HomeMy WebLinkAboutItem 06 Administrative Abatement Warrants
AGENDA ITEM SUMMARY Meeting Date: 11/18/2019
Meeting Type: Regular Meeting
Staff Contact/Dept.: Kristina Kraaz/CAO
Jim Donovan/DPW
Staff Phone No: 541-744-4061
Estimated Time: Consent
S P R I N G F I E L D
C I T Y C O U N C I L
Council Goals: Promote and Enhance
our Hometown Feel
while Focusing on
Livability and
Environmental Quality
ITEM TITLE: ADMINISTRATIVE ABATEMENT WARRANTS
ACTION
REQUESTED:
Conduct a second reading and adopt/not adopt the following Ordinance:
AN ORDINANCE AMENDING SECTIONS 5.006 THROUGH 5.018 AND
SECTIONS 5.630 THROUGH 5.638 OF THE SPRINGFIELD MUNICIPAL
CODE TO PROVIDE FOR ADMINSTRATIVE ABATEMENT WARRANTS,
ADOPTING A SEVERABILITY CLAUSE, AND PROVIDING AN EFFECTIVE
DATE
ISSUE
STATEMENT:
The municipal code includes a process for administrative abatement of public
nuisances in SMC 5.006-5.018, but lacks a provision to allow staff to request an
administrative abatement warrant from the Springfield Municipal Court prior to
abating public nuisances on private property.
ATTACHMENTS: Attachment 1: Administrative Abatement Ordinance with Exhibit A
DISCUSSION/
FINANCIAL
IMPACT:
The Council held a public hearing and first reading on October 21, 2019. There was
no public testimony offered at the hearing.
Administrative abatement is a common tool to address public nuisances in
municipal codes across the country. Springfield has an adopted process for
administrative abatement of nuisances in SMC 5.006-5.018 that has not been used
in recent years. In a large majority of cases, staff works with property owners and
persons to responsibly to voluntarily address public nuisances before fines are
issued or abatement would be warranted. However, there have been several
instances recently where private property in the City was a significant public
nuisance that would benefit from abatement.
Before the administrative abatement process in SMC 5.006-5.018 can be used to
address public nuisances, the code must be amended to meet constitutional due
process and Fourth Amendment restrictions on unreasonable searches and seizures.
One way to meet constitutional requirements is to authorize the municipal court to
issue an abatement warrant, when the person responsible for a public nuisance will
not voluntarily agree to abatement.
CITY OF SPRINGFIELD, OREGON
ORDINANCE NO. ___________ (GENERAL)
AN ORDINANCE AMENDING SECTIONS 5.006 THROUGH 5.018 AND SECTIONS 5.630
THROUGH 5.638 OF THE SPRINGFIELD MUNICIPAL CODE TO PROVIDE FOR
ADMINISTRATIVE ABATEMENT WARRANTS, ADOPTING A SEVERABILITY CLAUSE,
AND PROVIDING AN EFFECTIVE DATE
WHEREAS, Springfield Municipal Code sections 5.000 through 5.036 and 5.600 through 5.638
provide authority to the City Manager or designee to obtain compliance with certain city
ordinances through inspection, notification, and where appropriate, citation for civil infractions,
with the intent of protecting the health, safety, and welfare of the citizenry;
WHEREAS, to protect the public health, safety, and welfare, Springfield Municipal Code
sections 5.006 through 5.018 provide authority and administrative procedures for the City
Manager or designee to cause a public nuisance to be abated by the person responsible, or if
not abated by the person responsible, then by the City;
WHEREAS, officials of the City of Springfield cannot constitutionally enter onto private property
to abate a public nuisance without consent, except in an emergency, under exigent
circumstances, or pursuant to a judicially-authorized warrant supported by reasonable or
probable cause; and
WHEREAS, it is in the public interest of the City of Springfield to authorize the City Manager or
designee to obtain an abatement warrant from the Springfield Municipal Court to enter onto
private property without consent for the purpose of abating a public nuisance under Springfield
Municipal Code Sections 5.000 through 5.018,
NOW, THEREFORE, THE COMMON COUNCIL OF THE CITY OF SPRINGFIELD ORDAINS AS
FOLLOWS:
Section 1. Sections 5.006 through 5.018 and sections 5.630 through 5.638 of the
Springfield Municipal Code are hereby amended to provide the authority, procedures, and
standards for administrative abatement warrants, as set forth in Exhibit A, attached hereto and
incorporated by reference.
Section 2. Except as specifically stated herein, Chapter 5 shall continue in full force
and effect.
Section 3. Severability Clause. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is, for any reason, held invalid or unconstitutional by a court of
competent jurisdiction, such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the remaining portion hereof.
Attachment 1, Page 1 of 2
Section 4. Effective date of Ordinance. This Ordinance shall take effect 30 days
after its adoption by the Council and approval by the Mayor.
ADOPTED by the Common Council of the City of Springfield this ___ day of _________,
2019, by a vote of _____ for and ____ against.
APPROVED by the Mayor of the City of Springfield this ______ day of __________,
2019.
_____________________________
Mayor
ATTEST:
_____________________________
City Recorder
Attachment 1, Page 2 of 2
ADMINISTRATIVE ABATEMENT
5.006 Notice.
(1) In addition to and not in lieu of other means of enforcement provided for in this code, when
the enforcing officer is satisfied that a nuisance exists, the enforcing officer shall cause a notice to be
posted on the premises or at the site of the nuisance directing a person responsible to abate the nuisance.
(2) At the time of the posting, the enforcing officer shall cause a copy of the notice to be
personally served on the owner and on any other person responsible. Alternately, the enforcing officer
may send notice by registered or certified mail, postage prepaid, to any person responsible at the person’s
last known address.
(3) The notice to abate shall contain:
(a) A description of the real property, by street address or otherwise, on which the nuisance
exists;
(b) A direction to abate the nuisance within 10 days from the date of the notice;
(c) A description of the nuisance and the conditions to be abated, including the general
types and estimated quantity of the items to be removed;
(d) A statement that, unless the nuisance is removed, the city may abate the nuisance and
the cost of abatement shall be charged to the person responsible and assessed against the property;
(e) A request for consent to enter onto the property and abate the nuisance;
(f) Notice that if consent is refused, and the nuisance occurs on private property, the city
may obtain an administrative abatement warrant to enter the property and abate the nuisance(s);
(g) A statement that failure to abate a nuisance may result in a civil court suit to enforce
city codes and ordinances;
(h) Notice that property removed to abate the nuisance may be sold, recycled, or discarded;
(i) Notice that the costs of abatement will be charged to the property owner;
(j) Notice that the costs of abatement will be assessed to and become a lien on the
property; and
(k) A statement that the person responsible may appeal the order to abate by giving notice
to the enforcing officer within 10 days from the date of the notice and the form for appeal;
(4) Upon completion of the posting and serving or mailing, the enforcing officer shall execute
and file certificates stating the date and place of the posting and serving or mailing.
(5) An error in the name or address of the person responsible shall not make the notice void and
in such case, the notice shall be sufficient.
5.008 Abatement By a Person Responsible.
(1) Within 10 days after the posting and serving or mailing of the notice required by section
5.006, a person responsible shall remove the nuisance, show that no nuisance exists, or file a written
protest in compliance with this section.
(2) If the person responsible protests that no nuisance exists, the person responsible shall file
with the enforcing officer a written statement specifying the basis for protesting.
Exhibit A, Page 1 of 5
(3) A person may show that a vehicle is not a nuisance as defined by section 5.002 by submitting
current proof of vehicle insurance and current vehicle registration within 10 days of the posting and
serving or mailing of the notice to abate.
(4) A written protest shall be referred to the City Council. The objector shall be given at least
seven days prior written notice of the time set to consider the abatement. The Council shall take oral or
written testimony at the time and place specified in the notice of the hearing. The Council shall adopt
written findings of fact and conclusions of law when determining whether a nuisance exists. The
Council’s determination shall be final.
(5) If the Council determines that a nuisance exists, a person responsible shall abate the nuisance
within 10 days after the Council’s determination or within a time set by the Council.
5.010 Abatement By The City.
(1) If the nuisance has not been abated by a person responsible within the time allowed by
section 5.008, the enforcing officer may cause the nuisance to be abated.
(2) The enforcing officer or contractors acting under the direction of the officer, shall have the
right at reasonable times to enter into or upon property in accordance with law to investigate or cause the
removal of the nuisance.
(3) Before entering onto private property to abate a nuisance, the enforcing officer must obtain
consent of the owner or an abatement warrant under sections 5.630 through 5.636, except in cases of
emergency or exigent circumstances. An “abatement warrant” is an order authorizing the enforcing
officer to abate a public nuisance or nuisances at a designated building or property.
(4) The finance officer shall keep an accurate record of the expense incurred by the city in
physically abating the violation and shall include therein a reasonable charge equal to 10 percent of the
total cost of physically abating the violation for administrative overhead.
5.012 Joint Responsibility.
If there is more than one person responsible, they shall be jointly and severally liable for abating the
nuisance or for the costs incurred by the city in abating the nuisance.
5.014 Assessment Of Costs.
(1) The finance officer or his/her designee shall provide notice that the costs of abatement will be
assessed as a lien, sent to the property owner or other person responsible by certified mail, return receipt
requested, and by regular mail. Where service by certified mail is not accepted by the property owner,
notice shall be deemed received on the date of attempted delivery. In addition, service in the same manner
as provided for service of summons in Rule 7 of the Oregon Rules of Civil Procedure shall be deemed
adequate. The notice shall state:
(a) The total cost of abatement, including the administrative overhead;
(b) That the cost as indicated will be assessed to and become a lien against the property
unless paid within 30 days from the date of the notice;
Exhibit A, Page 2 of 5
(c) That if the person responsible objects to the cost of the abatement as indicated, the
person may file a written notice of objection with the finance officer not more than 10 days from
the date the notice was mailed.
(2) If the person responsible files a timely written objection, the person responsible shall be heard
at a city council hearing. The person responsible must be provided with written notice of the hearing
date and time set to consider the objections. The City Council will take oral and written testimony but
shall not consider protests that no violation exists. The City Council will issue its decision in writing
stating the amount of abatement costs to be assessed and stating that if the costs of abatement are not paid
within 30 days from the date of the decision, the costs shall be entered in the docket of city liens and shall
constitute a lien upon the property from which the nuisance was removed or abated.
(3) If no objection is filed or if the costs of the abatement are not paid within 30 days from the
date of the notice, an assessment of the costs as stated shall be made by the finance officer and shall be
entered in the docket of city liens, and recorded with Lane County Deeds and Records. Upon the entry
and recordation, the assessment shall constitute a lien upon the property from which the nuisance was
removed or abated.
(4) An error in the name of a person responsible shall not void the assessment, nor will a failure
to receive the notice of the proposed assessment render the assessment void, but it shall remain a valid
lien against the property.
5.016 Separate from Penalty.
The requirement to abate a nuisance is not a penalty for violating this code, but is an additional
remedy. Abatement proceedings and citation of a nuisance as a civil infraction may occur simultaneously.
Abatement by a person responsible of a nuisance within 10 days of the date of notice to abate is cause to
dismiss any civil infraction citation that may be pending.
5.018 Summary Abatement.
(1) The procedure provided by the above sections is not exclusive but is in addition to procedures
provided by other laws. The enforcing officer may proceed to summarily abate a nuisance which
unmistakably exists and which imminently endangers human life, health or property. The cost of such
abatement may be assessed as provided above in section 5.014.
(2) The abatement of a nuisance under this section and the assessing of the costs therefor are not
a penalty for violating this code but are additional remedies.
ADMINISTRATIVE INSPECTIONS & WARRANTS
5.630 Access to Property for Inspections and Abatements—Administrative Warrants.
(1) The enforcing officer may enter any property, including interior of structures, at all
reasonable times with permission of the property owner or person in possession of property, whenever an
inspection is necessary to effectuate the purposes and public benefits of this code or the Springfield
Development Code; whenever the enforcing officer has reasonable cause to believe that there exists in
any structure or upon any property any condition which constitutes a violation of a statute, ordinance,
Exhibit A, Page 3 of 5
regulation, rule, standard or order; or to effectuate an administrative abatement as provided in section
5.010 of this code.
(2) When permission is not given by the property owner or person in possession of the property
under subsection (1) of this section, the enforcing officer is authorized to obtain an administrative
inspection warrant and/or an administrative abatement warrant in accordance with sections 5.632 through
5.636 of this code.
(3) An “administrative inspection warrant” is an order authorizing the enforcing officer to
conduct an inspection or investigation at a designated building or property.
(4) An “administrative abatement warrant” is an order authorizing the enforcing officer to abate a
public nuisance at a designated building or property, in accordance with section 5.010 of this code.
5.632 Grounds for Issuing an Administrative Warrant.
(1) Affidavit. An administrative inspection or abatement warrant shall be issued only upon cause,
supported by affidavit, particularly describing:
(a) The applicant’s status in applying for the warrant;
(b) The ordinance or regulation requiring or authorizing the inspection or investigation, or
authorizing the removal and abatement of a nuisance;
(c) The building or property to be inspected, investigated, or abated;
(d) In the case of an administrative inspection warrant, the purpose for which the
inspection or investigation is to be made including the basis upon which cause exists to inspect;
(e) In the case of an abatement warrant, a statement of the conditions to be abated and the
general types and estimated quantity of the items to be removed and sold, recycled, or discarded;
and
(f) A statement that entry has been sought and refused, or in the case of an administrative
inspection warrant only, facts or circumstances reasonably showing that the purposes of the
inspection or investigation might be frustrated if entry were sought without an inspection warrant.
(2) Cause for an Administrative Inspection Warrant. Cause to inspect or investigate shall be
deemed to exist if the enforcing officer has complied with the applicable reasonable legislative or
administrative standards for conducting a routine, periodic, or area inspection of the particular building or
property; or if there is probable cause to believe that a condition of nonconformity with a health or safety
statute, ordinance, regulation, rule, standard or order exists with respect to the particular building or
property.
(3) Cause for an Abatement Warrant. Cause shall be deemed to exist if there is probable cause to
believe that a nuisance violation exists with respect to the designated property, that the person responsible
for the property has been given notice and an opportunity to abate the violation in accordance with
sections 5.006 through 5.010 of this code, and the nuisance has not been abated.
5.634 Procedure for Issuing an Administrative Warrant.
(1) Examination. Before issuing an administrative inspection or abatement warrant, the judge
shall review the affidavit and any attached material, and may examine the applicant, affiant, and any other
witness under oath and shall be satisfied of the existence of grounds for granting such application.
Exhibit A, Page 4 of 5
(2) Issuance. If the judge is satisfied that cause for the inspection, investigation, or abatement
exists and that the requirements for granting the application are satisfied, the judge shall issue the warrant.
The warrant shall particularly describe the person or persons authorized to execute the warrant and the
building or property to be entered. In the case of an administrative inspection warrant, the warrant shall
describe the purpose of the inspection or investigation. In the case of an abatement warrant, the warrant
shall describe the conditions to be abated and the general types and estimated quantity of items to be
removed and sold, recycled, or discarded. The warrant shall contain a direction that it be executed on any
day of the week between the hours of 8:00 a.m. and 6:00 p.m., or where the judge has specially
determined upon a showing that it cannot be effectively executed between those hours, that it be executed
at any additional or other time of the day or night.
5.636 Execution of an Administrative Warrant.
(1) Except as provided in subsection (2) of this section, in executing an administrative inspection
or abatement warrant, the person authorized to execute the warrant shall, before entry, make a reasonable
effort to present the person’s credentials, authority, and purpose to an occupant or person in possession of
the building or property designated in the warrant and present the warrant or a copy thereof.
(2) In executing an administrative inspection or abatement warrant, the person authorized to
execute the warrant need not inform anyone of the person’s authority and purpose, as prescribed in
subsection (1) of this section, but may promptly enter the designated building or property if it is at the
time unoccupied or not in the possession of any person, or at the time reasonably believed to be in such
condition. In such case, a copy of the warrant shall be conspicuously posted on the property.
(3) A peace officer, as defined in ORS 161.015(4), may be requested to assist in the execution of
the warrant.
(4) An administrative inspection or abatement warrant must be executed within 14 days of its
issue and returned to the judge by whom it was issued within 14 days from its date of execution, unless
before the expiration of such time, the judge by order extends the time for up to five days. After the
expiration of the time prescribed by this subsection, the warrant is void unless executed.
5.638 Emergency Inspection or Abatement without Warrant.
Nothing in SMC sections 5.630 through 5.636 prohibits the city from conducting an inspection or
abatement without a warrant, when an emergency or exigent circumstances exist that make the inspection
or abatement immediately necessary to protect public health, safety, or welfare.
Exhibit A, Page 5 of 5