HomeMy WebLinkAboutOrdinance 5846 02/18/1997
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ORDINANCE NO.
5846
(GENERAL)
AN ORDINANCE AMENDING CHAPTER VII, "PUBLIC PROTECTION," ARTICLE
11, ADDING PROTECTIONS FOR RESIDENTIAL NEIGHBORHOODS AND
PROVIDING AN ABATEMENT REMEDY FOR CHRONIC DISORDERLY ACTIVITY IN
RESIDENTIAL NEIGHBORHOODS.
THE CITY OF SPRINGFIELD, OREGON finds as follows:
1. Chronic disorderly activity of various kinds on and
near affected residential property adversely affects
the health, safety and welfare of citizens, and
diminishes the quality of life in residential
neighborhoods where this chronic disorderly activity
occurs. Chronic disorderly activity constitutes a
nuisance and should be subject to abatement.
2.
The City has a substantial and compelling interest in
protecting the health, safety and welfare of its
citizens and the ~esidential neighborhoods affected by
chronic disorderly activity~
3.
The legal processes presently available do not
adequately control chronic disorderly activity nor its
detrimental effects on citizens and neighborhoods where
chronic disorderly activity occurs.
4.
Establishing the proposed regulatory scheme will
alleviate the nuisance created by chronic disorderly
activity through early intervention by the Springfield
Police Department in the residential neighborhood in
which the chronic disorderly activity is occurring.
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To obtain the benefits referred to in the previous
paragraphs, the Council hereby ordains:
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SECTION 1:
THERE IS HEREBY ADDED TO THE SPRINGFIELD MUNICIPAL CODE, CHAPTER
VII, "PUBLIC PROTECTION," ARTICLE 11, "ABATEMENT OF CHRONIC
DISORDERLY PROPERTY" AS FOLLOWS:
"7-11-1 Definitions.
(a) Chronic Disorderly Property is defined as follows:
(i) Property in a residential neighborhood on which
four or more Prohibited Activities have occurred
during any sixty (60) day period;
(ii) Property in a residential neighborhood on which or
within 200 feet of which any Person associated
with the Property has engaged in four or more
Prohibited Activities during any sixty (60) day
period.
(b) Prohibited Activities. Any of the following
activities, behaviors or criminal or disorderly conduct
constitute prohibited activities:
(i) Harassment as defined in ORS 166.065(1) (a) or City
ordinance.
(ii) Intimidation as provided in ORS 166.155 through
166.165.
(iii)Disorderly conduct as provided in ORS 166.025 or
City ordinance.
(iv) Assault or menacing as provided in ORS 163.160,
ORS 163.165, ORS 163.175, ORS 163.185, ORS
163.190, or City ordinance 5-12-6.
(v) 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.
(vi) Public indecency as provided in ORS 163.465 or
City ordinance 5-13-6.
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(vii) Prostitution or related offenses as provided in
ORS 167.007, ORS 167.012, and ORS 167.017.
(viii) Alcoholic liquor violations as provided in ORS
Chapter 471.105 through 471.482.
(ix) Offensive littering as provided in ORS 164.805 or
city ordinance 5-14-6.
(x) Criminal trespass as provided in ORS 164.243,
164.245, 164.255, 164.265 or City ordinance 5-12-
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(xi) Theft as provided in ORS 164.015 through 164.140
or City ordinance 5-13-8.
(xii) 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.
(xiii) Illegal gambling as provided in ORS 167.117,
ORS 167.122, ORS 167.127.
(xiv) criminal mischief as provided in ORS 164.345
through 164.365 or City ordinance 5-11-3.
(xv) 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.
(xvi) Violating City Ordinance No. 5-4-3 (number of
dogs); 5-4-10 (dogs and animals at large); 5-4-11
(barking dogs); 5-4-23 (dangerous animals); 5-4-26
(vicious dogs) .
(xvii) Discharge of firearms in violation of City
Ordinance 5-11-1.
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(c)
(d)
(xviii) Damaging property of another in violation of
City Ordinance 5-11-2.
Chief of Police.
of Police of the
designee.
Chief of Police refers to the Chief
Springfield Police Department or his
Control.
restrain,
occurs on
Control means the ability to regulate,
dominate, counteract or govern conduct
a Property.
that
(e) Person in Charge. Person in charge is 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.
(f) Permit. Permit is to suffer, allow, consent to,
acquiesce by failure to prevent, or expressly assent or
agree to the doing of an act.
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(g) Person. Person includes any natural person, agent,
association, firm, partnership or corporation capable
of owning, occupying or using Property in the City of
Springfield.
(h)
(i)
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Property. Property is 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.
Person Associated with. A person associated with
includes any person who, on the occasion of a
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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.
7-11-2 violation.
(a) Any Property within the City of Springfield which is a
Chronic Disorderly Property is in violation of this
Chapter and subject to its remedies.
(b) Any Person in Charge who permits Property to be a
Chronic Disorderly Property shall be in violation of
this Chapter and subject to its remedies.
7-11-3 Procedure.
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(a) When the Chief of Police of Springfield receives two or
more reports during a thirty (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 such reports to determine whether
they describe prohibited activities enumerated under
Springfield City Code Chapter VII, Article 11, Section
l(B). Upon such a finding, the Chief of Police may:
(i) 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:
A.
The street address or legal description
sufficient for identification of the
Property.
B.
A statement that the Chief of Police has
information that the Property may be Chronic
Disorderly Property, with a concise
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Ordinance 5846
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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.
C.
Demand that the Person in Charge respond to
the Chief of Police within ten (10) days to
discuss the Prohibited Activities.
(b) When the Chief of Police of the Springfield Police
Department receives a report documenting the occurrence
of a fourth Prohibited Activity at or within 200 feet
of a Property in a residential neighborhood within a
sixty (60) day period and determines that the Property
has become Chronic Disorderly Property, the Chief of
Police shall:
(i) Notify the Person in Charge in writing that the
Property is a Chronic Disorderly Property. The
notice shalll~on.tain t.'ge following information:
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A.
D.
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The street address or legal desdription
sufficient for identification of the
Property.
B.
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 his/her findings.
C.
Demand that the Person in Charge respond
within fourteen (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.
Service shall be made either personally or by
first class mail, postage prepaid, return
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receipt requested, addressed to the Person in
Charge at the address of the Property
believed to be a Chronic Disorderly Property,
or such other place which is likely to give
the Person in Charge notice of the
determination by the Chief of Police.
E.
A copy of the notice shall be served on the
owner at such address as shown on the tax
rolls of the county in which the Property is
located, and/or 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.
F.
A copy of the notice shall also be posted at
the Property.
G.
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 this Chapter.
(ii) Chronic Disorderly Property, as defined by
Springfield City Code Chapter VII, Article 11,
Section l(a), shall be subject only to the
notification requirements of Springfield City Code
Chapter VII, Article II, Section 3(b).
(iii) If, after the notification, but prior to the
commencement of legal proceedings by the City
pursuant to this Chapter, a Person in Charge
stipulates with 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 ten (10) nor more
than thirty (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 within thirty (30) days, the
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Ordinance 5846
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Chief of Police may refer the matter to the city
Attorney to commence a legal proceeding to abate
the nuisance.
(iv)
Concurrent with the notification procedures set
forth in Springfield City Code Chapter VII,
Article 11, section 3(a) and (b), 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.
(c) When a Person in Charge makes a response to the Chief
of Police as required by Springfield City Code Chapter
VII, Article 11, Section 3(b) (iii) 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 which is otherwise admissible or offered for
any other purpose.
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7-11-4 Burden of Proof, Defenses, Mitigation of Civil
Penalty.
(a)
(b)
(c)
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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.
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.
In establishing the amount of any civil penalty
requested, the Court may consider any of the following
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Ordinance 5846
factors and shall ,cite those found applicable:
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(i) The actions taken by the Person in Charge to
mitigate or correct the Prohibited Activities at
the Property;
(ii) The length of time that the Prohibited Activity
has been going on and whether the problem at the
Property was repeated or continuous;
(iii) The magnitude or gravity of the problem;
(iv) The cost to the City of investigating and
correcting or attempting to correct the Prohibited
Activities;
(v) Any other factor deemed by the Court to be
relevant.
7-11-5 Closure During Pendency of Action, Emergency
Closures.
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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 notification procedures set forth in
Springfield City Code Chapter VII, Article 11, section 3(b)
need not be complied with.
7-11-6 Commencement of Actions, Remedies.
(a)
The Chief of Police may authorize the City Attorney to
commence legal proceedings in a court of competent
jurisdiction 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
thereof, and any such other relief deemed appropriate.
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Ordinance 5846
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(b) If after the commencement but prior to the trial of an
action or suit brought by the City pursuant to this
Chapter, a Person in Charge of Chronic Disorderly
Property stipulates with 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 a period of
not less than ten (10) nor more than sixty (60) days.
The Person in Charge or the City may thereafter
petition the court for such additional like periods of
time as may be necessary to complete the action(s) to
abate the Prohibited 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 Prohibited Activities, the city
may apply to the court for release from the stay and
may seek relief as is deemed appropriate.
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(c) In the event 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 (3)
months, nor more than one (1) 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.
(d) If a Property is found to be Chronic Disorderly
Property in violation of Springfield City Code Chapter
VII, Article 11, Section l(a), 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 Springfield City Code Chapter VII, Article
11, Section 3(b).
7-11-7 Enforcement.
(a)
The court may authorize the City to physically secure
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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 Subsection, "costs"
mean those costs actually incurred by City for
physically securing the Property, as well as tenant
relocation costs pursuant to subsection (A) (4) of this
section.
(i) 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 Oregon Rule of civil
Procedure 68, the statement of costs shall be
included in the City's money judgment.
(ii) Judgments imposed by this Chapter shall bear
interest at the rate of nine (9) percent per year
from the date the judgment is entered.
(iii) 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.
(iv) 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 Springfield Police
Department's determination pursuant to
Springfield City Code Chapter VII, Article
11, Section 3(b) i or
B.
A Person in Charge received notice of an
action brought pursuant to Springfield City
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of ' . ..
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Code Chapter VII, Article II, Section 6.
7-11-8 Attorney Fees.
In any action pursuant to this Chapter, the court may, in
its discretion, award attorneys fees to the prevailing
party.
7-11-9 Severability.
The provisions of this Chapter are intended to be consistent
with any applicable provisions of state law. If any
provisions of this Chapter, or its application to any
person, or circumstances is held to be invalid for any
reason, the remainder of the Chapter, or the application of
its provisions to other person or circumstances shall not in
any way be affected.
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SECTION 2:
IT IS HEREBY FOUND AND DETERMINED THAT AN EMERGENCY EXISTS IN
THAT CHRONIC DISORDERLY ACTIVITY CONTINUALLY ADVERSELY AFFECTS
THE USE AND ENJOYMENT OF PROPERTY IN THE CITY AFFECTING THE
PUBLIC HEALTH, SAFETY, AND WELFARE AND THAT AN EMERGENCY EXISTS,
AND THAT LEGISLATIVE ACTION DESIGNED TO REMEDY THIS ACTIVITY IS
IMMEDIATELY NECESSARY; AND THAT THIS ORDINANCE SHALL THEREFORE
TAKE EFFECT IMMEDIATELY UPON ITS PASSAGE BY THE CITY COUNCIL AND
APPROVAL BY THE MAYOR.
Adopted by the Common Council of the City of Springfield,
Oregon, this 18th day of February ,1997, by a vote of
5 for and 0 against.
Approved by the Mayor of
this 18th day of February
the City of Springfield,
, 199~
fr/~ .
MAYOR
Oregon
ATTEST:
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REVIEWED & APPROVED
Aj ~~!~~.) L~~
DATE: 'I ~o Li:J
OFFICE OF CITY ATTORNEY