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Ordinance No. 94-11 CITY OF TIGIVIRD ORDINANCE NO. 94- AN ORDINANCE TO AMEND TITLE 7 OF THE TIGARD MUNICIPAL CODE, PUBLIC PEACE, SAFETY AND MORALS, TO INCLUDE CHAPTER 7.42 PERTAINING TO CHRONIC NUISANCE PROPERTY. WHEREAS, because of chronic unlawful activity on them, properties within the City of Tigard can create unreasonable disruptions to the neighborhoods; where the properties are located; and WHEREAS, as a result of this activity the properties become chronic nuisances to surrounding property owners and degrade neighborhoods, and WHEREAS, existing state criminal statutes and city ordinances are inadequate to address, control, or remedy the denigration that results from the chronic unlawful activity occurring at the properties; and WHEREAS, civil regulation of these properties will provide a remedy to the problems caused by these chronic behaviors and will promote and protect the public health, safety and welfare; and WHEREAS, the City has authority to regulate both the conduct and the structures that are the locales of this conduct; now, therefore, THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1. Title 7, Public Peace, Safety and Morals, of the Tigard Municipal Code, is hereby amended by adding Chapter 7:42, with the following sections: 7„42.010 Short Title 7.42.020 Definitions 7 42.030 Chronic Nuisance Property 7.4 2.040 Prefiling Notification Procedure 7.42.045 Commencement of Actions; Summons and Complaint 7.42.050 Remedies 7.42.050 Defenses; Mitigation of Civil Pena7tl 7.42.070 Closure During Pendency of Action; Emergency Closures 7.42.080Enforcement of Closure Order; Costs; Civil Penalty 7.42.085 Tenant Relocation Costs 7.42.090 Attorney Fees 7.42.100 Severability 7.42.110 Nonexclusive Remedy ORD NO. - Rage '1 o~f 7.42.010 Shart Title, The ordinance codified in this Chapter ahall be known as the "Chronic Nuisance Ordinance," and may also be referred to herein as "this Chapter." 7.42.015 IncorRoration of State Statute. Any reference to state statute incorporated into this Chapter refers to the statute in effect on the effective date of this ordinance. 7.42.020 Definitions. As used in this Chapter, or any Code provision referenced by this Chapter, the following definitions apply. (a) "Chief of Police" means the Chief of the Tigard Police Department or his or her designee. (b) "City Administrator" means the City Administrator or his or her designee. (c) "Chronic Nuisance Property" means property upon which four or more distinct occurrences of any of the following acts or behaviors take place during any 60 day period: (1) harassment, as described in ORS 166.065; (2) fire or discharge of a gun or weapon, as described in Section 7.32.120 of this Code; (3) disorderly conduct, as described in ORS 166.025; (4) public indecency, as described in Section 7.32.110 of this Code; (5) unlawful use or possession of weapons or firearms, as described in ORS 166.210- 166.275; (6) violation of the Uniform Controlled Substances Act, as described in ORS Chapter 475; (7) assault, as described in ORS 163.160, 163.165, 163.17.5, or 163.1L5; (8) menacing, as described in ORS 163.190. ORD NO. , Page 2 of 9 (d) "Code Enforcement Officer" means the Chief of Police or the City Attorney, as designated by the City Administrator. (e) "Hearings Officer" or "Civil Infractions Hearings Officer" means the Municipal Judge of the City of Tigard. (f) "Owner" means the person or persons having legal or equitable title to the property. (g) "Property" :weans any real property including land and that which is affixed, incidental or appurtenant to land, including but not limited to any premises, room, apartment, house, building or structure or any separate part or portion thereof, whether permanent or not. (h) "Responsible Party" includes each of the following: (1) the owner of the property, or the owner's manager or agent or other persan in control of the property on behalf of the owner; or (2) the person occupying the property, including bailee, lessee, tenant or other person having possession. 7.42.030 Chronic Nuisance Pronecty. (a) The acts or omissions described hareiii are hereby declared to be public nuisances of the sort that commonly recur in relation to a given property, thereby requiring the remedies set out in this Chapter. (b) Any property within the City of Tigard which becomes chronic nuisance property is in violation of this Chapter and subject to its remedies. (c) Any person who is a responsible party for property which becomes a chronic nuisance property shall be in *violation of this Chapter and subject to its remedies. .��2.g40 Pref il�H.c Motif ca on prc�vsdure. (a) Except as otherwise noted hereih, notwithstanding Subsection 1.16.050(b) of this Code, this section sets out procedures to be used in processing as infraction of this Chapter. ask IV ,1111 ORD 130. 1 Page" 3 of (b) After two occurrences of any of the acts or behaviors listed in Section 7.42.020(c) of this Code within a 60 day period, the Chief of policy shall provide notification via certified mail, stating the times and places of 'the alleged occurrences and the potential liability for violation of this Chapter, to all responsible parties for the property. Responsible parties for a given property shall be presumed from the following: (1) The owner and the owner's agent, as shown on the tax rolls of Washington County; (2) The resident of the property, as shown on the records of the Water Department. (c) After three occurrences of any of the acts or behaviors listed in Section 7.42.020(c) of this Code within a 60 day period, notiV-nation shall be provided as described in Subsection (b) of this section. 7.42.045 CglMneement of Actions; Summons and Complaint. (a) A uniform infraction summons and complaint, containing the following parts, may be served _ upon any responsible party for chronic nuisance property, citing that party into municipal court. (1) The summons; (2) The complaint; and (3) A description of the alleged occurrences leading to violation of this Chapter, stating the times and places of those occurrences (b) The uniform infraction summons shall contain the following information: (1) The file number; (2) The name and address of each respondent; (3) The infraction with which the respondent is charged; (4) The date, tins, and place at which the hearing on the infraction is to take place; ORDNO. qq•1 Page 4 of 9 JAIL (5) An explanation of the respondent"s obligation to appear at this hearing, and that failure to appear may result in a default judgment being taken against the respondent; (6) An explanation of the respondent0s right to a hearing, right to rF+=resen. JL by counsel at personal expense, right to cross examine adverse witnesses, and right to compulsory process for the production of witnesses; (7) notice that the cost of the hearing, including witness fees, may be charged to the respondent If the final order of the court finds that the property is a chronic nuisance property. (c) The uniform infraction complaint shall contain the following information: (1) The date, time, and place the alleged infractions occurred; (2) The date on which the complaint was issued; (3) A notice to the respondent that a civil complaint has been filed with the municipal court. (d) Service of the summons and complaint shall be accomplished as described in Section 1.16.230 of this Code. 1'n addition to the affidavit described in Subsection (c) of that section, a return receipt of certified mailing which indicates delivery of the summons and complaint to the respondent's last known address, or a certified mailing which has been returned by the Post Office "unclaimed," shall also create a rebuttable presumption that the respondent had the required notice. (e) The hearing for determination as to whether an infraction has been committed shall take place in the manner described in Sections 1.16.250 to 1.16.300 and 1.16.320 of this Code. (f) Subject to the l izitationro of Subsection 1.16.230(c) of this Code, a default judgment may be entered against a responde.'t who fails to appear at the scheduled hearing. Upon such ORD NO. Page 5 of 9 judgment, the court may prescribe the remedies described in this Chapter. 7,42.0§0 Remedies. (a) Upon finding that the respondent has violated this Chapter, .the court may: (1) require that the chronic nuisance property be closed and secured against all use and occupancy for a period of not leas than 30, but not more than 180, days; and/or (2) assess a civil penalty not to exceed $500.00; and/or (3) employ any other remedy deemed by the court to be appropriate to abate the nuisance. (b) In lieu of closure of the property pursuant to Subsection (a) of this section, the respondent may file a bond acceptable to the court. Such bond shall be in an amount set by the court not to exceed the value of the property closed as determined by the court, and shall be conditioned upon the non-recurrence of any of the acts or behaviors listed at Section 7.42.020(c) of this Code for a period of one year after the judgment. Acceptance of the bond described herein is further subject to the »ourtos satisfaction of the respondent's good faith commitment to abatement of the nuisance. Z,42 060 Defenses: Mitigation "of Civ;, Penalty. (a) It is a defense to an action brought pursuant to this Chapter that the responsible party at the time in question 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 finding that the property is chronic nuisance property. However, it is no defonse under this subsection that the party was not at the property at the time of the incidents leading to the chronic nuisance situation. (n) In implementing the remedies described in this Chapter, the court may consider any of the following factors, as they may be appropriate, and shall cite those found applicable: ORD 5O. TqVIL Page 6 of 9 (1) The actions taken by the owner(s) to mitigate or correct the problem at the property; (2) The financial condition of the owner; (3) Whether the problem at the property was repeated or continuous; (4) The magnitude or gravity of the problem; (5) The cooperativeness of the owner(s) with the City in remedying the problem; (6) The cost to the City of investigating and correcting or attempting to correct the condition; (7) Any other factor deemed by the court to be relevant. 7.42 070 91oaure During Pendengy Ac ,on: F�ner�re�acv Closures. in addition to any other remedy available to the City under this Chapter, in the event that the Chief of Police finds that a property constitutes an immediate threat to the public: safety and welfare, the City may apply to any court of competent Jurisdiction for such interim relief as is deemed by the City Administrator to be appropriate. In such event, the notification and commencement of actaon procedures set forth in Section 7.42.040 and 7.42.045 need not be complied with. 74080 .. n=cement of Closure Order:_ Costs; Civil Penalty.. (a) The court may authorize the City to physically secure the property against use or occupancy in the event thatthe owner(s) fail to do so within the time specified by the court. (b) The court may assess on the property owner the following costs incurred by the City in effecting a closure of property: (1) Costs incurred in actually physically securing the property against use; (2) Administrative costs and attorneys fees in bringing the action for violation of this Chapter. ORD NO. q`f•11- Page 7 of 9 _ S (c) The City Administrator may, within 14 days of 1p written decision by the court, submit a signed and detailed statement of costs 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, a copy of the statement, including a legal description of the property, shall be forwarded to the Office of the City ®� Finance Director who thereafter shall enter the same in the City's lien docket in the same manner prescribed by Section 1.16.373 of this Code. (d) Persons assessed the costs of closure and/or civil penalty pursuant to this Chapter shall be jointly and severally liable for the payment thereof to the City. 742.086 Tenant Relocation Costs. A tenant (as defined by ORS 90.100(16)) of chronic nuisance property may be entitled to reasonable relocation costs, if without actual notice the tenant me-,.red into the property after the property owner or his or her agent received notice of an action brought pursuant to this Chapter. Any allowable costs will be determined by the City, and shall be a liability upon the owner of the chronic nuisance property. ?.42.090 Attorney Fees. In any action brought pursuant to this Chapter, the court may, in its discretion, award reasonable attorneys fees to the prevailing party. 2,42.100 Severability. lic any provision of this Chapter, or its application to any person or circumstance, is held to be invalid for any reason, the remainder of the Chapter, or the application of its provisions to other persons or circumstances, shall not in any way be affected. 7442-11 lusive Remedy. The remedy described in this Chapter shall not be the exclusive remedy of the City for the acts and behaviors described in Section 7.42.020(c). SECTION 2. WHEREAS, ',t ie City Council finds that repeated disruptive behavior on certain properties is causing a threat to public health, safety and ORD NO. "l'' Page 8 of 9 welfare, and that, such behavior requires an immediate response, said council hereby declares that an eme_gency exists ard that this Ordinance shall be effective upon passage. PASSED: By V_ ngYYAMQUS vote of all Council members present anter b ing read by number and title only, this -2eh d^ of • ._, 199:. Catherine Wheatley, City ecorder APPROVED: This day of 1!, , 1.994 �o Schwartz, Mayor Approved as to form: Am A Ci Attorney 2kwidga+,fiiuiseacexon! ORD NO. Page 9 of 9