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CHRONIC NUISANCE PROPERTY
§ 90.25 DEFINITIONS.
   For the purposes of this subchapter, the following definitions shall apply if the context clearly indicates or requires a different meaning.
   CHRONIC NUISANCE PROPERTY. Property on which two or more nuisance activities have occurred during any 30-day period; property on which, or within 200 feet of, any person associated with the property has engaged in two or more nuisance activities during any 30-day period; or property which, upon request for execution of a search warrant, has been the subject of a determination by a court that probable cause that possession, manufacture, or delivery of a controlled substance or related offenses under Oregon law have occurred within the previous 30 days; and the execution of the search warrant has resulted in the discovery of such controlled substances.
   CONTROL. The ability to regulate, restrain, dominate, counteract or govern conduct that occurs on a property.
   NUISANCE ACTIVITIES. Any of the following activities, behaviors or criminal conduct, as defined under Oregon state law: harassment; intimidation; disorderly conduct; assault or menacing; sexual abuse, contributing to the delinquency of a minor, or sexual misconduct; public indecency; prostitution or related offenses; alcoholic liquor violations; theft; arson or related offenses; possession, manufacture, or delivery of a controlled substance or related offenses; illegal gambling; criminal mischief; any attempt to commit (as defined by O.R.S. 161.405), or conspiracy to commit (as defined by O.R.S. 161.455), any of the above offenses; unlawful discharge of a firearm; unlawful operation of sound-producing or reproducing equipment or unnecessary noise.
   PERMIT. To suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the commission of an act.
   PERSON. Any natural person, agent, association, firm, partnership or corporation capable of owning, occupying or using property in the City of Shady Cove.
   PERSON ASSOCIATED WITH. Any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize or visit, or waited to enter, patronize or visit a property or person present on a property, including without limitation any officer, director, customer, agent, employee, or any independent contractor of a property, person in charge, or owner thereof.
   PERSON IN CHARGE. Any person, in actual or constructive possession of a property, including but not limited to an owner or occupant of property under his or her dominion, ownership or control.
   PROPERTY. Any property, including land and that which is affixed, incidental or appurtenant to land, including but not limited to any business or residential premises, room, house, parking area, loading area, landscaping, building or structure or any separate part, unit or portion thereof, or any business equipment, whether or not permanent. For property consisting of more than one unit, PROPERTY is limited to the unit or the portion of the property on which any nuisance abatement has occurred or is occurring, but includes areas of the property used in common by all units of property including without limitation other structures erected on the property and areas used for parking, loading and landscaping.
(Ord. 274, passed 8-6-2015)
§ 90.26 VIOLATION.
   (A)   Any property within the City of Shady Cove which is a chronic nuisance property is in violation of these provisions and subject to the remedies prescribed herein. A property is not in violation of these provisions if an occupant of the property is the victim of a crime constituting the nuisance activity or an innocent occupant’s family member is the victim of such crime.
   (B)   Any person in charge who permits property to be a chronic nuisance property shall be in violation of these provisions and subject to the remedies prescribed herein. Any person in charge who is a victim of a crime constituting the nuisance activity or any innocent person in charge whose family member is the victim of such crime shall not be in violation of these provisions.
(Ord. 274, passed 8-6-2015)
§ 90.27 PROCEDURE; NOTICE.
   (A)   When the City Administrator receives a police report documenting the occurrence of a nuisance activity on or within 200 feet of a property within the city, the City Administrator or the City Administrator’s designee shall independently review such reports to determine whether they describe any acts enumerated under nuisance activities above. Following such review, the City Administrator may notify the person in charge in writing that the property is in danger of becoming chronic nuisance property. The notice shall contain the following information:
      (1)   The street address or a legal description sufficient for identification of the property.
      (2)   A statement that the City Administrator has information that the property may be chronic nuisance property, with a concise description of the nuisance activities that may exist or that have occurred. The City Administrator shall offer the person in charge an opportunity to propose a course of action that the City Administrator agrees will abate the nuisance activities giving rise to the violation.
      (3)   Demand that the person in charge respond to the City Administrator within ten days to discuss the nuisance activities.
   (B)   After notification of nuisance activities to a person in charge, when the City Administrator receives a police report documenting the occurrence of a second nuisance activity at or within 200 feet of a property and determines that the property has become a chronic nuisance property, the City Administrator shall notify the person in charge in writing that the property has been determined to be a chronic nuisance property. The notice shall contain the following information:
      (1)   The street address or legal description sufficient for identification of the property.
      (2)   A statement that the City Administrator has determined the property to be a chronic nuisance property with a concise description of the nuisance activities leading to his or her findings.
      (3)   Demand that the person in charge respond within ten days to the City Administrator and propose a course of action that the City Administrator agrees will abate the nuisance activities giving rise to the violation.
      (4)   Service shall be made either personally or by first class mail, postage prepaid, return receipt requested, addressed to the person in charge at the address of the property, or such other place which is likely to give the person in charge notice of the determination by the City Administrator.
      (5)   A copy of the notice shall be served on the owner at such address as shown on the tax rolls of the county, and/or the occupant at the address of the property, if these persons are different than the person
in charge, and shall be made either personally or by first class mail, postage prepaid.
      (6)   A copy of the notice shall also be posted at the property if ten days have elapsed from the service or mailing of the notice to the person in charge and the person in charge has not contacted the City Administrator.
      (7)   The failure of any person to receive notice that the property may be a chronic nuisance property shall not invalidate or otherwise affect the proceedings under these provisions.
   (C)   If after the notification, but prior to the commencement of legal proceedings by the city pursuant to these provisions, a person in charge stipulates with the city administrator that the person in charge will pursue a course of action the parties agree will abate the nuisance activities giving rise to the violation, the City Administrator may agree to postpone legal proceedings for a period of not less than ten nor more than 30 days.
   (D)   Concurrent with any notification procedures set forth above, the City Administrator shall send copies of the notice, as well as any other documentation which supports legal proceedings against the property, to the City Attorney.
   (E)   When a person in charge makes a response to the City Administrator, any conduct or statements made in connection with the furnishing of that response shall not constitute an admission that any nuisance activities have or are occurring. This section does not require the exclusion of any evidence which is otherwise admissible or offered for any other purpose.
(Ord. 274, passed 8-6-2015)
§ 90.28 COMMENCEMENT OF ACTION; REMEDIES.
   (A)   The City Council may, by resolution after affording the person in charge of the property an opportunity to be heard before the Council, authorize the City Attorney to commence legal proceedings in a court of competent jurisdiction to enjoin or abate chronic nuisance property and to seek closure, the imposition of civil penalties against any or all of the persons in charge thereof, and any such other relief deemed appropriate. Proof shall be by a preponderance of the evidence.
   (B)   If, after the commencement but prior to the trial of any action or suit brought by the city, a person in charge of chronic nuisance property stipulates with the city that he or she will pursue a course of action the parties agree will abate the nuisance activities giving rise to the violation, the city may agree to stay proceedings for a period of not less than ten nor more than 60 days, except in the case of nuisance activity involving drugs where a search warrant was executed at the property. The person in charge or the city may thereafter petition the court for such additional periods of time as may be necessary to complete the action(s) to abate the nuisance activities. However, in the event that the city reasonably believes the person in charge of a property is not diligently pursuing the action(s) necessary to abate the nuisance activities, the city may seek such relief as is deemed appropriate.
   (C)   It is a defense to an action for chronic nuisance property that the person in charge at all material times could not, in the exercise of reasonable care or diligence, determine that the property had become chronic nuisance property, or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that the property is chronic nuisance property.
   (D)   In the event a court determines property to be chronic nuisance property, the court shall order that the property be closed and secured against all access, use and occupancy for a period of not less than six months, nor more than one year. The court shall retain jurisdiction during any period of closure. The person in charge may petition the court for an order reducing the period of closure if the person in charge and the city stipulate that the nuisance has been and will continue to be abated.
   (E)   If a property is found to be chronic nuisance property, the person in charge of the chronic nuisance property is subject to a civil penalty of up to $100 per day for each day nuisance activities occurred on the property following notice.
   (F)   In establishing the amount of any civil penalty requested, the court may consider any of the following factors and shall cite those found applicable:
      (1)   The actions taken by the person in charge to mitigate or correct the nuisance activities at the property;
      (2)   The financial condition of the person in charge;
      (3)   Whether the problem at the property was repeated or continuous;
      (4)   The magnitude or gravity of the problem;
      (5)   The cooperativeness of the person in charge with the city;
      (6)   The cost of the city of investigating and correcting or attempting to correct the nuisance activities; and
      (7)   Any other factor deemed by the court to be relevant.
   (G)   Nothing in these provisions shall require any conviction for criminal activities prior to the commencement of any action provided herein.
(Ord. 274, passed 8-6-2015)
§ 90.29 EMERGENCY CLOSURE DURING PENDENCY OF ACTION.
   If warranted, the city may seek emergency closure of the property. Any emergency closure proceeding initiated under this provision shall be based on evidence showing that nuisance activities have occurred on the property and that emergency action is necessary to avoid an immediate threat to public welfare and safety. Proceedings to obtain an order of emergency closure shall be governed by the provisions of Oregon Rule of Civil Procedure 79 for obtaining temporary restraining orders. In such an event the notification procedures set forth above need not be complied with.
(Ord. 274, passed 8-6-2015)
§ 90.30 ENFORCEMENT; COSTS.
   (A)   The court may authorize the city to physically secure the property against all access, use or occupancy in the event that the person in charge fails to do so within the time specified by the court. In the event that the city is authorized to secure the property, all costs reasonably incurred by the city to physically secure the property shall be paid to the city by the person in charge and may be included in the city’s money judgment. As used in this section, COSTS means those costs actually incurred by city for physically securing the property, as well as tenant relocation costs pursuant to this section.
   (B)   The city department(s) physically securing the property shall prepare a statement of costs and the city shall thereafter submit that statement 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, the statement of costs shall be included in the city’s money judgment.
   (C)   Judgments imposed by this chapter shall bear interest at the rate of 9% per year from the date the judgment is entered.
   (D)   Any person who is assessed the costs of physically securing the property by the court shall be personally liable for the payment thereof to the city.
   (E)   The person in charge shall pay reasonable relocation costs of a tenant as defined by O.R.S. 90.100(31) if, without actual notice, the tenant moved into the property after either:
      (1)   A person in charge received a notice from the City Administrator’s determination that the property may be nuisance property; or
      (2)   A person in charge received notice of an action brought to close a chronic nuisance property.
(Ord. 274, passed 8-6-2015)
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