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HomeMy WebLinkAboutItem 15 Ordinance Amending Springfield Municipal Code 5.700-5.714 Abatement of Chronic Disorderly Property AGENDA ITEM SUMMARY Meeting Date: 7/21/2014 Meeting Type: Regular Meeting Staff Contact/Dept.: Tim Doney, Police Mary Bridget Smith, City Attorney’s Office Staff Phone No: 541-746-9621 Estimated Time: 10 minutes S P R I N G F I E L D C I T Y C O U N C I L Council Goals: Enhance Public Safety ITEM TITLE: ORDINANCE AMENDING SPRINGFIELD MUNICIPAL CODE 5.700-5.714 ABATEMENT OF CHRONIC DISORDERLY PROPERTY. ACTION REQUESTED: Adopt/not adopt the following ordinance: AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTIONS REGARDING THE ABATEMENT OF CHRONIC DISORDERLY PROPERTIES, SECTIONS 5.700- 5.714 AND SPECIFCIALLY SECTIONS 5.700, 5.704, and 5.710 AND DECLARING AN EMERGENCY ISSUE STATEMENT: These proposed changes to the Springfield Municipal Code are the result of a review by the Police Department and City Attorney’s Office and are intended to make the abatement of chronic disorderly properties a more streamlined process while protecting citizens’ property rights. ATTACHMENTS: Attachment 1: Proposed Ordinance with Emergency Clause Attachment 2: Legislative Version of Proposed Changes. DISCUSSION/ FINANCIAL IMPACT: At a recent Council meeting, community members brought forward concerns about a chronic disorderly property in their neighborhood and whether the current version of the Municipal Code regulating chronic disorderly property was an effective tool for dealing with such situations. Council directed the City Attorney’s Office and Police Department to review the Ordinance to see if any improvements could be made. The Police Department, City Attorney, and City Prosecutor met and reviewed the Ordinance, reviewed similar ordinances in other cities across the state and reached out to other jurisdictions for their experience in abating such properties. The following proposed changes to the Ordinance are the result of those efforts. The changes can be summarized as follows: • The definition of chronic disorderly property has been changed to property in a residential neighborhood in which three (instead of four) prohibited activities have occurred in a 60 day period. • Prohibited activities have been expanded to include violations of the City’s noise ordinance and frequenting a place where controlled substances are used. • The procedure for the Ordinance has been changed to clarify that the reports are police reports and does not require the two initial police reports to occur during a 30 day period. Meaning, when the Police Chief initially reviews a potentially chronic disorderly property to determine if he will send a warning letter, he could reach back to a period of time longer than 30 days. • The procedure has been changed to allow the Police Chief to direct the City Attorney to institute legal proceedings for abatement after a third occurrence instead of fourth. • The Ordinance will specifically provide that criminal convictions for the prohibited activities are not required for the abatement process to occur. Attachment 1, Page 1 of 3 ORDINANCE No. __________ (Emergency) AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTIONS REGARDING THE ABATEMENT OF CHRONIC DISORDERLY PROPERTIES, SECTIONS 5.700-5.714 AND SPECIFCIALLY SECTIONS 5.700, 5.704, and 5.710 AND DECLARING AN EMERGENCY The City Council of the City of Springfield finds that: WHEREAS, it is in the public interest for the City of Springfield to clarify the Springfield Municipal Code Sections regarding Chronic Disorderly Properties; WHEREAS, it is in the public interest to provide a method for the police department to address persons who allow criminal activity to occur on their property to the point it becomes chronic. WHEREAS, it is in the public interest to provide a method for the City to hold persons who allow criminal activity to occur on their property responsible for their actions while protecting their property rights. NOW, THEREFORE, based on the foregoing recitals, the Common Council of the City of Springfield ordains as follows: Section 1. Section 5.700 “Definitions”, “Chronic Disorderly Property” subsections (1) and (2) of the Springfield Municipal Code are hereby amended to read: “(1) Property in a residential neighborhood on which three or more prohibited activities have occurred during any 60-day period; (2) Property in a residential neighborhood on which or within 200 feet of which any person associated with the property has engaged in three or more prohibited activities during any 60-day period.” Section 2. Section 5.700 “Definitions”, “Prohibited Activities” of the Springfield Municipal Code are hereby amended to add the following sections: “(18) Frequenting a place where controlled substances are used as provided in ORS 167.222. (19) Noise violations in violation of city code section 5.220.” Section 3. Section 5.704 “Procedure” subsection (1) of the Springfield Municipal Code is hereby amended to read as follows: “(1) When the chief of police receives two or more police reports documenting the occurrence of prohibited activity on or within 200 feet of a property in a residential neighborhood within the city, the chief of police shall independently review the reports to determine whether they describe prohibited activities enumerated in this code under section 5.700. Upon such a finding the chief of police may: Attachment 1, Page 2 of 3 (a) Notify the person in charge in writing that the property is in danger of becoming chronic disorderly property. The notice shall contain the following information: (i) The street address or legal description sufficient for identification of the property. (ii) A statement that the chief of police has information that the property may be chronic disorderly property, with a concise description of the prohibited activities that may exist, or that have occurred. The chief of police shall offer the person in charge an opportunity to propose a course of action that the chief of police agrees will abate the prohibited activities giving rise to the violation. (iii) Demand that the person in charge respond to the chief of police within 10 days to discuss the prohibited activities.” Section 4. Section 5.704 “Procedure” subsection (2) of the Springfield Municipal Code is hereby amended to read as follows: “(2) After notification of nuisance activities to the person in charge, when the chief of police receives a police report documenting the occurrence of a third prohibited activity at or within 200 feet of a property in a residential neighborhood within a 60-day period and determines that the property has become chronic disorderly property, the chief of police shall: (a) Notify the person in charge in writing that the property is a chronic disorderly property. The notice shall contain the following information: (i) The street address or legal description sufficient for identification of the property. (ii) A statement that the chief of police has determined the property to be chronic disorderly property with a concise description of the prohibited activities leading to the findings. (iii) Demand that the person in charge respond within 14 days to the chief of police and propose a course of action that the chief of police agrees will abate the prohibited activities giving rise to the violation. (iv) 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 believed to be a chronic disorderly property, or any other place which is likely to give the person in charge notice of the determination by the chief of police. (v) A copy of the notice shall be served on the owner at the address shown on the tax rolls of the county in which the property is located, the occupant, at the address of the property, if these persons are different from the person in charge, and shall be made either personally or by first class mail, postage prepaid. (vi) A copy of the notice shall also be posted at the property. (vii) The failure of any person to receive notice that the property may be a chronic disorderly property shall not invalidate or otherwise affect the proceedings under sections 5.700 to 5.714. Attachment 1, Page 3 of 3 (b) Chronic disorderly property, as defined by section 5.700, shall be subject only to the notification requirements of subsection (2) of this section. (c) If, after the notification, but prior to the commencement of legal proceedings by the city pursuant to sections 5.700 to 5.714, a person in charge stipulates to the chief of police that the person in charge will pursue a course of action the parties agree will abate the prohibited activities giving rise to the violation, the chief of police may agree to postpone legal proceedings for a period of not less than 10 nor more than 30 days. If the agreed course of action does not result in the abatement of the prohibited activity or if no agreement concerning abatement is reached with 30 days, the chief of police may refer the matter to the city attorney to commence a legal proceeding to abate the nuisance. (d) Concurrent with the notification procedures set forth in subsections (1) and (2), the chief of police shall send copies of the notice, as well as any other documentation which supports legal proceedings against the property, to the city attorney. Section 5. Section 5.710 “Commencement of Actions-Remedies” of the Springfield Municipal Code is hereby amended to add the following subsection: “(5) Nothing in these provisions shall require any conviction for criminal activities prior to the commencement of any action provided herein.” Section 6. Except as specifically amended herein, Sections 5.700-5.714 shall continue in full force and effect. Section 7. Effective Date of Ordinance. It is hereby found and determined that the matters relating to the adoption of these changes to the Abatement of Chronic Disorderly Properties code are matters affecting the public health, safety and welfare and that an emergency therefore exists, and this Ordinance shall therefore take effect immediately upon its passage by the Council and approval by the Mayor. This ordinance is adopted by the City Council of the City of Springfield this ____ day of July, 2014 by a vote of _____ in favor and _____ against. Approved by the Mayor of the City of Springfield this ____ day of July, 2014. ___________________________________ Christine L. Lundberg, Mayor ATTEST: _____________________________ Amy Sowa, City Recorder N:\City\ORDINANC\Ordinance Amending SMC Section 5.700.docx Attachment 2, Page 1 of 5 ABATEMENT OF CHRONIC DISORDERLY PROPERTY 5.700 Definitions. For purposes of sections 5.700 to 5.714, the following mean: Chronic Disorderly Property. (1) Property in a residential neighborhood on which four three or more prohibited activities have occurred during any 60-day period; (2) Property in a residential neighborhood on which or within 200 feet of which any person associated with the property has engaged in four three or more prohibited activities during any 60-day period. Prohibited Activities. (1) Harassment as defined in ORS 166.065(1)(a) or the city code. (2) Intimidation as provided in ORS 166.155 to 166.165. (3) Disorderly conduct as provided in ORS 166.025 or the city code. (4) Assault or menacing as provided in ORS 163.160, ORS 163.165, ORS 163.175, ORS 163.185, ORS 163.190. (5) Sexual abuse, contributing to the delinquency of a minor, or sexual misconduct as provided in ORS 163.415, ORS 163.425, ORS 163.427. ORS 163.435, or ORS 163.445. (6) Public indecency as provided in ORS 163.465. (7) Prostitution or related offenses as provided in ORS 167.007, ORS 167.012, and ORS 167.017. (8) Alcoholic liquor violations as provided in ORS chapter 471.105-471.482. (9) Offensive littering as provided in ORS 164.805. (10) Criminal trespass as provided in ORS 164.243, 164.245, 164.255, 164.265. (11) Theft as provided in ORS 164.015-164.140. (12) Possession, manufacture, or delivery of a controlled substance or related offenses as provided in ORS 167.203, ORS 475.005 to 475.285, or 475.940 to 475.995. (13) Illegal gambling as provided in ORS 167.117, ORS 167.122, ORS 167.127. (14) Criminal mischief as provided in ORS 164.345-164.365. (15) Property which, in addition to or in combination with the prescribed number and duration of prohibited activities, 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 as defined in ORS 167.203, 475.005 to 475.285 and/or 475.940 to 475.995 have occurred. (16) Violating city code section 5.404, number of dogs; section 5.418, dogs and animals at large; section 5.420, barking dogs; section 5.450, dangerous animals; section 5.456, vicious dogs. (17) Discharge of firearms in violation of city code section 5.118. (18) Frequenting a place where controlled substances are used as provided in ORS 167.222. Attachment 2, Page 2 of 5 (19) Noise violations in violation of city code section 5.220. Control. The ability to regulate, restrain, dominate, counteract or govern conduct that occurs on a property. Permit. To suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the doing of an act. Person Associated With. Includes any person who, on the occasion of a prohibited activity, has entered, patronized, visited, or attempted 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. Property. Any property, including land and that which is affixed, incidental or appurtenant to land, including but not limited to any 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 prohibited activity 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. [Section 5.700 amended by Ordinance No. 5937, enacted October 4, 1999.] 5.702 Violation. (1) Property within the city that is a chronic disorderly property is in violation of sections 5.700 to 5.714 and subject to its remedies. (2) Any person in charge of such property who permits the property to be a chronic disorderly property is in violation of sections 5.700 to 5.714 and subject to its remedies. 5.704 Procedure. (1) When the chief of police receives two or more police reports during a 30 day period documenting the occurrence of prohibited activity on or within 200 feet of a property in a residential neighborhood within the city, the chief of police shall independently review the reports to determine whether they describe prohibited activities enumerated in this code under section 5.700. Upon such a finding, the chief of police may: (a) Notify the person in charge in writing that the property is in danger of becoming chronic disorderly property. The notice shall contain the following information: (i) The street address or legal description sufficient for identification of the property. (ii) A statement that the chief of police has information that the property may be chronic disorderly property, with a concise description of the prohibited activities that may exist, or that have occurred. The chief of police shall offer the person in charge an opportunity to propose a course of action that the chief of police agrees will abate the prohibited activities giving rise to the violation. (iii) Demand that the person in charge respond to the chief of police within 10 days to discuss the prohibited activities. Attachment 2, Page 3 of 5 (2) After notification of nuisance activities to a person in charge, when the chief of police receives a police report documenting the occurrence of a fourth third prohibited activity at or within 200 feet of a property in a residential neighborhood within a 60 day period and determines that the property has become chronic disorderly property, the chief of police shall: (a) Notify the person in charge in writing that the property is a chronic disorderly property. The notice shall contain the following information: (i) The street address or legal description sufficient for identification of the property. (ii) A statement that the chief of police has determined the property to be chronic disorderly property with a concise description of the prohibited activities leading to the findings. (iii) Demand that the person in charge respond within 14 days to the chief of police and propose a course of action that the chief of police agrees will abate the prohibited activities giving rise to the violation. (iv) 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 believed to be a chronic disorderly property, or any other place which is likely to give the person in charge notice of the determination by the chief of police. (v) A copy of the notice shall be served on the owner at the address shown on the tax rolls of the county in which the property is located, the occupant, at the address of the property, if these persons are different from the person in charge, and shall be made either personally or by first class mail, postage prepaid. (vi) A copy of the notice shall also be posted at the property. (vii) The failure of any person to receive notice that the property may be a chronic disorderly property shall not invalidate or otherwise affect the proceedings under sections 5.700 to 5.714. (b) Chronic disorderly property, as defined by section 5.700, shall be subject only to the notification requirements of subsection (2) of this section. (c) If, after the notification, but prior to the commencement of legal proceedings by the city pursuant to sections 5.700 to 5.714, a person in charge stipulates to the chief of police that the person in charge will pursue a course of action the parties agree will abate the prohibited activities giving rise to the violation, the chief of police may agree to postpone legal proceedings for a period of not less than 10 nor more than 30 days. If the agreed course of action does not result in the abatement of the prohibited activity or if no agreement concerning abatement is reached with 30 days, the chief of police may refer the matter to the city attorney to commence a legal proceeding to abate the nuisance. (d) Concurrent with the notification procedures set forth in subsections (1) and (2), the chief of police shall send copies of the notice, as well as any other documentation which supports legal proceedings against the property, to the city attorney. (3) When a person in charge makes a response to the chief of police as required by subsection (2)(c) above, any conduct or statements made in connection with the furnishing of that response shall not constitute an admission that any prohibited activities have or are occurring. This subsection does not require the exclusion of any evidence that is otherwise admissible or offered for any other purpose. Attachment 2, Page 4 of 5 5.706 Burden of Proof—Defenses-Mitigation of Civil Penalty. (1) In an action for chronic disorderly property, the city shall have the initial burden of proof to show by a preponderance of the evidence that the property is chronic disorderly property. (2) It is a defense to an action for chronic disorderly 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 disorderly 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 disorderly property. (3) In establishing the amount of any civil penalty requested, the court may consider any of the following factors and shall cite those found applicable: (a) The actions taken by the person in charge to mitigate or correct the prohibited activities at the property; (b) The length of time that the prohibited activity has been going on and whether the problem at the property was repeated or continuous; (c) The magnitude or gravity of the problem; (d) The cost to the city of investigating and correcting or attempting to correct the prohibited activities; (e) Any other factor deemed by the court to be relevant. 5.708 Closure During Pendency of Action—Emergency Closures. Any emergency closure proceeding initiated under this provision shall be based on evidence showing that prohibited 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 ORCP 79 for obtaining temporary restraining orders. In such an event the notice procedures set forth in section 5.704(2) need not be complied with. 5.710 Commencement of Actions-Remedies. (1) The chief of police may authorize the city attorney to commence legal proceedings to enjoin or abate chronic disorderly property and to seek closure, the imposition of civil penalties against any or all of the persons in charge of the property, and any other relief deemed appropriate. (2) If, after the commencement but prior to the trial of an action or suit brought by the city pursuant to sections 5.700 to 5.714, a person in charge of chronic disorderly property stipulates to the city that he or she will pursue a course of action the parties agree will abate the prohibited activities giving rise to the violation, the city may agree to stay proceedings for period of not less than 10 nor more than 60 days. The person in charge or the city may thereafter petition the court for additional like periods of time as may be necessary to complete the action to abate the prohibited activities. However, if the city reasonably believes the person in charge of a property is not diligently pursuing the action necessary to abate the prohibited activities, the city may apply to the court for release from the stay and may seek relief deemed appropriate. (3) If a court determines property to be chronic disorderly 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 three Attachment 2, Page 5 of 5 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. (4) If a property is found to be chronic disorderly property in violation of section 5.702, the person in charge of the chronic disorderly property is subject to a civil penalty of up to $100 per day for each day prohibited activities occur on the property, following notice pursuant to section 5.704(2). (5) Nothing in these provisions shall require any conviction for criminal activities prior to the commencement of any action provided herein. 5.712 Enforcement. (1) The court may authorize the city to physically secure the property against all access, use or occupancy if the person in charge fails to do so within the time specified by the court. If 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 subsection, “costs” mean those costs actually incurred by the city for physically securing the property, as well as tenant relocation costs pursuant to subsection (5) of this section. (2) The city shall prepare a statement of the costs expended for physically securing the property and submit that statement to the court for its review. If no objection to the statement is made within the period prescribed by ORCP 68, the statement of costs shall be included in the city’s money judgment. (3) Judgments imposed by sections 5.700 to 5.714 shall bear interest at the rate of 9 percent per year from the date the judgment is entered. (4) Any person who is assessed the costs of physically securing the property by the court shall be personally liable for the payment of costs to the city. (5) The person in charge shall pay reasonable relocation costs of a tenant, as defined by ORS 90.100(16), if, without actual notice, the tenant moved into the property after either: (a) A person in charge received notice from the chief of police of the determination pursuant to section 5.704(2); or (b) A person in charge received notice of an action brought pursuant to section 5.710. 5.714 Attorney Fees., In any action pursuant to sections 5.700 to 5.714, the court may award attorney’s fees to the prevailing party. N:\City\Police\Abatement of Chronic Disorderly Property\Code Changes.docx