Chapter 8.06
CHRONIC NUISANCE PROPERTY
Sections:
8.06.010 Incorporation of state statute.
8.06.030 Chronic nuisance property.
8.06.040 Pre-filing notification procedure.
8.06.050 Commencement of actions—Summons and complaint.
8.06.070 Defenses—Mitigation of civil penalty.
8.06.080 Closure during pendency of action—Emergency closures.
8.06.090 Enforcement of closure order—Costs—Civil penalty.
8.06.100 Tenant relocation costs.
8.06.010 Incorporation of state statute.
Any reference to state statute incorporated into this Chapter refers to the statute in effect on the effective date of this ordinance.
Statutory Reference:
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.020 Definitions.
As used in this Chapter, or any Code provision referenced by this Chapter, the following definitions apply:
(1) “Chief of Police” means the Chief of the Gladstone Police Department or designee.
(2) “City Administrator” means the City Administrator or designee.
(3) “Chronic Nuisance Property” means:
(a) Property on which 3 (three) or more Nuisance Activities exist or have occurred during any 60 (sixty) day period;
(b) Property within 300 (three hundred) feet of which any person associated with the property has engaged in 3 (three) or more Nuisance Activities during any 60 (sixty) day period;
(c) Property that, upon request for execution of a search warrant, has been the subject of a determination by a court that probable cause of the possession, manufacture, or delivery of a controlled substance or related offenses as defined in ORS 167.203, ORS 475.005 through ORS 475.285 and/or ORS 475.940 through ORS 475.995 has occurred within the previous 30 (thirty) 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;
(d) Property on which 6 (six) Nuisance Activities exist or have occurred over a 6 (six) consecutive month period.
(4) “Nuisance Activities” are defined as any of the following activities, behaviors or conduct:
(a) Harassment, as defined in ORS 166.065;
(b) Intimidation, as defined in ORS 166.155 through ORS 166.165;
(c) Disorderly conduct, as defined in ORS 166.025;
(d) Assault, as defined in ORS 163.160, ORS 163.165, ORS 163.175, or ORS 163.185;
(e) Menacing, as defined in ORS 163.190;
(f) Sexual abuse, Contributing to the sexual delinquency of a minor, or Sexual misconduct, as defined in ORS 163.415 through 163.445;
(g) Noise, as defined in Chapter 8.12 of this Code;
(h) Prostitution or related offenses, as defined in ORS 167.007 through ORS 167.017;
(i) Alcoholic liquor violations as defined in ORS 471.105 through ORS 471.482;
(j) Offensive littering as defined in ORS 164.805;
(k) Criminal trespass as defined in ORS 164.243 through ORS 164.265;
(l) Theft as defined in ORS 164.015 through ORS 164.140;
(m) Arson or related offenses as defined in ORS 164.315 through ORS 164.335;
(n) Delivery, manufacture or possession of a controlled substance, as defined in ORS 475.005, or related offenses, as defined in ORS 167.203 through ORS 167.262 and ORS 475.840 through ORS 475.912;
(o) Illegal gambling or related offenses, as defined in ORS 167.117, or made punishable by ORS 167.108 through ORS 167.164;
(p) Criminal mischief as defined in ORS 164.345 through ORS 164.365;
(q) Unlawful drinking, as defined in GMC 9.08;
(r) Fire or discharge of a gun or weapon, as defined in Chapter 9.52 of this Code;
(s) Unlawful use or possession of weapons or firearms, as defined in ORS 166.180 through ORS 166.350;
(t) Offenses Against Public Peace, as defined in GMC 9.12, GMC 9.18, GMC 9.20, GMC 9.25, GMC 9.26, GMC 9.28, GMC 9.36, GMC 9.40, GMC 9.44, and GMC 9.50;
(u) Nuisances, as defined in Chapter 8.04 of this Code;
(v) Fireworks violations as defined in ORS 480.110, 480.120, 480.130, 480.140(1), 480.150, 480.160 and 480.165; and
(w) 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.
(5) “Of record” means:
(a) With regard to real property, that an owner’s interest is recorded in the public records provided for by Oregon statutes where the owner’s interest must be recorded to perfect a lien or security interest or provide constructive notice of the owner’s interest; or
(b) With regard to personal property, that an owner’s interest is recorded in the public records under any applicable state or federal law where the owner’s interest must be recorded to perfect a lien or security interest, or provide constructive notice of the owner’s interest.
(6) “Owner” means the person or persons of record having any legal or equitable interest in property.
(7) “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, apartment, house, building or structure or any separate part or portion thereof whether permanent or not.
(8) “Responsible Party” means the Owner of record for the property, or the Owner’s manager or agent or other person in control of the property on behalf of the Owner.
Statutory Reference: ORS 221.410
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.030 Chronic nuisance property.
(1) The Nuisance Activities listed in Section 8.06.020(4) are hereby declared to be public nuisances of the sort that commonly recur in relation to a given property, thereby requiring the remedies set out in the Chapter.
(2) Any property within the City of Gladstone which becomes Chronic Nuisance Property is in violation of this Chapter and subject to its remedies.
(3) Any person who is a Responsible Party for Property which becomes a Chronic Nuisance property shall be in violation of this Chapter and subject to its remedies.
Statutory Reference: ORS 221.410
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.040 Pre-filing notification procedure.
(1) Except as otherwise noted herein, notwithstanding Subsection 1.08.020(2) of this Code, this section sets out procedures to be used in processing an infraction of this Chapter.
(2) When the Chief of Police or designee receives 2 (two) or more police reports documenting the occurrence of incidents on or within 300 (three hundred) feet of a Property, the Chief of Police or designee shall independently review such reports to determine whether they describe the activities, behaviors or conduct listed under Section 8.06.020(4). Upon such a finding, the Chief of Police or designee shall notify the Responsible Party in writing that the Property is in danger of becoming Chronic Nuisance Property. The notice shall contain the following information:
(a) The street address or a legal description sufficient for identification of the Property.
(b) A statement that the Chief of Police or designee has information that the Property may be a Chronic Nuisance Property, with a concise description of the Nuisance Activities that exist, or that have occurred. The Chief of Police or designee shall offer the Responsible Party an opportunity to propose a course of action that the Chief of Police or designee agrees will abate the Nuisance Activities giving rise to the violation.
(c) Require the Responsible Party to respond to the Chief of Police or designee within 10 (ten) days to discuss self-abating the Nuisance Activities.
(3) When the Chief of Police or designee receives a police report documenting the occurrence of additional Nuisance Activity on or within 300 (three hundred) feet of a Property after notification as provided by Subsection (2); or, in the case of Chronic Nuisance Property as defined in GMC 8.06.020(3)(c) or (d), for which notice under Subsection (2) is not required, the Chief of Police or designee shall notify the Responsible Party in writing that the Property has been determined to be a Chronic Nuisance Property. The notice shall contain the following information:
(a) The street address or a legal description sufficient for identification of the Property.
(b) A statement that the Chief of Police or designee has determined the property to be a Chronic Nuisance Property with a concise description of the Nuisance Activities leading to that determination.
(c) Demand that the Responsible Party respond within 10 (ten) days to the Chief of Police or designee and propose a course of action that the Chief of Police or designee agrees should abate the occurrence of nuisance incidents.
(d) Service shall be made either personally or by first class mail, postage prepaid, return receipt requested, addressed to the Responsible Party at the address of the Property determined to be a Chronic Nuisance Property, or such other place which is likely to give the Responsible Party notice of the Chief of Police’s or designee’s determination. Responsible Parties for a given Property shall be presumed from the following:
(i) The Owner of record or the Owner’s agent, as shown on the tax rolls of Clackamas County;
(ii) The resident of the property, as shown in City water billing records.
(e) The Chief of Police or designee shall prepare an affidavit of mailing for any mailing of notice required under this subsection.
(4) If the Responsible Party fails to respond as required by Subsection (3), the Chief of Police or designee may refer the matter to the City Attorney. Prior to referring the matter to the City Attorney, the notice required by Subsection (3) shall also be posted at the Property for 10 (ten) days during which the Responsible Party may respond.
(5) If the Responsible Party responds as required by Subsection (3) and agrees to abate activities, behaviors or conduct listed under Section 8.06.020(4) giving rise to the violation, the Chief of Police or designee may postpone referring the matter to the City Attorney. If an agreed course of action under Subsections (3) or (4) does not result in the abatement of the Nuisance Activities within 60 (sixty) days after written notice, or, if no agreement concerning abatement is reached within 60 (sixty) days after written notice, the Chief of Police or designee may refer the matter to the City Attorney.
(6) When a Responsible Party makes a response to the Chief of Police or designee as required by Subsections (2) or (3), any conduct or statements made in connection with the furnishing of that response shall not constitute an admission that any Nuisance Activities have occurred or are occurring. This Subsection does not require the exclusion of any evidence that is otherwise admissible or offered for any other purpose.
(7) The failure of any Responsible Party to receive notice as provided by Subsections (2) or (3) shall not invalidate or otherwise affect the proceedings under this Chapter.
Statutory Reference: ORS 221.410
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.050 Commencement of actions—Summons and complaint.
(1) A uniform infraction summons and complaint, containing the following parts, may be served upon any Responsible Party for a Chronic Nuisance Property, citing that party into Municipal Court.
(a) The summons;
(b) The complaint; and
(c) A description of the alleged occurrences leading to violation of this Chapter, stating the times and places of those occurrences.
(2) The uniform infraction summons shall contain the following information:
(a) The file number;
(b) The name and address of each respondent;
(c) The infraction with which the respondent is charged;
(d) The date, time, and place at which the hearing on the infraction is to take place;
(e) An explanation of the respondent’s obligation to appear at this hearing, and that failure to appear may result in a default judgment being taken against the respondent;
(f) An explanation of the respondent’s right to a hearing, right to representation by counsel at personal expense, right to cross examine adverse witnesses, and right to compulsory process for the production of witnesses;
(g) Notice that the cost of the hearing, including witness fees, may be charged to the respondent if the final order of the Court finds that the Property is a Chronic Nuisance Property.
(3) The uniform infraction complaint shall contain the following information:
(a) The date, time, and place the alleged infractions occurred;
(b) The date on which the complaint was issued;
(c) A legal description of the Property affected;
(d) An allegation that the Owners of record for the Property have been notified of the facts giving rise to the Chronic Nuisance Property determination at least ten (10) days prior to the filing of the action with the Court; and
(e) A notice to the respondent that a civil complaint has been filed with the Municipal Court.
(4) Service of the summons and complaint shall be accomplished as described in GMC 1.08.055 of this Code. In addition to the affidavit described in Subsection (3) of that section, a return receipt of certified mailing which indicates delivery of the summons and complaint to the respondent’s last known address, or a certified mailing which has been returned by the Post Office “unclaimed,” shall also create a rebuttable presumption that the respondent had the required notice.
(5) The hearing for determination as to whether an infraction has been committed shall take place in the manner described in GMC 1.08.070.
(6) Subject to the limitations of GMC 1.08.055(3), a default judgment may be entered against a respondent who fails to appear at the scheduled hearing. Upon such judgment, the Court may prescribe the remedies described in this Chapter.
Statutory Reference: ORS 221.410
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.060 Remedies.
(1) Upon finding that the respondent has violated this Chapter, the Court may:
(a) Require that the Chronic Nuisance Property be closed and secured against all use and occupancy for a period of not less than 30 (thirty), but not more than 180 (one hundred and eighty), days; and/or
(b) Assess a civil penalty not to exceed $500 (five hundred dollars); and/or
(c) Employ any other remedy deemed by the Court to be appropriate to abate the nuisance.
(2) In lieu of closure of the Property pursuant to Subsection (1), the respondent may file a bond acceptable to the Court. Such bond shall be in an amount set by the Court not to exceed the value of the Property closed as determined by the Court, and shall be conditioned upon the non-recurrence of any of the activities, behaviors or conduct listed at Section 8.06.020(5) of this Code for a period of 1 (one) year after the judgment. Acceptance of the bond described herein is further subject to the Court’s satisfaction of the respondent’s good faith commitment to abatement of the nuisance.
Statutory Reference: ORS 221.410
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.070 Defenses—Mitigation of civil penalty.
(1) It is a defense to an action brought pursuant to this Chapter that the Responsible Party at the time in question could not, in the exercise of reasonable care or diligence, determine that the Property was eligible under this Chapter to be a Chronic Nuisance Property, or could not, in spite of the exercise of reasonable care and diligence, control the activities, behaviors or conduct leading to the finding that the Property is a Chronic Nuisance Property. However, it is no defense under this subsection that the Responsible Party was not at the Property at the time of the activities, behaviors or conduct leading to the chronic nuisance situation.
(2) In implementing the remedies described in this Chapter, the Court may consider any of the following factors, as they may be appropriate, and shall cite those found applicable:
(a) The actions taken by the Owner(s) to mitigate or correct the problem at the Property;
(b) The financial condition of the Owner;
(c) Whether the problem at the Property was repeated or continuous;
(d) The magnitude or gravity of the problem;
(e) The cooperativeness of the Owner(s) with the City in remedying the problem;
(f) The cost to the City of investigating and correcting or attempting to correct the condition;
(g) Any other factor deemed by the Court to be relevant.
Statutory Reference: ORS 221.410
History: Ord. 1337, 2003; Ord. 1393, 2007.
8.06.080 Closure during pendency of action—Emergency closures.
In addition to any other remedy available to the City under this Chapter, in the event that the Chief of Police or designee finds that a property constitutes an immediate threat to the public safety and welfare, the City may apply to any Court of competent jurisdiction for such interim relief as is deemed by the City Administrator or designee to be appropriate. In such event, the notification and commencement of action procedures set forth in Section 8.06.040 and 8.06.050 need not be complied with, provided that the procedures of Oregon Rules of Civil Procedure 79(B) are followed with regard to all persons entitled to service under this Chapter.
Statutory Reference: ORS 221.410
History: Ord. 1393, 2007.
8.06.090 Enforcement of closure order—Costs—Civil penalty.
(1) 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.
(2) The Court may assess on the Owner the following costs incurred by the City in effecting a closure of the Property:
(a) Costs incurred in actually physically securing the Property against use;
(b) Administrative costs and attorneys fees in bringing the action for violation of this Chapter.
(3) The City Administrator may, within 14 days of written decision by the Court, submit a signed and detailed statement of costs to the Court for its review. If no objection to the statement is made within the period prescribed by Oregon Rule of Civil Procedure 68, a copy of the statement, including a legal description of the Property, shall be forwarded to the Office of the City Finance Director who thereafter shall enter the same in the City’s lien docket.
(4) Persons assessed the costs of closure and/or civil penalty pursuant to this Chapter shall be jointly and severally liable for the payment thereof to the City.
Statutory Reference: ORS 221.410
History: Ord. 1393, 2007.
8.06.100 Tenant relocation costs.
A tenant, as defined by ORS 90.100(41), of Chronic Nuisance Property may be entitled to reasonable relocation costs if, without actual notice, the tenant moved into the Property after the Owner or Owner’s agent received notice of an action brought pursuant to this Chapter. Any allowable costs will be determined by the City, and shall be a liability upon the Owner of the Chronic Nuisance Property.
Statutory Reference: ORS 221.410
History: Ord. 1393, 2007.
8.06.110 Attorney fees.
In any action brought pursuant to this Chapter, the Court may, in its discretion, award reasonable attorneys fees to the prevailing party.
Statutory Reference: ORS 221.410
History: Ord. 1393, 2007.
8.06.120 Severability.
If any provision of this Chapter, or its application to any person or circumstance, 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.
Statutory Reference: ORS 221.410
History: Ord. 1393, 2007.
8.06.130 Nonexclusive remedy.
The remedy described in this Chapter shall not be the exclusive remedy of the City for the activities, behaviors or conduct described in Section 8.06.020(5).
Statutory Reference: ORS 221.410
History: Ord. 1393, 2007.