GOVERNMENT vs. CITIZENS
PART 2 of 4
by Margaret Goodwin
June 19, 2013
Solid Waste & Nuisance Abatement Ordinance
Josphine County, Oregon —This is Part 2 of a four-part analysis of the ordinances recently passed by the Josephine County Board of County Commissioners. This article examines the Solid Waste and Nuisance Abatement Ordinance.
The previous Solid Waste and Nuisance Abatement Ordinance (90-16) was passed by the voters in 1990. On April 17, 2013, the Board of County Commissioners repealed that ordinance and adopted a new one to replace it.
The best way to understand the impact of their action is to examine the differences between the Solid Waste and Nuisance Abatement ordinance adopted by the voters and the one recently passed by the BCC. The BCC’s ordinance (2013-002) can be read in its entirety here, and the ordinance adopted by the voters (90-16) can be read here.
Solid Waste & Nuisance Abatement Ordinance Comparison (90-16 & 2013-002)
The Solid Waste and Nuisance Abatement ordinance previously adopted by the voters requires a complaint to be signed by three adult residents of the county, living within a half mile radius of the alleged violation. (90-16, 6(A)) The new ordinance passed by the BCC requires a complaint to be signed by one person, but does not require the complainant to even reside in the county. (2013-002, 10.1)
Under the ordinance previously adopted by the voters, unsightly conditions that do not pose a threat to public health or safety must be visible from a public road to constitute a violation (90-16, 5.20) or, if inside the Urban Growth Boundary, must be visible from any public place or private property. (90-16, 5.30). The new ordinance passed by the BCC has no visibility requirement.
Under the ordinance previously adopted by the voters, if the alleged violation continues for more than ten days after the property owner has been notified, the county may schedule a hearing “to determine whether there is, or has been, a violation as alleged.” (90-16, 8.020) Under the ordinance recently passed by the BCC, the accused must appeal the Notice of Violation within ten days, or forfeit their right to a hearing or appeal. (2013-002, 12.1.B) If the accused does not appeal the Notice of Violation, he is presumed guilty and must immediately remove the subject of the alleged violation and pay the fine.
Under the ordinance adopted by the voters, the accused has “the right to present real and documentary evidence, examine and cross-examine witnesses, and present oral argument” at the hearing. (90-16, 8.020(C)) Under the BCC’s new ordinance, “Only those matters specifically raised in writing in the appeal will be considered at the hearing.” (2013-002, 12.4) Regardless of the legitimacy of any further evidence or data, it will not be allowed if it wasn’t included in the written appeal of the Notice of Violation.
Under the ordinance adopted by the voters, county personnel can only go onto a citizen’s property to remove an alleged nuisance after a hearing has been held, a decision has been made against the property owner, and the violation has not been corrected within the amount of time established at the hearing (90-16, 8.030), or if the nuisance poses a major threat to public health or safety. (90-16, 6(B))
the BCC’s new ordinance, if the property owner does not either
correct the alleged violation or appeal the Notice of Violation within
ten days, the county may send county personnel out to the accused citizen’s
property to remove the cause of the alleged nuisance, or may hire a
contractor to go onto their property and remove it. (2013-002, 11.3) “…the Board of County Commissioners may make the cost a special assessment against the property involved or a personal obligation of the person who generated the nuisance.” (2013-002, 11.3.B)
Under the ordinance adopted by the voters, the maximum fine for a violation is $500. (90-16, 8.030(B)) Under the BCC’s new ordinance, a citizen who fails to comply with an order of the Hearings Officer is guilty of a Class A misdemeanor (a criminal offense), and may be punished by up to a year in jail and a fine of up to $2,500. (2013-002, 13.1.D) If the property owner does not pay the fine, the fine is automatically converted to a lien on their property. (2013-003, 8.5)
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The new Solid Waste and Nuisance Abatement ordinance removes the protections for property owners that were included in the version adopted by the voters, while increasing the fines and making it a criminal offense not to comply with an order of a Hearings Officer when charged with a violation.
In Part 3 of this series, we’ll examine the Code Enforcement Ordinance, which does not require any citizen complaint to cite a violation, and awards the fines recovered to the department that issued the citation. Part 4 will examine the Hearings Officer Ordinance. For an overview and background on these ordinances, see Part 1.
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