Chapter 12.45
STRUCTURES OBSTRUCTING PUBLIC RIGHTS-OF-WAY
Sections:
12.45.010 Specific nuisance prohibited.
12.45.040 Abatement – General procedures.
12.45.050 Abatement – Emergency situations.
12.45.060 Appeal and hearing procedures – General requirements.
12.45.070 Appeal and hearing procedures – Review of decision.
12.45.080 Abatement by owner – Required.
12.45.090 Abatement by city – Assessment.
12.45.110 Liens against property.
12.45.010 Specific nuisance prohibited.
It shall be unlawful to erect, install, construct, maintain, repair, alter or otherwise allow the installation, setting out or maintenance of any building, or other structure, sign, fence, site distance obstructions or other obstruction within or upon a duly dedicated or platted street, alley or other public right-of-way in the city of Fairview, which shall be deemed a nuisance. (Ord. 8-2009 § 6 (Att. 3))
12.45.020 Exceptions.
The following features are allowed in the right-of-way subject to obtaining a right-of-way permit unless expressly exempt from permit requirements under other provisions of the Fairview Municipal Code:
A. Above- and below-ground municipal and franchise utility structures including pipes, conduits, manholes, signs, fire hydrants, utility poles and vaults.
B. Mailboxes.
C. Signs authorized to be placed in the right-of-way by an approved sign permit and right-of-way permit.
D. Public safety and traffic control devices.
E. Public transit facilities when authorized under an approved right-of-way permit.
F. Residential refuse containers when placed in the right-of-way for no more than three consecutive days.
G. Commercial refuse containers when placed in the right-of-way under an approved right-of-way permit.
H. Structures associated with an approved street closure when located within the area of the approved closure.
I. Government owned or managed signs.
J. Items similar to the above as determined by the public works director. (Ord. 8-2009 § 6 (Att. 3))
12.45.030 Enforcement.
This chapter shall be enforced by the public works director or designate. (Ord. 8-2009 § 6 (Att. 3))
12.45.040 Abatement – General procedures.
A. In the event it is determined by the public works director that a right-of-way obstruction nuisance exists as defined in FMC 12.45.010, the public works director shall give written notice to the property owner of record whose property is immediately contiguous or adjacent to the nuisance and demand abatement within 10 days from the date of the written notice or such lesser time to protect public health, safety and welfare.
B. In the event the person responsible for the creation or maintenance of the nuisance cannot be satisfactorily determined and/or in the event a property owner cannot be satisfactorily determined, a posting of said notice to abate the nuisance shall be placed upon the adjacent property concerned and shall be deemed sufficient and adequate notice to said person and/or property owner, as the case may be. In all cases where a nuisance as defined in this chapter exists, a notice to abate the same shall be posted on the premises affected.
C. The notice shall conform with FMC 8.10.070(B).
D. The notice required shall be furnished in a manner best calculated to give actual notice. Notice may be given by certified mail or by personal delivery to the premises concerned. In any event the city official giving notice shall make a return of service indicating the date and manner in which the notice was given. (Ord. 8-2009 § 6 (Att. 3))
12.45.050 Abatement – Emergency situations.
In an emergency, the public works director may order the immediate abatement of a nuisance or immediately abate the nuisance as set forth under FMC 8.10.080. (Ord. 8-2009 § 6 (Att. 3))
12.45.060 Appeal and hearing procedures – General requirements.
A. Any person receiving notice under FMC 12.45.040 may request a hearing by writing the public works director within seven days of the date of notice.
B. The public works director shall, upon receipt of request for a hearing, notify the municipal court and thereafter shall, consistent with the terms of FMC 2.27.070, notify the person requesting the hearing as to the hearing’s time and place.
C. The person requesting the hearing and the public works director shall have the rights accorded parties under Chapter 2.27 FMC. Any party may be represented by legal counsel.
D. After the hearing, the judge shall issue and mail a copy of the order determining the question to the person requesting the hearing, the public works director and other designated persons.
E. If the municipal court finds a nuisance, as defined in this chapter, to exist, the order shall set a date for abatement to be accomplished by the owner.
F. If the municipal court determines that there was a wrongful abatement under FMC 12.45.050, the judge may order the public works director to make reasonable restitution. (Ord. 8-2009 § 6 (Att. 3))
12.45.070 Appeal and hearing procedures – Review of decision.
Review of any action of the municipal court taken under this chapter and the rules adopted herewith shall be taken solely and exclusively in the manner set forth in ORS 34.010 through 34.100. (Ord. 8-2009 § 6 (Att. 3))
12.45.080 Abatement by owner – Required.
Failure of the owner to abate the nuisance within 10 days as provided by FMC 12.45.040, or within the time set by the municipal court under FMC 12.45.060 shall be an additional violation of this chapter. (Ord. 8-2009 § 6 (Att. 3))
12.45.090 Abatement by city – Assessment.
A. If an owner fails to abate a nuisance as required under this chapter, the public works director shall, prior to abating anything made a nuisance under this chapter, file an action against the owner pursuant to Chapter 2.27 FMC 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 2.27 FMC. 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. 8-2009 § 6 (Att. 3))
12.45.110 Liens against property.
A. The public works director may cause a lien to be filed against the concerned property if payment is not made as provided in FMC 12.45.090.
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. 8-2009 § 6 (Att. 3))
12.45.120 Penalties.
Any person who shall violate any provision of this chapter as herein set forth shall be deemed guilty of a misdemeanor and upon conviction before the municipal judge be subject to a fine of not more than $250.00 for each violation thereof. Each day or portion of a day such violation continues or occurs shall be deemed a separate violation. (Ord. 8-2009 § 6 (Att. 3))