CHAPTER 98: CHRONIC NUISANCE PROPERTY
Section
98.10 Chronic nuisance property
98.50 Commencement of actions – Burdens of proof – Defenses – Mitigation of civil penalty
98.60 Closure during pendency of action – Emergency closures
98.70 Enforcement of closure order – Costs – Civil penalty
98.10 CHRONIC NUISANCE PROPERTY.
(A) Any property within the City of Prineville which becomes a chronic nuisance property is in violation of this chapter and subject to its remedies.
(B) Any person who permits property under his or her ownership or control to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies.
(Ord. 1241, passed 7-24-18)
98.20 DEFINITIONS.
CHIEF means the City of Prineville Chief of Police or the Chief’s designee.
CHRONIC NUISANCE PROPERTY means:
(1) Property on which three or more nuisance activities exist or have occurred during any 30-day period; or
(2) Property on which or within 200 feet of which any person associated with the property has engaged in three or more nuisance activities during any 30-day period; or
(3) Property which, upon request for execution of a search warrant, has been the subject of a determination by a court that probable cause exists that possession, manufacture, or delivery of a controlled substance or related offenses as defined in ORS 167.203, 475.005 through 475.285 and/or 475.940 through 475.995 has occurred within the previous 30 days, and the Chief of Police has determined that the search warrant was based on evidence of continuous or repeated nuisance activities at the property; or
(4) Property on which continuous or repeated nuisance activities as defined in subsections (6), (7), (8), (10), (12), (13) and/or (14) of the definition of nuisance activities in this section exist or have occurred.
CONTROL means the ability to regulate, restrain, dominate, counteract, or govern conduct that occurs on that property.
NUISANCE ACTIVITIES means any of the following activities, behaviors, or conduct:
(1) Harassment as defined in ORS 166.065(1)(a);
(2) Intimidation as defined in ORS 166.155 through 166.165;
(3) Disorderly conduct as defined in ORS 166.025;
(4) Assault or menacing as defined in ORS 163.160 through 163.190;
(5) Sexual abuse, contributing to the delinquency of a minor, or sexual misconduct as defined in ORS 163.415 through 163.445;
(6) Public indecency as defined in ORS 163.465;
(7) Prostitution or related offenses as defined in ORS 167.007 through 167.017;
(8) Alcoholic liquor violations as defined in ORS 471.105 through 471.482;
(9) Offensive littering as defined in ORS 164.805;
(10) Possession, manufacture, or delivery of a controlled substance or related offenses as defined in ORS 167.203, 475.005 through 475.285, and/or 475.940 through 475.995;
(11) Illegal gambling as defined in ORS 167.117 and/or 167.122 through 167.127;
(12) Unlawful use of weapon as defined in ORS 166.220;
(13) Any attempt to commit (as defined in ORS 161.405) and/or conspiracy to commit (as defined in ORS 161.450) any of the above activities, behaviors or conduct;
(14) Excessive noise as defined in § 93.58.
OWNER means any tenant, renter or lessee or any person, agent, firm, or corporation having a legal or equitable interest in a property. Owner also includes, but is not limited to:
(1) A mortgagee in possession in whom is vested:
(a) All or part of the legal title to the property; or
(b) All or part of the beneficial ownership and a right to present use and enjoyment of the premises; or
(2) An occupant who can control what occurs on that property; or
(3) Any person authorized to enter into a rental agreement.
PERMIT means to suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the doing of an act.
PERSON means any actual person, association, partnership, or corporation capable of owning or using property in the City of Prineville.
PERSON ASSOCIATED WITH means any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize or visit, or waited to enter, patronize or visit a property or person present on a property, including without limitation any officer, director, customer, agent, employee, or any independent contractor of a property, person in charge, or owner of a property.
PROPERTY means any real property including land and that which is affixed, incidental, or appurtenant to land, including but not limited to any premises, room, house, building or structure, or any separate part or portion thereof, whether permanent or not.
(Ord. 1241, passed 7-24-18)
98.30 REMEDY.
(A) In the event a court determines property to be chronic nuisance property, the court may order that the property be closed and secured against all use and occupancy for not more than 180 days, or the court may employ any other remedy deemed by it to be appropriate to abate the nuisance.
In establishing the length of closure of the property, the court may consider any of the following factors, as they may be appropriate, and shall cite those found applicable:
(1) The actions taken by the owner(s) to mitigate or correct the problem at the property;
(2) Whether the problem at the property was repeated or continuous;
(3) The magnitude or gravity of the problem;
(4) The cooperativeness of the owner(s) with the city;
(5) For rental properties, whether a responsible tenant is ready to occupy the property; or
(6) Any other factor deemed by the court to be relevant.
(B) In addition to the remedies provided for in subsection (A) of this section, the court may impose upon the owner of the property a civil penalty in any amount up to $100 a day, payable to the city, or each day the owner had actual knowledge that the property was a chronic nuisance property and permitted the property to remain a chronic nuisance property.
(Ord. 1241, passed 7-24-18)
98.40 PROCEDURE.
(A) When the Chief of Police receives two or more police reports documenting the occurrence of nuisance activities on or within 200 feet of a property, the Chief shall notify the owner(s) of record and the occupant(s) of the property of the incidences that have occurred and the remedies available to the city under this chapter. Notice under this provision is sufficient if it sent certified mail, return receipt requested, addressed to such person at the address of the property where the incidences occurred, and to such other address as shown on the tax rolls of Crook County or such other place which is believed to give the owner actual notice.
(B) When the Chief believes in good faith that property has become chronic nuisance property, the Chief shall notify the owner(s) of record in writing that the property has been determined to be chronic nuisance property. The notice shall contain the following information:
(1) The street address and a legal description sufficient for identification of the property.
(2) A statement that the Chief has found the property to be a chronic nuisance property with a concise description of the conditions leading to these findings.
(3) A copy of the notice shall be served on the owner at least ten days prior to the commencement of any judicial action by the city. Service shall be mailed first class, postage prepaid, addressed to such person at the address of the property believed to be a chronic public nuisance property, and to such other address as shown on the tax rolls of Crook County or such other place which is believed to give the owner actual notice of the determination by the Chief.
(4) A copy of the notice shall be served on the occupant of the property if that person is different than the owner and shall occur not less than ten days prior to the commencement of any judicial proceedings and be made either personally or by mailing a copy of the notice by first-class mail, postage prepaid, to them at the property. Notwithstanding any other provision of this chapter, commencement of judicial proceedings shall occur not less than 30 days from the date of the mailing of the notice described in subsection (A) of this section, except as provided in § 98.60.
Furthermore, a copy of the notice shall be posted at the property if ten days have elapsed from the service or mailing of the notice to the owner(s), and no contact has been received by the city from them during that period of time.
(5) The failure of any person or owner to receive actual notice of the determination by the Chief shall not invalidate or otherwise affect the proceedings under this chapter.
(C) Concurrent with the notification procedures set forth above, the Chief shall send a copy of the notice to the City Attorney as well as any other documentation which the Chief believes supports the closure of the property and the imposition of civil penalties. The City Attorney may then commence civil proceedings in a court of competent jurisdiction seeking the closure of the structure as well as the imposition of civil penalties against any or all of the owners thereof, and any such other relief as may be deemed appropriate.
(Ord. 1241, passed 7-24-18)
98.50 COMMENCEMENT OF ACTIONS – BURDENS 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 a chronic nuisance property.
(B) It is a defense to an action seeking the closure of a chronic nuisance property that the owner of the property at the time in question could not, in the exercise of reasonable care or diligence, determine that 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 an action seeking civil penalties pursuant to § 98.30(B), the city shall have the initial burden of proof to show by a preponderance of the evidence that the conditions of that subsection are specified.
(D) In establishing the amount of any civil penalty requested, the court may consider any of the following factors, as they may be appropriate, and shall cite those found applicable:
(1) The actions taken by the owner(s) to mitigate or correct the problem at the property;
(2) Whether the problem at the property was repeated or continuous;
(3) The magnitude or gravity of the problem;
(4) The cooperativeness of the owner(s) with the city;
(5) The cost to the city of investigating and correcting or attempting to correct the condition; and
(6) Any other factor deemed by the court to be relevant.
(Ord. 1241, passed 7-24-18)
98.60 CLOSURE DURING PENDENCY OF ACTION – EMERGENCY CLOSURES.
In the event that it is determined that the property is an immediate threat to the public safety and welfare, the city may apply to the court for such interim relief that is deemed by the Chief or City Attorney to be appropriate. In such an event, the notification procedures set forth in § 98.40(A) need not be complied with.
(Ord. 1241, passed 7-24-18)
98.70 ENFORCEMENT OF CLOSURE ORDER – COSTS – CIVIL PENALTY.
(A) In the event that a court finds that property constitutes a chronic nuisance property as defined in this chapter, the court may order the remedies set out in § 98.30. In addition, in the event the court also finds that the owner had knowledge of activities or conditions at the property constituting a violation of this chapter and nonetheless permitted the activities to occur, the court may utilize the penalties provided for in § 98.30(B).
(B) The court may authorize the city to physically secure the property against use or occupancy in the event that the owner(s) 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 a closure shall be made an assessment lien upon the property. As used in this subsection, "costs" mean those costs actually incurred by the city for the physical securing of the property, as well as tenant relocation costs given pursuant to subsection (B)(4) of this section.
(1) The city department effecting the closure shall prepare a statement of costs and the city shall thereafter submit that statement to the court for its review. If no objection to the statement is made within the period prescribed by Oregon Rules of Civil Procedure 68, a certified copy of the statement including a legal description of the property shall be forwarded to the City Recorder, who thereafter shall enter the same in the city’s lien docket.
(2) Liens imposed by this chapter shall be collected in all respects for street improvement liens and shall bear interest at the rate of 9% per year from ten days after entry in the lien docket.
(3) Any person who is assessed the costs of closure or a civil penalty by the court shall be personally liable for the payment thereof to the city.
(4) A tenant, as defined in ORS 90.100, is entitled to reasonable relocation costs as those are determined by the city, if without actual notice the tenant moved into the property after either:
(a) An owner(s) or agent received notice of any determination pursuant to § 98.40(A); or
(b) An owner(s) or their agent received notice of an action brought pursuant to § 98.50.
(Ord. 1241, passed 7-24-18)
98.80 SEVERABILITY.
If any provision of this chapter, or its application to any person or circumstances, is held to be invalid for any reason, the remainder of the chapter, or the application of its provisions to other persons or circumstances, shall not in any way be affected.
(Ord. 1241, passed 7-24-18)
98.90 ATTORNEY FEES.
The court may, in its discretion, award reasonable attorney’s fees to the prevailing party regarding any action brought under this chapter.
(Ord. 1241, passed 7-24-18)