Loading...
HomeMy WebLinkAboutOrdinance 5846 02/18/1997 :q / . . . 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. 5 . To obtain the benefits referred to in the previous paragraphs, the Council hereby ordains: 1 , Ordinance 5846 . . . 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. 2 Ordinance 5846 . . . (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- 7. (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. 3 Ordinance 5846 . (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. . (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) . 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 4 Ordinance 5846 . 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. . (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 . 5 Ordinance 5846 . 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: J .',->, ,';' " ' "r "-~> . A. D. . 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 6 Ordinance 5846 . . . :' ,. . '.~. 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 7 Ordinance 5846 . 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. . 7-11-4 Burden of Proof, Defenses, Mitigation of Civil Penalty. (a) (b) (c) . 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 8 Ordinance 5846 factors and shall ,cite those found applicable: . (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. . 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. . 9 Ordinance 5846 . (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. . (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 . 10 Or~inance 5846 . . . 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 11 Ordinance 5846 of ' . .. . 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. . 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: ~~orfE~ . 12 REVIEWED & APPROVED Aj ~~!~~.) L~~ DATE: 'I ~o Li:J OFFICE OF CITY ATTORNEY