A. General: Any party defendant and any person holding any legal or equitable interest or right of possession in any property seized or restrained under this part may file a motion to vacate or modify the temporary restraining order or for return of seized property. Proceedings on these motions shall be as provided below.
B. Motion To Vacate Or Modify Orders Other Than Those Pertaining To Seizure Of Property: Where the specific provision in the temporary restraining order complained of pertains to any matter other than the seizure, retention, closure, or receivership of property, the provision of this subsection shall apply and control.
1. Within thirty (30) days of the date defendant is served with the temporary restraining order, the moving party must:
a. File the motion to vacate or modify; and
b. Set the motion for a hearing to be held within twenty (20) days but not less than ten (10) days from the date the motion is filed; and
c. Personally serve the motion and notice of the hearing on the Office of the City Attorney. Any motion to vacate a temporary restraining order shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing.
2. At the hearing, the City shall have the burden of proving by a preponderance of the evidence that there is probable cause to believe that a public nuisance or public nuisance activity occurred on, in or about the real property, or the real property was used to commit, conduct, promote, facilitate or aid the commission of any public nuisance. The court shall not vacate or modify the temporary restraining order unless it finds that there is no probable cause to believe that a public nuisance occurred or the order is manifestly unreasonable or unjust.
C. Motion To Vacate Or Modify Orders Pertaining To Seizure Of Property: Where a specific provision in the temporary restraining order pertains to the seizure, retention, closure or receivership of property, the provisions of this subsection shall apply and control.
1. Within thirty (30) days of the date the defendant is served with the temporary restraining order, the moving party must:
a. File this motion; and
b. Set the motion for a hearing to be held within twenty (20) days but not less than ten (10) days from the date of the filing of the motion; and
c. Personally serve the motion and notice of the hearing on the Office of the City Attorney. Any motion for return of seized property shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing.
2. At the hearing on the motion for return or release of seized property, the party seeking release and return of the property shall have the burden of proving ownership or a right to possession and that the property is not relevant evidence in any criminal proceeding. The City shall have the burden of proving by a preponderance of the evidence that there is probable cause to believe that a public nuisance or public nuisance activity occurred on, in or about the real property, or the real property was used to commit, conduct, promote, facilitate or aid the commission of any public nuisance. If, at the time of the hearing, the City has already obtained a judicial determination of probable cause through the issuance of a temporary restraining order, the City shall have no burden of proof, and the party seeking release of the property shall also have the burden of proving that there is no probable cause to believe that a public nuisance occurred on, in or about the real property or that an affirmative defense under section 9.6.710 of this part exists.
3. The court shall not return or release the property to the moving party unless it finds by a preponderance of the evidence that:
a. The moving party is the owner of the property or presently entitled to possession;
b. The property is not relevant evidence in a criminal proceeding; and
c. There is no probable cause to believe that a public nuisance was committed on, in or about the real property or that an affirmative defense under section 9.6.710 of this part exists.
D. Consolidated Hearing On Motion To Vacate, Modify, And Trial On The Merits: Where all parties so stipulate, the court may order the trial on the merits to be consolidated and tried with a hearing on these motions. Where the trial on the merits is not consolidated, any evidence received at the hearing on these motions need not be repeated at trial, but shall be treated as part of the record at trial.
E. Order To Stay Execution Of Temporary Restraining Order: In addition to a motion to vacate or modify orders pursuant to subsections B and C of this section, a defendant may file a motion for stay of execution of a temporary restraining order. Whenever a motion for stay of execution is filed, the provisions of this subsection shall apply and control.
1. Within thirty (30) days of the date defendant is served with the temporary restraining order, the moving party must:
a. File a motion to stay enforcement of the temporary restraining order; and
b. Set the motion for a hearing to be held within twenty (20) days but not less than ten (10) days from the date of the filing of the motion; and
c. Personally serve the motion and notice of the hearing on the Office of the City Attorney.
2. At the hearing, the moving party shall have the burden of proving by a preponderance of the evidence that the defendant is using all reasonable efforts to abate the nuisance activities, and that those efforts are likely to abate the nuisance activities.
3. If the court finds:
a. The defendant is using all reasonable efforts to abate the nuisance activities;
b. These efforts are likely to abate the activities giving rise to the public nuisance; and
c. The public health, safety and welfare would not be impaired by granting a stay of execution of the temporary restraining order, the court may grant a stay of execution of the temporary restraining order not to exceed forty five (45) days except where a longer period of time is required by law 1 .
4. Any order granting a stay of execution of the temporary restraining order pursuant to subsection E3 of this section shall be reviewed by the court at least five (5) days prior to expiration of the stay. (Ord. 00-104; Ord. 01-42)
Notes
| 1 | 1. This provision is necessary in the event that eviction proceedings require a greater period of time. |