ORDINANCE NO.541 AN ORDINANCE REGULATING SOLID AND OTHER WASTES The City of Union does ordain as follows: § 97.01 CODIFICATION This ordinance shall be codified as Chapter 97 of the City of Union Code. The section numbers stated at the beginning of each of the provisions of this ordinance shall be the numbering used for its codification. §97.02 GENERAL PROVISIONS. A. Definitions. For the purposes of this Chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. (1) “Waste” means: a. Matter or material that is: (a) hazardous to health and safety of the public; (b) annoying, offensive or unsightly; (c) inconsistent with the zoning and dominant characteristics of the neighborhood; or (d) without substantial economic value or functional use; b. Organic materials that can decompose, giving rise to foul smelling products, or creating a health hazard, or which are capable of attracting or providing food for potential disease carriers such as birds, rodents, flies and other vectors; c. Whether solid or in liquid form, garbage, rubbish, ashes, sewage sludge, street refuse, industrial wastes, swill, demolition and construction wastes or salvage, home and industrial appliances not in regular usage, machinery not in regular usage or parts thereof, inoperable machinery and appliances or parts thereof, scrap metal, glass, paper, lumber, wood, yard debris, vegetable or animal wastes, dead animals, discarded material, and debris; waste also includes any material that is piled, kept, stored, or discarded in a manner that is unsightly, constitutes a fire hazard, constitutes an attractive nuisance to children (as defined in Section 97.02(A)(5)), or otherwise is a potential threat to public health, safety and welfare; and d. Materials and matter accumulated on property so as to constitute a public nuisance recognized by common law. (2) The phrase “person in charge of property”, “person in charge of the subject property”, or other similar phrase, means any one or more than one occupant, lessee, contract purchaser, owner, or person having possession of, control of, occupancy at, or title to, the subject property. (3) “City official” means any designee of the City Council and city officer, agent, or employee, acting in the course of official duties for purposes of the enforcement of this Chapter. (4) “Person” means any natural person, firm, partnership, association, legal entity, or corporation. (5) “Attractive nuisance to children” means a condition on land with the following characteristics: a. The condition is at a place where the possessor or owner knows or reasonably should know that children are likely to trespass, and b. The condition is one of which the possessor or owner knows or reasonably should know, and which the possessor or owner realizes or reasonably should realize will involve an unreasonable risk of death or serious injury to such children, and c. Children, because of their youth and inexperience, do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and d. The utility of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and e. The possessor or owner fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. B. Exceptions. (1) This Chapter does not apply to materials or items that might otherwise constitute waste if such is kept and maintained in a business licensed as a junk yard or automobile wrecking yard which is operating in accordance with all applicable rules and regulations, including zoning laws, or to items or materials accumulated for recycle in a recycling business operating as such and in accordance with all applicable rules and regulations, including zoning laws. To be exempted by this paragraph, such items and materials must be enclosed by a secure fence that is no less than six feet tall and is so sight obscuring as to prevent a person from seeing into the enclosed area from other property or from a right of way or sidewalk, and such items and materials must be stored in a fashion that does not otherwise constitute a nuisance at common law. (2) This Chapter does not apply to the accumulation of a reasonable quantity of fire wood for household purposes to be used at the premises where located, nor does it apply to the accumulation of construction materials at the location of properly permitted construction work when the stored materials are exclusively for use at the site. §97.03 ACCUMULATION AND STOCKPILING PROHIBITED; DECLARATION OF PUBLIC NUISANCE. A. Stockpiling prohibited. No person shall deposit, accumulate, store, maintain, allow to exist, or display waste on any property within the City of Union, except as specifically permitted by this Chapter or as otherwise authorized by law. B. No person or occupant of any land in the City of Union shall authorize, permit or suffer violation of any provision of this Chapter. C. Exceptions. The prohibitions of this chapter do not apply to the following: (1) The temporary accumulation of limited quantities of waste in standard garbage or recycling collection receptacles provided for that purpose pending disposal or recycling in a legal manner, providing that the waste does not create offensive odors, unsightly conditions, or hazards to health. (2) The accumulation and distribution of compost, silage, or livestock manure in conjunction with normal commercial crop or animal husbandry activities, so long as such activity is in compliance with all applicable zoning regulations, does not physically encroach upon the land of another, violates no statutes, rules, regulations, or ordinances of the Department of Environmental Quality or the City of Union, and is conducted in a reasonable manner so as to minimize any offensive odor, unsightly condition, or hazard to health. D. The accumulation and storage of waste is hereby found to create a condition tending to reduce the value of private property, to promote blight, deterioration and unsightliness, to invite plundering, to create fire hazards, to constitute an attractive nuisance creating a hazard to the health and safety of minors, to create a harborage for rodents and insects, and to be injurious to the health, safety and general welfare of the inhabitants of the City. Therefore, the presence of waste on private property in violation of this Chapter is hereby declared to constitute a public nuisance which may be abated in accordance with provisions of this Chapter. E. Nothing stated within this Chapter shall be construed to allow the accumulation or stockpiling of any waste prohibited by any other ordinance or regulation of the City or by any land use regulations or any other applicable laws, or to declare any non-commercial accumulation or stockpiling of waste as commercial, or to override provisions of any ordinance of the City regarding home occupations, or commercial endeavors relating to the storage and accumulation of commercial products. Nothing stated in this Chapter shall be construed as authorizing any activity which at common law would constitute a public or private nuisance nor as legislatively amending or changing common law nuisance principles. §97.04 INVESTIGATION. When a city official has determined that a violation of this Chapter exists on property which should be abated, the official shall: A. Attempt to discover the name and address of the owner and occupant of the property, the person responsible for the accumulation or deposit of the waste, and all persons who may be in charge of the real property on which the violation exists as such persons are defined in § 97.02.A(2); and B. Give written notice to the persons described in Subsection A of this section by regular first class mail and registered or certified mail requiring a return receipt that there is a violation of this Chapter. If the owner or occupant of the property is not found, the city official shall place a notice posted on the property where it can easily be seen. C. Contents of notice. The notice referred to in the preceding paragraph shall contain: (1) A description of the real property by street address or otherwise, on which the violation exists, (2) A direction to abate the violation within no less than fifteen days from the date of the notice, (3) A description of the violation, (4) A statement that unless the violation is abated, the City may enter, abate the violation, and charge the costs of abatement to the person responsible and/or impose a lien against the real property on which the violation was abated, (5) A statement that failure to abate the violation within the time provided may warrant imposition of a fine. (6) A statement that the alternative to compliance with the notice is to make a written request within 15 calender days of the date of the notice for a hearing before the City Council to show why abatement should not be required or why more time for abatement may be needed. This statement shall list the required contents of the request for hearing that are set forth in § 97.06. (7) A statement that if there is no request for a hearing before the City Council within 15 calendar days of the date of the notice, the determination as set forth in the notice shall be final with no right to further protest or otherwise appeal. D. Upon completion of posting and mailing, the persons posting and mailing shall execute and file certificates with the City Council stating the date and place of the mailing and posting. §97.05 ENTRY ON PRIVATE PROPERTY. Upon compliance with all applicable procedures, City officials are authorized to enter onto private property at all reasonable times to examine items and materials reasonably suspected to constitute wastes in violation of this Chapter and following the procedures set forth to take steps necessary to abate violations hereof. §97.06 FORM OF REQUEST FOR HEARING. A. Any person entitled to service of a notice under this Chapter may within 15 calendar days of the date of the notice file a request for hearing before the City Council. The request need not be in any particular form but shall include the following: (1) The name of the person requesting a hearing and all other persons joining in the request. (2) A brief statement setting forth the legal interest of each of the persons requesting the hearing. (3) A brief statement in ordinary and concise language of the specific order or action protested. (4) A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed that the protested order or action should be reversed, modified, or otherwise set aside. (5) The signatures of all the parties requesting a hearing and their official mailing addresses. (6) A statement by declaration under penalty of perjury that all of the matters stated within the request for hearing are true. B. Normally a late request for a hearing before the City Council will not be considered. However, in unusual circumstances the City Council may excuse an untimely request if the requesting party provides information excusing a lack of timely response by certifying the date of actual notice to the requesting party and accounting for all delay between the day of actual notice and the day of delivering the request for hearing to the City Council. General press of personal business shall not excuse an untimely request. §97.07 HEARING BEFORE CITY COUNCIL OR HEARING EXAMINER. A. Following a request for a hearing, the City Council shall itself or through a hearing examiner provide a hearing for the requesting party to show cause why a violation does not exist, or why the violation should not be abated within the time provided, and to receive evidence and the testimony of the city official and other interested persons, or other witnesses, concerning the existence, location, and condition of the alleged violation. (1) After the hearing, the City Council may order the property a nuisance in violation of this Chapter and direct that the violation be abated by the person responsible, and/or by other person or persons in charge of the property, and/or by the City in accordance with the provisions of this Chapter. (5) If the hearing was referred to a hearing examiner by the City Council, the hearings examiner and the City Council shall proceed in the fashion provided for in § 98.10.H of the City of Union Code, relating to dangerous building. B. Persons entitled to the notice specified in § 97.04.A shall be sent copies of the order in the manner provided for in that section. C. The City Council may impose conditions and take other actions considered appropriate under the circumstances to carry out the purposes of this Chapter. The City Council may delay the time for abatement of the nuisance when, in the council’s opinion, circumstances justify such action. The City Council shall refuse to order abatement of the violation when the property, in the opinion of the City Council, is not subject to the provisions of this Chapter. The City Council shall not be bound by technical rules of evidence in conducting the hearing. D. Nothing stated in this Chapter shall prevent the City Council from entering into a consent agreement with the person or persons responsible, or person or persons in charge of property, that provides for the manner and means of abatement other than as provided for herein, provided that the consent agreement is in the form of a final contract enforceable in a court of law or equity and the contract specifically waives any right of the person contracting with the City Council to contest whether a violation of this Chapter exists or existed or whether the condition of the subject property constitutes a nuisance. §97.08 ABATEMENT BY THE CITY. A. The City may abate the violation, or cause the violation to be abated, when: (1) The terms of any consent agreement between the City and the person responsible or person in charge of property so provide, or when the terms of a consent agreement have been violated by the person or persons signing the consent agreement; or (2) The person responsible has been mailed the notice required by §97.04, and the violation stated within the notice has not been abated within the time provided in the notice and no hearing has been requested; or (3) Following hearing the corrective action required by the City Council has not been completed by the date specified; or (4) There have been court proceedings which have become final, resulting in an order by the court directing abatement, and abatement has not been completed within the time required by the court’s order. B. The decision to proceed to abatement by the City shall be made by the City Council. C. Summary abatement. Whenever a violation causes a condition the continued existence of which constitutes an immediate or emergent threat to the public health, safety, or welfare, or to the environment, the City may summarily and without prior notice, abate the condition. Notice of such abatement, including the reason for it, shall be given to the person or persons responsible for the violation as soon as reasonably possible. The costs of summary abatement shall be charged to the person responsible and become a lien upon the property in accordance with the provisions of this Chapter applicable to costs of non-summary abatements. D. When the City proceeds to abate as provided for herein it may do so using any lawful means, the City or its agents may enter upon the subject property and may remove or correct a violation which has become the proper subject of abatement. The City may also seek such judicial process as it deems necessary to effect the abatement. E. Interference prohibited. No person shall obstruct, impede, or interfere with the City or its agents, or with any person retained or hired by the City to effect the abatement, or with any person who is a person in charge of the property, in performing any acts necessary to correct a violation. F. The City shall maintain a record of all expenses incurred in abating a waste violation. The record shall include, but is not necessarily limited to, the costs of mailing notices, the expense of title reports, title searches, and lien searches, charges for labor and personal services, equipment rentals, the costs of contractors, materials expense, fuel costs, survey expenses, reasonable charge for use of City-owned equipment, land fill fees, the costs of transportation, etc., and an additional charge of 15 percent for administrative overhead. G. A notice of assessment for the costs of abatement shall be sent by certified mail with return receipt to the responsible party or parties and those entitled to receive the notice provided for in § 97.04 hereof. The notice shall contain: (1) The total costs of abatement, including the administrative overhead; (2) A statement that the costs of abatement are the personal obligation of the person in charge of the subject property and will become a lien against the property unless paid within sixty days; (3) A statement that if person in charge of the property objects to the cost of the abatement, he or she may file a notice of objection with the City within 15 days of the date of the notice; and (4) A statement that a fee for recording the costs of abatement as a lien against the property may be added to the cost of abatement. H. Objections to the proposed assessment shall be heard and determined by the City Council before the proposed assessment becomes a lien against the property. I. If the costs of the abatement are not paid within sixty days from the date of the notice of costs, or if an objection was timely filed, from the date of the City’s determination of costs, the costs of abatement shall be filed and recorded as a lien upon the property and shall be entered into the docket of city liens. When the entry is made, it shall constitute a lien on the property from which the violation was abated. §97.09 LIEN OF ASSESSMENT. A. Immediately upon its being placed on the assessment roll, the assessment shall be deemed to be complete, the several amounts assessed shall be payable, and the assessment shall be liens against the lots or parcels of land assessed, respectively. The lien shall continue until the assessment and all interest due and payable thereon are paid. B. All such personal obligations and assessments remaining unpaid after thirty days from the date of recording on the assessment roll shall become delinquent and shall bear interest at the rate of 9 percent per annum from and after said date. C. The lien may be enforced, collected upon and foreclosed in accordance with the provisions of ORS 223.505 through 223.650 and by suit in equity or at law in circuit court. §97.10 JUDICIAL REVIEW AND ENFORCEMENT. A. Judicial Review. (1) Any person aggrieved by a final decision of the City Council may appeal to the Circuit Court of the State of Oregon for Union County for judicial review of the City Council’s decision. The appeal shall be filed within thirty days from the effective date of the decision. The failure of any person to file a request for judicial review in accordance with the provisions of this Chapter, and within the thirty days required, shall constitute a waiver of the right to judicial review, and the decision of the City Council shall then be final. There shall be no right to judicial review if the person appealing did not timely seek a hearing before the City Council, or receive from the City Council an order excusing the late request, and then thereafter pursue to conclusion the hearing and then timely seek an appeal. (2) On judicial review to Circuit Court, all rules governing the form of pleadings, procedures, the taking of evidence, and such other matters as may affect the proceeding shall be governed by the Oregon Rules of Civil Procedure, the Oregon Evidence Code, and such other rules and laws applicable to proceedings in circuit court and/or as directed by the judge presiding over the proceedings. (3) Unless the violation is one subject to summary abatement, all abatement activities shall be stayed during the course of the appeal. B. Judicial Enforcement. (1) At the election of the City Council, the City may dispense with the notice and hearing procedures set forth above, and in lieu thereof enforce this Chapter by a civil action initiated by the City Attorney or special counsel in any court of competent jurisdiction, including the Circuit Court of the State of Oregon for Union County. Prior to the initiation of such suit the person or persons in charge of the property shall be sent a notice which contains: a. A description of the real property by street address or otherwise, on which the violation exists, b. A direction to abate the violation within no less than fifteen days from the date of the notice, c. A description of the violation, d. A statement that unless the violation is abated within the stated time or within the time of any extension granted by the City, the City will initiate legal action to enforce the terms of the City’s solid waste ordinance, and e. A statement that failure to abate the violation within the time provided may warrant imposition of a fine. (2) Upon completion of mailing, the persons doing so shall execute and maintain in the City’s records certificates stating the date and place of the mailing and posting. (3) If an enforcement proceeding is initiated using the notice provisions of § 97.04, the City Council may at any time terminate such proceedings and direct the City Attorney or special counsel to file legal action, in which case the notice provided for in § 97.10.B(1) shall not be required. Instead the persons in charge of the subject property shall be advised by first class letter that the pending proceedings before the City Council are terminated and that the City Attorney or special counsel as the case may be has been directed to file suit to enforce this Chapter. (4) In any legal action, the Court shall have the authority to award to the City all remedies that are provided for in this Chapter including, but not limited to, directing the defendants to abate the nuisance, imposing fines as set by generally set by the City Council against the defendants payable to the City, and granting the City the right to proceed with abatement and to charge the defendants with the cost thereof and to have such costs be a lien against the subject property. The Court shall also have the authority to allow for any other remedy available at law or in equity, including, but not limited to, injunctive relief. (5) In any legal action, all rules governing the form of pleadings, procedures, the taking of evidence, and such other matters as may affect the proceeding shall be governed by the Oregon Rules of Civil Procedure, the Oregon Evidence Code, and such other rules and laws applicable to proceedings in Circuit Court and/or as directed by the judge presiding over the proceedings. §97.11 JOINT AND SEVERAL RESPONSIBILITY If more than one person is a person responsible or liable under any provision of this Chapter, they shall be jointly and severally liable. §97.12 PENALTY A. A person violating a provision of this Chapter or an order issued under authority of this Chapter shall, upon conviction, be guilty of a violation punishable by a fine set by the Union City Council by resolution. Such a person shall also be subject to any civil remedies available to the City as set forth in this Chapter or as otherwise provided for by law. B. Each day’s violation of a provision of this Chapter or of an order issued under authority of this Chapter constitutes a separate violation. The abatement of a nuisance is not a penalty for violating this Chapter, but instead is an additional remedy. The imposition of a penalty does not relieve a person of the duty to abate the nuisance; however, abatement of a nuisance within ten days of the date of notice to abate, or if a protest or appeal has been filed pursuant to the terms of this Chapter, the abatement within ten days of the disposition of the protest or appeal if a nuisance is found to exist, will excuse the person responsible from the imposition of any fine. C. The City Council may, in its discretion, suspend, cancel, or delay the imposition of fines provided for by this Chapter. Also, at the City Council’s discretion, fines may be suspended or otherwise abated during the period during which the rights of review provided for herein are properly exercised; in exercising the discretion provided for in this sentence, the City Council shall consider the degree to which the review sought has been frivolous as well as other factors considered relevant in the Council’s judgment. D. The statement of a penalty within this Chapter is not preclusive, and shall not prevent the imposition of other penalties or remedies that may be available to the City under any other ordinance, statute, regulation, law, or resolution. Passed by the council and approved by the mayor this day of , 2014. CITY OF UNION By Mayor Attest: Recorder
Posted on: Thu, 16 Oct 2014 00:30:04 +0000