Chapter 8.04
NUISANCES AND NUISANCE ABATEMENT

Sections:

8.04.010    Title.

8.04.030    Definitions.

8.04.040    Administration.

8.04.050    Specific nuisances prohibited.

8.04.055    Noise disturbances.

8.04.057    Vehicle storage and repair in residential neighborhoods.

8.04.060    Routine and emergency inspection – Authority.

8.04.070    Abatement – General procedures.

8.04.080    Abatement – Emergency situations.

8.04.090    Appeal and hearing procedures – General requirements.

8.04.100    Appeal and hearing procedures – Review of decision.

8.04.110    Persons responsible – Joint liability.

8.04.120    Abatement by owner – Required.

8.04.130    Abatement by city – Assessment.

8.04.140    Waiver of assessments.

8.04.150    Liens against property.

8.04.160    Summary abatement.

8.04.170    Violation.

8.04.010 Title.

This chapter shall be known as “Silverton nuisance code” or SNC and may be so pleaded and referred to as such. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.030 Definitions.

As used in the Silverton nuisance code (unless the context requires otherwise) the following terms are defined as follows:

A. “Camping” is the maintenance of a temporary place to sleep or live regardless whether such place incorporates the use of any tent, shack or other structure or vehicle.

B. “City manager” or “manager” means the Silverton city manager or an authorized designee.

C. “Council” means the Silverton city council.

D. “Discarded vehicle” means any vehicle on private property having at least two of the following conditions:

1. Appears inoperative, wrecked or in obvious disrepair;

2. Has no current vehicle registration plates displayed; or

3. Is totally or partially dismantled.

E. “Explosive” means a chemical compound, mixture or device used or intended for producing a chemical reaction resulting in a substantially instantaneous release of gas and heat, including but not limited to dynamite, blasting powder, nitroglycerin, blasting caps and nitrojelly (but excluding fireworks as defined by state law), black powder, smokeless powder, small arms ammunition and small arms ammunition primers.

F. “Graffiti” means any inscription, word, figure or design marked, etched, scratched, drawn or painted on any surface not authorized by the owner thereof.

G. “Intersection” means the area within the prolongation or connection of the lateral curb lines or lateral boundary lines of two or more streets or highways joining one another at an angle, regardless whether they cross.

H. “Liquid waste” means waste oil, septic tank pumping, liquid industrial wastes or other similar material.

I. “Municipal court judge” means a judge of the Silverton municipal court.

J. “Noxious vegetation” means either:

1. Any vegetation that is or is likely to become:

a. A health hazard;

b. A fire hazard; or

c. A traffic hazard because it impairs the view of the public thoroughfare, or otherwise makes use of the thoroughfare hazardous; or

2. The following:

a. Poison oak (Toxicodendron diversiloba);

b. Poison ivy (Toxicodendron radicans);

c. Blackberry bushes that extend into a public way, a pathway frequented by children, cross a property line, or that are used for a habitation by trespassers;

d. Grass or weeds more than 10 inches high;

e. Scotch broom (Cytisus scoparius), English ivy (Hedera helix), hogwood (Heracleum mantegazzianum), knotweed (Polygonum cuspidatum) and purple loosestrife (Lythrum salicaria); and

f. All other vegetation included in the State Department of Agriculture “Oregon Department of Agriculture Noxious Weed Control Policy and Classification System.”

K. “Nuisance” means any item, condition or practice capable of causing a threat to the public health, safety and welfare, including anything defined as a nuisance by this chapter.

L. “Owner” means any person having a legal or equitable interest in real or personal property or a person in possession or control thereof excluding person(s) whose interest is for security only.

M. “Person” means any natural person, association, trust, partnership, firm or corporation or other entity.

N. “Radioactive substance” means a substance which emits radiation in the form of gamma rays, x-rays, alpha particles, beta particles, neutrons, protons, high-speed electrons or other nuclear particles, but radiation does not include sound waves, radio waves, visible light, infrared light or ultraviolet light.

O. “Rodent” means a mouse, rat, or any other rodentia.

P. “Rubbish” means glass, metal, paper, wood, plastics or other nonputrescible solid waste.

Q. “Sidewalk” means that portion of the public right-of-way set apart by curbs, barriers, markings or other delineation generally used for pedestrian travel.

R. “Solid waste” means all putrescible and nonputrescible wastes, whether in solid or liquid form, (except wastes produced by the human body, liquid-carried industrial waste or sewage hauled as an incidental part of septic tank or cesspool cleaning service) and includes garbage, rubbish, ashes, fill dirt, sewage, street refuse, industrial wastes, swill, demolition and used construction materials, abandoned vehicles or parts thereof, discarded home or industrial appliances, manure, vegetable or animal solids and semisolid waste, dead animals and other discarded solid materials.

S. “Vector” means any insect organism, including but not limited to flies, fleas, lice, ticks, fly maggots and mosquito larvae, capable of bearing or carrying a disease transmittable to human beings.

T. “Vehicle” means any motorized device designed or used for transporting people, goods or property upon a street or other roadway not including a device propelled by human power, such as a bicycle, or operated exclusively upon fixed rails or tracks. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.040 Administration.

A. Enforcement. The manager is responsible for the administration and enforcement of the Silverton nuisance code and an action to enforce the terms thereof may be brought before the Silverton municipal court consistent with the procedures set out in Chapter 8.07 SMC.

B. Rules and Regulations. The city manager may adopt rules necessary for the administration and enforcement of the SNC.

C. Notice Procedure. Except as otherwise specifically provided in this chapter, all notices shall be in writing and may be hand delivered or by mail. If mailed, the notice shall be postpaid, return receipt requested, to the addressee’s last known address. A mailed notice shall be deemed received on the second mail delivery day after mailing. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.050 Specific nuisances prohibited.

A. It shall be unlawful for any person to maintain, suffer or permit the following things, practices or conditions on any private property (or within the public right-of-way adjacent thereto):

1. A pond or pool of stagnant water emitting a noxious odor or is a source of vector breeding or otherwise presents a threat to the public health and safety;

2. Cesspools or septic tanks which are in an unsanitary, unsafe or malfunctioning condition, or which cause an offensive odor;

3. Premises in a state or condition causing offensive malodor or which is in an unsanitary condition;

4. An animal carcass not buried, destroyed or otherwise lawfully disposed of within 24 hours after death;

5. Accumulation, collection or storage of solid waste, debris, rubbish, manure, tires or other refuse, creating an odor or fire hazard, detracting from the cleanliness or safety of the property or likely to cause injury to a person, animal or vehicle traveling upon a public way, unless the person is licensed thereby to operate a business specifically for those purposes or obtains prior approval of lawful authority;

6. An abandoned, discarded or unattended container with a compartment of more than one and one-half cubic feet capacity with a door or lid which locks or fastens automatically when closed and which cannot be opened from the inside;

7. Any vacant or improved property with accumulation of material which may attract or harbor vectors or rodents;

8. Any accumulation of dirt, sand, gravel, pieces or chunks of concrete or other similar inorganic material which detracts from the cleanliness or safety of the property, unless the owner is licensed to operate a business specifically for those purposes or otherwise obtains prior approval from a lawful authority;

9. Graffiti on private property that is not removed within 48 hours of discovery;

10. An open pit, excavation or hole with a depth of four feet or more and a top width of 12 inches or more without safeguards or barriers to prevent them from being accessible to the public;

11. Dead or decaying trees and tree limbs presenting a hazard to the public or abutting property owners;

12. Any vehicle or other personal property such as, but not limited to, a trailer, boat or recreational vehicle parked or stored to obstruct the public sidewalk;

13. Man-made or natural obstructions at or near intersections hindering the view necessary for safe operation of vehicles, pedestrians and bicycles;

14. Obstruction of the public right-of-way by trees, bushes, roots, other natural growth, soil or solid waste;

15. Failure to maintain sidewalks in good repair, or to timely remove ice and snow, rock, sand, bark dust, compost, lumber, yard trimmings, leaves or other debris so as to eliminate hazardous conditions resulting therefrom;

16. Any excavation endangering the lateral support of public rights-of-way or other public property;

17. Any structure (either vacant or under construction) not locked or otherwise secured to prevent access by the public at large;

18. Signs placed illegally within the public right-of-way;

19. Noxious vegetation excepting growth on public land or designated private conservation areas specifically for providing native wildlife habitat;

20. Any structure contaminated by toxic chemicals or in a condition rendering it unsafe. Where a governmental agency authorized by law to make the determination that a structure is unfit for use there is thereby created a rebuttable presumption that the structure is a nuisance;

21. Maintaining an occupied travel trailer, motor home, camper, or vehicle or trailer modified for sleeping at any location other than a licensed recreational vehicle park, except travel trailers and motor homes used by visitors for a period not to exceed 14 days in any consecutive six-month period;

22. Connection of any electric, water, sewer, gas or telephone line to a motor home, travel trailer, camper or utility trailer if any portion of such line extends over, across or under any public right-of-way or portion thereof;

23. Depositing of oil or chemicals on to public streets or storm drains;

24. Construction or maintenance of a barbed-wire or razor fence along a sidewalk or public way, except where such wire is installed around an industrial or commercial use, or is placed above the top of other fencing not less than six feet, six inches high;

25. Construction, maintenance or operation of an electric fence along a sidewalk or public way, or along the adjoining property line of another person;

26. Camping or sleeping on public rights-of-way, other publicly owned places or under bridges unless specifically permitted by the city;

27. Allowing or causing flooding to occur on private property that is likely to or does result in damage to persons or property.

B. The enumeration of nuisances in subsection (A) of this section does not limit the power of the city manager to investigate or declare any other condition a nuisance.

C. Except for notices posted by the city, state or federal government, no person may attach or cause to be attached any bill, placard, poster or sign upon real or personal property, whether public or private, without first securing permission from the owner thereof. This section shall not be construed as an amendment to or a repeal of any city development code regulation of the use and location of signs. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.055 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 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 created by refuse pickup operations;

4. Sounds created by domestic power tools during the period of 8:00 a.m. to 8:00 p.m., provided sound-dissipating devices on tools so equipped are maintained in good repair;

5. Sounds made by emergency warning devices operating continuously for five minutes or less;

6. 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 Chapter 2.4 SDC;

7. 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;

8. Sounds caused by city maintenance equipment.

D. Whenever the city manager believes that a noise disturbance exists, the city manager shall give written notice to the party(ies) responsible for causing the noise disturbance and demand abatement. Except for the 10-day abatement period specified in SMC 8.04.070(B), all other abatement procedures in this chapter apply.

E. The city manager may issue a permit authorizing activities otherwise prohibited by this section if he/she determines the public health, safety and welfare will not be unreasonably impaired by the activities and a substantial loss or inconvenience would result unless the activities were allowed. The city manager may impose reasonable conditions on the permit including temporal and bonding requirements. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.057 Vehicle storage and repair in residential neighborhoods.

Every person shall maintain the following things, practices or conditions on any property used as a residence unless the practice or condition occurs as part of a lawfully established nonconforming use:

A. Driveway surfaces must be constructed of concrete, asphalt or some other comparable hard material. “Driveway” means the private vehicular drive connecting a house, garage, carport or other building with the street.

B. Parking areas, other than driveways, must be surfaced with concrete, asphalt of not less than six inches of three-quarter-inch-minus or greater crushed stone. “Parking area” means any portion of the property (other than a driveway) used to park vehicles.

C. No commercial vehicle exceeding 8,000 pounds gross weight, 21 feet in length or eight feet in height shall be parked in a driveway or parking area unless the vehicle is routinely on standby and necessary for use in emergencies.

D. Service, repair or storage of vehicles not owned and registered to a resident of the property is prohibited. Vehicle(s) registered to a resident of the site may be serviced and repaired, including tune-ups, replacement and servicing of oil and other fluids and replacement and adjustment of tires, hoses, belts, filters, fuses, and similar items.

E. No discarded vehicle may be stored on property for a period greater than 72 hours unless such vehicle is fully enclosed in a building, fenced, or screened enclosure makes it hidden from view from the right-of-way and adjoining properties.

F. The city manager may issue a permit authorizing activities otherwise prohibited by this section if he/she determines the public health, safety and welfare will not be unreasonably impaired by the activities and a substantial loss or inconvenience would result unless the activities were allowed. The city manager may impose reasonable conditions on the permit. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.060 Routine and emergency inspection – Authority.

The city manager may enter any property or building at any reasonable time for the purpose of inspection or enforcing this chapter, except when the city manager has reasonable cause to believe that a nuisance constitutes an immediate and imminent danger to the public health, safety or welfare. The city manager shall obtain the consent of the owner or a warrant before entering private property or building. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.070 Abatement – General procedures.

A. An investigation may be conducted whenever the city manager receives a complaint that a nuisance exists.

B. Whenever the city manager reasonably believes a nuisance exists, he/she shall give written notice to the property owner and demand abatement thereof within 10 days from the date of the notice or such lesser time as he/she believes appropriate to protect the public health, safety and welfare. The manager 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. The written notice shall contain:

1. A description of the property by street address or otherwise where the nuisance exists;

2. A description of the nuisance;

3. The action necessary to abate the nuisance;

4. The time within which the nuisance is to be abated;

5. A statement that unless the nuisance is timely abated, the city may abate it with the cost thereof being a lien on the property;

6. A statement that the city may file an action in Silverton municipal court seeking an order of abatement if the owner fails to abate the nuisance voluntarily; and

7. A statement that the owner may request a hearing before the Silverton municipal court upon written request to the city manager within 10 days of the date of the notice.

C. An error in the name or address of the person responsible shall not void the notice and in such case the posted notice shall be sufficient.

D. Nothing stated within requires the city or manager to take any action unless it is in the city’s interest to do so.

E. If the property owner fails to abate the nuisance or request a hearing before the Silverton municipal court in 10 days in accordance with subsection (B) of this section, the city manager may, in his or her sole discretion, authorize city abatement of the nuisance, consistent with SMC 8.04.130. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.080 Abatement – Emergency situations.

If, as a result of an imminent threat to the public health or safety, the city manager believes immediate abatement of the nuisance is appropriate, then he/she may proceed therewith in as expeditious a fashion as is consistent with protection of the public interest. The manager shall then send written notice of reasons for the abatement to the owner. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.090 Appeal and hearing procedures – General requirements.

A. Any person receiving notice under either SMC 8.04.070(B) or 8.04.080 may make a written request for a hearing to the city manager within seven days of the date of the notice.

B. The manager shall, upon receipt of the hearing request, notify the municipal court and shall, consistent with the provisions of Chapter 8.07 SMC, notify the requestor as to the hearing’s time and place.

C. After the hearing, the court shall issue a copy of the court’s determination providing it to all interested parties.

D. If the court finds a nuisance, the determination shall set a date for abatement by the owner.

E. If the court determines that anything removed under SMC 8.04.070(B) no longer constitutes a nuisance or can be released upon such condition as the municipal court judge may prescribe that will eliminate the nuisance, the person entitled thereto may claim it upon paying the expense incurred in its removal and storage as the case may be.

F. If the municipal court determines that there was a wrongful abatement under SMC 8.04.070(B), the judge may order the city manager to make reasonable restitution. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.100 Appeal and hearing procedures – Review of decision.

Judicial review of the municipal court shall be taken by way of writ of review (ORS 34.010 et seq. (2013)). (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.110 Persons responsible – Joint liability.

Persons responsible for violation under this chapter shall be jointly and severally liable for any costs incurred by the city in achieving compliance with the code. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.120 Abatement by owner – Required.

Failure of an owner to abate a nuisance consistent with either this chapter or at the court’s order is an additional violation. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.130 Abatement by city – Assessment.

A. If an owner fails to abate a nuisance as required under this chapter, the city manager shall, prior to abating anything made a nuisance under this chapter, file an action against the owner pursuant to Chapter 8.07 SMC and obtain an order therefrom authorizing the abatement.

B. If the city abates the nuisance, an accurate record of the abatement costs shall be kept and shall include a surcharge of 40 percent of the cost of the abatement for administrative overhead and the costs associated with bringing the action under Chapter 8.07 SMC. A billing for the amount of the costs shall be forwarded by certified or registered mail, return receipt requested, to the owner. Payment shall be due to the city within 15 days from the date of the billing. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.140 Waiver of assessments.

A. Conditions. The city’s abatement costs may be waived if, upon timely application, it appears to the city manager that the following conditions exist:

1. The owner is disabled or over 65 years of age and, if single, had an income during the preceding calendar year from all sources of less than $7,500 or if the head of a family had an income during the preceding calendar year from all sources of less than $10,000; and

2. The owner is living on the property from which the nuisance is to be abated.

B. Waiver of Assessments – Application Procedures. The written waiver application shall be filed with the manager within 10 days of the date of the notice as to the abatement cost amount. The manager may require the owner to supply information as evidence that the applicant qualifies for waiver. A waiver application must be submitted for each abatement cost notice sent the applicant. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.150 Liens against property.

A. The city manager shall cause an assessment lien to be filed against the concerned property if payment is not made as provided in SMC 8.04.130 or waived under SMC 8.04.140.

B. The lien provided for in subsection (A) of this section shall be given priority over all liens except those for taxes and assessments and shall include interest at the legal rate accruing from the date billing is sent to the owner of the property.

C. The lien provided for in subsection (A) of this section shall be foreclosed in the manner prescribed by state law for the enforcement of liens and collection of assessments. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.160 Summary abatement.

The procedures provided by this chapter are not exclusive and the city manager may use such other remedies as he/she deems appropriate under the circumstances. (Ord. 13-11 § 1 (Exh. A), 2013)

8.04.170 Violation.

A. The abatement of a nuisance is a remedy and each day a nuisance condition exists is deemed a separate violation of the SNC.

B. Any owner or person found in violation of the SNC may be assessed a civil penalty of no more than $1,000 for each violation which penalties are in addition to and not in lieu of any other remedy available.

C. Any person found in violation of this chapter two times for the same violation within 12 months shall be considered on the third violation a “habitual offender” and shall be fined no less than $1,000 on the third and every subsequent conviction. (Ord. 13-11 § 1 (Exh. A), 2013)