of the following factors:
1. The actions taken by the owner(s) or person(s) in charge to mitigate or correct the conditions constituting the nuisance at the property;
2. The financial condition of the owner(s) or person(s) in charge;
3. Whether the conditions constituting the nuisance at the property were repeated or continuous;
4. The magnitude or gravity of the conditions constituting the nuisance;
5. The cooperativeness of the owner(s) or person(s) in charge with the city;
6. The cost to the city of investigating and correcting or attempting to correct the condition constituting the nuisance; and
7. Any other factor deemed by the court to be relevant. (Ord. 3-2019 § 1 (Exh. A))
8.12.070 Closure during pendency of action.
If the city manager, after consultation with the chief, determines chronic nuisance property presents an imminent threat to the public’s health, safety and welfare, the city may seek to apply to the court for such relief deemed by the city manager to be appropriate to alleviate the imminence of the threat. In such an event, the notification procedures set forth in FMC 8.12.050 need not be complied with and the city may immediately commence an action with the court. (Ord. 8-2021 § 1; Ord. 3-2019 § 1 (Exh. A))
8.12.080 Enforcement of closure order – Costs – Civil penalty.
A. If a court finds that property constitutes chronic nuisance property, it may order closure as set out in FMC 8.12.040(A).
B. In the event the court determines the owner or person in charge had knowledge of the activity(ies) or condition(s) constituting violation of this chapter and nonetheless permitted, suffered, or allowed the activities to occur, the court may impose a civil penalty consistent with FMC 8.12.040(B).
C. The court may authorize the city to physically secure the property against use or occupancy in the event that the owner(s) or person(s) in charge fail to do so within the time specified by the court. In the event that the city is authorized to secure the property, all costs reasonably incurred by the city to effect closure shall become an assessment lien upon the property and entered in the city’s lien docket. As used in this subsection, “costs” means costs actually incurred by the city for the physical securing of the property. (Ord. 3-2019 § 1 (Exh. A))
8.12.090 Assessment lien created.
A. Liens imposed by this chapter shall be collected in all respects as provided for street improvement liens and bear interest at the rate of nine percent per annum from 10 days after the entry in the lien docket.
B. Any person assessed the costs of closure and/or a civil penalty by the court shall be personally liable for the payment thereof to the city. (Ord. 3-2019 § 1 (Exh. A))