Chapter 8.10
CHRONIC NUISANCE PROPERTY
Sections:
8.10.010 Incorporation of State statute.
8.10.050 Penalty/mitigation of penalty.
8.10.060 Compliance agreement.
8.10.070 Burden of proof – Affirmative defense.
8.10.080 Expedited relief – Notice – Cost reimbursement.
8.10.090 Enforcement of closure order – Costs – Attorney fees.
8.10.010 Incorporation of State statute.
Any reference to State statute incorporated into this chapter refers to the statute in effect on the date of the alleged nuisance activity. (Ord. 1176, § 1, Sept. 3, 2002. Code 1983 § 44.770.)
8.10.020 Definitions.
For purposes of this chapter, the following definitions shall apply:
“Chief of Police” means the Chief of the Monmouth Police Department or his or her designee.
“Chronic nuisance property” means real property upon which two or more nuisance activities have occurred due to any person associated with the property, including any owner, tenant, occupant, guest, patron, or employee during any consecutive 120-day period. Every subsequent nuisance activity within 120 days from an order finding the property to be a chronic nuisance, excluding any time during which the property is closed, shall be considered an independent violation of this chapter.
“Innocent tenant” means a tenant, as defined in this section, which has a valid defense pursuant to MCC 8.10.070.
“Nuisance activities” means any commission, solicitation to commit (as defined by MCC 9.10.500), attempt to commit (as defined by ORS 161.405 or MCC 9.10.510), or conspiracy to commit (as defined by ORS 161.405 or MCC 9.10.510), or conspiracy to commit (as defined by ORS 161.455), the following activities, behaviors, or criminal conduct:
(a) Alcoholic liquor violations as provided in ORS 471.105 through 471.482;
(b) Animal abuse and/or neglect as provided in ORS 167.315 through 167.330;
(c) Animal and/or dog fighting as provided in ORS 167.355 or 167.365;
(d) Arson or related offenses as provided in ORS 164.315 through 164.335;
(e) Assault as provided in ORS 163.160 through 163.185, MCC 9.10.220, and/or MCC 9.10.280;
(f) Consumption and open containers prohibited as provided in MCC 9.05.040;
(g) Criminal mischief as provided in ORS 164.345 through 164.365, MCC 9.10.060, and/or MCC 9.10.070;
(h) Criminal trespass as provided in ORS 164.243 through 164.265 and/or MCC 9.10.170 through 9.10.190;
(i) Cruelty to animals as provided in MCC 9.10.250;
(j) Discharging a weapon as provided in MCC 9.10.410;
(k) Disorderly conduct as provided in ORS 166.023, 166.025 and/or MCC 9.10.020;
(l) Harassment as provided in ORS 166.065 and/or MCC 9.10.040;
(m) Illegal gambling as provided in ORS 167.117 and/or 167.122 through 167.127;
(n) Intimidation as provided in ORS 166.155 through 166.165;
(o) Menacing as provided in ORS 163.190 and/or MCC 9.10.230;
(p) Prohibited exposure as provided in MCC 9.10.310;
(q) Prostitution or related offenses as provided in ORS 167.007, 167.012, and 167.017;
(r) Public indecency as provided in ORS 163.465 and/or MCC 9.10.300;
(s) Rape as provided in ORS 163.375;
(t) Sex abuse, contributing to the delinquency of a minor, or sexual misconduct as provided in ORS 163.415 through 163.445;
(u) Theft as provided in ORS 164.015 through 164.140 and/or MCC 9.10.120 through 9.10.150;
(v) Unlawful entry into a motor vehicle as provided in ORS 164.272 and/or MCC 9.10.200;
(w) Unlawful possession of a firearm as provided in ORS 166.250 and/or MCC 9.10.420;
(x) Unlawful manufacture, delivery, or possession of a controlled substance or related offenses as provided in ORS 167.203, 475.005 through 475.285, and/or 475.940 through 475.980;
(y) Unnecessary noise as provided in MCC 8.05.140.
“Owner” means the person or persons holding or lawfully claiming legal or equitable title or interest in the property.
“Permit” means to suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to an act, or failure to act.
“Person” means any natural person, association, partnership, corporation, or other form of legal entity or entity in fact capable of owning or using property.
“Property” means any real property including land and that which is affixed, incidental or appurtenant to land, including but not limited to any structures and any motor vehicles, recreational vehicles, mobile homes, or travel trailers, located thereon, whether permanent or not. For real property consisting of more than one dwelling unit “property” is limited to the dwelling unit or the portion of the real property on which any nuisance activity has occurred or is occurring. “Property” also includes areas of the real property used in common by all dwelling units, including, without limitation, other structures on the real property and areas used for parking, loading, and landscaping.
“Responsible party” includes the following:
(a) Any owner of the property, or the owner’s manager, agent, or other person in control of the property on behalf of the owner; or
(b) Any other person having or lawfully claiming possession of all or any part of the property, including any bailee, lessee, or tenant who participates in the nuisance activity.
“Tenant” means a residential tenant as defined by the Oregon Residential Landlord and Tenant Act, and any other person holding or lawfully claiming the real property under the terms of a lease or other written document. (Ord. 1176, § 1, Sept. 3, 2002; amended by Ord. 1185, § 1, May 6, 2003; Ord. 1192, §§ 1, 2, 3, 4, 5, May 4, 2004; Ord. 1321, § 1, July 16, 2013. Code 1983 § 44.772.)
8.10.030 Violation.
Any property used or maintained as chronic nuisance property within the City of Monmouth is declared to be a nuisance hereunder and shall be enjoined and abated. (Ord. 1176, § 1, Sept. 3, 2002. Code 1983 § 44.774.)
8.10.040 Procedure.
(1) After the first occurrence of any of the actions described in MCC 8.10.020 (“nuisance activities”) within a 120-day period, the Chief of Police shall notify the responsible party of the specifically alleged incidents which violate this chapter, and the remedies available to the City for that violation.
(2) Service under this provision is sufficient if it is personally served or sent via certified mail, return receipt requested, addressed to such person at the address of the property where the incident occurred, and to such owner, or such owner’s agent, as shown on the tax rolls of Polk County.
(3) A copy of the notice shall be served on the owner, and occupant if such person is different than the owner, and shall be posted at the property at least 10 days prior to the commencement of any legal proceedings by the City.
(4) The failure of any person to receive actual notice as provided above shall not invalidate or otherwise affect the proceedings under this chapter. (Ord. 1176, § 1, Sept. 3, 2002; amended by Ord. 1192, § 6, May 4, 2004. Code 1983 § 44.776.)
8.10.050 Penalty/mitigation of penalty.
(1) In the event the Court determines the property to be chronic nuisance property, the Court may:
(a) Order that the property be closed and secured against all use and occupancy for not more than 90 days; and/or
(b) Impose upon the responsible party a fine in the amount of $500.00 for the first violation of this chapter, and $1,000 for each subsequent violation that occurs within one year; and/or
(c) Order reimbursement of all costs incurred by the City, including staff time and police investigation; and/or
(d) Order any other remedy deemed to be appropriate to abate the nuisance.
(2) In establishing the length of closure of the property, the Court may consider any of the following factors, as may be appropriate:
(a) The actions taken by the responsible party to correct or mitigate the nuisance activities on the property;
(b) Whether the activities at the property were repeated or continuous;
(c) The magnitude or gravity of the problem;
(d) Any other factor deemed to be relevant by the Court;
(e) Any impact the closure may have on an innocent tenant.
(3) In establishing the amount of any fine, the Court may consider any of the following factors, as may be appropriate:
(a) The actions taken by the responsible party to correct or mitigate the nuisance activities on the property;
(b) Whether the activities at the property were repeated or continuous;
(c) The magnitude or gravity of the problem;
(d) The cost to the City of investigating and correcting or attempting to correct the nuisance activities;
(e) Any other factor deemed to be relevant by the Court.
(4) Notwithstanding subsection (1) of this section, the Court shall not order an innocent tenant to vacate the chronic nuisance property unless the Court finds that the responsible party can pay the tenant’s costs of relocation. In order to ensure that an innocent tenant’s relocation costs are paid by the responsible party, the Court shall require the responsible party to post a security deposit with the Court in an amount deemed reasonable by the Court.
(5) In the event that the owner is ordered to pay costs, the Court Clerk shall provide the City Recorder with a copy of the order, and such costs, if not paid within 30 days, shall become a lien against the property. (Ord. 1176, § 1, Sept. 3, 2002; amended by Ord. 1192, § 7, May 4, 2004. Code 1983 § 44.778.)
8.10.060 Compliance agreement.
(1) After the notification, but prior to the commencement of legal proceedings by the City Attorney, the responsible party may enter into an agreement with the Chief of Police to voluntarily abate the nuisance activities giving rise to the violation. Such compliance agreement shall be in writing and be signed by the responsible party and the Chief of Police.
(2) The Chief of Police may agree to postpone legal proceedings for no more than 30 days.
(3) If the agreement does not result in the abatement of the nuisance or if no agreement concerning the abatement has been reached within 30 days, the Chief of Police may refer the matter to the City Attorney to commence legal proceedings. (Ord. 1176, § 1, Sept. 3, 2002. Code 1983 § 44.780.)
8.10.070 Burden of proof – Affirmative defense.
(1) In an action alleging a violation of this chronic nuisance property chapter, the City shall have the initial burden of proof to show by a preponderance of the evidence that the property is chronic nuisance property.
(2) It is a defense to an action brought pursuant to this chapter that a responsible party could not, in the exercise of reasonable care or diligence, determine that the property had become chronic nuisance property, or could not, in the exercise of reasonable care and diligence, control the conduct leading to the finding that the property is chronic nuisance property. It is no defense that the responsible party was not at the property at the time of the incidents leading to the chronic nuisance situation. (Ord. 1176, § 1, Sept. 3, 2002. Code 1983 § 44.782.)
8.10.080 Expedited relief – Notice – Cost reimbursement.
(1) In addition to any other remedy available to the City under this chapter, and in the event that it is determined by the City Manager that the property is chronic nuisance property and is an immediate threat to the public safety and welfare, the City may immediately take any necessary action to eliminate the threat to the public safety and welfare, including closure of the chronic nuisance property and ordering all occupants, including innocent tenants, to vacate the property.
(2) Should the City find it necessary to close the property, the City shall post at the property a notice to abate the nuisance within 24 hours. If the nuisance is not abated within 24 hours, the City may close the property for so long as necessary to eliminate the threat to the public safety and welfare. Any time during which the property is closed pursuant to this section shall not be credited toward a closure ordered by the Court under MCC 8.10.050.
(3) The responsible party shall pay to the City all costs reasonably incurred by the City to effect a closure. If the responsible party fails to pay such costs within 30 days of billing, said costs shall be made a lien against the property. Responsible party may appeal the imposition or amount of costs by filing a written notice of appeals with the City Recorder not later than 30 days after the costs are billed. Once notice of appeal is filed, the responsible party’s liability for costs shall be stayed pending the City counsel’s decision regarding the appeal. (Ord. 1176, § 1, Sept. 3, 2002; amended by Ord. 1192, § 8, May 4, 2004. Code 1983 § 44.784.)
8.10.090 Enforcement of closure order – Costs – Attorney fees.
(1) The City may physically secure the property against the use or occupancy in the event that the responsible party fails to do so within the time specified by the Court or the City Manager as provided in MCC 8.10.080.
(2) The responsible party shall pay the reasonable relocation costs of a tenant, as defined by ORS 90.100, if without actual notice the tenant moved into the property after the owner, or agent thereof, received a notice pursuant to MCC 8.10.040.
(3) In any action brought pursuant to this chapter, the Court shall award reasonable attorney fees to the prevailing party to be determined pursuant to Oregon Rule of Civil Procedure 68(C).
(4) Any responsible parties assessed costs and/or attorney fees under this chapter shall be jointly and severally liable for the payment thereof to the City. (Ord. 1176, § 1, Sept. 3, 2002; amended by Ord. 1192, §§ 9, 10, May 4, 2004. Code 1983 § 44.786.)