Chapter 8.04
NUISANCES AND NUISANCE ABATEMENT
Sections:
Article I. General Provisions
8.04.010 Definitions.
Article II. Animals
8.04.020 Repealed.
8.04.030 Removal of carcasses.
Article III. Nuisances Affecting Public Health
8.04.040 Public health nuisances designated – Abatement.
Article IV. Nuisances Affecting Public Safety
8.04.050 Sidewalks to be cleaned and repaired.
8.04.060 Trees and bushes.
8.04.070 Barbed wire and electric fences.
8.04.080 Drainage of surface waters.
8.04.090 Hazardous containers and conditions.
8.04.100 Attractive nuisances.
8.04.110 Noxious vegetation.
8.04.120 Scattering rubbish.
Article V. Nuisances Affecting Public Peace
8.04.130 Storage of junk.
8.04.140 Noise disturbances.
8.04.145 Public nuisance property.
Article VI. Unenumerated Nuisances
8.04.150 Nuisances designated – Abatement authority.
Article VII. Abatement Procedure
8.04.160 Determination of nuisance – Notice requirements.
8.04.170 Abatement – By person responsible.
8.04.180 Persons responsible – Joint liability.
8.04.190 Abatement – By city when – Costs.
8.04.200 Assessment of city abatement costs.
8.04.210 Summary abatement.
Article VIII. Violations and Penalties
8.04.220 Abatement not a penalty – Relief from fine.
8.04.240 Violation – Separate offenses.
Article I. General Provisions
8.04.010 Definitions.
As used in this chapter:
A. “Person in charge of property” means an agent, occupant, lessee, contract purchasers, or other person having possession or control of property or the supervision of any construction project.
B. Person Responsible. The “person responsible” for abating a nuisance shall include:
1. The owner;
2. The person in charge of property, as defined in subsection A of this section;
3. The person who caused to come into or continue in existence a nuisance, as defined in this chapter or another ordinance of the city.
C. “Public place” means a building, way, place or accommodation, whether publicly or privately owned, open and available to the general public. (Ord. 858 § 1, 1987)
Article II. Animals
8.04.020 Animals at large, except domestic cats.
Repealed by Ord. 02-114. (Ord. 858 § 3, 1987)
8.04.030 Removal of carcasses.
No person owning or having control of an animal carcass shall permit that carcass to remain upon public property, or to be exposed on private property, for a period of time longer than is reasonably necessary to remove or dispose of the carcass. (Ord. 858 § 2, 1987)
Article III. Nuisances Affecting Public Health
8.04.040 Public health nuisances designated – Abatement.
No person owning or controlling property shall cause or permit a nuisance affecting public health. The following are nuisances affecting public health, and may be abated as provided in this chapter:
A. Cesspools. Cesspools or septic tanks which are in an unsanitary, unsafe or malfunctioning condition, or which cause an offensive odor;
B. Debris. Accumulations of debris, rubbish, manure, tires and other refuse that are not removed;
C. Food. Decayed or unwholesome food;
D. Odor. Premises which are in such a state or condition to cause an offensive odor or which are in an unsanitary condition;
E. Privies. Open vaults or privies constructed and maintained within the city, except those constructed or maintained in connection with construction projects in accordance with the health division regulations;
F. Stagnant Water. Stagnant water which affords a breeding place for mosquitoes and other insect pests;
G. Surface Drainage. Drainage of liquid wastes from private premises;
H. Water Pollution. Pollution of a body of water, well, spring, stream or drainage ditch by sewage, industrial wastes or other substances placed in or near the water, in a manner that will cause harmful material to pollute the water. (Ord. 858 § 11, 1987)
Article IV. Nuisances Affecting Public Safety
8.04.050 Sidewalks to be cleaned and repaired.
It is the duty of the land owner of property adjoining a street to maintain in good repair, and remove any ice and snow, wet leaves and debris from the adjacent sidewalk, and to eliminate any hazardous condition. (Ord. 858 § 17, 1987)
8.04.060 Trees and bushes.
A. No owner or person in charge of property that abuts upon a street or public sidewalk shall permit trees or bushes on the property to interfere with street or sidewalk traffic. It shall be the duty of an owner or person in charge of property that abuts upon a street or public sidewalk to keep all trees and bushes on the premises, including the adjoining parking strip, trimmed to a height of not less than eight feet above the sidewalk, and not less than 12 feet above the roadway.
B. No owner or person in charge of property shall allow to stand a dead or decaying tree that is a hazard to the public or to persons or property on or near the property. (Ord. 858 § 20, 1987)
8.04.070 Barbed wire and electric fences.
A. No owner or person in charge of property shall construct or maintain a barbed-wire fence thereon, or permit barbed wire to remain as a part of a fence along a sidewalk or public way; except such wire may be placed above the top of other fencing not less than six feet, six inches high.
B. No owner or person in charge of property shall construct, maintain or operate an electric fence along a sidewalk or public way, or along the adjoining property line of another person. (Ord. 858 § 21, 1987)
8.04.080 Drainage of surface waters.
The owner or person in charge of any building or structure shall install and maintain, in proper state of repair, adequate drainpipes, or a drainage system, so that any rainwater or building drain water overflow accumulating on the roof or about the building is not carried across or upon a sidewalk or street. (Ord. 858 § 22, 1987)
8.04.090 Hazardous containers and conditions.
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 locks or fastens automatically when closed and which cannot be easily opened from the inside; or
B. Being the owner or otherwise having possession of 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 fail or refuse to cover or fence it with suitable safeguards. (Ord. 858 § 15, 1987)
8.04.100 Attractive nuisances.
A. No owner or person in charge of property shall permit thereon:
1. Unguarded machinery, equipment or other devices which are attractive, dangerous and accessible to children;
2. Lumber, logs or piling placed or stored in a manner so as to be attractive, dangerous and accessible to children;
3. An open pit, quarry, cistern or other excavation without safeguards or barriers to prevent such places from being used by children.
B. This section shall not apply to authorized construction projects with reasonable safeguards to prevent injury or death to playing children. (Ord. 858 § 16, 1987)
8.04.110 Noxious vegetation.
A. The term “noxious vegetation” is defined as: (1) weeds more than 10 inches in height, grass more than 10 inches in height; (2) dying or dead vegetation; (3) poison oak, poison ivy; (4) caneberry bushes or other spreading, intrusive plant material that extends into the right-of-way, or across a property line; or (5) other rank, noxious, and dangerous vegetation that poses a health, fire, or traffic hazard.
This definition shall not include agriculture crops, tracts of undeveloped land exceeding five acres, publicly owned recreational land or public viewing gardens, native riparian vegetation or where natural vegetation should remain undisturbed and in a natural state for the prevention of erosion, the prevention of damage to an ecological system, or to protect water quality and control surface water runoff into a creek or stream bed, or approved and maintained planting in the area between the street and the sidewalk.
B. Between May 15th and October 31st of any year, no owner or person in charge of property may allow noxious vegetation to be on the property or in the right-of-way of a public thoroughfare abutting the property. It shall be the duty of an owner, or person in charge of property, to cut down or to destroy noxious vegetation as often as needed to prevent it from becoming unsightly, from becoming a fire hazard or from maturing and/or going to seed.
C. Between April 15th and May 15th of each year, the city manager may cause to be published two times in a newspaper of general circulation in the city, a copy of subsection B of this section as a notice to all owners and persons in charge of property of their duty to keep their property free from noxious vegetation. The notice shall state that the city intends to abate all such nuisances 10 or more days after the date of the final publication of the notice, and to charge the cost of doing so on any particular parcel of property to the owner thereof, the person in charge thereof, or the property itself.
D. Abatement Procedure – By the City. Prior to the city initiating the abatement process, the city shall provide notice by first class mail to the owner of property seeking to be abated. The notice shall identify the property, specify what is seeking to be abated, and indicate that if abatement is not done by the property owner within seven days that the city will then initiate the abatement consistent with the provisions within subsection E of this section. If abatement is done by the city, or an agent of the city, the city shall keep a record of the expenses incurred while correcting the violation, including fees for reports and professional services.
E. Abatement Procedure – Assessment of Costs. After abatement by the city, the city shall, by first class mail, forward to the owner(s) a notice stating:
1. The hourly fee charged the city by the agent/contractor which will be doubled by the city to cover costs.
2. The charges as indicated must be paid within 30 days from the date of the notice.
3. If the said costs and administrative fees are not paid within 30 days of the billing date, the city shall have the option of (a) turning the unpaid billing over to a collection agency, or (b) filing a lien against the property.
4. Lien Process. The finance director shall, if the charges are not paid within 30 days of the billing date, file with the council an itemized statement of the charges, plus an additional administrative fee of 15 percent of the charges to cover the additional expenses involved in collecting the unpaid balance.
An assessment of the charges, as stated or as determined by the council, shall be made by resolution, and shall thereupon be entered in the docket of city liens, and, upon such entry being made, shall constitute a lien upon the property from which the nuisance was abated.
a. The lien shall bear interest at a rate of nine percent per year. The interest shall commence to run from the date of the entry of the lien in the lien docket.
b. An error in the contents or service of any notice shall not void the assessment nor will a failure to receive the notice of the proposed assessment render the assessment void, but it shall remain a valid lien against the property. (Ord. 01-104 § 1, 2001; Ord. 858 § 18, 1987)
8.04.120 Scattering rubbish.
No person shall deposit upon public or private property any kind of rubbish, trash, debris, refuse, or any substance that would mar the appearance, or create a stench or fire hazard, or detract from the cleanliness or safety of the property, or would be likely to injure a person, animal or vehicle traveling upon a public way. (Ord. 858 § 19, 1987)
Article V. Nuisances Affecting Public Peace
8.04.130 Storage of junk.
A. “Junk,” as used in this section, means and includes inoperable motor vehicles, motor vehicle parts, abandoned automobiles, machinery, machinery parts, appliances or parts thereof, iron or other metal, glass, paper or other materials.
B. No person shall keep any junk outdoors on any street, lot or premises, or in a building that is not wholly or entirely enclosed, except for doors used for ingress and egress.
C. This section shall not apply to junk kept in a duly licensed junkyard or automobile wrecking/salvage yard. (Ord. 858 § 32, 1987)
8.04.140 Noise disturbances.
A. For the purposes of this section:
1. “Noise disturbance” means any sound which is plainly audible and:
a. Injures or endangers the safety or health of a human;
b. Annoys or disturbs a reasonable person of normal sensitivity; or
c. Endangers or injures personal or real property.
2. “Plainly audible” means where the listener clearly can hear the contents of the sound produced by the noise source. Sounds which may be plainly audible include, but are not limited to, musical rhythms, spoken words, vocal sounds, and engine noises.
B. It is unlawful for any person to intentionally or recklessly create or continue any noise disturbance.
C. Exceptions.
1. Sounds caused by the performance of emergency work, vehicles and/or equipment.
2. Aircraft operations in compliance with applicable federal law or regulations.
3. Sounds produced by sound-amplifying equipment at activities sanctioned by the city or sponsored by the Silver Falls School District.
4. Sounds created by refuse pickup operations.
5. Sounds created by domestic power tools during the period of 7:00 a.m. to 10:00 p.m., provided sound-dissipating devices on tools so equipped are maintained in good repair.
6. Sounds made by emergency warning devices operating continuously for five minutes or less.
7. Sounds caused by business operations in the commercial and industrial zones, provided such sounds result from lawful commercial business activity or manufacturing operations. Noise levels created within industrial zones shall at all times be in compliance with SDC 2.4.160.
8. Commercial construction activities during the period of 7:00 a.m. to 7:00 p.m. Monday through Friday and 8:00 a.m. to 6:00 p.m. Saturday and Sunday, provided equipment is maintained in good repair and equipped with sound-dissipating devices in good working order.
9. The city manager may issue a permit authorizing activities otherwise prohibited by this section outside of the specified time limits, if the city manager determines that the public health, safety, and welfare will not be impaired by such activities and that substantial loss or inconvenience would result to the applicant unless such activities were permitted. The city manager may impose any reasonable conditions on the permit, including limiting the hours during which the activities may occur.
10. Sounds caused by city maintenance equipment. (Ord. 08-04 § 1, 2008; Ord. 02-109 § 1, 2002; Ord. 858 § 31, 1987)
8.04.145 Public nuisance property.
A. Generally.
1. Public Nuisance Property.
a. Any property within the city which becomes public 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 public nuisance property shall be in violation of this chapter and subject to its remedies.
2. Definitions.
a. “Chief of police” means the appointed and acting chief of police of the city or the chief of police’s designee.
b. “Control” means the ability to regulate, restrain, dominate, counteract or govern conduct that occurs on property.
c. “Good cause” means circumstances beyond the ability of a person acting with reasonable care and diligence to control.
d. “Owner” means any person, agent, firm or corporation having a legal or equitable or management interest in a property. “Owner” includes, but is not limited to:
i. 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
ii. A person who can control what occurs on that property.
e. “Permit” means to suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the doing of an act.
f. “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.
g. “Public nuisance property” means property upon which three or more instances of any of the below listed behaviors occur, or whose patrons, employees, residents, owners or occupants engage in three or more instances of any of the below listed behaviors within 300 feet of the property, during any 30-day period as a result of three or more separate factual incidents:
i. Public drinking, SMC 5.04.005;
ii. Noise, SMC 8.04.140;
iii. Assault, ORS 163.160, 163.165, 163.175 or 163.185;
iv. Sexual abuse, ORS 163.415, 163.425 or 163.427;
v. Menacing, ORS 163.190;
vi. Public indecency, ORS 163.465;
vii. Criminal trespass, ORS 164.245 or 164.225;
viii. Criminal mischief, ORS 164.345, 164.354 or 164.365;
ix. Disorderly conduct, ORS 166.025;
x. Harassment, ORS 166.065;
xi. Minor in possession of alcohol, ORS 471.430;
xii. Unlawful manufacture, delivery, or possession of a controlled substance, ORS 475.992.
h. “Structure” means that which is built or constructed, an edifice or building of any kind including units thereof or mobile homes, any of which is an addition to or a fixture on real property.
3. It is a public nuisance for any person in charge of property to permit or any person to cause to exist any place or business where patrons, guests, employees, residents or occupants engage in a pattern of behavior in the neighborhood involving the commission of three or more of the listed behaviors set forth in subsection (A)(2)(g) of this section within 300 feet of the property, during any 30-day period.
4. It is unlawful for any place or business to be a public nuisance or to be used as a public nuisance. If any place or business is found to be a public nuisance property or to be used as such, it shall be subject to closure for a period of up to one year.
B. Notice Procedure.
1. The notice and abatement procedure is as set forth in SMC 8.04.160 through 8.04.210.
2. In addition to those remedies provided by the above sections of Silverton Municipal Code, the council may order and include conditions under which abatement is to occur. The council may also employ any other remedy deemed by it to be appropriate to abate the nuisance, including but not limited to authorizing a civil complaint in a court of competent jurisdiction which may include seeking closure of property.
3. The remedies in this section are in addition to those otherwise provided by law.
C. Civil Penalty.
1. The chief of police is authorized to assess a civil penalty of $100.00 a day, payable to the city, for each day the nuisance continues to exist after the council orders that the nuisance be abated. A nuisance continues to exist if there is any single occurrence of a behavior listed in subsection (A)(2)(g) of this section upon the property or by any patron, employee, guest, resident, owner or occupant within 300 feet of the property.
2. A civil penalty is assessed by issuing written notice of penalty to the owner of public nuisance property and the owner’s registered agent under subsection B of this section, if known. The notice shall contain the following information:
a. The street address or description sufficient for identification of the property;
b. That the chief of police has found the nuisance continues to exist after the council ordered the nuisance be abated, with a concise description of the conditions leading to his/her findings;
c. That the owner may request a hearing on the validity of the assessment of the penalty. A hearing request must be in writing and filed with the Silverton Municipal Court, 306 S. Water Street, Silverton, Oregon 97381 within 10 days of the mailing of the notice. The request must state the grounds upon which the owner believes that the penalty is not valid. The court may assess the costs of the hearing against the owner if the court determines the penalty is valid. The penalty and hearing costs will become a lien against the property unless paid.
3. The penalty is final when 10 days have elapsed from the date of mailing the notice if a request for hearing is not filed, or upon entry or an order by the municipal court declaring the penalty valid if a request for hearing is filed.
D. Hearing. The municipal court shall hold a hearing upon a request filed as provided in subsection (C)(2)(c) of this section. At the hearing the owner may contest the validity of the penalty. The city shall have the burden of showing the validity of the penalty by a preponderance of the evidence. The court shall enter an order determining whether the penalty is valid or not valid. The action of the court pursuant to this section is final. If the court determines that the penalty is valid, the court may assess costs of the hearing against the owner.
E. Penalty and Costs of Hearing as Lien. The chief of police and municipal court shall forward statements of the assessments for penalties and hearing costs to the city manager. The city manager shall notify the owner by mail of the sum of money due to the city. If that sum is not paid within 30 days of the billing date, the manager shall file with the common council a statement of the sum due, plus an additional charge of five percent to cover assessment procedure expense. After a reasonable opportunity to be heard in objection thereto, the council shall then, by ordinance, declare the correctness of such statement and declare the same to be a lien upon the property involved, to be entered in the minor lien docket and enforced against the property, in the same manner provided for enforcement of liens for street improvements. (Ord. 93-118 §§ 1 – 5, 1993)
Article VI. Unenumerated Nuisances
8.04.150 Nuisances designated – Abatement authority.
A. The acts, conditions or objects specifically enumerated and defined in SMC 8.04.020 through 8.04.130 are declared public nuisances, and such acts, conditions or objects may be abated by any of the procedures set forth in SMC 8.04.160 through 8.04.210.
B. In addition to the nuisances specifically enumerated within this chapter, every other thing, substance or act which is determined by the city manager to be injurious or detrimental to the public health, safety or welfare of the city is declared a nuisance and may be abated as provided in this chapter. (Ord. 858 § 45, 1987)
Article VII. Abatement Procedure
8.04.160 Determination of nuisance – Notice requirements.
A. Upon determination by the chief of police that a nuisance exists, the chief shall cause a notice to be posted on the premises or at the site of the nuisance, directing the person responsible to abate the nuisance.
B. At the time of posting, the chief of police shall cause a copy of the notice to be forwarded by registered or certified mail, postage prepaid, or delivered personally to the person responsible, at such person’s last known address.
C. The notice to abate shall contain:
1. A description of the real property, by street address or otherwise, on which the nuisance exists;
2. A direction to abate the nuisance within 10 days from the date of the notice;
3. A description of the nuisance;
4. A statement that, unless the nuisance is removed, the city may abate the nuisance and the cost of abatement will be charged to the person responsible;
5. A statement that failure to abate a nuisance may result in a fine or assessment against the property;
6. A statement that the person responsible may protest the order to abate by giving notice to the city manager within 10 days from the date of the notice.
D. Upon completion of the posting and mailing, the persons posting and mailing shall execute and file certificates stating the date and place of the mailing and posting, respectively.
E. An error in the name or address of the person responsible shall not make the notice void, and in such case the posted notice shall be sufficient. (Ord. 858 § 46, 1987)
8.04.170 Abatement – By person responsible.
A. Within 10 days after the posting and mailing of such notice, as provided in SMC 8.04.160, the person responsible shall remove the nuisance or show that no nuisance exists.
B. A person responsible, protesting that no nuisance exists, shall file with the city manager a written statement which shall specify the basis for so protesting.
C. At the time set for consideration of the abatement, the person protesting may appear and be heard by the council, and the council shall determine whether or not a nuisance in fact exists. Council determination shall be required only in those cases where a written statement has been filed as provided.
D. If the council determines that a nuisance does in fact exist, the person responsible shall, within 10 days after the council determination, abate the nuisance. (Ord. 858 § 47, 1987)
8.04.180 Persons responsible – Joint liability.
If more than one person is a “person responsible,” they shall be jointly and severally liable for abating the nuisance or for the costs incurred by the city in abating the nuisance. (Ord. 858 § 48, 1987)
8.04.190 Abatement – By city when – Costs.
A. If, within the time allowed, the nuisance has not been abated by the person responsible, the council may cause the nuisance to be abated.
B. The officer charged with abatement of the nuisance shall have the right at reasonable times to enter into or upon property to investigate or cause the removal of a nuisance.
C. The city shall keep an accurate record of all expense incurred by the city in physically abating the nuisance, and shall include therein a charge of $25.00 or 15 percent of those expenses, whichever is greater, for administrative overhead. (Ord. 858 § 49, 1987)
8.04.200 Assessment of city abatement costs.
A. The city, by registered or certified mail, postage prepaid, shall forward to the person responsible a notice stating:
1. The total cost of abatement, including the administrative overhead, and all expenses incurred by the city, including fees for reports and professional services;
2. That cost as indicated 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 person responsible objects to the cost of the abatement, as indicated, such person may file a notice of objection with the city manager not more than 10 days from the date of the notice.
B. Upon the expiration of 10 days after the date of the notice, the council, in regular course of business, shall hear and determine the objections to the costs assessed.
C. If the costs of the abatement are not paid within 30 days from the date of the notice, an assessment of the costs, as stated or as determined by the council, shall be made by resolution, and shall thereupon be entered in the docket of city liens, and, upon such entry being made, shall constitute a lien upon the property from which the nuisance was removed or abated.
D. The lien shall be enforced in the same manner as liens for street improvements are enforced, and shall bear interest at a rate up to nine percent per year. The interest shall commence to run from the date of the entry of the lien in the lien docket.
E. An error in the name of the person responsible shall not void the assessment, nor will a failure to receive the notice of the proposed assessment render the assessment void, but it shall remain a valid lien against the property. (Ord. 858 § 50, 1987)
8.04.210 Summary abatement.
The procedure provided by this chapter is not exclusive, but is in addition to procedure provided by other ordinances, and the chief of police, or any other city official, may proceed summarily to abate a health or other nuisance which unmistakably exists and which imminently endangers human life or property. (Ord. 858 § 51, 1987)
Article VIII. Violations and Penalties
8.04.220 Abatement not a penalty – Relief from fine.
The abatement of a nuisance is not a penalty for violating this chapter, but is an additional remedy. The imposition of a penalty does not relieve a person of the duty to abate the nuisance; however, abatement of a nuisance within 10 days of the date of the notice to remove nuisance, or if a written protest has been filed, then abatement within 10 days of council determination that a nuisance exists, will relieve the person responsible from the imposition of any fine under SMC 1.08.010. (Ord. 97-105 (2), 1997; Ord. 858 § 53(2), 1987)
8.04.240 Violation – Separate offenses.
Each day’s violation of a provision of this chapter constitutes a separate offense. (Ord. 858 § 53(1), 1987)