Ord. No. 1. - Enhanced Chronic Nuisance Property in ESPD Areas.

ENHANCED CHRONIC NUISANCE PROPERTY
ESPD Code Section 1

1.010 DECLARATION OF PURPOSE.
It is hereby found and declared that:

a)

Repeated nuisance activities occurring on, or resulting from the use of, certain properties within the ESPD (District) create unreasonable disruptions and may create unsafe conditions in the neighborhoods where the properties are located.

b)

Chronic nuisance properties degrade neighborhoods.

c)

Existing state criminal statutes and county ordinances are inadequate to address, control or remedy the adverse impacts of chronic unlawful activity occurring at the properties.

d)

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.

e)

An enhanced level of chronic nuisance enforcement within the District is an appropriate enhancement of law enforcement services and has been requested by the ESPD Citizen's Advisory Committee.

1.020 CHRONIC NUISANCE PROPERTY.

a)

Any property within the boundaries of the ESPD District of Washington County that becomes a chronic nuisance property, as defined herein, is in violation of this chapter and subject to its remedies.

b)

Any person who permits property under his or her ownership or control to be a chronic nuisance property, as defined herein, shall be in violation of this chapter and subject to its remedies.

1.030 DEFINITIONS.

a)

Abate. Affirmative actions to remove, to stop, to prevent a nuisance including but not limited to:

1)

Restricting or limiting noise, loitering, parking or access to the property, including posting the property with signs indicating such restrictions.

2)

Limiting the hours of operation of a business.

3)

Closing the property for not less than 30 days or more than six months.

4)

Entering premises for purposes of removing, compelling the removal or destruction of the structure, thing, substance, condition or property constituting a nuisance.

5)

Filing a civil complaint in a court of competent jurisdiction.

b)

Enhanced Chronic Nuisance Property.

1)

Enhanced chronic nuisance property means either:

a)

Property upon which the owner permits four or more separate incidents listed below occur within any 60-day period, or

b)

Property, the use of which has a causal relation to four or more separate occurrences of the below-listed incidents within 100 feet of the boundary line of the subject property within any 60-day period, or

c)

Property which has eight or more calls for service for nuisance behavior as listed below in an incident as listed below. In order to qualify as Enhanced Chronic Nuisance Property under 1(a) or 1(b) of this section, at least one incident within a 60-day period must result in a citation or arrest. A property may qualify as Enhanced Nuisance Property under 1(c) if it meets the minimum number of calls for service within a 60-day period, even without an arrest or citation, provided however that the calls for service must not all come from a single complainant:

A.

Disorderly conduct as defined in ORS 166.025 or 166.023.

B.

Discharge of a firearm in violation of ORS 166.220.

C.

Noise disturbance as defined in WCC 8.24.

D.

Minor in possession of alcohol as defined in ORS 471.430.

E.

Public indecency as defined in ORS 163.465.

F.

Criminal mischief as defined in ORS 164.345 to ORS 164.365 or Application of Graffiti, ORS 164.383.

G.

Prostitution or related offenses as defined in ORS 167.007 to ORS 167.017.

H.

Illegal gambling as defined in ORS 167.117 or ORS 167.122 to ORS 167.127.

I.

Alcoholic liquor violations as defined in ORS chapter 471.105 to 471.482.

J.

Possession, manufacture, or delivery of a controlled substance or related offenses as defined in ORS 167.203, ORS 475.005 to 475.285, or ORS 475.940 to 475.995.

K.

Offensive littering, ORS 164.805; depositing of trash within 100 yards of waters or in waters, ORS 165.775; placing offensive substances in waters, on highways or other property.

L.

A citation or conviction for violation of section 8.04, 8.08, 8.16, 8.20 8.24 or 14.04 of the Washington County Code.

M.

Endangering the welfare of a minor as defined in ORS 163.575.

N.

Harassment as defined in ORS 166.065.

O.

Theft in any degree, ORS chapter 164; theft of lost, mislaid property, ORS 164.065; theft by deception, ORS 164.085; theft by receiving, ORS 164.095; or theft of services, ORS 164.125.

P.

Identity theft in any degree, ORS chapter 165; metal property offenses, ORS 165.118; unlawful possession of fictitious identification, ORS 165.813.

Q.

Animal abuse, neglect or abandonment in any degree, encouraging animal abuse, involvement in animal fighting, dogfighting, cockfighting, participation in cockfighting, ORS chapter 167.

R.

Creating a hazard, ORS 167.810.

S.

Assault, Menacing, or Recklessly Endangering.

T.

Violation of parole or probation.

U.

Any crimes of domestic violence, including violation of any protection order issued by the court under ORS 30.866, 107.718, 124.015, 124.020, 133.035, 163.738, 163.765, 163.767, or 419B.845.

V.

Warrant arrests

W.

Reckless Driving, DUII, or Possession of Stolen Vehicle.

c)

Control. The ability to regulate, restrain, dominate, counteract or govern conduct that occurs on property.

d)

Good Cause. Circumstances beyond the ability of a person acting with reasonable care and diligence to control.

e)

Incident. An occurrence of one of the nuisance behaviors set forth in 1.030. To qualify, all incidents must be based on either, 1) the sworn statement of a person who personally witnessed the alleged incident, 2) personal observation of a law enforcement officer, 3) an allegation made by the owner of the property or the owner's agent, or 4) a determination by a law enforcement officer after an investigation that there are reasonable grounds to conclude that the alleged incident did, in fact, occur.

f)

Owner. Any person, agent, firm or corporation having a legal or equitable or management interest in a property. Owner includes, but is not limited to:

1)

A mortgagee in possession in whom is vested:

A)

All or part of the legal title to the property; or

B)

All or part of the beneficial ownership and a right to present use and enjoyment of the premises: or

2)

A person who has the legal authority to control or to obtain authority to control what occurs on that property.

g)

Permit. To suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the doing of an act.

h)

Property. Any real property including land and that which is affixed, incidental or appurtenant to land, including but not limited to any premises, room, house, building or structure or any separate part or portion thereof, whether permanent or not.

i)

Sheriff. The elected official responsible for enforcement of state and county laws as provided by the Charter of Washington County, Oregon.

j)

Structure. That which is built or constructed, an edifice or building of any kind including units thereof or mobile homes; any of which is an addition to or a fixture on real property.

1.035 INSPECTION AND RIGHT OF ENTRY.

Whenever a deputy has probable cause to believe that a property may be an enhanced chronic nuisance property, the deputy may enter upon a site or structure for the purpose of investigation either with the consent of the owner or person with actual authority to consent to entry of the property, or with an administrative inspection warrant issued by the Justice Court, using the procedures set forth in WCC 1.12.070.

1.040 SHERIFF'S DETERMINATION.

a)

If the Sheriff determines that property may be enhanced chronic nuisance property, the Sheriff shall notify the owner and the owner's registered agent, if known, in writing. In deciding whether to proceed, the Sheriff shall consider whether the owner has reported the incidents and otherwise acted responsibly and whether proceeding would discourage future reporting and cooperation in discouraging unlawful behavior.

The notice shall contain the following information:

1)

The street address or description sufficient for identification of the property.

2)

That the Sheriff is considering whether the property is an enhanced chronic nuisance property, together with a concise description of the information upon which the Sheriff is relying. If any of the incidents relied on occurred on property other than that property which is the subject of the notice, the notice shall include a concise description of the location and the causal relationship between the subject property and the incident.

3)

A direction that the owner has 15 days from the date of mailing the notice to provide information to the Sheriff demonstrating that the property is not an enhanced chronic nuisance, inform the Sheriff of the actions the owner intends to take to address the allegations or indicate good cause as to why the owner cannot do so.

b)

If the owner fails to respond or to demonstrate to the Sheriff that further action should not be taken, the Sheriff shall issue a Finding of Enhanced Chronic Nuisance, Notice of Referral and Order To Show Cause to direct the owner to abate the nuisance within 15 days, or show good cause why the Board or hearings officer should not order that the property be closed for a period of up to six months, impose a civil penalty and/or order abatement of the chronic nuisance. The Order to Show Cause shall state that:

1)

A date for a hearing within 20 days of the service of the Order.

2)

A notice that if the nuisance is not abated, as determined by the Sheriff or designee, prior to the date of the hearing, the Board, or hearings officer will conduct the hearing, and after giving the property owner an opportunity to comment, will make findings regarding closure of the property. If the Board or hearings officer orders closure, it will be for no less than 30 days and no more than six months.

3)

In addition to or in lieu of ordering closure of the property, the Board or hearings officer may order the property owner to take action to abate the nuisance, and may order the owner to pay to the county a civil penalty of $250 a day for each day the owner fails to take the action.

4)

If the Board or hearings officer orders closure of the property, or imposes a civil penalty under this section, the owner may be required to pay a civil penalty of $1,000 per incident for subsequent incidents of enhanced chronic nuisance occurring on the property within six months of the order. In the event that the Sheriff determines that the owner has allowed or permitted an additional incident of chronic nuisance to occur within six months after the property was ordered closed or a civil penalty was imposed, the Sheriff shall issue a Notice of Subsequent Chronic Nuisance and Order to Show Cause to the property owner, and a date of a scheduled hearing in front of the Board or hearings officer.

5)

Permitting chronic nuisance property is a violation of this chapter.

6)

The above remedies are in addition to those otherwise provided by law.

c)

Service of any notice to the property owner provided for in this ordinance is completed upon mailing the notice first class, postage prepaid, addressed to:

1)

The owner's registered agent, if any is known, and

2)

The owner at the address of the property believed to be a chronic nuisance property, and to such other address as shown on the tax rolls of the county in which the property is located or such other place which is believed to give the owner actual notice of the determination by the Sheriff.

d)

A copy of the notice shall be served on occupants of the property, if different from the owner. Service shall be completed upon mailing the notice first class, postage prepaid, addressed to "occupant" of each unit of the property believed to be an enhanced chronic nuisance property.

e)

In addition, a copy of any notice regarding the property shall be posted on the main entrance of the property in a conspicuous manner.

f)

The failure of any person or owner to receive actual notice of any notice under this ordinance shall not invalidate or otherwise affect the proceedings under this chapter, if the notice was served in the manner required by this section.

1.050 DETERMINATION OF BOARD OR HEARINGS OFFICER.

a)

Hearings before the Board or hearings officer shall be conducted in the manner set forth in WCC 1.12.150 to 1.12.190, and shall determine whether the Sheriff had reasonable grounds to believe that the property constituted an enhanced chronic nuisance, or that the property was previously subject to a civil penalty or closure and has an additional chronic nuisance activity. All hearings must be audio recorded.

b)

It shall be an affirmative defense to an action under this chapter that the owner could not, in spite of the exercise of reasonable care and diligence, control the activities on the subject property that constituted the incident or made the incident more likely to occur or otherwise remedy the situation leading to the finding that the property is chronic nuisance property. The owner has the burden of proving this defense by a preponderance of the evidence.

c)

If the county is relying on an incident that occurred on property other than the property that is the subject of the enhanced chronic nuisance determination, the county shall demonstrate some causal relationship between activities occurring on the property and the incident. The activities must have contributed to, but need not be the sole or predominate cause of the incident. Evidence demonstrating a causal connection may include, but is not limited to:

1)

That the owner knew or reasonably should have known that an employee, customer, invitee or other person associated with the property would engage in conduct listed in 1.030;

2)

Activities on the subject property that encouraged, engendered, promoted, contributed to or otherwise made the incident more likely to occur.

1.060 REMEDIES.

a)

If the Board or hearings officer determines that property is an enhanced chronic nuisance property and the owner has not demonstrated a valid defense, the Board or hearings officer may order that the nuisance be abated or close and secure the property against all use and occupancy for a period of not less than 30 days and not more than six months, and impose a civil penalty.

b)

Civil penalties must be imposed for non-compliance with an Order of the Board or hearings officer at no less than $250 per day for each day the property remains in violation of this ordinance, and no more than $1,000 per incident. Civil penalties will continue to accrue daily until the property owner provides proof to the Sheriff, and the Sheriff determines the chronic nuisance has been abated and notifies the Board or hearings officer.

c)

Unless otherwise ordered, civil penalties must be paid or complied with within ten days of the final order. Such period may be extended upon order by the hearings officer.

d)

Any delinquent civil penalties shall be turned over to the Washington County Finance Department or assigned to a private collection company for collection, and shall be assessed an additional administrative collection fee equal to twenty-five percent of the penalty.

e)

Delinquent penalties may be enforced or collected under ORS 30.310 or 30.315, collection by the Oregon Dept. of Revenue pursuant to ORS chapter 293, or any other method permitted by law.

f)

Lien filing and docketing for civil penalties and for costs of closure of the property under ESPD 1.110 shall be addressed in the manner set forth in WCC 1.12.240.

1.065 MULTI-UNIT PROPERTY.

a)

Except as provided in paragraph b), in the case of multi-unit residential property, such as apartment complexes or motels, and multi-unit commercial property, such as shopping centers or industrial parks, under one ownership, the enhanced chronic nuisance determination and closure remedy shall be directed only to the unit or units that are the source or location of the incidents.

b)

An enhanced chronic nuisance determination and remedy may be applied to multiple units, up to and including the entire property, if the Board or hearings officer determines that:

1)

The incidents occurred in the common areas of the property or otherwise are not reasonably attributable to a particular unit;

2)

The nature or scope of the incidents is such that they cannot reasonably be attributed to a particular unit; or

3)

Incidents continue to occur despite previous imposition of remedies on specific units and the owner has demonstrated an inability or unwillingness to mitigate or correct the nuisance.

1.110 CLOSURE OF PROPERTY.

If the Board or hearings officer has upheld an order of closure of a property, the Sheriff shall take steps to physically secure the property against all use, and post conspicuous notices that the property has been closed. All costs reasonably incurred by the Sheriff in securing the property shall be made an assessment lien upon the property in the manner described in 1.060. Costs include but are not limited to staff time and materials. Prior to physically closing the property, the County may, but is not required to, provide the owner with a brief opportunity to physically secure the property against all use at the owner's expense.

1.120 ENTERING CLOSED PROPERTY.

It is unlawful for any person to enter, use or remain in or on property that has been ordered closed pursuant to this Chapter. A police officer may arrest a person for criminal trespass in the 2 ^nd degree for entering, using or remaining in or on property closed under this Chapter.

1.130 LIABILITY.

Nothing herein shall be relied on or construed as establishing any county responsibility, obligation or liability to any third party, for damages or otherwise, arising from the actions or inaction of the county in applying this ordinance. Nothing herein lessens or otherwise alters the property owner's responsibility to third parties arising from use and condition of the property.

1.140 CHALLENGING A DECISION OF THE BOARD OR HEARINGS OFFICER.

If a party wishes to challenge the decision of the Board or hearings officer, the party must:

1)

Serve a Notice of Intent to file a Writ of Review with the Office of County Counsel within 15 days of the final decision of the Board or Hearings Officer, setting forth the specific grounds for the proposed Writ of Review.

2)

Service of the Notice of Intent to file a Writ of Review is jurisdictional, and failure to do so will result in a waiver of the right to challenge the decision of the Board or Hearings Officer.

3)

File a Writ of Review pursuant to ORS chapter 34.

( ESPD Ord. No. 1, § 2(Exh. A), 9-19-2017 )