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A. Continuous Effect Of Temporary Restraining Orders: Ex parte temporary restraining orders shall remain continuously in effect unless modified by court order as provided in section 9.6.707 of this part, by stipulation of the parties or after trial on the merits.
B. No Security Or Bond: No security or bond of any type shall be required of the City in obtaining any temporary restraining order under this part.
C. Form And Scope Of Temporary Restraining Order: Every temporary restraining order shall set forth the reason for its issuance, be reasonably specific in its terms and describe in reasonable detail the acts and conditions authorized, required or prohibited, and shall be binding upon the property, the parties to the action, their attorneys, agents and employees and any other person who receives actual notice of the order. (Ord. 00-104; Ord. 01-42)
A. General: The court shall issue an ex parte temporary restraining order if the complaint, supported by an affidavit, shows by a preponderance of the evidence that there is probable cause to believe that a public nuisance has 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.
B. Seizure Of Real Property And The Contents Of Buildings: The temporary restraining order shall make orders necessary to effect the seizure of real property and the contents of buildings and which are reasonably necessary to access, maintain and safeguard the property. These orders shall become effective within thirty (30) days of the date the temporary restraining order is posted on the real property and served as provided by subsection 9.6.703I of this part, unless within that thirty (30) day period a person claiming a legal or equitable interest or right of possession in the real property files, sets, serves and has heard a motion to vacate or modify the temporary restraining order(s) as provided in subsection 9.6.707C of this part, or unless within that thirty (30) day period a person claiming a legal or equitable interest or right of possession in the real property files, sets, serves and has heard a motion to stay execution of a temporary restraining order as provided in subsection 9.6.707E of this part. The motion shall be heard and determined as provided in subsections 9.6.707C and E of this part. A motion properly brought under subsection 9.6.707C or E of this part shall temporarily stay a temporary restraining order until the conclusion of the hearing. No temporary restraining order shall permit the seizure of real property until this thirty (30) day period has elapsed. (Ord. 00-104; Ord. 01-42)
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. |
Where the existence of a public nuisance is established in a civil action under this part, the court shall enter permanent prohibitory and mandatory injunctions requiring the parties defendant to abate the public nuisance and take specific steps to prevent the same and other public nuisances from occurring on the real property. The court shall also order the following remedies:
A. Closure Of Real Property And Destruction Of Certain Structures: That the real property be closed for a period of not less than three (3) months and not exceeding one year from the date of the final judgment, plus any extension of that period caused by a failure to comply with the reasonably necessary conditions for release of the property set by the court. Where reasonably necessary, the court may further order the defendants to carry out destruction of the structures. The court shall order the defendants to provide for maintenance, utilities, insurance and security of the property during the period of closure. At the end of the closure period, the real property shall be released to the owner only upon payment of all actual expenses incurred by the City and payment of all civil judgments under section 9.6.709 of this part. The issuance and execution of the closure order shall not be deemed a bailment of property.
B. Receivership Of Real Property: Where the City so requests, in lieu of closure of real property, the property may be placed into a special receivership for a period not less than three (3) months and not exceeding one year from the date of the final judgment plus any extension of that period caused by a failure to comply with the reasonably necessary conditions for release set by the court. The receiver, appointed ex parte by the court, shall take possession of the property to the exclusion of the owners and other persons holding any legal or equitable interest and their managers and agents then in possession, shall collect rents and profits from the tenants, and shall pay the operating expenses, taxes, utilities and maintenance expenses on the property. The receiver shall not pay the principal or interest on any note, deed of trust, mortgage, or similar instrument, and these obligations shall remain that of the owners and other persons holding any legal or equitable interest in the real property. The court shall periodically award the receiver reasonable fees for the receiver's services to be paid out of the rents, profits and income of the property. The receiver shall account for all income and expenses and the balance, if any, shall be remitted to the property owner. The court may make other reasonable orders consistent with these provisions for the administration of this special receivership. The court shall order the defendant(s) to provide for and pay the maintenance, utilities, security, operating expenses, taxes, insurance, receivership fees and other reasonable expenses related to the property to the extent that the rents, profits and income of the property under the receivership is insufficient to defray these expenses. At the end of the receivership period, the real property shall be released to the owner only upon one payment of all actual expenses incurred by the City for seizure and receivership, and payment of other reasonable expenses not covered by the income under receivership and payment of all civil judgments under section 9.6.709 of this part. The issuance and execution of the receivership order shall not be deemed a bailment of property. The owner of the property remains responsible for the maintenance and security of the property subject to the receivership order and shall be permitted reasonable access to the property for these purposes upon application to the court. (Ord. 00-104; Ord. 01-42)
In any case in which a public nuisance is established, in addition to the remedies provided above, the court shall impose a separate civil judgment on every person who committed, conducted, promoted, facilitated or aided the commission of any public nuisance or who held any legal or equitable interest or right of possession in any real property on or in which any public nuisance occurred. This civil judgment shall be for the purpose of compensating the City for the costs of pursuing the remedies under this part. The civil judgment shall be in the liquidated sum of five hundred dollars ($500.00) and shall be imposed as a judgment against each defendant independently, separately and severally. (Ord. 00-104; Ord. 01-42)
A. It shall be an affirmative defense to an action brought pursuant to this part that the owner of the property was not involved in the public nuisance or public nuisance activity and that the owner did not know and was not wilfully blind towards the public nuisance or public nuisance activity.
B. It shall be an affirmative defense to an action brought pursuant to this part that the owner has acted diligently and with good faith to correct the nuisance. In addition to any other facts the court considers relevant, the court shall consider the following in determining whether the owner has acted diligently and with good faith:
1. Whether the owner has taken all reasonable steps to abate the public nuisance activity and restrain and prevent future nuisance activity;
2. Whether the steps taken by the owner have been effective, the nuisance no longer exists, and recurrence of the nuisance condition does not appear likely; and
3. Whether the owner or any agent, employee or assign was involved in activity which created or encouraged the public nuisance condition. (Ord. 00-104; Ord. 01-42; Ord. 09-96)
Any actual expenses incurred by the City for seizure, receivership, closure, abatement, emergency abatement, other reasonable expenses and any judgment entered pursuant to section 9.6.709 of this part, shall be an assessment against the real property. These expenses may include the use of private contractors when appropriate. A lien in favor of the City shall lie against the real property for the amount assessed and may be enforced pursuant to law. (Ord. 00-104; Ord. 01-42; Ord. 09-96)
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