§ 33.01 Definitions

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

FOUND PROPERTY.  Money or personal property of any description other than contraband, firearms used in commission of a crime, other property being held as evidence in any civil or criminal proceeding, animals, or motor vehicles, the true owner of which cannot be readily ascertained, and which is:

(1) Found by any officer or employee of the city in or about any vehicle, structure, park, lot, street, or other place or premises owned by or under control of the city; or

(2) Surrendered to an officer or employee of the city by any person reporting it to have been found at any place.

SURPLUS PROPERTY.  Any personal property belonging to and owned by the city, which has been determined by the City Manager to be of no further use to the city.

UNCLAIMED MOTOR VEHICLE.  Any motor vehicle taken into custody after notice as provided herein.

UNCLAIMED PROPERTY.  Money or personal property of any description other than contraband, firearms used in the commission of a crime, animals or motor vehicles, and which has, for any reason, come into the custody, actual or constructive, of the city and is no longer required to be held by the city for any purpose, and remains unclaimed for 30 days after notice to the owner or other interested person(s) as provided herein.
(Ord. 1817, passed 5- -93)

§ 33.02 Surrender of Found Property

Any person who surrenders found property to the custody of any officer or employee of the city thereby surrenders and waives any claim of right, title, or interest therein which might otherwise be asserted.

§ 33.03 Records and Reports

(A) The officer or employee of the city into whose custody found property first comes shall deliver to the custody of the Police Department the property together with a report.  The report shall set forth the following information as is known to the author:

(1) The date, time, name and address of finder, and place of the finding;

(2) The date and time the property came into the custody of the city; and

(3) A description of the property; the location where the property is kept.

(B) When found property comes into the custody of the Police Department the Police Department shall cause an identification tag to be attached to the property.
(Ord. 1817, passed 5- -93)

§ 33.04 Treatment of Surplus Property

(A)  Determination that personal property is surplus and of no further use to a using agency is within the exclusive jurisdiction of the City Manager.

(B)  Disposition of surplus property is within the exclusive jurisdiction of the City Manager.
(Ord. 1817, passed 5- -93)

§ 33.05 Treatment of Unclaimed Property

(A) Any officer or employee of the city who has, for any reason, the actual or constructive custody of unclaimed property shall deliver the property to be held under the jurisdiction of his department head. After ten days from time of delivery, or sooner if the department head or his designee deems the property to be of such value that more secure storage is advisable, the property shall be delivered to the custody of the Police Department.
(B) Within ten days of the property coming into the custody of the Police Department, the Department shall make diligent inquiry, including, but not limited to, an examination of the property for identifying markings, to discover the name and address of the owner, conditional vendor, mortgagee, or any person(s) interested therein.
(C) If the owner or other interested person(s) can be readily ascertained, or has been ascertained within ten days of the Police Department custody, the Department shall cause notice to be sent by certified mail to the owner or interested person(s) so that he may claim the property within 30 days of the date on which the notice is sent.
(D) Unclaimed property shall be held for at least 30 days following the notice to the owner or other interested person(s), during which time the owner may redeem the property by satisfactorily establishing his ownership thereof and payment of costs as provided herein.
(E) The Chief of Police, whenever he deems necessary, shall transmit to the evidence/property manager a list of all found and unclaimed property in his possession. After this transmittal, the property shall come into the custody and control of the Evidence/Property Manager.
(F) Unclaimed property valued at $25 or more and which remains unclaimed and not redeemed after the redemption period set forth in divisions (C) and (D) above shall be disposed of by the Evidence/ Property Manager as follows:

(1) At a time set by the City Manager, all unclaimed property shall be sold at public auction to the highest bidder for cash.
(2) In default of bids from others, the City Manager may dispose of the property at his discretion without necessity of taking further bids.
(3) Notice of the time and place of the auction shall be given by one publication in a newspaper of general circulation in the city not less than five days nor more than 15 days before the date of the sale. The notice shall contain a general description of the property to be sold.
(4) At the time of the payment of the purchase price for property sold under this section, the City Manager or a representative of the City Manager shall make, execute, and deliver, on behalf of the city, a bill of sale, in duplicate, the original to be delivered to the purchaser and the copy to be kept on file in the office of the City Manager. The bill of sale shall include the following:

(a) The name and address of the purchaser;
(b) The date of the sale;
(c) The consideration paid;
(d) A brief description of the property; and
(e) A stipulation that the city does not warrant the condition or title of the property.

(5) The sale and conveyance of unclaimed property shall be without redemption.
(6) Property sold pursuant to this section shall be delivered to the purchaser only upon presentation of the bill of sale therefor, issued pursuant to division (D) of this section.
(G) Found and unclaimed property valued at less than $25 and not redeemed may be disposed of by the City Manager in a manner most advantageous to the city.
(H) The proceeds of any sale under this section shall be applied as follows: First, to the payment of the cost of the sale and expenses incurred in the preservation and custody of the property, and; second, the balance, if any, shall be paid to the Finance Director/Recorder of the city and shall be credited to the general fund.
(Ord. 1817, passed 5- -93)

§ 33.06 Abandoned Motor Vehicles

Motor vehicles shall be held and disposed of as provided by ORS Chapter 819.
(Ord. 1817, passed 5- -93)

§ 33.07 Owner's Responsability and Expense

Found property, unclaimed property and unclaimed motor vehicles which come into the custody, actual or constructive, of the city for any reason, shall be held at the expense of the owner and any costs incurred by the city in finding, transportation, giving of notice, storage, care, and custody of the property shall be paid by the owner or other person(s) lawfully entitled to possession and upon payment of same the property may be released.
(Ord. 1817, passed 5- -93)

§ 33.08 Redemption of Property

(A) The property shall be held by the city for a minimum period of 30 days after the property comes into the custody of the city, during which time the owner may redeem the property by satisfactorily establishing his ownership thereof, and the payment of any costs as provided herein.
(B) Found property which remains unclaimed and not redeemed after the redemption period set forth in division (A) above shall be disposed of as unclaimed property pursuant to city ordinance.
(Ord. 1817, passed 5- -93)

§ 33.09 Discretion of City Manager

The City Manager, may, but is not required to, use additional or extraordinary efforts to locate owners or sell property as he sees fit in his sole discretion.
(Ord. 1817, passed 5- -93)

§ 33.20 Purpose

The purpose of this public grievance procedure is to establish a formal method the public shall pursue should they feel their city government is discriminating against handicapped persons.
(Ord. 1544, passed 10-8-84)

§ 33.21 Duties of City Manager

The City Manager is hereby designated to be the responsible city employee in all handicapped discrimination complaints.
(Ord. 1544, passed 10-8-84)

§ 33.22 Duties of Finance Director/Recorder

The Finance Director/Recorder is hereby designated to be the responsible city employee to record data necessary and required by the Office of Revenue Sharing and to make same available to the City Auditor.
(Ord. 1544, passed 10-8-84)

§ 33.23 Resolution Procedure

Grievances shall be resolved in the following manner:
(A) Step 1. The complainant shall file his grievance, in writing, to the City Manager.
(B) Step 2. With respect to any complaint submitted to the city in compliance with Step 1, the parties shall make earnest effort to reach early agreement. If resolution is not reached within ten days, the complaint shall be submitted to the City Council.
(C) Step 3. All unresolved complaints will be submitted to the City Council for final city resolution. Presentations will be made by the complainant and determination will be made by the City Council at the regularly scheduled meeting following notification of the request.
(D) Step 4. If the complainant is not in agreement with the City Council resolution, the complainant may appeal the Council's decision to the appropriate tribunal.
(Ord. 1544, passed 10-8-84)

§ 33.35 Definitions

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CHIEF OF POLICE.  The CHIEF OF POLICE of the city or his duly appointed representative.

CITY.  The City of Hermiston, Oregon, a municipal corporation.              

COURT.  The municipal court of the City of Hermiston, Oregon.

COURT CLERK.  Any person(s) sworn in as a clerk of the court.

DISTRICT.  The City of Hermiston, Oregon.

FINANCE DIRECTOR/RECORDER.  The FINANCE DIRECTOR/RECORDER of the City of Hermiston, Oregon, or his duly appointed representative.

JUDGE.  A JUDGE of the municipal court of the City of Hermiston, Oregon.

SHERIFF.  The Chief of Police of the city. (Ord. 1407, passed 4-12-82)

§ 33.36 Adoption of State Statutes

The following enumerated sections of the Oregon State Statutes of 2007 are hereby adopted by reference and made a part of this subchapter so far as they pertain to trial by juries in the municipal court:

(A)  ORS 10.010 through 10.105 and ORS 10.115

(B)  ORS 54.010 through 54.050

(C)  ORS 54.100 through 54.130 and ORS 54.160 (Ord. 1407, passed 4-12-82; Am. Ord. 2020, passed 9-11-00; Am. Ord. 2154, passed 3-9-09)

§ 33.37 Trial by Jury in Criminal Cases

In all prosecutions for any crime over which the municipal court has jurisdiction, the prosecution and the defendant shall have the right of trial by jury, of six in number.  Except as otherwise provided in this code, juries shall be selected in the same manner in which juries are selected for misdemeanor cases in circuit courts.  The verdict of the jury shall be unanimous. (Ord. 1407, passed 4-12-82; Am. Ord. 2154, passed 3-9-09)

§ 33.38 Jury List

(A)  On the first Monday of January of each year, the Finance Director/Recorder shall deliver to the municipal judge a current roll of the registered voters in the city.  The Court Clerk, under the direction of the Municipal Judge, shall select and make from the roll a jury list of persons to serve as jurors for the next three months, and until another is selected.  Subsequent jury lists for each following three month period will be prepared at least 30 days prior to the expiration of the current jury list.

(B)  The list, when made, will be dated and signed by the Municipal Judge and Court Clerk.

(C)  No person shall be placed on the jury list who has served on the jury list of the court during the preceding 12 months. (Ord. 1407, passed 4-12-82)

§ 33.39 Jurors' Fees

Each juror shall be entitled to an attendance fee as adopted by resolution, but not less than $10 for each day's required attendance.
(Ord. 1407, passed 4-12-82; Am. Ord. 2020, passed 9-11-00)

§ 33.40 Jury Fees

If a case is tried by a jury and the defendant is found guilty, the clerk shall tax against the defendant the total amount of the jury trial fee. The jury trial fee constitutes a monetary obligation payable to the court, and shall be made part of the judgment in the case by the clerk without further notice to the defendant or further order of the court. The jury trial fee is the amount provided by ORS 10.061 in courts other than circuit courts for payment for each juror sworn multiplied by the number of jurors constituting a jury in ' 33.37. (Ord. 2154, passed 3-9-09)

§ 33.50 Purpose

The purpose of this subchapter is to authorize the Police Department to access Oregon State Police (OSP) criminal offender information through the Law Enforcement Data System (LEDS) for applicants seeking employment and/or volunteer work with the city in accordance with OAR 257-10-025(1)(a).
(Ord. 1965, passed 9-14-98; Am. Ord. 2130, passed 2-12-07)

§ 33.51 Procedure

All proceedings pursuant to this subchapter shall be conducted in accordance with ORS 181.555 and OAR 257‑10‑025, which establish procedures for access to criminal record information possessed by the Oregon State Police (OSP) through the Law Enforcement Data System (LEDS), and as supplemented below:

(A) Those applicants for employment and appointed volunteers with the city who are required to have a criminal history background checks shall authorize the city to conduct a criminal offender information check through the OSP-LEDS system.

(B) The Personnel Department will maintain the criminal history authorization form and request that a criminal history check be made if it is determined this will be in the best interest of the city in filling the position.

(C) The Hermiston Police Department will conduct the check on the prospective employee or volunteer and report to the Personnel Department that the applicant's record indicated Ano criminal record@ or Acriminal record@.

(D) If the applicant=s record is reported a Acriminal record,@ the Personnel Department will, in accordance with OAR 257‑10‑025 (1)(c), request a written criminal history report from the OSP Identification Services Section and pay the applicable fee for this service.  The Personnel Department will make the written criminal history record available to the selecting official for his consideration in making the hiring decision.

(E) The written criminal history record on persons who are not hired or appointed as a volunteer will be retained in accordance with the requirements of OAR 166‑40‑080 for a period of three years and thereafter will be destroyed by shredding.

(F) The criminal history record of applicants and volunteers with a criminal history who are hired or appointed will become a part of the confidential personnel file of the employee or volunteer.  Access to confidential personnel files is limited to authorized persons who have an official need to access the files as sanctioned by law or regulation.

(G) Applicants for employment or appointment as a volunteer who have a felon criminal history or a history of conviction of a misdemeanor involving moral turpitude or theft will be closely examined by the selecting official(s) to determine if the applicant possesses the required degree of public trust and confidence.  Each selection will, however, be made on an individual, case‑by‑case basis, taking into account the applicant's qualifications, the requirements of the particular job or volunteer post applied for and the results of the criminal history check.  Factors such as the age of the offender at the time of the offense, the type of offense and subsequent rehabilitation and the public sensitivity of the position under consideration shall be taken into account in evaluating a criminal history report.

(H) Hiring an applicant or appointing a volunteer with a criminal history record require a positive recommendation by the Chief of Police and the approval of the City Manager or governing body after full disclosure and consideration of the criminal history the applicant. (Ord. 1965, passed 9-14-98)

33.60 Adoption of state law

Except as provided in this chapter, the general laws of the state concerning initiative and referendum shall apply to any initiative or referendum of a city measure. (Ord. 2151, passed 8-25-08)

33.61 Filing Deadline for Initiative Petitions

The date the first signature of an initiative petition is affixed shall be no later than 90 days after the issuance of the ballot title for the measure, and the initiative petition shall be filed with the city recorder for certification and approval no later than 180 days after the date the first signature on the petition has been affixed or at the end of 145 days from the effective date of this subchapter, whichever is later. (Ord. 2151, passed 8-25-08)

§ 34.01 Scope

The system development charges imposed herein are separate from and in addition to any applicable tax, assessment, charge or fee otherwise provided by law or imposed as a condition of development.
(Ord. 1938, passed 9-8-97)

§ 34.02 Definitions

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

Capital Improvements. Facilities or assets used for:

(1) Water supply, treatment and distribution;

(2) Sewer and wastewater collection, transmission, treatment and disposal;

(3) Drainage and flood control;

(4) Transportation; or

(5) Parks and recreation.

Development. Conducting a building or mining operation, making a physical change in the use or appearance of a structure or land, or creating or terminating a right of access.

Improvement Fee. A fee for costs associated with capital improvements to be constructed after the date the fee is adopted pursuant to the provisions of this subchapter.

Land Area. The area of a parcel of land as measured by projection of the parcel boundaries upon a horizontal plane with the exception of a portion of the parcel within a recorded right of way or easement subject to a servitude for a public street or scenic or preservation purpose.

Owner. The Owner(s) of record title or the purchaser(s) under a recorded sales agreement, and other persons having an interest of record in the described real property.

Parcel of Land. A lot, parcel, block or other tract of land that is or may be occupied by a structure or structures or other use, and that includes the yards and other open spaces required under the zoning, subdivision or other development ordinances.

Permittee. The person to whom a building permit, development permit or right of way access permit is issued.

Qualified Public Improvement. A capital improvement that is:

(1) Required as a condition of development approval;

(2) Identified in the System Development Charge Fund Project Plan; and

(3) Not located on or continuous to a parcel of land that is the subject of the development approval.

Reimbursement Fee. A fee for costs associated with capital improvements constructed or under construction on the date the fee is adopted pursuant to the provisions of this subchapter.

System Development Charge. A reimbursement fee, an improvement fee or a combination thereof assessed or collected at the time of increased usage of a capital improvement, at the time of issuance of a development permit or building permit, or at the time of connection to the capital improvement. System Development Charges does not include fees assessed or collected as part of a local improvement district or a charge in lieu of a local improvement district assessment, or the cost of complying with requirements or conditions imposed by a land use decision.
(Ord. 1938, passed 9-8-97)

§ 34.03 System Development Charge Imposed

Unless exempted pursuant to herein, a systems development charge is hereby imposed upon all development within the city.
(Ord. 1938, passed 9-8-97)

§ 34.04 Method for Establishment

Systems development charges shall be established and may be revised by resolution of City Council. The resolution shall set the amount of the charge, the type of permit to which the charge applies, and, if the charge applies to a geographic area smaller than the entire city, the geographic area subject to the charge.

(Ord. 1938, passed 9-8-97)

§ 34.05 Methodology

(A) The methodology used to establish the reimbursement fee shall consider the cost of the then existing facilities, prior contributions by then existing system users, the value of unused capacity, rate making principles employed to finance publicly owned capital improvements, and other relevant factors identified by the City Council. The methodology shall promote the objective that future systems users shall contribute not more than an equitable share of the cost of then existing facilities.

(B) The methodology used to establish the improvement fee shall consider the cost of projected capital improvements needed to increase the capacity of the systems to which the fee is related and other relevant factors identified by the City Council.

(C) The methodology used to establish the improvement fee or the reimbursement fee, or both, shall be adopted by resolution.
(Ord. 1938, passed 9-8-97)

§ 34.06 Authorized Expenditure

(A) Reimbursement fees shall be applied only to capital improvements associated with the systems for which the fees are assessed, including expenditures relating to repayment of indebtedness.

(B) Improvement fees shall be spent only on capacity increasing capital improvements, including expenditures relating to repayment of debt for improvements. An increase in system capacity occurs if a capital improvement increases the level of performance or service provided by existing facilities or provides new facilities. The portion of the improvements funded by improvement fees must be related to demands created by projected development.

(C) Capital improvement being funded wholly or in part from revenues derived from the improvement fee shall be included in the Systems Development Charge Fund Project Plan adopted by the city.

(D) System development charge revenues may be expended on the direct costs of complying with the provisions of this subchapter, including the costs of developing system development charge methodologies and providing an annual accounting of system development charge funds.
(Ord. 1938, passed 9-8-97)

§ 34.07 Project Plan

(A) The City Council shall adopt by resolution the Systems Development Charge Fund Project Plan. This plan:

(1) Defines the amount of current or under construction capacity available for new development and the cost of the facilities comprising this capacity;

(2) Lists the capital improvements that may be funded with improvement fee revenues; and

(3) Lists the estimated cost and estimated construction time frame of each improvement.

(B) In adopting this plan, the City Council may incorporate by reference all or a portion of any public facilities plan, master plan, capital improvements plan or similar plan that contains the information required by this section. The City Council may modify this project plan at any time through the adoption of an appropriate resolution.
(Ord. 1938, passed 9-8-97)

§ 34.08 Charge Collection

(A) The systems development charge is payable upon issuance of:

(1) A building permit;

(2) A development permit for development not requiring the issuance of a building permit;

(3) Approval to connect or increase the usage of the system or systems provided by the city; or

(4) A right of way access permit.

(B) The resolution which sets the amount of the charge shall designate the permit or systems to which the charge applies.

(C) The City Manager or his designee shall collect the applicable system development charge from the permittee or system user.

(D) The City Manager or his designee shall not issue the permit or allow connection or increased usage of the system(s) until the charge has been paid in full, unless an exemption is granted pursuant to § 34.09.

(E) All moneys collected through the system development charge shall be retained in a separate fund and segregated by type of system development charge and by reimbursement versus improvement fees.
(Ord. 1938, passed 9-8-97)

§ 34.09 Exemptions

(A) Exemptions include all structures and uses established and existing on or before the effective date of the resolution.

(B) Additions to single family dwellings that do not constitute the addition of a dwelling unit as defined by the city's Building Code are exempt from all portions of the system development charge.

(C) An alteration, addition, replacement or change in use that does not increase the parcel's or structure's use of a capital improvement are exempt from all portions of the system development charge.
(Ord. 1938, passed 9-8-97)

§ 34.10 Credits

(A) A permittee is eligible for credit against the system development charge for constructing a qualified capital improvement. A qualified capital improvement means one that meets all of the following criteria:

(1) Is required as a condition of development approval by the city;

(2) Is identified in the adopted System Development Charge Fund Project Plan; and

(3) Is not located within or contiguous to the property or parcel that is subject to development approval; or

(4) Is not located in whole or in part on, or contiguous to, property that is the subject of development approval and required to be built larger or with greater capacity than is necessary for the particular development project to which the improvement fee is related.

(B) This credit shall be only for the improvement fee charged for the type of improvement being constructed. Credit under this section may be granted only for the cost of that portion of the improvement that exceeds the facility size or capacity needed to serve the development project.

(C) In applying the adopted methodology, the city may grant a credit against the improvement charge for capital facilities provided as part of the development that reduces the development's demand upon existing capital improvements or the need for further capital improvements or that would otherwise have to be constructed at city expense under the then existing City Council policies.

(D) When the construction of a qualified public improvement gives rise to a credit amount greater than the improvement fee that would otherwise be levied against the project receiving development approval, the excess credit may be applied against improvement fees that accrue in subsequent phases of the original development project.

(E) All credit requests must be in writing and filed with the city before the issuance of a building permit. Improvement acceptance shall be in accordance with the usual and customary practices, procedures and standards of the city. The amount of any credit shall be determined by the city and based upon the subject improvement construction contract documents, or other appropriate information, provided by the applicant for the credit. Upon a finding by the city that the contract amounts exceed prevailing market rate for a similar project, the credit shall be based upon market rates. The city shall provide the applicant with a credit on a form provided by the city. The credit shall state the actual dollar amount that may be applied against any system development charge imposed against the subject property. The applicant has the burden of demonstrating qualification for a credit.

(F) Credits shall be apportioned against the property which was subject to the requirements to construct an improvement eligible for credit. Unless otherwise requested, apportionment against lots or parcels constituting the property shall be proportionate to the anticipated public facility service requirements generated by the respective lots or parcels. Upon written application to the city, however, credits shall be reapportioned from any lot or parcel to any other lot or parcel within the confines of the property originally eligible for the credit. Reapportionment shall be noted on the original credit form retained by the city.

(G) Any credits may be assigned; however, they shall apply only to that property subject to the original condition for land use approval upon which the credit is based or any partitioned or subdivided parcel or lots of property to which the credit has been apportioned. Credits shall only apply against system development charges, are limited to the amount of the fee attributable to the development of the specific lot or parcel for which the credit is sought and shall not be a basis for any refund.

(H) Any credit request must be submitted before the issuance of a building permit. The applicant is responsible for presentation of any credit and no credit shall be considered after issuance of a building permit.

(I) Credits shall be used by the applicant within ten years of their issuance by the city.
(Ord. 1938, passed 9-8-97)

§ 34.11 Notification: Appeals

(A) The city shall maintain a list of persons who have made a written request for notification prior to adoption or amendment of the system development charge methodology. These persons shall be so notified in writing of any proposed changes at least 45 days prior to the first hearing to adopt or amend methodology(ies). This methodology shall be available at least 30 days prior to the public hearing.

(B) No challenge to the system development charge methodology shall be accepted after 60 days following final adoption by the City Council.
(Ord. 1938, passed 9-8-97)

§ 34.12 Annual Accounting

The city shall provide an annual accounting for system development charges showing the total amount of system development charges collected for each system along with a list of projects funded in whole or in part through system development charges.

(Ord. 1938, passed 9-8-97)

§ 34.25 Short Title

This subchapter shall be known as the Improvement District Ordinance of the city.

(Ord. 431, passed 8-23-61)

§ 34.26 Definitions

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

Local Improvement. Opening, laying, widening, extending, altering, changing the grade of, constructing, reconstructing, or repairing any street, alley, curb, gutter and sidewalk; constructing, reconstructing or repairing any sewer, drain, or system thereof; laying or installing any water main or lateral; acquiring, establishing, or reconstructing any off street motor vehicle parking facilities; acquisition of land and equipment for installation of park, playground or neighborhood recreation facility; installation of underground wiring, ornamental street lights; or performing any other public work for which an assessment may be made on the property specially benefited.

Lot. Lot, block or parcel of land.

Owner. The owner of the title to real property or the contract purchaser of real property, of record, as shown on the last available complete assessment roll in the office of the County Assessor.

Property Benefited. All property specifically benefited by the improvement, the relative extent of benefit to be determined by any just and reasonable method of apportionment of the total cost of the improvement between the properties determined to be specially benefited therefrom.
(Ord. 431, passed 8-23-61; Am. Ord. 1124, passed 3 13 78)

§ 34.27 Preparation of Plans

(A) Whenever the City Council shall determine, either after petition by property owners or on their own motion, to proceed to make an improvement to be paid for in whole or in part by the property benefited, they shall, by motion, direct the City Manager to have the following report prepared containing the following information and any other information requested by the City Council.

(1) A description of the work proposed to be done;

(2) Preliminary plans and outline specifications for improvement;

(3) A description of the boundaries of the proposed improvement district;

(4) A just and reasonable method for apportioning the costs of the improvements to the properties benefited;

(5) A list of the properties benefited by improvement, including the name of the owner of each property benefited and the address of the owner; the assessed valuation of each property, adjusted in accordance to ORS 223.220; and a statement of the amount of outstanding assessments against any property proposed to be assessed by the improvement;

(6) The estimated total cost of the improvement including all legal, engineering and administrative costs;

(7) The proportionate cost of the improvement to be assessed to each benefited property;

(8) The portion of the cost of the improvement to be borne by any city funds, if any.

(B) The City Manager shall have a copy of the report filed in the office of the Finance Director/Recorder when completed.
(Ord. 431, passed 8-23-61)

§ 34.28 Assessing Costs

(A) In proposing a method of assessment of the costs of the improvement, the following shall be considered.

(1) The use of any just and reasonable method of determining the extent of the district boundaries consistent with the benefits derived;

(2) The use of any method of apportioning the sum to be assessed as is just and reasonable among the properties determined to be specially benefited;

(3) Payment by the city of all or any part of the cost of any improvement when, in the opinion of the City Council, on account of topographical or physical conditions, unusual or excessive use by the general public or other character of the work involved, or when the Council otherwise believes the situation warrants; provided that proportion to be paid by the city represents a reasonable relation between the benefits derived by the property specially assessed and the benefits derived by the city as a whole.

(B) Nothing herein contained shall preclude the Council from using other available means of financing improvement, including federal or state grants in aid, sewer service or other types of services or charges, revenue bonds, general obligation bonds, or other legal means of finance. In the event any of the other means of finance are used, the Council may, in its discretion levy special assessments hereunder according to benefits to cover any part of the costs of the improvement not covered by such means.
(Ord. 431, passed 8-23-61)

§ 34.29 Final Assessments

(A) When improvement has been completed, the City Council shall, by ordinance, provide for the assessment of the benefited properties and for the apportionment of the assessment to the individual lots within the district.

(B) In determining the cost of the improvement, the following shall be added to the contract price of the work:

(1) The cost of right of way;

(2) Condemnation expenses;

(3) Cost of engineering;

(4) Cost of supervision;

(5) Cost of inspection;

(6) Cost of advertising;

(7) Legal expenses; and

(8) Any other necessary and proper expenses, which costs shall be a part of the amounts assessed to the benefited properties.

(C) The final assessment ordinance shall provide that the assessments against the benefited properties shall be a charge and a lien against the assessed properties. (Ord. 431, passed 8-23-61)

§ 34.30 Errors in Assessments

(A) Claimed errors in calculation of assessments shall be called to the attention of the City Manager prior to any payment on account thereof. The City Manager shall check the calculation and report his findings to the Council.

(B) If an error has been made, the Council shall amend the final assessment ordinance to correct the error. Upon the enactment of an amendment by the City Council, the Finance Director/Recorder shall make the necessary correction in the lien docket and shall send by registered or certified mail to the owner a corrected notice of the assessment.
(Ord. 431, passed 8-23-61)

§ 34.31 Reassessments

The provisions of ORS 223.405 to ORS 223.485, concerning reassessments after assessments are set aside for any reason, or when the courts refuse enforcement of assessments, or when the City Councilis in doubt as to the validity of the assessments, are hereby adopted and made a part of this subchapter.

(Ord. 431, passed 8-23-61)

§ 34.32 Creation of Improvement Districts

(A) Resolution to create districts.

(1) After the City Manager's report has been filed with the Finance Director/Recorder and after the City Council has examined the report and found the same to be satisfactory, and the estimated cost and apportionment thereof to be reasonable and just, and after having found the boundaries of the improvement district to be properly determined, the City Council shall, by resolution, propose to make an improvement, and to create a local improvement district.

(2) The resolution shall also state the boundaries of the district, the proposed method of apportioning the costs of the improvement among the property owners; the portion of the cost, if any, which the city shall pay; and that the portion of the costs which are assessed to the property owners shall be a charge and lien upon the properties benefited.

(3) The resolution shall also set the date for a public hearing and shall direct the Finance Director/Recorder to publish a notice of the hearing as required by ORS 223.389.

(B) Ordinance to create districts.

(1) After the time for filing remonstrances has expired, and after the public hearing, if the local improvement district has not been objected to by the owners of 60% of the property benefited the Council may, by ordinance, provide for the creation of the local improvement district.

(2) The above-mentioned ordinance shall describe the improvement to be made and the boundary of the district. The ordinance shall also provide that the costs of the improvement which are assessed against the properties benefited shall be charges and liens against the property.

(3) The city may enforce collection of assessments as provided by ORS 223.505 to 223.650, or in any other manner provided by law.

(4) In creating the local improvement by ordinance, the Council shall consider the objections and remonstrances made thereto, and the reasons stated therefor. The Council may correct, modify or revise the proposed assessments and shall determine the amount of assessment to be charged against each lot within the district, according to the special benefits accruing thereto from the local improvement.

(5) The ordinance shall also direct that the City Manager have detailed plans and specifications of the improvement prepared and that, when appropriate, that the city invite bids for construction of the improvement. All bidders shall be required to submit a certified check or bid bond in the amount equal to 5% of their bid, and the contractor to whom the award is made shall submit a performance bond in the amount of his bid at the time the contract is awarded.
(Ord. 431, passed 8-23-61)

§ 34.33 Notice of Remonstrance; Public Hearing

(A) Notice of remonstrance.

(1) The notice of the time and place of the public hearing shall state that the City Council shall hear and consider objections or remonstrances to the proposed improvement by any parties aggrieved thereby. The notice shall be published once a week for two successive weeks in a newspaper of general circulation designated as legal publication by the City Council, and not less than ten days prior to the date set for the hearing.

(2) The notice shall state that the City Council, by resolution, has proposed to create the improvement. The notice shall also include the following:

"Unless the owners of 60% of the property within the local improvement district make and file with the Finance Director/Recorder a written objection and remonstrance against the proposed improvement within ten days from date of the publication of this notice, or present their objections at the public hearing, the Council shall be deemed to have acquired jurisdiction to order the improvement to conform in all particulars to the plans and specifications previously adopted. Any objection or remonstrance shall state the reasons therefor."

(3) The Finance Director/Recorder shall also notify the owner of each lot proposed to be assessed by registered or certified mail, or by personal delivery, of the amount of the assessment proposed for that property, or the date by which objections shall be filed with the Finance Director/Recorder, and of the date of the public hearing.

(4) Whenever a notice is required to be sent to the owner of a lot affected by a proposed assessment, the notice shall be addressed to the owner or his agent. If the address of the owner or his agent is not known, the notice shall be sent to the owner at the city where the property is located.

(5) Any mistake, error, omission or failure with respect to the mailing shall not be jurisdictional or invalidate the assessment proceedings, but there shall be no foreclosure or legal action to collect until notice has been given by personal service upon the property owner, or if personal service cannot be had, then by publication once a week for two successive weeks in a newspaper of general circulation in the city.

(B) Prevention of improvement by remonstrances or at the public hearing. If within ten days from the date of the publication of the notice, the owners of 60% or more of the property within the district file with the Finance Director/Recorder a written objection or remonstrance against the proposed improvement or if the remonstrance be made at the public hearing, the objection or remonstrance shall be a bar to any further proceeding in the making of the improvement for a period of six months, unless the owners of one half or more of the property affected shall subsequently petition.
(Ord. 431, passed 8-23-61)

§ 34.34 Improvement Construction Procedure

(A) It shall be the general policy of the city to call for bids for making local improvements and to award the bid to the lowest, responsible bidder. This general policy, however, shall not prohibit the Council from providing that the city construct the local improvements rather than private contractors. In the event that more than one local improvement district shall be advertised for bids at the same timed all local improvement districts shall be bid separately. The Council shall have the authority, however, to accept the lowest aggregate bid for all of the local improvement districts bid at the same time and they shall allocate the proper amount of the total cost to each district separately.

(B) The Council may, in its discretion, reject any and all bids submitted if the aggregate of the bid exceeds the aggregate estimated cost of all of the districts, and the Council shall not be required to accept any bid for any individual district even though the same may comply with the requirements here of when the aggregate bid fails to meet the requirements of other local improvement districts then bid.
(Ord. 431, passed 8-23-61)

§ 34.35 Parking Improvements

The procedure for establishing motor vehicle parking districts provided in ORS 223.805 to 223.845 shall be the same as for other improvement districts.

(Ord. 431, passed 8-23-61)

§ 34.36 Lien Recordings; Payments

(A) Immediately after the City Council has approved the final assessment ordinance, the Finance Director/Recorder shall enter the assessments in the city lien docket, which assessments shall be a lien and charge upon the respective lots against which they are placed. Liens shall be first and prior to all other liens or encumbrances thereon insofar as the laws of Oregon allow.

(B) After making entry, the Finance Director/Recorder shall publish a notice in a newspaper designated by the City Council for the publication thereof. This notice shall state that within ten days of the time of publication of this notice, the owners of the assessed properties may file with the Finance Director/Recorder, on a form provided for the purpose, an application to pay the assessment in whole or in part on an installment basis, as provided by the Bancroft Bonding Act, ORS 223.205 to 223.295, which is hereby adopted by reference and made a part of this subchapter. This notice shall also state that, if the assessment is not eligible under the provisions of the Bancroft Bonding Act, or if the owner of the assessed property does not apply to use the installment basis, all or part of the assessment shall be excluded from the installment payment procedure and shall be paid in full by cash within 30 days of the date of entry in the lien docket.

(C) The Finance Director/Recorder shall also send by registered or certified mail to the owners of the assessed property a notice containing the same information as the notice which is published in the newspaper. If the address of the owner is unknown to the Finance Director/Recorder, the same requirements shall be met as described by § 34.33(A) of this subchapter and by ORS 223.391.

(D) The contents of the application to pay assessments on the installment basis shall be as provided by ORS 223.315.

(E) After application has been made by the owners of assessed property to have the assessments bonded, assessments shall be transferred by the Finance Director/Recorder from the city lien docket to the bond lien docket, as provided by ORS 223.230.
(Ord. 431, passed 8-23-61)

§ 34.37 Foreclosure Interest

(A) The current Bancroft bond interest rate shall be that interest charged per annum until paid on the unpaid balance remaining on the city lien docket from the date of entry, or of entry corrected pursuant to any provisions of this subchapter, except that no interest shall be charged if the assessment be paid within 30 days of the passage of the final assessment ordinance.

(B) The city may proceed to foreclose or enforce any lien to which it shall be entitled pursuant to the provisions of this subchapter at any time after 60 days from the date of entry of the assessment in the lien docket, as provided by ORS 223.505 through 223.775, or any other method provided by law.
(Ord. 431, passed 8-23-61; Am. Ord. 658, passed 5 25-70; Am. Ord. 1297, passed 5-12-80; Am. Ord. 1365, passed 6-8-81)

§ 34.38 Bonding Provisions

(A) Rebonding. The provisions of ORS 223.715 to ORS 223.750, concerning rebonding of bonded assessments which have not been fully paid are hereby adopted and made a part of this subchapter. The applicable interest rate for ORS 223.715 shall be the current Bancroft bond interest rate.

(B) Reinstatement. The provisions of ORS 223.755, concerning reinstatement of delinquent liens before the property affected has been sold, are hereby adopted and made a part of this subchapter.

(C) Miscellaneous provisions. The provisions of ORS 223.750 and 223.765, concerning acceptance of home owner's loan corporation bonds and municipal bonds as payments for assessment liens; of ORS 223.770, concerning assessment of public property benefited by improvements; and of ORS 223.880, concerning the inclusion of public roads in sidewalk improvement districts; are hereby adopted by reference and made a part of this subchapter.
(Ord. 431, passed 8-23-61; Am. Ord. 658, passed 5 25-70; Am. Ord. 1297, passed 5-12-80; Am. Ord. 1365, passed 6-8-81)

§ 34.39 Abandonment of Proceedings

The City Council shall have full power and authority to abandon and rescind proceedings for improvements undertaken hereunder at any time prior to the final consummation of proceedings. If liens have been assessed upon any property under this procedure, they shall be cancelled and any payments made thereon shall be refunded to the payor, his assigns, or legal representatives.
(Ord. 431, passed 8-23-61)

§ 34.40 Curative Provision

No improvement assessment shall be invalid by reason of a failure to give, in any report on the proposed assessment, in the assessment ordinance, in the lien docket or elsewhere in the proceedings, the name of the owner of any lot or other parcel of land, or part thereof, or the name of any person having a lien upon or interest in the property, or by reason of any error, mistake, delay, omission, irregularity, or other act, jurisdictional or otherwise, in any of the proceedings hereinabove specified, unless it appears that the assessment as made, insofar as it affects the person complaining, is unfair and unjust and the City Council shall have power and authority to remedy and correct all matters by suitable action and proceedings.

(Ord. 431, passed 8-23-61)

§ 36.01 Title

This chapter shall be known as the City of Hermiston Employer Employee Relations Ordinance.
(Ord. 867, passed 5-12-75)

§ 36.02 Purpose

The purpose of this chapter is to establish policies and procedures for the orderly administration of employer employee relations in city government, the formal recognition of employee organizations, and the resolution of disputes regarding wages and related economic benefits.
(Ord. 867, passed 5-12-75)

§ 36.03 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

Appropriate Unit. A unit determined pursuant to § 36.17 of this chapter, excluding confidential and management employees as herein defined.

City. The city of Hermiston and, where appropriate herein, the City Council or any authorized management employee as herein defined.

City Council. The governing body of the City of Hermiston.

City Representative. The City Manager, or alternate or alternates as may be selected by him, together with another person or persons as the City Council may designate. The City Council may authorize the City Manager to designate another person or persons on their behalf.

Consultation in Good Faith. The mutual obligation of the city representative and employee representative personally to meet at reasonable times and to communicate in good faith verbally or in writing in an attempt to reach agreement on those matters within the scope of consultation.

Day. A calendar day.

Employee. Any employee who is appointed to a full time or part time permanent city position.

Employee, Confidential. Any employee who is privy to decisions of city management affecting employer employee relations. Confidential Employees shall be designated by the City Manager.

Employee, Management. Any employee having significant responsibilities for formulating and administering city policies and programs, including but not limited to the City Manager and department heads; and any employee having authority to exercise independent judgment to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or having the responsibility to direct them, or to adjust grievances, or effectively to recommend action if in connection with the foregoing, and the exercise of authority is not of a merely routine or clerical nature but requires the use of independent judgment. Management Employees shall be designated by the City Manager.

Employee Organization. Any organization which has in its membership employees of the city and which has as one of its primary purposes representing employees in their employment relations with the city.

Employee Organization, Certified.. An employee organization which has been certified as the majority representative of employees in an appropriate unit in accordance with the provisions of §§ 36.17 through 36.20.

Employee Representative. The employee or employees representing a certified employee organization for purposes of the consultation process provided in this chapter.

Employer Employee Relations. The relationship between the city and its employees and their employee organizations or, when used in a general sense, the relationship between city management and employees or employee organizations.

Fact Finder.. The Fact Finder, Fact Finding Committee, or Fact Finding Body selected pursuant to § 36.21.

Fact Finding. Identifying the major issues in a particular dispute; reviewing the positions of the parties; investigating and reporting of the facts by one or more impartial fact finders; and making recommendations for settlement.

Grievance. A dispute concerning the interpretation of the rules and regulations governing personnel policies and practices of the city affecting the employee, or of the practical consequences of a “city rights” decision on wages and related economic benefits. An impasse is not a Grievance.

Impasse. A deadlock in the annual discussions between the city representative and employee representative over any matters within the scope of consultation as defined in § 36.15 of this chapter.

Mediation. The effort of an impartial third person or persons, functioning as intermediaries, to assist the parties in reaching a voluntary resolution of an impasse through interpretation, suggestion and advice.

Memorandum of Understanding. A written memorandum incorporating matters on which agreement is reached through the consultation process and approved by the City Council.
(Ord. 867, passed 5-12-75)

§ 36.15 Scope of Consultation

The scope of consultation between the city representative and employee representative shall include all matters relating to employee wages and related economic benefits. Employee rights as defined in § 36.24 and city rights as defined in § 36.25 of this chapter are excluded from the scope of consultation and not subject to the consultation process provided in this chapter.
(Ord. 867, passed 5-12-75)

§ 36.16 Consultation Process

The purpose of this section is to provide procedures for the consultation process.

(A) A meeting of all employee representatives and the city representative shall be held no later than October 1 of each year to review the consultation procedures and to discuss matters within the scope of consultation and the data relating to the matters that the employee representatives desire to have available during the consultation process. The city representative shall make reasonable efforts to obtain data and shall present it to the employee representative by November 15 of each year.

(B) All matters within the scope of consultation which employee representatives might propose shall be submitted in writing to the city representative by December 1 of each year. All matters which the city might propose shall be submitted in writing by the city representative to the appropriate employee representatives by January 15 of each year. No proposal may be considered that will affect the ensuing year's budget unless the same was submitted by December 1, in the case of the employee representative, and by January 15, in the case of the city representative.

(C) An initial meeting to discuss the written proposals shall be held within ten days after the submission of the city representative's proposals, but in no event later than January 15 of each year. Matters of city wide concern shall be discussed in joint meetings between the city representative and the employee representatives of all the certified employee organizations. “Matters of city wide concern” are those matters requiring major budgetary financing or having an impact on city employees generally, as determined by the City Manager.

(D) Subsequent consultation sessions shall be arranged by mutual agreement of the city representative and the employee representative.

(E) Upon completion of consultations, a “memorandum of understanding” shall be prepared by the City Manager and signed by the City Manager and the employee representative. The signed memorandum shall be forwarded to the City Council for its acceptance, rejection, or modification and acceptance.

(F) Any time limit provided in this section may be extended by mutual agreement of the city representative and the employee representatives.
(Ord. 867, passed 5-12-75)

§ 36.17 Employee Representation Unit Determination

(A) Any employee organization desiring to represent a group of employees in consultations held in accordance with this chapter may petition the City Council for a representation election. A representation petition shall be in writing and shall specify:

(1) The name and address of the organization;

(2) The principal officers of the organization;

(3) The person and address to whom all communications to the organization concerning the election shall be sent;

(4) That membership in the organization is not denied because of race, sex, color, religious creed, national origin or ancestry, or political affiliation; and

(5) A description of the unit proposed by the organization to be appropriate and within which the election is sought. The description shall include a listing of the classification titles of the positions in the proposed appropriate unit.

(B) The representation petition shall be supported by the signatures of at least 50% of the employees in the proposed appropriate unit. The signatures shall be based upon the representation petition, and the petition shall bear the date that the signatures were obtained. All employee signatures must have been placed upon the representation petition within 60 days immediately preceding submission of the petition.

(C) Upon filing of the representation petition, the Finance Director/Recorder shall post within the work area of the proposed appropriate unit a notice describing the proposed unit, that a representation election has been requested, and naming the employee organization petitioning for representation.

(D) The City Council shall refer the representation petition to the City Manager for examination and verification. The City Manager shall examine the petition and determine whether valid signatures of the required 50% of the employees in the proposed appropriate unit are on the petition. In the event that the City Manager finds that the petition lacks the required 50%, he shall so notify the City Council and the petitioning employee organization. The petition shall be dismissed forthwith if not previously withdrawn by the employee organization.

(E) The City Manager shall make the final determination as to what employees, if any, in the proposed appropriate unit shall be considered management or confidential employees. If that determination affects the representation petition, then the employee organization shall be notified, and it may amend its petition. The verification of the representation petition shall be forwarded to the City Council immediately.

(F) After receiving the representation petition and after the City Manager has notified the City Council that the petition meets the requirements of this section, the City Council shall then determine whether the petitioner is a bona fide employee organization, whether the unit within which the election is sought is an appropriate unit, and any other questions relating to the subject matter. In determining whether the proposed unit is an appropriate unit, the City Council shall use the following criteria to assist them in its determination:

(1) The community interest of employees;

(2) The history of employee representation in the unit, among other employees of the city, and in similar employment;

(3) The effect of the unit on the efficient operation of the city and upon sound employee relations;

(4) The extent to which employees have common skills, working conditions, job duties, or similar educational requirements;

(5) The effect on the city's classification structure of dividing a single classification among two or more units.

(G) The City Council shall obtain and consider written reports and recommendations of the City Manager which shall take into consideration views of all concerned departments and offices, and the effect on the city. Affected employee organizations may also submit their views in writing concerning the proposed unit, which views shall be considered by the City Council. If the City Council determines that it is in the best interest of the parties, it may schedule a hearing so that all parties may have an opportunity to present evidence or argument in support of their position.

(H) If the City Council determines that the unit is appropriate, then it shall direct the Finance Director/Recorder to schedule a secret ballot election within the unit in accordance with the provisions of § 36.18. If the City Council determines that the proposed unit is inappropriate, it shall so notify the affected parties. Upon receipt of notification, the petitioner may amend its petition, in which event the applicable procedures of this section shall apply.

(I) If an employee organization other than the one filing the original petition for representation desires to represent the same unit and wishes to be on the same election ballot, it shall file a petition meeting the requirements of this section within 15 days of the posting of notice by the Finance Director/Recorder under division (C); provided, the petition need be supported by only 40% of the employees in the unit.
(Ord. 867, passed 5-12-75)

§ 36.18 Representation Election Procedure

(A)

(1) Upon receiving the City Council's order to hold a representation election, the Finance Director/Recorder shall schedule an election within 30 days and shall post a notice of the election in the work area of the appropriate unit 15 days prior to the election.

(2) The notice shall include:

(a) A description of the appropriate unit;

(b) The name of the employee organization or organizations which are candidates for election;

(c) A list of the employees eligible to vote, the date the election is to be held; and

(d) The procedure to be followed.

(3) Only employees within the appropriate unit shall be eligible to vote in the election. Voting shall be by secret ballot and shall provide an opportunity to vote for any of the candidates on the ballot or for “no representation.” Absentee ballots may be used in connection with representation elections in the form and manner as may be prescribed by the Finance Director/Recorder.

(B) An employee organization shall be certified by the Finance Director/Recorder as the representative of the appropriate unit following an election if the organization has received the vote of a majority of all the employees in the appropriate unit for which the election is held.

(C)

(1) Each party may be represented at the polling place by one observer. Observers may challenge votes. When a voter's eligibility is called into question, the ruling shall be temporarily reserved. The ballot will be marked as “challenged,” together with the reason for the challenge.

(2) The Finance Director/Recorder may also challenge anyone whose name is not on the eligibility list. When all ballots are in, the Finance Director/Recorder shall tally the ballots. The official observers may be present when the tally is made. Unless the challenged ballots are sufficient in number to affect the results of the election, they will not be considered further. If challenged ballots are sufficient in number to affect the results of the election, an investigation shall be made by the City Manager as to the validity of each challenge.

(3) The results of the election shall be certified by the Finance Director/Recorder to the parties.

(D) At least one year shall elapse following an election by which an organization has been certified as the majority representative or by which the employees have chosen “no representation” before a petition for representation and certification may be filed covering substantially the same group of employees. At least three months shall elapse before a petition may be filed if neither “no representation” nor an organization receives a majority vote as required by division (B).

(E) Election costs shall be shared equally by the city and the employee organizations whose names appear on the ballot.
(Ord. 867, passed 5-12-75)

§ 36.19 Duration of Certification

When an employee organization has been certified as the majority representative of an appropriate unit, certification shall remain in effect for one year from the date thereof. After one year the organization is subject to the affirmation procedures provided in § 36.20.
(Ord. 867, passed 5-12-75)

§ 36.20 Affirmation Procedure

(A) A petition, alleging that a certified employee organization is no longer the majority representative of employees in an appropriate unit, may be filed with the Finance Director/Recorder by an individual employee, a group of employees or their representatives, or an employee organization.

(B) The petition may be filed at any time after completion of the certified employee organization's first year of certification; provided, however, the City Council may prescribe additional restrictions on the time of filing a petition during the terms, if any, of approved memorandums of understanding.

(C) The affirmation petition shall be in a form substantially similar to the form prescribed for petitions under the provisions of § 36.17 supported by signatures of at least 50% of the employees represented by the certified employee organization and indicating that they do not desire to be represented by the currently certified employee organization. The affirmation petition may be accompanied by a petition for certification.

(D) If the City Manager determines that petition requirements have been met, the Finance Director/Recorder shall arrange for an election which shall be held in substantial accord with the election provisions of § 36.18 to determine whether the certification of the currently certified organization should be affirmed. The organization shall be decertified if it fails to receive the affirmative vote of a majority of the employees in the appropriate unit currently represented by the organization.

(E) An affirmation election may be held concurrently with a representation election where the City Council considers it appropriate to do so, in which event a combined ballot may be used.
(Ord. 867, passed 5-12-75)

§ 36.21 Impasse Procedure

(A) In the event that the city representative and the employee representative are unable to agree on the terms of a “memorandum of understanding” by February 15 of each year, then the City Council, upon petition of either party, may request mediation services as provided by the state of Oregon's Public Employee Relations Board or by some other mutually agreed upon third party. If both parties agree, mediation services may be waived and the matters in dispute submitted directly to the fact finding process or directly to the City Council for final determination after a hearing on the merits of the dispute.

(B) If both parties waive mediation, or if the City Council fails to request mediation services, or if the impasse procedure in division (A) is not successful by March 1 of each year, a three person fact finding committee shall be formed as follows:

(1) The city representative and the employee representative each shall submit names of three persons within three days.

(2) The city representative shall, within one day, remove one name from the employee representative's list; and then the employee representative shall, within one day, remove one name from the city representative's list. After each party has removed a total of two names in this alternating fashion, the remaining two names shall become members of the fact finding committee, and they shall mutually agree upon a third member who shall serve as chairperson.

(3) If after three days following their selection the two members of the fact finding committee cannot mutually agree upon the third member, they shall obtain a list of three members of the American Arbitration Association who reside in Oregon or another list as is mutually acceptable to the two members. The designate of the city representative shall have two days to remove one name, and the designate of the employee representative shall have one additional day to remove one of the two remaining names. The remaining person shall become the third member and chairperson of the fact finding committee.

(C) If the City Council and both parties agree, one of the following may be substituted in lieu of the fact finding committee:

(1) The mediator may be requested by the City Council to serve as sole fact finder.

(2) The American Arbitration Association may be requested by the City Council to provide fact finding services.

(3) The Public Employee Relations Board may be requested by the City Council to provide the city with a list of seven persons from its list of fact finders. Upon receipt of the list, the city representative shall remove one name, and then the list shall be sent to the employee representative and he shall remove one name. After each party has removed a total of two names in this alternating fashion, the remaining three names shall become the fact finding body.

(D) If both parties agree, fact finding procedures may be waived and the matters in dispute submitted directly to the City Council for final determination after a hearing on the merits of the dispute.

(E) After the fact finder has obtained enough information from the parties in the controversy, he shall then, based on the background he has on the issue and any other additional information, present a written statement of facts and his recommendations for resolving the dispute to the parties involved within 15 days after his selection.

(F) If the parties involved in the dispute are unable to reach agreement within five days of receipt of the fact finder's recommendations, the fact finder shall forward his recommendations to the City Council. The City Council shall conduct a hearing within 15 days from the date of filing the recommendations to allow the city representative or the employee representatives an opportunity to present their positions with respect to the fact finder's recommendations. Upon conclusion of the hearing, the City Council shall make a final determination.

(G) After the City Council makes the decision, the affected parties shall incorporate that decision into the “memorandum of understanding” to be submitted to the City Council for its approval.

(H) Any time limit provided in this section may be extended by mutual agreement of both parties.

(I) The expenses of mediation and fact finding shall be shared equally by the parties. The city shall furnish meeting space when requested for the proceedings.
(Ord. 867, passed 5-12-75)

§ 36.22 Time Off for Employee Representatives

(A) Reasonable time off without loss of pay shall be limited to not more than three employees serving as authorized representatives of certified employee organizations when formally meeting during regular working hours with the city representative on matters within the scope of consultation. Only those employees whose active participation is necessary in the conduct of meetings shall be authorized paid time off.

(B) No employee representative shall leave his duty or work station or assignment for purposes of the employee organization without specific approval of the department head or other authorized city management official. Any meeting on city time is subject to scheduling by the City Manager in a manner consistent with operating needs and working schedules.

(C) Nothing provided herein, however, shall limit or restrict the City Manager from scheduling meetings before or after regular duty or work hours under appropriate circumstances.
(Ord. 867, passed 5-12-75)

§ 36.23 Availability and Use of Data

(A) The city will make available to certified employee organizations nonconfidential information pertaining to employer employee relations as is contained in the public records of the city. The information shall be made available during regular office hours in accordance with applicable city rules and regulations. Information which shall be made available to certified employee organizations includes regularly published date covering subjects under discussion. Data collected on a promise to keep its source confidential may be made available in statistical summaries but shall not be made available in form as to disclose the source.

(B) Nothing in this chapter shall be construed as to require disclosure of records that are:

(1) Records pertaining to pending litigation to which the city is a party, or to claims or appeals which have not been settled;

(2) Personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy; and

(3) Working papers or memoranda which are not retained in the ordinary course of business or any records where the public interest served by not making the record available clearly outweighs the public interest served by disclosure of the record.

(C) To facilitate meaningful consultations, the city representative and employee representatives may agree to use certain common sources of information, such as salary surveys of private and public employers. Mutually agreed upon data collected by either party shall be made available to the other. All data used shall conform to the salary policy and other similar policies adopted by the City Council.
(Ord. 867, passed 5-12-75)

§ 36.24 Employee Rights

Employees of the city shall have the right to form, join and participate in the activities of employee organizations of their own choosing pursuant to the provisions of this chapter for the purpose of representation on matters of employee relations other than those excluded herein. City employees also shall have the right to refuse to join or participate in the activities of any employee organization and shall have the right to represent themselves individually in their employment relations with the city. No employee shall be interfered with, intimidated, restrained, coerced or discriminated against by the city or by any employee organization because of his exercise of these rights.
(Ord. 867, passed 5-12-75)

§ 36.25 City Rights

(A) Responsibility for management of the city and direction of its work force is vested in the City Manager and his department heads. In order to fulfill this responsibility the rights of the city include, but are not limited to, the exclusive right to:

(1) Determine the mission of its constituent departments, commissions and boards;

(2) Set standards of services;

(3) Determine the procedures and standards of selection for employment and promotion;

(4) Direct its employees;

(5) Take disciplinary action;

(6) Relieve its employees from duty because of lack of work or for other legitimate reasons;

(7) Maintain the efficiency of governmental operations;

(8) Determine the methods, means and personnel by which government operations are to be conducted, including the right to contract out for goods and services;

(9) Determine the content of job classifications;

(10) Take all necessary action to carry out its mission in emergencies; and

(11) Exercise complete control and discretion over its organization and the technology of performing its work.

(B) The city retains all rights, powers and privileges not expressly specified in division (A) above and not included in § 36.24.
(Ord. 867, passed 5-12-75)

§ 36.26 Restrictions

(A) Confidential and management employees, as defined and designated pursuant to § 36.03, who choose to remain or to become members of an employee organization, shall not:

(1) Serve as officers of the employee organization;

(2) Serve on any committee of the employee organization which deals with matters within the scope of consultation; or

(3) Serve as a representative of the employee organization before the City Council.

(B) Confidential and management employees shall not:

(1) Be included in any appropriate unit determined pursuant to § 36.17; or

(2) Become a member of or serve as an officer or representative of any certified employee organization.

(Ord. 867, passed 5-12-75)

§ 36.27 Grievances

All grievances shall be processed in accordance with the applicable adopted personnel rules and regulations of the city.
(Ord. 867, passed 5-12-75)

§ 36.28 Construction

(A) It is hereby declared that the subject of city employer employee relations as set forth in this chapter is a matter of local concern, that the provisions herein are adopted pursuant to the authority of the Charter of the city, and that the provisions herein are exclusive and supersede and take precedence over any state statute now or hereafter enacted relating to city employer/employee relations, employee consultation or collective bargaining for city employees.

(B) The rights, powers and authority of the City Council in all matters, including the right to maintain any legal action, shall not be modified or restricted by this chapter.
(Ord. 867, passed 5-12-75)

§ 36.40 Conduct of Business

(A) Reasonable time off without loss of pay and access to employee work locations shall be granted officers of employee organizations and their officially designated representatives for the purpose of processing grievances or contacting members of the organization concerning business within the scope of representation.

(B) Officers or representatives shall not enter any work location without the consent of the department head. Access shall be restricted so as not to interfere with the normal operations of the department or with established safety or security requirements.

(C) Solicitation of membership and activities concerned with the internal management of an employee organization such as collecting dues, holding membership meetings, campaigning for office, conducting elections and distributing literature shall not be conducted during regular city working hours.
(Ord. 867, passed 5-12-75)

§ 36.41 Use of City Facilities

Employee organizations may use, in accordance with established rules applicable to other groups within the community, city facilities during non work hours for meeting of city employees, provided space is available. Requests for use of facilities not available to the public generally shall be in writing, state the purpose or purposes of the meeting and be approved by the City Manager. The city reserves the right to assess reasonable charges for the use of facilities.
(Ord. 867, passed 5-12-75)

§ 36.42 Use of City Bulletin Boards

Employee organizations may use portions of city bulletin boards under the following conditions:

(A) All materials must be dated and must identify the organization. In the event that posted materials, in the opinion of the department head, interfere with the proper functioning of the department, the department head shall bring the matter to the attention of the City Manager. The City Manager may, after discussing the matter with the representative of the employee organization, cause the material to be removed.

(B) The city reserves the right to determine where bulletin boards shall be placed and what portion of them are to be allowed to employee organizations materials.

(C) An employee organization that does not abide by these rules will forfeit its right to have materials posted on city bulletin boards.
(Ord. 867, passed 5-12-75)

§ 36.43 Peaceful Performance of City Services

In order that the vital performance of city services can be maintained, no employee shall strike or recognize a picket line of a labor organization while in the performance of his official duties. The following shall apply:

(A) Participation by any employee in a strike or work stoppage is unlawful and shall subject the employee to disciplinary action, up to and including discharge.

(B) No employee organization, its representatives or members shall engage in a strike or work stoppage of any kind.

(C) If a certified employee organization, its representatives or members engage in a strike or work stoppage of any kind, in addition to any other lawful remedies or disciplinary actions, the City Council may suspend or revoke the recognition or certification granted to employee organizations and prohibit the use of bulletin boards, prohibit the use of city facilities and prohibit access to former work or duty stations by the organization.

(D) As used in this section, STRIKE or WORK STOPPAGE means the concerted failure to report for duty, the wilful absence from one's position, the stoppage of work, or the abstinence in whole or in part from the full, faithful performance of the duties of employment for the purpose of influencing or coercing a change in the conditions of compensation, or the rights, privileges or obligations of employment.

(E) The city may petition the appropriate courts for an injunction or other appropriate relief if a strike, work stoppage or recognition of a picket line in violation of this section is occurring or is about to occur. The city may also hire new permanent or temporary employees or transfer other city employees to perform the services and duties of those employees engaged in a strike or work stoppage in violation of this section.
(Ord. 867, passed 5-12-75)

§ 50.01 Short Title

This chapter shall be known as the Solid Waste Management Ordinance and may also be so cited and pleaded and shall be cited herein as “this chapter.”(Ord. 1851, passed 8-8-94)

§ 50.02 Purpose, Policy and Scope

It is declared to be the public policy of the city to regulate solid waste management to:

(A) Ensure safe, economical and comprehensive solid waste service;>

(B) Ensure rates that are just and reasonable and adequate to provide necessary public service;>

(C) Prohibit rate preferences and any other practice that might be discriminatory; and>

(D) Provide for technologically and economically feasible recycling and resource recovery by and through the franchisee.

(Ord. 1851, passed 8-8-94

§ 50.03 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

City. The City of Hermiston. Where the city limits are extended, the City shall include extended geographic boundaries.

Compensation. Includes:

(1) Any type of consideration paid for service including, but not limited to, rent, the proceeds from resource recovery, any direct or indirect provision for the payment of money, goods, services or benefits by tenants, lessees, occupants or similarly situated persons;

(2) The exchange of service between persons; and

(3) The flow of consideration from a person owning, possessing or generating solid waste to another person who provides services or from a person providing services to another person owning, possessing or generating solid waste.

Council.The City Council of the City of Hermiston.

Franchisee. Sanitary Disposal, Inc. to whom a franchise is granted by the City Council pursuant to Ordinance 1851. The franchise shall grant exclusive rights to provide service and solid waste management service for compensation.

Gross Receipts. All revenue received from providing solid waste management service under this chapter.

Person. Any individual, public or private corporation, industry, co-partnership, association, cooperative, firm, trust, estate or any other legal entity whatsoever.

Recyclable Materials. Any material or group of materials that can be collected and sold for recycling at a net cost equal to or less than the cost of collection and disposal of the same material.

Resource Recovery. The process of obtaining useful material or energy resources from solid waste, including energy recovery, material recovery, recycling and reuse of solid waste.

Service. The collection, transportation, storage, transfer, disposal of or the resource recovery from solid waste.

Solid Waste. All putrescible and non-putrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, waste paper, cardboard, grass clippings, compost, tires, equipment and furniture; sewage sludge, septic tank and cesspool pumpings or other sludge; commercial, industrial, demolition and construction wastes, discarded or abandoned vehicles or parts thereof; discarded home or industrial appliances; manure, vegetable or animal solid and semi-solid wastes, dead animals, infectious waste as defined in ORS 459.005, and other wastes; but the term does not include:

(1) Hazardous waste as defined in ORS 466.005.

(2) Materials used for fertilizer or for other productive purposes or which are salvageable as the materials are used on land in agricultural operations and the growing or harvesting of crops and the raising of fowls or animals.

(3) Beverage containers, subject to reuse or refund provisions, contained in ORS 459A.700 through 459A.740.

Solid Waste Management. The prevention or reduction of solid waste; management of the storage, collection, transportation, treatment, utilization, processing and final disposal of solid waste; or resource recovery from solid waste; and facilities necessary or convenient to the activities.

Waste. Material that is no longer usable or wanted by the source of the material, which material is to be utilized or disposed of by another person. For the purpose of this paragraph, “utilized” means the productive use of wastes through recycling, reuse, salvage, resource recovery, energy recovery or landfilling for reclamation, habilitation or rehabilitation of land.

(Ord. 1851, passed 8-8-94)

§ 50.15 Activities and Practices Regulated

A) Except as otherwise provided in this chapter, it shall be unlawful for any person other than the franchise holder under the provisions of §50.30 below to provide solid waste management service in the city for compensation.

(B) Nothing in this franchise shall:

(1) Prohibit a federal or state agency that collects, stores, transports or disposes of waste, solid waste or recyclable materials, or those who contract with the agencies to perform the service, but only insofar as the service is performed by or for the federal or state agency;

(2) Prohibit any person in the city from hauling his own waste, solid waste or recyclable materials in a lawful manner; provided, however, that no person will be permitted to haul the waste, solid waste or recyclable material for any other person or firm;

(3) Prohibit a generator of source separated recyclable material from selling or exchanging material to any person for fair market value for recycling or reuse;

(4) Prohibit any person from transporting, disposing of or resource recovering, sewage sludge, septic pumpings or cesspool pumpings;

(5) Prohibit any person licensed as a motor vehicle wrecker from collecting, transporting, disposing of or utilizing motor vehicles or motor vehicle parts;

(6) Prohibit any person transporting solid waste through the city that is not collected within the city;

(7) Prohibit a contractor registered under ORS Chapter 701 from hauling waste created in connection with the demolition, construction or remodeling of a building or structure or in connection with land clearing and development.The waste shall be hauled in equipment owned by the contractor and operated by the contractor's employees;

(8) Prohibit the collection, transportation and reuse of repairable or cleanable discards by private charitable organizations regularly engaged in the business or activity and not engaged in the regular business of collection of putrescible solid waste;

(9) Prohibit a non-profit charitable, benevolent or civic organization from collecting recyclable materials provided that the collection is not a regular or periodic business of the organization.The organizations shall comply with all applicable provisions of this chapter;

(10) Prohibit a person from transporting or disposing of waste that is produced as an incidental part of the regular carrying on of the business of janitorial service, gardening or landscaping service, or rendering.(These sources do not include the collection, transportation or disposal of accumulated or stored wastes generated or produced by other persons.); and

(11) Require franchisee to store, collect, transport, dispose of or resource recover any hazardous waste as defined by or pursuant to ORS Chapter 466; provided, however, that franchisee may engage in a separate business of handling the wastes separate and apart from this franchise and chapter.

(Ord. 1851, passed 8-8-94)Penalty, see § 50.99

§ 50.16 Practices Prohibited Without a Franchise

Unless exempted by §50.15 or franchised pursuant to this chapter, no person shall:

(A) Solicit for service customers;

(B) Advertise the providing of service; or

(C)Transport solid waste other than his own.

(Ord. 1851, passed 8-8-94 Penalty, see § 50.99)

§ 50.17 Public Responsibility as to Waste Disposal and Containers

In addition to and not in lieu of compliance with ORS Chapter 459 and other applicable laws and regulations:

(A) Customers shall take appropriate actions to ensure that hazardous materials, chemicals, paint, corrosive materials, infectious waste or hot ashes are not put into a can, cart, container or drop box.When materials or customer abuse, fire or vandalism causes excessive wear or damage to a cart, container or drop box, the cost of repair or replacement may be charged to the customer.

(B) No unauthorized person shall place materials in or remove materials from a solid waste collection container without permission of the owner of the container.For the purpose of this section, the franchisee is the “owner” of containers supplied by franchisee.Persons to whom the franchisee supplies containers shall be authorized persons within the meaning of this section.

(C) No unauthorized person shall remove solid waste placed out for collection and resource recovery.

(D) Unless permitted by the franchisee, no person shall install or use any container over 32 gallons in capacity for pickup by franchisee other than those supplied by franchisee.The purpose of this division is to insure safe equipment, sizes and weights, and facilitate franchisee utilizing the most efficient collection equipment and methods.

(E) The franchisee is not required to service an underground container unless the person responsible for it places the container above ground prior to the time for collection.

(F) Each customer shall provide safe access to the solid waste container or wastes without risk or hazard to franchisee's employees, the public or franchisee.

(G) No container designed for mechanical pickup shall exceed safe loading weights or volumes as established by the franchisee to protect service workers, the customer, the public and the collection equipment.

(H) No container designed for manual pickup shall exceed 32 gallons in size or 60 pounds in weight when loaded and 18 pounds when empty. The containers shall be made of metal or be solid, fireproof, rodent proof and not be subject to cracking or splitting, and have proper handholds and bails. Containers must be kept in good condition by customer.

(I) Customers using mechanically emptied containers furnished by franchisee shall provide a smooth, level, hard-surfaced area approved by the franchisee for the container.

(J) Unless special service or service equipment is provided by the franchisee for handling unconfined waste, materials such as rubbish and refuse, brush, leaves, tree cuttings and other debris for manual pickup and collection shall be in securely tied bundles or in boxes, sacks or other receptacles, and solid waste so bundled, tied or contained shall not exceed 60 pounds in weight.

(K) Where a customer requires an unusual volume of service or a special type of container requiring substantial investment in equipment, the franchisee may require a contract with the customer as necessary to finance and assure amortization of the equipment.The purpose of this provision is to assure that the equipment does not become a charge against other rate payers who are not benefitted. In no event shall the contract be in effect longer than this chapter.

(L) Stationary compacting devices for solid wastes shall comply with federal and state safety standards and provide adequate protection to the user and franchisee.

(M) Any vehicle used by a person to transport solid waste shall be so loaded and operated as to prevent the wastes from dropping, sifting, leaking, blowing or otherwise escaping from the vehicle onto any public right-of-way or lands adjacent.

(N) No person shall block access to any container or drop box or roll off box supplied by franchisee.

(O) Every person who generates or produces solid waste shall have removed all putrescible solid waste at least every seven days.More frequent removal may be required where a facility or service involves the public health.All solid waste shall be removed in sufficient frequency as to prevent health hazards or pollution.

(P) All putrescible materials shall be stored in manually emptied containers supplied by the generator or producer or in mechanically emptied containers or drop boxes supplied by the franchisee.When manually or mechanically emptied containers are used, they shall be covered except during loading and emptying.When drop boxes are used, all putrescible materials shall be placed in plastic bags and tied.

(Q) The producer or generator of solid waste shall clean containers and shall keep the area around the container free of accumulated solid waste or wastes. The franchisee shall provide maintenance as required to containers supplied by franchisee.For containers supplied by customer, plastic liners are recommended but not required.

(R) Approved disposal methods shall be as follows:

(1) No person shall burn, dump, bury, collect, remove or in any other manner dispose of solid waste upon any street, alley, public place or private property within the city except as provided in this chapter.

(2) Wastepaper, boxes, rubbish and debris, brush, leaves, grass, wood and cuttings from trees, lawns, shrubs and gardens (but excepting paper, cardboard or wood containers in commercial quantities) may be burned on private property only if the method of burning is approved by the city and is done in accordance with Oregon Department of Environmental Quality rules and regulations.

(S) All putrescible solid waste must be drained of excess liquids and wrapped.

(T) Ashes will be taken only if placed in a plastic bag and tied.

(Ord. 1851, passed 8-8-94)Penalty, see § 50.99

§ 50.18 Ownership of Recyclable Materials

All recyclable materials located, placed or deposited in a container, drop box or receptacle intended to be collected by the franchisee shall belong to the franchisee.It shall be unlawful for any person other than the franchisee to remove recyclable material from the receptacles, and any person removing materials in violation of this section shall be guilty of a misdemeanor and subject to the penalties defined in § 50.99.

(Ord. 1851, passed 8-8-94) Penalty, see § 50.99

§ 50.30 Grant of Franchise and Term of Franchise

There is hereby granted to Sanitary Disposal, Inc., an Oregon corporation, the exclusive right, franchise and privilege of using the streets of the city to provide solid waste management service for commercial, industrial and residential establishments within the city. The rights, privileges and franchise herein granted shall begin on August 9, 1994, and shall be considered as a continuing five-year franchise. That is, beginning January 1 of each year, the franchise will be considered renewed for an additional five-year term, unless at least 30 days prior to January 1 of any year either party shall notify the other party in writing of intent to terminate further renewals of the franchise. Upon the giving of notice of termination, the franchisee shall have a franchise which will terminate five years from the date of the notice of termination of renewals. The Council may later extend the term or reinstate continuing renewals upon mutual agreement with the franchisee. Nothing in this section restricts the Council from suspending, modifying or revoking the franchise for cause pursuant to §50.32 of this chapter. The franchise may be transferred only upon approval of the City Council. The sale of shares, merger, consolidation, reorganization or restructuring in which the current shareholders are no longer the principal owners and managers shall be treated as a transfer of interest requiring approval.

(Ord. 1851, passed 8-8-94)

§ 50.31 Responsibility of Franchisee

(A) The franchisee shall provide collection service to any resident of the city as long as the resident pays for the service.

(B) The franchisee shall make available solid waste management service as defined in §50.01 of this chapter to customers in the city not less than once per week.

(C) The franchisee shall use proper and suitable equipment for the hauling, removal and transportation of solid waste. All equipment for transporting solid waste on public roadways within the city shall be covered, and all equipment for handling the waste material shall be equipped with a metal body, water tight and drip proof to the greatest extent practicable. All equipment shall be kept clean at all times, and sufficient equipment shall be kept on hand to properly and adequately remove all solid waste, subject to the terms of this chapter.

(D) Lids shall be replaced on all receptacles by the collector after emptying the receptacle.

(E) The franchisee shall use a disposal facility site that is approved by the Department of Environmental Quality (DEQ) and the city.

(F) The franchisee shall, without charge to the city, pick up, carry away and dispose of any and all waste materials placed by the city in suitable containers which hold solid waste generated by the city. It is understood, however, that the franchisee may impose reasonable charges to the city for extraordinary disposal activities such as the removal of demolition materials.

(G) The franchisee may subcontract with others to provide a portion of the service where the franchisee does not have the necessary equipment or service capability. A subcontract shall not relieve the franchisee of total responsibility for providing and maintaining service and from compliance with this chapter. Franchisee shall provide written notice to the city of its intention to subcontract any portion of the service and receive city approval prior to entering into an agreement. The subcontractor shall comply with all provisions of this chapter.

(H) The franchisee, in conjunction with the city, shall develop and implement an “opportunity to recycle” program that meets the mandated state recycling program requirements.

(I) The franchisee shall permit inspection by the city of the franchisee's facilities, equipment and personnel at reasonable times. The franchisee shall keep proper books and records covering his solid waste collection, removal, disposal and recycling operations, which books and records shall be open to inspection by the city at reasonable times.

(J) The franchisee shall comply with all laws relating to solid waste management service.

(K) The franchisee shall submit a certificate of public liability insurance with a 30 day notice of cancellation clause, acceptable to the city, which will cover its business operation including each vehicle operated by the franchisee. The insurance coverage shall be in amounts not less than the minimum requirements of the Oregon Tort Claims Act as now enacted or hereafter amended. The insurance shall indemnify and save the city against liability or damage which may arise or occur from an injury to persons or property as a result of the franchisee's operation of the solid waste business. The city shall be named as an additional insured.

(L) The franchise granted under this chapter shall be conditioned upon the franchisee indemnifying and saving the city against any liability or damage which may arise or occur to the city of from any injury to persons or property as a result of the franchise holder's operations under this chapter.

(M) The franchisee shall provide a performance bond in the amount of $5,000, with a surety licensed to do business in the state of Oregon, conditioned upon the full and faithful performance of this agreement and franchise and this chapter. In the event that the Council finds that the franchisee has adequate experience and otherwise meets the requirements to guarantee service, it may waive, by resolution, all or part of the bond requirements.

(Ord. 1851, passed 8-8-94) Penalty, see § 50.99

§ 50.32 Suspension, Modification or Revocation of Franchise

(A) Failure to provide necessary service or otherwise comply with the provisions of this chapter after written notice and a reasonable opportunity to comply shall be grounds for modification, suspension or revocation of the franchise.

(B) After written notice from the Council that the grounds exist, the franchisee shall have 20 days from the date of mailing of the notice in which to comply or request a public hearing before the Council.

(C) At the public hearing, the franchisee and other interested persons shall have an opportunity to present oral, written or documentary evidence to the Council.

(D) If the franchisee fails to comply within the time specified or if the Council hearing is held, with the order of the Council entered upon the basis of findings at the public hearing, the Council may suspend, modify or revoke the franchise or make the action contingent upon continued noncompliance.

(Ord. 1851, passed 8-8-94)

§ 50.33 Interruption of Franchisee's Service

The franchisee agrees, as a condition of this franchise, that whenever the City Council finds that the failure of service or threatened failure of service would result in creation of an immediate and serious health hazard or serious public nuisance, the City Council may, after a minimum of 24 hours actual notice to the franchisee and a public hearing if the franchisee requests it, provide or authorize another person to temporarily provide the service or to use and operate the land, facilities and equipment of the franchisee to provide emergency service. If a public hearing is requested by the franchisee, it may be held immediately by the City Council after compliance with the minimum notice requirements for the meetings established by the Oregon Public Meetings Law. The City Council shall return any seized property and business upon abatement of the actual or threatened interruption of service and after payment to the city for any net cost incurred in the operation of the solid waste service.

(Ord. 1851, passed 8-8-94)

§ 50.34 Termination of Service by Franchisee

The franchisee shall not terminate service to all or a portion of the customers unless:

(A) The street or road access is blocked, and there is no alternate route and provided that the franchisee shall restore service not later than 24 hours after street or road access is opened;

(B) As determined by the franchisee, excessive weather conditions render providing service unduly hazardous to persons providing service or to the public or termination is caused by accidents or casualties caused by an act of God, a public enemy or a vandal, or road access is blocked;

(C) A customer has not paid for provided service after a regular billing and after a written notice to the customer, which notice shall be sent not less than 15 days after the first regular billing;

(D) Ninety days written notice is given to the City Council and to affected customers, and written approval is obtained from the City Council; or

(E) The customer does not comply with the service standards of §50.17 of this chapter.

(Ord. 1851, passed 8-8-94)

§ 50.35 Binding Arbitration

In the event that an irreconcilable difference arises between the city and franchisee on their respective duties and responsibilities under the franchise or ordinance, an arbitration board shall be chosen, consisting of three persons, one chosen by the city, one by the franchisee and one chosen by the two appointed arbiters who must be approved by both the city and the franchisee. The arbiters shall choose a time, date and place within 30 days of appointment of the last arbiter, to hear both sides of the dispute and promptly render a decision that is binding on both the city and the franchisee. Where good cause is shown and recorded in the minutes, the time for decision may be extended as absolutely necessary. Procedure chosen may be that of the American Arbitration Association or that specified in ORS Chapter 36 for court supervised arbitration. Costs shall be split equally between the city and franchisee unless the arbitrators make an award of costs including, without limitation, arbiters' time.

(Ord. 1851, passed 8-8-94)

§ 50.36 Amendments

The city or the franchisee may propose amendments to this franchise. Proposed amendments shall be in writing and shall be delivered to the city and the franchisee. The City Council shall hold a public hearing on the proposed amendments. Franchisee shall be given at least 30 days written notice of the hearing. The City Council may, after public hearing, adopt the amendments. The franchise shall be amended upon acceptance of the amendments by franchisee.

(Ord. 1851, passed 8-8-94)

§ 50.50 Rates

Any person who receives solid waste management service from the franchisee shall be responsible for payment of service. The rates to be charged to all persons by the franchisee shall be reasonable and uniform, taking into consideration the cost of performing the service rendered by the franchisee, the anticipated increase in the cost of providing this service, the necessity that the franchisee have a reasonable operating margin, and rates and fees charged in other and similar municipalities.The rates may be changed by resolution during the term of the franchise if approved by the City Council.The rates shall be on file at the Finance Director/Recorder's office for public inspection.

(Ord. 1851, passed 8-8-94)

§ 50.51 Billing, Collection and Franchise Fee

The city shall do the billing and collecting of solid waste service fees and shall retain 13% of the gross collections in payment of 2% franchise fee and 11% for billing and collection service, and pay the balance to Sanitary Disposal, Inc.The percentage shall be reviewed and may be changed by resolution of Council at any time when the franchisee submits a request for rate review.

(Ord. 1851, passed 8-8-94; Am. Ord. 1924, passed 2-10-97)

§ 50.99 Penalty

Any person violating any of the provisions of this chapter penalized as provided in §10.99 commits a Class A violation.Franchise holders shall be subject to the penalties provided herein for the violation of the provisions of this chapter.

(Ord. 1851, passed 8-8-94; Am. Ord. 1976, passed 10-26-98)

§ 51.001 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Other terms contained in this chapter shall have the definitions attributed in the city's general ordinances. Terms for land, parcels, rights-of-way shall be further defined as necessary by the Oregon Revised Statutes.

• BOD (Biochemical Oxygen Demand). The quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure in five days at 20° C., expressed in milligrams per liter.
• Building Drain. That part of the lowest horizontal piping of a drainage system which received the discharge from soil, waste and other drainage pipes inside the walls of the building and conveys it to the building sewers, beginning five feet (1.5 meters) outside the inner face of the building walls.
• Building Sewer. The extension from the building drain to the public sewer or other place of disposal.
• Change in Use. Changes defined in development, and shall include conversion from residential to any other use including multifamily uses, and shall include an increase or change in the sewage strength, pH, character, or potential discharge of hazardous substances.
• City. The city of Hermiston, Oregon, and shall consist of the City Manager or his designated representative unless specifically referred to the City Council in this chapter.
• Collection System. The system of public sewers to be operated by the city designed for the collection of sanitary sewage.
• Combined Sewer. A sewer receiving both surface runoff and sewage.
• Commercial Independent Discharge. Any business or industry which possesses an independent licensed and permitted wastewater discharge system. Any classification must maintain independent facilities with approval of appropriate regulatory agencies and provide discharge of domestic waste to the public treatment works.
• Commercial User. Any premises used for commercial or business purposes which is not an industry as defined in this chapter.
• Development. The conversion or change in character of occupancy or use of a building which would place the structure in a different building group as defined in the Uniform Building Code; the erection of a new structure; the demolishing of existing buildings for the conversion of property to a differing use; the creation of gasoline pumps, drive-up windows, traffic islands or similar alterations which channelize, alter or increase the traffic volume or pattern on adjacent roadways. Development, for purposes of this chapter, shall not mean interior remodeling, repairs, maintenance of improvements, to any existing structure which does not increase the volume of the structure. Specifically exempted under this chapter are building facades, roof or exterior wall repair or replacement, heating, ventilating or electrical alterations, or activities similar in character.
• Development Site. An area consisting of a parcel or tract of land specifically identified by a person, as the land to be altered or developed. All required area to meet parking standards and similar requirements for a particular development shall be included in the term; however, the total property ownership of the proponent will not be considered in the site if it is not necessary to the development.
• Domestic Waste. Any wastewater emanating from dwellings or from domestic activities which are performed outside the home in lieu of a home activity directly by or for private citizens.
• Dwelling Unit. Any housing unit with sanitary and kitchen facilities designed to accommodate one or more residents, multiple housing units, mobile homes and trailer spaces, but excluding commercial or transient housing units such as hotel and motel units and retirement homes with ten or more units under one roof, containing therein a dining room facility regularly open a minimum of six days per week and designed for the use of the residents and their guests. Independent laundry facilities serving multi-family, mobile homes and trailer units shall be considered a dwelling unit for billing purposes.
• Fee in Lieu of Assessment. A charge payable upon the connection to the sewage works or the development of property.
• Garbage. Solid wastes from the domestic and commercial preparation, cooking and dispensing of food, and from the handling, storage and sale of produce.
• Industrial User.

(1) Any non-governmental, non-residential user of a publicly owned treatment works which discharges more than the equivalent of 25,000 gallons per day (gpd) of sanitary wastes and which is identified in the Standard Industrial Classification Manual, 1971, Office of Management and Budget, as amended and supplemented under one of the following divisions:

(a) Agriculture, Forestry and Fishing;
(b) Mining;
(c) Manufacturing;
(d) Transportation, communications, electric, gas and sanitary services; and
(e) Services.

(2) In determining the amount of a user's discharge for purposes of industrial cost recovery, the grantee may exclude domestic wastes or discharges from sanitary conveniences.

• Industrial Waste. That portion of the wastewater emanating from an industrial user which is not domestic waste or waste from sanitary conveniences.
• May is permissive.
• Natural Outlet. Any outlet into a watercourse, pond, ditch, lake or other body of surface or ground water.
• Operation and Maintenance. All activities, goods and services which are necessary to maintain the proper capacity and performance of the treatment works for which the works were designed and constructed. The term Operation and Maintenanceshall include replacement as defined hereinafter.
• Person. Any individual, firm, company, association, society, corporation or group.
• pH. The logarithm of the reciprocal of the weight of hydrogen ions in grams per liter of solution.
• Properly Shredded Garbage. The wastes from the preparation, cooking and dispensing of food that have been shredded to a degree that all particles will be carried freely under the flow conditions normally prevailing in public sewers, with no particle greater than a half-inch (1.27 centimeters) in any dimension.
• Public Sewer. A sewer in which all owners of abutting properties have equal rights and is controlled by public authority.
• Public Treatment Works. A treatment works owned and operated by a public authority.
• Replacement. Acquisition and installation of equipment, accessories or appurtenances which are necessary during the service life of the treatment works to maintain the capacity and performance for which the works were designed and constructed.
• Sanitary Sewer. A sewer which carries sewage and to which storm, surface and groundwater are not intentionally admitted.
• Service Area. All the area served by the treatment works and for which there is one uniform user charge system.
• Sewage. A combination of water-carried wastes from residences, business buildings, institutions and industrial establishments, together with the ground, surface and storm waters as may be present.
• Sewage Treatment Plant. An arrangement of devices and structures used for treating sewage.
• Sewage Works. All facilities for collecting, pumping, treating and disposing of sewage.
• Sewer. A pipe or conduit for carrying sewage.
• Shall is mandatory.
• Slug. Any discharge of water, sewage or industrial waste which in concentration of any given constituent or in quantity of flow exceeds for any period of duration longer than 15 minutes more than five times the average 24-hour concentration or flows during normal operation.
• Storm Drain or Storm Sewer. A sewer which carries storm and surface, waters and drainage but excludes sewage and industrial wastes, other than unpolluted cooling water.
• Suspended Solids. Solids that either float on the surface or are in suspension in water, sewage or other liquids, and which are removable by laboratory filtering.
• User. The person who is responsible for the payment of the sewer system charges.
• User Charge. The periodic charges levied on all users of the public treatment works and shall, at a minimum, cover each user's proportionate share of the cost of operation and maintenance.
• Watercourse. A channel in which a flow of water occurs, either continuously or intermittently.

(Ord. 1737, passed 6-24-91)

§ 51.002 Depositing Objectionable Wastes

(A) It shall be unlawful for any person to place, deposit or permit to be deposited in any unsanitary manner on public or private property within the city, or in any area under the jurisdiction of the city, any human or animal excrement, garbage or other objectionable waste.

(B) It shall be unlawful to discharge to any natural outlet within the city, or in any area under the jurisdiction of the city, any sewage or other polluted waters, except where suitable treatment has been provided in accordance with subsequent provisions of this subchapter.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.003 Privy Vaults and the Like; Connection to Public Sewer Required

(A) Except as hereinafter provided, it shall be unlawful to construct or maintain any privy, privy vault, septic tank, cesspool or other facility intended or used for the disposal of sewage.

(B) The owners of all houses, buildings or properties used for human occupancy, employment, recreation or other purposes situated within the city and abutting on any street, alley or right-of-way in which there is now located or may in the future be located a public sanitary sewer in the city are hereby required at their expense to install suitable toilet facilities therein, and to connect the facilities directly with the proper public sewer in accordance with the provisions of this chapter within 90 days after date of official notice to do so, provided that the public sewer is within 300 feet of the property line.

(C) Should sewage be discharging to natural outlets, the ground surface, or into domestic water supplies, connection may be required within five working days of notification to connect. The required connections shall pay all fees and charges contained herein.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.004 Private Sewage Disposal

(A) Where a public sanitary sewer is not within 300 feet, the building sewer shall be connected to a private sewage disposal system complying with the requirements of the applicable regulatory agencies.

(B) Upon connection to a public sewer disposal system shall clean, abandon, and eliminate the private sewage system in accordance with applicable regulations.

(C) The owner shall operate and maintain the private sewage disposal facilities in a sanitary manner at all times, at no expense to the city.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.005 Tampering with Sewer Service Equipment

No unauthorized person shall maliciously willfully or negligently break, damage, destroy, uncover, deface or tamper with any structure, appurtenance or equipment which is a part of the sewage works. Any person violating this provision shall be subject to immediate arrest under charge of criminal mischief.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.006 Sewer Main Construction

(A) The wastewater utility may cause the provision of wastewater service terminated when necessary for repair, connection, extension and other times as shall be necessary to maintain and extend the utility.

(B) The minimum size of wastewater mains required to serve any part of the city shall be eight inches. Any developer or subdivider shall install the necessary wastewater system and all appurtenant work at its sole expense. Should a development require wastewater mains in excess of eight inches, the City Manager, or his/her designee, will make the final decision on the size of the mains to be installed by the developer or subdivider. The actual size of public sewers required for subdivision or development shall be determined by the city administration based on design flows for maximum consumption. If the City Manager or his/her designee requires the developer to install wastewater lines in excess of eight inches in order to provide for future wastewater capacity, the City Manager, or his/her designee, may negotiate a reimbursement agreement with the developer or subdivider for the balance between the developer's or subdivider's actual cost for materials of eight inch wastewater mains and the size required by the city, subject to budget fund availability. Only the cost for increases in materials is reimbursable.

(C) All public sewers required to serve a subdivision or development shall be installed by the individual initiating development or subdivision. Detailed plans and specifications in accordance with standards promulgated by the city shall be formally approved by the city and no construction shall commence until approval is granted in writing and a preconstruction conference is held with the individual, and contractors involved in construction, and the city.

(D) All public sewer extensions shall be made to the farthest point of land upon which a development or subdivision is to occupy so far as it is technically and geographically feasible.

(E) When any person constructs a public sewer through undeveloped or underdeveloped areas to serve his property or constructs on the perimeter of his property, the entire cost of the public sewers shall be paid by the person. The person may request an agreement with the city for reimbursement when service connections are made to the main. Agreements shall provide for a construction charge per front foot and, if so collected by the city, shall be paid to the original installer as provided in the reimbursement agreement.

(F) An individual's right to reimbursement through agreements shall not exceed ten years from the date of the completion of construction of the covered improvements. All payments to the original installer shall ease at the expiration of the agreement. A construction charge as provided herein may be collected by the city subsequent to the expiration of the agreement. Any fees so charged shall be credited to the utility fund exclusively for the improvement of production or distribution facilities of the city. This section shall not affect those agreements in place at the time of adoption of this chapter.

(G) The city may construct any public sewer necessary for the utility system. Upon construction, the city may, by resolution, establish the reimbursement fees for any sewer works constructed. Any fee will be collected upon connection to the system in accordance with this chapter.

(H) All public sewers shall be dedicated to the city upon formal acceptance by the city administration on behalf of the city. In no case shall any public sewer connected to the city system be held in any ownership other than that of the city. The installer of the public sewers shall guarantee the installation for one year from and after the date of acceptance by the city.

(Ord. 1737, passed 6-24-91; Am. Ord. 2028, passed 12-11-00)

§ 51.110 Powers and Authority of Inspectors

(A) The city administration or other duly authorized employees of the city bearing proper credentials and identification shall be permitted to enter all properties for the purposes of inspection, observation, measurement, sampling and testing, in accordance with the provisions of this chapter. The city administration or his representatives shall have no authority to inquire into any processes including metallurgical, chemical, oil, refining, ceramic paper or other industries beyond that point having a direct bearing on the kind and source of discharge to the sewers of waterways or facilities for waste treatment.

(B) While performing the necessary work on private properties, as defined in this chapter the city administration or duly authorized employees of the city shall observe all safety rules applicable to the premises established by the company; and the company shall be held harmless for injury or death to the city employees and the city shall indemnify the company against loss or damage to its property by city employees and against liability claims and demands for personal injury or property damage asserted against the company and growing out of the gauging and sampling operation, except as may be caused by negligence or failure of the company to maintain safe conditions.

(C) The city administration or other duly authorized employees of the city bearing proper credentials and identification shall be permitted to enter all private properties through which the city holds a duly negotiated easement for the purposes of but not limited to inspection, observation, measurement, sampling, repair and maintenance of any portion of the sewage works lying within the easement. All entry and subsequent work, if any, on the easement shall be done in full accordance with the terms of the duly negotiated easement pertaining to the private property involved.

(Ord. 1737, passed 6-24-91) Penalty, see §51.999

§ 51.111 Notice of Violation

Any person found to be violating any provision of this chapter, except provisions on protection from damage, and except for the provisions of §§51.090 through 51.097, shall be served by the city with written notice stating the nature of the violation and providing a time limit for the satisfactory correction thereof. The offender shall, within the period of time stated in the notice, permanently cease all violations.

(Ord. 1737, passed 6-24-91)

§ 51.112 Liability for Damage

Any person violating any of the provisions of this chapter shall become liable to the city for any expense, loss or damage occasioned the city by reason of the violation.

(Ord. 1737, passed 6-24-91)

§ 51.113 Discontinuance of Service for Violation

The city may discontinue service for failure to observe all terms of this chapter. Any costs incurred for discontinuation will be paid by the user in accord with this chapter.

(Ord. 1737, passed 6-24-91)

§ 51.999 Penalty

(A) Any person who shall continue any violation of the provisions of §§51.002 through 51.076 beyond the time limit provided in §51.111 commits a Class A violation. Each day in which any violation shall continue shall be deemed a separate offense. (Ord. 1737, passed 6-24-91; Am. Ord. 1976, passed 10-26-98)

(B) Any user which is found to have violated any provision of §§51.090 through 51.097, permits and orders issued thereunder, or any other pretreatment requirement commits a Class A violation shall be fined in an amount designated by the city, if not specified, up to $1,000 may be assessed per violation. Fines shall be assessed on a per violation, per day basis. Fines assessed may take into consideration, the magnitude of the violation and the willingness of the industrial user to return to compliance. In the case of monthly or other long-term average discharge limits, fines may be assessed for each business day during the period of violation.

(1) Assessments may be added to the user's next scheduled sewer service charge and the city shall have other collection remedies as may be available for other service charge fees.

(2) Unpaid charges, fines, and penalties together with interest therefrom shall constitute a lien against the individual user's property, and may constitute cause for revocation of the industrial user's discharge permit. If an industrial user fails to file a timely and complete request to review enforcement action, the user shall be deemed to have consented to pay the fine assessed and to comply with all other terms of the enforcement action.

(C) Any industrial user which has violated or continues to violate §§51.090 through 51.097, any order or permit thereunder, or any other pretreatment requirement shall be liable to the city for a maximum civil penalty allowed under the laws of the state, but not less than $ 1,000 per violation per day. In the case of a monthly or other long-term average discharge limit, penalties shall accrue for each business day during the period of this violation.

(1) The city may recover reasonable attorney's fees, court costs, and other expense associated with enforcement activities including sampling and monitoring expenses, and the cost of any actual damages incurred by the city.

(2) In determining the amount of civil liability, the court shall take into account relevant circumstances, including, but not limited to, the extent of harm caused by the violation, co-effective actions by the industrial user, the compliance history of the user and any other factors as justice requires.

(3) Where appropriate, the city may accept mitigation projects in lieu of the payment of civil penalties where the project provides a valuable service to the city and the industrial user's expense in undertaking the project is at least 150% of the civil penalty.

(D) Any industrial user who willfully or negligently violates any provisions of §§51.090 through 51.097, any orders or permits issued thereunder, or any other pretreatment requirement shall, upon conviction, be sentenced to a specific fine violation not to exceed $1,000.

(1) Any industrial user who knowingly makes any false statement, representations, or certification in any application, record report, plan, or other documentation filed or required to be maintained pursuant to §§51.090 through 51.097 or wastewater permit, or who falsifies, tampers with or knowingly renders inaccurately any monitoring device or method required under this subchapter shall, upon conviction, be sentenced to a specific fine violation not to exceed $1,000.

(2) In the event of a second conviction, the user shall be punishable by a specific fine not to exceed $3,000 per violation per day.

(Ord. 1941, passed 11-24-97; Am. Ord. 1976, passed 10-26-98)

§ 51.020 Unpolluted Discharges

(A) No person shall discharge or cause to be discharged any storm water, surface water, ground water, roof runoff, subsurface drainage, uncontaminated cooling water or unpolluted industrial process waters to any sanitary sewer.

(B) Storm water and all other unpolluted drainage shall be discharged to the sewers as are specifically designated as combined sewers or storm sewers or to a natural outlet approved by the city administration. Industrial cooling water or unpolluted process waters may be discharged, on approval of the city and applicable regulatory agencies to a storm sewer, combined sewer or natural outlet.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.021 Prohibited Discharges

No person shall discharge or cause to be discharged any of the following described waters or wastes to any public sewers:

(A) Any gasoline, benzene, naphtha, fuel oil or other flammable or explosive liquid, solid or gas;

(B) Any waters or wastes containing toxic or poisonous solids, liquids or gases in sufficient quantity, either singly or by interaction with other wastes to injure or interfere with any sewage treatment process, constitute a hazard to humans or animals, create a public nuisance, or create any hazard in the receiving waters of the sewage treatment plant, including but not limited to cyanide in excess of two mg/l or CN in the wastes as discharged to the public sewer;

(C) Any waters or wastes having a pH lower than 5.5 or having any other corrosive property capable of causing damage or hazard to structures, equipment and personnel of the sewage works; or

(D) Solid or viscous substances in quantities or of the size capable of causing obstruction to the flow in sewers or other interference with the proper operation of the sewage works, such as but not limited to, ashes, cinders, sand, mud, straw, shavings, metal, glass, rags, feathers, tar, plastic, wood, unground garbage, whole blood, paunch manure, hair and fleshing, entrails, and paper dishes, cups, milk containers, etc.; either whole or ground by garbage grinders.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.022 Restricted Substances and Wastes

No person shall discharge or cause to be discharged the following described substances, materials, waters or wastes if it appears likely in the opinion of the city administration that the wastes can harm either the sewers, sewage treatment process or equipment, have an adverse effect on the receiving stream, or can otherwise endanger life, limb, public property or constitute a nuisance. In forming opinion as to the acceptability of these wastes, the city administration will give consideration to the factors as to quantities of subject wastes in relation to flows and velocities in the sewers, materials of construction of the sewers, nature of the sewage treatment process, capacity of the sewage treatment plant, degree of treatability of wastes in the sewage treatment plant, and other pertinent factors. The substances prohibited are:

(A) Any liquid or vapor having a temperature higher than 150°F (65°C).

(B) Any water or waste containing fats, gas, grease or oils, whether emulsified or not, in excess of 100 mg/l or containing substances which may solidify or become viscous at temperatures between 32 and 150°F (0 and 65°C)

(C) Any garbage that has not been properly shredded. The installation and operation of any garbage grinder equipped with a motor of three fourths horsepower (0.76 hp metric) or greater shall be subject to the review and approval of the city administration.

(D) Any waters or wastes containing strong acid, iron pickling wastes, or concentrated plating solutions, whether neutralized or not.

(E) Any waters or wastes containing iron, chromium, copper, zinc and similar objectionable or toxic substances; or wastes exerting an excessive chlorine requirement to the degree that any material received in the composite sewage at the sewage treatment works exceed the limits established by the city administration for the materials.

(F) Any waters or wastes containing phenols or other taste or odor-producing substances in concentrations exceeding limits which may be established by the city administration as necessary, after treatment of the composite sewage, to meet the requirements of the state, federal or other public agencies of jurisdiction of the discharge to the receiving waters.

(G) Any radioactive wastes or isotopes of the half?life or concentration as may exceed limits established by the city administration compliance with applicable state or federal regulations.

(H) Any waters or wastes having a pH in excess of 9.5.

(I) Materials which exert or cause:

(1) Unusual concentrations of inert suspended solids (such as but not limited to fullers earth, lime slurries and lime residues) or of dissolved solids (such as but not limited to sodium chloride and sodium sulfate).

(2) Excessive discoloration (such as but not limited to dye wastes and vegetable tanning solutions).

(3) Unusual BOD, chemical oxygen demand or chlorine requirements in such quantities as to constitute a significant load on the sewage treatment works.

(4) Unusual volume of flow or concentration of wastes constituting “slugs” as defined herein.

(J) Waters or wastes containing substances which are not amenable to treatment or reduction by the sewage treatment processes employed or are amenable to treatment only to the degree that the sewage treatment plant effluent cannot meet the requirements of other agencies having jurisdiction over discharge to the receiving waters.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.023 Actions Available to City Administration

(A) If any waters or wastes are discharged or are proposed to be discharged to the public sewers, which waters contain the substances or possess the characteristics enumerated in §51.022 of this chapter, and which in the judgment of the city administration may have a deleterious effect upon the sewage works, processes, equipment or receiving waters or which otherwise create a hazard to life or constitute a public nuisance, the city administration may:

(1) Reject the wastes;

(2) Require pretreatment to an acceptable condition for discharge to the public sewers;

(3) Require control over the quantities and rates of discharge; and/or

(4) Require payment to cover the added cost of handling and treating the wastes not covered by existing taxes or sewer charges under the provisions of §51.076 of this chapter.

(B) If the city administration permits the pretreatment or equalization of waste flows, the design and installation of the plants and equipment shall be subject to the review and approval of the city administration and subject to the requirements of all applicable codes, ordinances and laws.

(Ord. 1737, passed 6-24-91)

§ 51.024 Grease, Oil and Sand Interceptors

(A) A grease interceptor shall be installed on all building sewers for all commercial and multiple dwelling unit users. Any conversion to commercial or multiple dwelling use shall be required to install a grease interceptor. The requirement for a grease interceptor may be waived by the city administration when a written request is filed indicating all of the following:

(1) The waste stream from the commercial establishment meets the terms of domestic waste defined in this chapter; and

(2) No kitchen facilities for public service, or service to more than ten residents or dwelling units as defined herein.

(B) Oil and sand interceptors shall be required when they are necessary for the proper handling of liquid wastes containing grease in excessive amounts or any flammable wastes, sand or other harmful ingredients; except that the interceptors shall not be required for private living quarters or dwelling units. All interceptors shall be of a type and capacity approved by the city administration and shall be located as to be readily and easily accessible for cleaning and inspection. The city administration shall make the final determination of the requirements.

(Ord. 1737, passed 6-24-91)

§ 51.025 Preliminary Treatment Facilities to be Maintained by Owner

Where preliminary treatment or flow equalizing facilities are provided for any waters or wastes, they shall be maintained continuously in satisfactory and effective operation by the owner at his expense.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.026 Control Manholes

When required by the city administration, the user of the sewage system from any property serviced by a building sewer carrying industrial wastes shall install a suitable control manhole, together with necessary meters and other appurtenances in the building sewer to facilitate observation, sampling and measurement of the wastes. The manhole, when required, shall be accessibly and safely located and shall be constructed in accordance with plans approved by the administration. The manhole shall be installed by the user at the user's expense and shall be maintained by the user so as to be safe and accessible at all times.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.027 Measurements, Tests and Analyses

(A) All measurements, tests and analyses of the characteristics of waters and wastes to which reference is made in this chapter shall be determined in accordance with the latest edition of Standard Methods for the Examination of Water and Wastewater, published by the American Public Health association and shall be determined at the control manhole provided or upon suitable samples taken at the control manhole. In the event that no special manhole has been required, the control manhole shall be considered to be the nearest downstream manhole in the public sewer to the point at which the building sewer is connected. Sampling shall be carried out by customarily accepted methods to reflect the effect of constituents upon the sewage works and to determine the existence of hazards or unacceptable constituents.

(B) The particular analysis involved will determine whether a 24-hour composite of all outfalls of a premises is appropriate or whether a grab sample or samples should be taken. Normally, but not always, BOD and suspended solids analyses are obtained from 24-hour composites of all outfalls, whereas pHs are determined from periodic grab samples.

(Ord. 1737, passed 6-24-91)

§ 51.028 Special Agreements

No statement contained in this sub-chapter shall be construed as preventing any special agreement or arrangement between the city and any industrial concern whereby an industrial waste of unusual strength or character may be accepted by the city for treatment, subject to payment therefore, by the industrial concern.

(Ord. 1737, passed 6-24-91)

§ 51.040 Permit Required; Application

(A) No unauthorized person shall uncover, make any connections with or opening into, use, alter or disturb any public sewer or appurtenance thereof without first obtaining all required permits and paying all applicable fees.

(B) Any person developing property or seeking to connect to the sewage works, shall submit an application on the prescribed form, including all required information. A fee prescribed by resolution of the Council for classes of connection, inspection, construction reimbursement charges, fees in lieu of assessment, or similar required payments shall be made at the time of application. Persons developing or connecting property previously connected to the public treatment works without change in use, shall not be subject to the fees provided herein. Change in use shall be as defined in §51.001 of this chapter.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.041 Fees

(A) Fees established for any person developing or connecting to a public sewer shall include:

(1) Connection and inspection fee. The direct charge levied by the city for the connection to the sewage treatment works. Fees, classifications, and amounts shall be established by resolution of the City Council.

(2) Construction reimbursement. A direct fee established by resolution to reimburse the construction cost of a public sewer as provided in this chapter.

(3) Fee in lieu of assessment. A fee required for persons connecting or developing adjacent to a public sewer which was constructed at the expense of the utility rate payers and for which the benefiting property was not assessed at the time of installation, and are not subject to construction reimbursement as provided herein. No fee in lieu of assessment shall be levied in addition to a construction reimbursement fee.

(B) Fee in lieu of assessment and construction reimbursement paid in accordance with the following:

(1) Where developing properties have multiple frontages, the fee shall be charged to the longest available frontage, regardless of possible point of connection. The records of the city shall reflect the charge.

(2) Where private contractors have installed facilities at their own cost, the fees shall be paid to the city for payment to the private contractor as established by the terms of a reimbursement agreement, otherwise the fee shall be paid to the city or deposit in the utility fund.

(3) The city may require new facilities to be constructed to serve developing properties. Actual cost of construction for the new public sewer will be utilized as an offset to or actual waiving of construction reimbursement or fees in lieu of assessment based upon the actual construction cost of public sewer required. No construction offset for fees may be transferred to any other person or property. Any balance of construction reimbursement or payment in lieu of assessment fees due after allowing for construction offset, shall be paid by the person developing or connecting.

(Ord. 1737, passed 6-24-91)

§ 51.042 Costs and Expenses to be Borne by Owner

All costs and expense incident to the installation and connection of the building sewer shall be borne by the person causing the connection. The person causing the connection shall indemnify the city from any loss or damage that may directly or indirectly be occasioned by the installation of the building sewer.

(Ord. 1737, passed 6-24-91)

§ 51.043 Separate Building Sewer for each Building: Old Building Sewers

(A) A separate and independent building sewer shall be provided for every building; except where one building stands at the rear of another on an interior lot and no private sewer is available or can be constructed to the rear building through an adjoining alley, court, yard or driveway, the building sewer from the front building may be extended to the rear building and the whole considered as one building sewer.

(B) Old building sewers may be used in connection with new buildings only when they are found on examination and test, by the city administration, to meet all requirements of this chapter.

(Ord. 1737, passed 6-24-91)

§ 51.044 Specifications

(A) The size, slope, alignment, materials of construction of a building sewer and the methods to be used in excavating, placing of the pipe, jointing, testing and backfilling the trench shall all conform to other applicable rules and regulations of the city.

(B) The connection of the building sewer into the public sewer shall conform to the requirements of the building and plumbing code or other applicable rules and regulations of the city. Building sewer connections shall be allowed into a manhole, a line fitting specifically designed for building sewers, or with a tapping saddle approved by the city administration.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.045 Elevation of Sewer

Whenever possible, the building sewer shall be brought to the building at an elevation below the basement floor. In all buildings in which any building drain is too low to permit gravity flow to the public sewer, sanitary sewage carried by the building drain shall be lifted by an approved means and discharged to the building sewer.

(Ord. 1737, passed 6-24-91)

§ 51.046 Connection of Surface Runoff or Groundwater

No person shall make connection of roof downspouts, exterior foundation drains, area way drains or other sources of surface runoff or groundwater to a building sewer or building drain which in turn is connected directly or indirectly to a public sanitary sewer.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.047 Inspection

The applicant for the building sewer permit shall notify the city administration when the building sewer is ready for inspection and connection to the public sewer. The connection shall be made under the supervision of the city.

(Ord. 1737, passed 6-24-91)

§ 51.048 Excavations

All excavations for building sewer installation shall be adequately guarded with barricades and lights so as to protect the public from hazard. Streets, sidewalks, parkways and other public property disturbed in the course of the work shall be restored in a manner satisfactory to the city, and any other permits required by the general ordinances of the city.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.060 Users Charges System

User charges shall be levied on all users of the public treatment works which shall cover the cost of operation and maintenance, debt service and other administrative costs of treatment works. The user charge system shall distribute these costs in proportion to each user's contribution to the wastewater loading of the treatment works.

(Ord. 1737, passed 6-24-91)

§ 51.061 Wastewater Characteristics

Since the only wastewater characteristic which influences costs of operation and maintenance in the Hermiston Treatment Works is volume, a flow charge shall be established so that all costs associated with this treatment works shall be distributed in proportion to each user's volumetric contribution to the waste stream.

(Ord. 1737, passed 6-24-91)

§ 51.062 Classification of Users: Non-Metered Users

(A) Classification of users. Certain users shall be grouped into classes of users discharging approximately the same volume of wastewater and shall be levied a flat charge which is calculated from the flow charge by applying the average volume for that class.

(B) Non-metered users. Those users who are not in one of the user classes with assigned average flow volumes and whose water consumption or wastewater discharge is not metered shall be assigned an approximate wastewater and shall be billed on the flow charge according to this assigned volume.

(C) Appeal. Should any user believe that he has been incorrectly assigned to a particular user class or should any user believe that a portion of his metered flow is not discharged into the sewerage system, that user may apply for review of his user charge as provided in this chapter.

(D) Reassignment of a user. Should the city determine that a user is incorrectly assigned to a user class, they shall reassign a more appropriate user class to that user and shall notify that user of the reassignment.

(Ord. 1737, passed 6-24-91)

§ 51.063 Records

Records of all assigned rates and any assigned wastewater volumes to user and user classes shall be kept on file with the city and shall be open for public inspection.

(Ord. 1737, passed 6-24-91)

§ 51.064 [Reserved]

§ 51.065 Establishment of User Charges

The sewer user charges are hereby established as follows:

(A) Sewer user service charges established. The City Council shall establish the charges by resolution. The charges, except as hereinafter set forth, are established for all dwelling units and motel units at a uniform rate and all property other than the above-described dwelling units and motel units shall be based upon the quantity of water reaching the premises from the city water system, private water system or from private sources of supply, including water from the ground of the premises or elsewhere.

(B) Dwelling units. The rate of sewer user service charge against each and every dwelling unit (any housing unit with sanitary and kitchen facilities designed to accommodate one or more residents, multiple housing units, mobile homes and trailer spaces, but excluding commercial (transient) housing units such as hotel and motel units, and retirement homes with ten or more units under one roof, containing therein a dining room facility regularly open a minimum of six days per week, primarily for the use of the residents and their guests), shall be established by resolution. Independent laundry facilities serving multifamily, mobile homes and trailer units shall be considered a dwelling unit for billing purposes.

(C) Motel units. The rate of sewer user service charge against each and every motel unit (and motel unit used for transient housing) shall be established by resolution.

(D) Commercial independent discharge. As defined in §51.001, users of this class must operate and maintain independent wastewater disposal facilities which are currently licensed by the state for the disposal of wastewater. During all times when approved and licensed wastewater facilities are operable, the rate for discharge to the public treatment works will be based on the actual metered flow of discharge, or will be based on the calculated discharge of each employee per shift per day, in accordance with the resolution of the City Council.

(1) Metered users of this class will provide access to city personnel to read the meter in each billing period.

(2) Metered users of this class will provide an annual calibration and certification of the metering device from an individual certified for verification.

(3) Non-metered users of this class shall provide a verified employee count and total hours worked during the billing period. The city will establish the date for the submittal with each user. Employee information must be expressed in total employees per shift per day.

(4) In the event that independent discharge facilities are not operating, or for any other reason the total discharge of a user in this class is provided to the public treatment works, user rates will be calculated in accord with the commercial account category, or in the event that the discharge exceeds 25,000 gallons per day, an industrial cost recovery rate will be applied in accord with this chapter.

(5) Should users of this class not provide access to the waste meter, verification of meter accuracy, or employment information as required, the user shall be billed at the commercial rate.

(E) Commercial users. All users and user groups not specifically defined herein shall be considered commercial for purposes of this user rate. The rate of sewer user service charge shall be on the basis of water consumption through both public and private water supplies. The base charge shall apply on the basis of each water supply meter and each un-metered water supply line.

(1) Average billing method.

(a) Any user of this group may qualify upon written request for a winter average billing method if, water consumption from public or private water supply is 50% higher in the months of May, June, July, and August than the winter time average in the months of November, December, January and February, and all additional consumption is not returned to the public treatment works.

(b) If the user qualifies for a winter average billing method, the average consumption will be used to bill the months of March through October and actual consumption in November through February. The winter average will be annually updated to the most recent continuous use in the winter months, and this updated average used to bill the ensuing eight month period.

(2) Special billing method. Any commercial user which utilizes delivered water as an integral part of a produced product, shall be billed based upon a waste meter, or in the same manner as provided for commercial independent discharge accounts.

(3) Multiple commercial accounts. When more than one independent business is within a single structure, the commercial rate and number of commercial minimum charges applicable to the account shall be based upon the number of independent sanitary facilities provided in the structure. The charge shall be equal to the sum of commercial unit charges times the commercial unit minimum rate, plus a charge on water consumption which exceeds the allowance per commercial unit.

(F) Combined dwelling units and others. Where both dwelling units and motel units are combined on the same water supply, the charges shall be at the dwelling unit rate plus the motel unit rate. Where both dwelling units and commercial occupancies are combined on the same water supply, the charges shall be at the dwelling unit rate required with an additional charge based on water consumption. Consumption charges will be calculated allowing a reduction in total consumption equal to the gallons allowed in the base rate of consumption per dwelling unit. The charge shall be equal to the sum of the dwelling units increased by one unit, all charged at the dwelling rate, plus a charge on that water consumption which exceeds the allowance per dwelling unit. The lowest charge shall be equal to the number of dwelling units increased by one unit and charged at the dwelling unit rate.

(Ord. 1737, passed 6-24-91)

§ 51.066 New Users and Vacancies

The sewer user charge shall begin on the date of connection to the system based on the used categories in this code. Once the sewer user charge has commenced, no credit shall be given to any commercial or single dwelling unit account unless it can be demonstrated that all water sources to that property have been discontinued. If the date upon which the user charge is commenced or altered does not fall on the first day of a billing period, the rates shall be apportionately prorated.

(Ord. 1737, passed 6-24-91)

§ 51.067 Mobile Home, Trailer Park, Multiple Dwelling or Multiple Commercial Vacancies

Sewer use charges as described in the resolution adopting user rates shall be billed for each unit, unless the owner or manager thereof provides a specific listing of vacant units within a structure on the date prescribed by the city. If proof of vacancies is provided, sewage use shall be calculated based on the occupied units times the applicable rate per unit, however, in no event will the number of units billed be less than one unless it can be demonstrated that all water sources to the structure have been discontinued. Failure to provide a listing of occupied units on the prescribed date will cause the billing to the user to be based on the total number of dwelling units times the dwelling unit rate.

(Ord. 1737, passed 6-24-91)

§ 51.068 Water Consumption

For the user classes billed on a consumption basis, all water supply shall be considered, whether public or private. In the event water meters are not in place, inoperative, or for some reason cannot be read, all consumption will be based on the estimated water consumed. Where estimations must be made for multiple billing periods, the user shall be allowed a consumption base allocation equivalent to the amount estimated, and all actual consumption billed at the appropriate rate. In the event estimated consumption exceeds actual consumption, the user will be credited

with any amounts paid in excess of actual consumption. Where no meter exists, bills will be as provided in this sub-chapter.

(Ord. 1737, passed 6-24-91)

§ 51.069 Disposal of On-Site Wastes

(A) On-site disposal waste. Charges for dumping on-site disposal wastes at the city's sewage treatment plant shall be based on the measured gallonage deposited. These charges shall cover costs of operation and maintenance of the treatment plant and any appropriate local capital costs allocable to the treatment of these wastes and shall be in accord with the resolution of the City Council adopting rates for this class of use.

(B) Hours. Hours for acceptance and locations for disposal of on-site wastes shall be established by the city. No waste will be accepted for disposal at any other time or location.

(C) Samples. Prior to depositing, a sample of waste proposed to be deposited shall be taken. If there is no biological activity in the waste, or if any constituent of the waste is identified which violates the provisions of this chapter for deposit in public sewers, the waste will be rejected.

(D) Restrictions. The city may establish maximum volume and strength restrictions on deposited waste. Any restrictions shall be promulgated in writing to the depositors of the waste.

(E) Violations. Any waste deposited which violates the terms of this subchapter, shall be removed by the city with all costs of personnel, equipment, and damages assessed to the depositor.

(Ord. 1737, passed 6-24-91) Penalty, see § 51.999

§ 51.070 Inclusion in User Rates

Sewer user charges and other fees and assessments shall be established from time to time by resolution of the City Council. User charges shall, at a minimum, provide sufficient revenue to meet the costs of operation, maintenance, replacement, and financing of the treatment works. Charge system shall be designed in accord with this chapter to provide a proportional distribution of costs based on the total waste loading of the system.

(Ord. 1737, passed 6-24-91)

§ 51.071 Responsibility for Payment

The user of the sewage system shall be responsible for payment of the sewer user charge.

(Ord. 1737, passed 6-24-91)

§ 51.072 Billing Procedures

(A) The users of the sewerage system shall be billed on a monthly basis for services after rendered in accordance with the rate schedule.

(B) The date of the billing shall be in accordance with the monthly cycle billing.

(C) Notice of billing, delinquencies, and all other required information shall be deemed to have been given by the city to property owners when notices are placed in the United States mail with postage prepaid and addressed as shown in the utility records. Failure of owner to provide address change information will not cause notice to be defective. Notice of termination of sewer service may also be made by hand delivery or posting at the consumer's place of use.

(D) Sewer user charges shall be due and payable to the city no later than ten days after the date of billing.

(Ord. 1737, passed 6-24-91; Am. Ord. 1926, passed 4-14-97)

§ 51.073 Delinquencies

(A) All bills unpaid ten days after date of issuance shall be considered delinquent and additional charge of 5% shall be made on the gross amount of the billing and notification by mail shall be given to the consumer at the address of the premises being served that the bill, with the 5% delinquency charge, shall be paid within ten days.

(B) In the event of failure to pay sewer charges after they have become delinquent, the city shall have the right to remove or close sewer connections and to enter upon the property for accomplishing the purposes. The expense of discontinuance, removal or closing, as well as the expense of restoring service, shall be a debt to the city and shall be paid by the user. The city may use the sewer user deposit to pay the debt.

(C) Sewer service shall not be restored until all charges, including delinquent charges and the expense of removal, closing and restoration, shall have been paid.

(Ord. 1737, passed 6-24-91)

§ 51.074 Sewer Service Refused to Customer with Outstanding Amounts Owed

No user may receive sewer service at any location if the user has outstanding unpaid bills at any other location until all outstanding amounts owed by that user are paid in full.

(Ord. 1737, passed 6-24-91)

§ 51.075 Appeals

(A) Any sewer user who feels his user charge is unjust and inequitable as applied to his premises within the intent of the foregoing provisions may make written application to the city requesting a review of his user charge. The written request shall, where necessary, show the actual or estimated average flow and/or strength of his wastewater in comparison with the values upon which the charge is based, including how the measurements or estimates were made.

(B) Review of the request shall be made by the City Council and the city administration and shall determine if it is substantiated or not, including recommending further study of the matter.

(C) If the request is determined to be substantiated, the user charges for that user shall be recomputed based on the approved revised flow and/or strength data and the new charges thus recomputed shall be applicable retroactively up to six months, as applicable.

(Ord. 1737, passed 6-24-91)

§ 51.076 Industrial Cost Recovery

(A) All industrial users shall be required to pay that portion of the federal assistance grant under PL 92-500 allocable to the treatment of waste from the users.

(B) The system for industrial cost recovery shall be implemented and maintained according to the following requirements:

(1) Each year during the industrial cost recovery period, each industrial user of the treatment works shall pay its share of the total federal grant amount divided by the recovery period.

(2) The industrial cost recovery period shall be equal to 30 years or the useful life of the treatment works, whichever is less.

(3) Payments shall be made by industrial users no less often than annually. The first payment by an industrial user shall be made not later than one year after the user begins use of the treatment works.

(4) An industrial user's share shall be based on all factors which significantly influence the cost of the treatment works, such as strength, volume and flow rate characteristics. As a minimum, an industry's share shall be based on its flow versus treatment works capacity except in unusual cases.

(5) An industrial user's share shall be adjusted when there is a substantial change in the strength, volume or flow rate characteristics of user's wastes, or if there is an expansion or upgrading of the treatment works.

(6) An industrial user's share shall not include any portion of the federal grant amount allocable to unused or unreserved capacity.

(7) An industrial user's share shall include any firm commitment to the city of increased use by the user.

(8) An industrial user's share shall not include an interest component.

(C) This requirement applies only to those features of wastewater treatment and transportation facilities which have been constructed with federal assistance administered by the U.S. Environmental Protection Agency under PL 92-500.

(Ord. 1737, passed 6-24-91)

§ 51.090 Objectives

(A) The objectives of this sub-chapter are:

(1) To prevent the introduction of pollutants into the city sanitary sewerage systems which will interfere with the operation of the system;

(2) To prevent the introduction of pollutants into the city sanitary sewerage system which will pass through the system, inadequately treated, into receiving waters or the atmosphere otherwise will be incompatible with the system;

(3) To ensure that the quality of the city's wastewater treatment plant sludge is maintained at level which allows its beneficial reuse;

(4) To protect the city and city personnel who may come into contact with sewage, biosolids and effluent in the course of their employment as well as protecting the general public;

(5) To preserve the hydraulic capacity of the city's wastewater system;

(6) To provide for equitable distribution of the cost of operation, maintenance and improvement of the city's wastewater system; and

(7) To ensure the city is able to comply with its NPDES permits conditions, biosolids use and disposal requirements and any federal or state laws which the city's wastewater system subject to.

(B) This sub-chapter provides for the regulation of discharges to the city wastewater system through the issuance of permits to certain industrial users, through establishment of general requirements for other users, authorizes monitoring and enforcement activities, establishes administrative review procedures and requires user reporting.

(C) This sub-chapter shall apply to all activities within the boundaries of the city, and to activities and persons outside the city who cause or permit a discharge, direct or indirect, to the city's sanitary sewerage systems.

(Ord. 1941, passed 11-24-97)

§ 51.091 Abbreviations

(A) Abbreviations. The following are a list of abbreviations that may appear in the document and be relative to the USEPA National Pretreatment Program:

• CFR Code of Federal Regulations
• LC50 Lethal concentration of 50% of the test organisms
• lLiter
• MGD Million gallons per day
• mg/l Milligrams per liter
• RCRA Resource Conservation and Recovery Act
• SIC Standard industrial classification numberissued by the U.S. Office of Management and Budget
• SWDA Solid Waste Disposal Act (42 U.S.C. 6901, et seq.)
• TSSTotal suspended solids
• TTO Total toxic organic
• USC United States Code

§ 51.091 Definitions

(B) Definitions. For the purpose of this sub-chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. If this section expressly provides a different definition than ordinances or resolutions of the city, this section shall prevail. Certain terms are listed with reference to a specific statute or rule, which definitions are incorporated by reference.

• Act or The Act. The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) amended.
• Affirmative Defense. The meaning and scope of 40 CFR 403.5(a)(2).
• Applicable Pretreatment Standards. For any specified pollutant, city prohibitive discharge standards, specific limitations on discharge, state pretreatment standards or categorical pretreatment standards, whichever standard is more stringent.
• Approval Authority. Oregon Department of Environmental Quality (DEQ).
• As Amended. The latest version of a statute, rule, or ordinance in effect on the date this sub-chapter is adopted. Citation of any statute or rule shall be deemed to be to the amended version.
• As Approved by the City.  The written approval by an authorized employee of the city, according to the provisions of this sub-chapter and other applicable standards, and based upon a written request by a user or permittee.
• Authorized Representative of a User. If the industrial user is a corporation, Authorized Representative shall mean:

(1) The president, secretary or a vice president of the corporation in charge of principal business function or any other person who performs similar policy or decision-making functions for the corporation; or

(2) The manager of one or more manufacturing, production or operation facilities, if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures.

(a) If the industrial user is a partnership, association or sole proprietorship, Authorized Representative shall mean a general partner or the proprietor.

(b) If the individual user is representing federal, state or local governments, or an agent thereof, an Authorized Representative shall mean a director or highest official, appointed or designated to oversee the operation and performance of the activities of the government facility.

(c) The individuals described in the divisions above may designate another Authorized Representative of the authorization is in writing, the authorization specifies the individual or position responsible for the overall operation of the facility from which the discharge originates or having overall responsibility for the environmental matters for the company, and the authorization is submitted to the city.

• Biochemical Oxygen Demand (BOD). The quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure, five days at 20 ° C., expressed in terms of weight and concentration (milligrams per liter or mg/l).
• Building Drain. That part of the lowest horizontal piping of a drainage system which received the discharge from soil;, waste and other drainage pipes inside the walls of the building and conveys it to the building sewers, beginning five feet (1.5 meters) outside the inner face of the building walls.
• Building Sewer.The extension from the building drain to the public sewer or other place of disposal.
• Bypass. The intentional diversion of one or more waste streams or processes from any portion of an industrial user's treatment facility.
• Categorical Pretreatment Standards or Categorical Standards. Any regulations containing pollutant discharge limits promulgated by the USEPA in accordance with Sections 307 (b) and (c) of 33 U.S.C. 1317 which apply to a specific category of industrial users and which appears in 40 CFR Chapter 1, Sub-chapter N, Parts 405-47 incorporated herein by reference.
• Change in Use. Changes defined in development, and shall include conversion from residential to any other use including multi-family uses, and shall include an increase to change in the sewage strength, pH, character or potential discharge of hazardous substances.
• City. The City of Hermiston, Oregon, and shall consist of the City Manager or designated representative unless specifically referred to the City Council in the sub-chapter.
• Clarifier. An interceptor for oil and grease with sedimentation provision.
• Collection System. The system of public sewers to be operated by the city and designed for the collection of sanitary sewage.
• Color. The optical density at the visual wave-length of maximum absorption relative to distilled water. 100% transmittance is equivalent to zero optical density.
• Commercial. All buildings or structures which are not defined for the purposes of these sections as residential or industrial in keeping with the city's zoning and building code provisions.
• Commercial User. Any premises used for commercial business purposes that are not an industry as defined in this sub-chapter.
• Commercial Independent Discharge. Any business or industry that possesses an independent licensed and permitted wastewater discharge system. Any classification must maintain independent facilities with approval of appropriate regulatory agencies and provide discharge of domestic waste to the public treatment works.
• Composite Sample. The sample resulting from the combination of individual wastewater samples taken at selected intervals based on either an increment of flow or time.
• Control Authority. The City of Hermiston, Oregon, or city.
• Cooling Water. The water discharged from any use to which the only pollutant added heat, such as air conditioning, heat exchangers, non-contact cooling water or refrigeration.
• Customer. Any individual, firm, company, association, society, corporation, group or owner, who receives utility services from the city such as water and sewer.
• Department of Environmental Quality (DEQ). Where appropriate, the term may be used as a designation for the Director of the Department or other duly authorized official of the Department.
• Development. The conversion or change in character of occupancy or use a building which would place the structure in a different building group as defined in the Uniform Building Code; the erection of a new structure; the demolishing of existing building for the conversion of property to a differing use; the creation of gasoline pumps, drive-up windows, traffic islands or similar alterations which channelize, alter or increase the traffic volume or pattern on adjacent roadways. Development, for purposes of this sub-chapter, shall not mean interior remodeling, repairs or maintenance of improvements to any existing structure that does not increase the volume of the structure. Specifically, exempted under the sub-chapter are building facades, roof or exterior wall repair or replacement, heating, ventilating or electrical alterations or activities similar in character.
• Development Site. An area consisting of a parcel or tract of land specifically identified by a person, as the land to be altered or developed. All required area to meet parking standards and similar requirements for a particular development shall be included in the tern however, the total property ownership of the proponent will not be considered on the site, if is not necessary to the development.
• Discharge. The Discharge or the introduction of pollutants into the municipal wastewater system from any non-domestic source regulated under Section 307 (b), (c) or (d), of the Act.
• Domestic or Sanitary Waste. The liquid and water-borne wastes derived from the ordinary living processes, free from industrial wastes and of the character as to permit satisfactory disposal, without special treatment, into the city wastewater system or by means of a private sewage disposal system.
• Dwelling Units. Any housing unit with sanitary and kitchen facilities design to accommodate one or more residents, multiple housing units, mobile homes and trail, spaces, but excluding commercial or transient housing units such as a hotel and motel units and retirement homes with ten or more units under one roof, containing therein a dining room facility regularly open a minimum of six days per week and designed for the use of the residents and their guests. Independent laundry facilities serving multi-family, mobile homes and trailer units shall be considered a Dwelling Unit.
• Environmental Protection Agency (USEPA or EPA). The U.S. Environmental Protection Agency.Where appropriate the term may also be used as a designation for the Regional Water Management Division Director or other duly authorized official of the agency.
• Existing Source. Any source of discharge, the construction or operation of which commenced prior to the publication of proposed categorical pretreatment standards under Section 307 (b) and (c) of 33 U.S.C. 1317 of the Act which will be applicable to the source if the standard is thereafter promulgated in accordance with Section 307 of the Act.
• Garbage. All refuse and solid wastes, including ashes, rubbish in cans, debris generally; dead animals, street cleanings and industrial wastes and things ordinarily and customarily dumped; solid wastes from the domestic and commercial preparation, cooking, dispensing of food; and from the handling, storage and sale of produce, but not including sewage and body waste.
• Grab Sample. A sample which is taken from a waste stream on a one-time basis without regard to the flow in the waste stream over a period of time not to exceed 15 minutes.
• Grease.Animal- or vegetable-derived oil or Grease.
• Indirect Discharge or Discharges. The meaning of 40 CFR 403.3(g).
• Industrial User or User. Any person which is a source of indirect discharge which also has the same meaning as defined in 40 CFR Part 403.3 (h).
• Industrial Wastewater . Any non-domestic wastewater originating from a non-residential source.
• Interceptor. A device designed and installed so as to adjust, separate and retain deleterious, hazardous or undesirable matter from sewage and to permit normal sewage liquid wastes to discharge from the user's premises into the public sewer system.
• Interference.  A discharge which, alone or in conjunction with a discharge or discharge from other sources both:

(1) Inhibits or disrupts the municipal wastewater system, its treatment processes operations, or its solids handling processes; use or disposal; and

(2) Therefore is a cause of a violation of any requirements of the NPDES permit (including an increase in magnitude or duration of a violation) or of the prevention of biosolids use or disposal in compliance with the following statutory provisions and regulations of permit issued thereunder (or more stringent state or local regulations); Section 405 of the Clean Water Act, the Solid Waste Disposal Act (SWDA), (including Title H, more commonly referred to as the Resource Conservation and Recovery Act (RCRA) and including state regulations contained in any state sludge management plan prepared pursuant to Subtitle D of the SWDA, the Clean Air Act, the Toxic Substances Control Act, and the Marine Protection Research and Sanctuaries Act, as defined in 40 CFR 403.3 (i).

• Local Limits/Specific Pollutant Limitations. Enforceable local requirements developed by POTW's to address federal standards as well as state and local regulations.
• Medical Wastes. Isolation wastes, infectious agents, human blood and blood byproduct pathological wastes, sharps, body parts, fomites, etiologic agents, contaminated bedding, surgical wastes, potentially contaminated laboratory wastes and dialysis wastes.
• National Pretreatment Standard, Pretreatment Standard, or Standard.. The meaning of 40 CFR Sec. 403.30 (j).
• National Prohibitive Standard or Prohibitive Discharge Standard . Any regulation developed under the authority of Section 307 (b) and (c) of the Act, 40 CFR 403.5, DEQ or by the city which prohibits the discharge of certain types or characteristics of wastewater.These prohibitions can be general or specific.
• New Source.

(1) Any building, structure, facility or installation from which there is or may be a discharge of pollutants, the construction of which commenced after the publication of proposed Pretreatment Standards under Section 307 (c) of the Act which will be applicable to the source, if the standards are thereafter promulgated in accordance with this section provided that:

(a) The building, structure, facility or installation is constructed at a site where no other source is located;

(b) The building, structure, facility or installation completely replaces the process production equipment that causes the discharge of pollutants at an existing source; or

(c) The production or wastewater generating processes of the building, structure, facility or installation are substantially independent of an existing source at the same site in determining whether there are substantially independent factors as the extent to which a new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source should be considered.

(2) Construction on a site at which an existing source is located results in a modification rather than a New Source if the construction does not create a new building, structure facility or installation meeting the criteria of the divisions above but otherwise alters, replaces or adds to existing process or production equipment.

(3)Construction of a New Source as defined under this division has commenced if the owner or operator has:

(a) Begun, or caused to begin as part of a continuous on-site construction program:

1. Any placement, assembly or installation of facilities or equipment; or

2. Significant site preparation work including clearing, excavation or removal existing buildings, structures or facilities which is necessary for the placement, assembly or installation of New Source facilities or equipment;

(b) Entered into a binding contractual obligation for the purchase of facilities equipment that is intended to be used in its operation within a reasonable time.Options to purchase or contracts which can be terminated or modified without substantial loss and contracts for feasibility, engineering and design studies do not constitute a contractual obligation under this division.

• Non-Domestic Pollutants (Industrial). Any substances other than human waste and household gray water (shower, dish washing operations, etc.)
• National Pollutant Discharge Elimination System (NPDES). Permit program of USEPA.
• Operation and Maintance (O&M). All activities, goods and services which are necessary to maintain the proper capacity and performance of the treatment works for which works were designed and constructed. Operation and Maintance shall include replacement as defined hereinafter.
• Other Wastes. Include wastes other than human waste, but are not limited to ashes, cinders, industrial sludges, sand, mud, straw, insoluble shavings, metal, glass, rag feathers, tar, creosote, waste antifreeze, plastics, wood, animal paunch contents, offal, blood, bones, meat trimmings and wastes, fish or fowl heads, entrails, trimmings and wastes, lard, tallow, baking dough, chemicals, paint residues, cannery waste bulk solids, hair and fleshing or plastic or paper dishes, cups or food or beverage containers, whether whole or ground.
• Owner.The person(s) who may hold title to or lease the property for which was service has or will be provided.
• Pass Through. The occurrence of an indirect discharge which exits the POTW into water of the United States in quantities or concentrations which, alone or in conjunction with discharge or discharges from other sources, is a cause of a violation of any requirement of the POTW's NPDES permit (including an increase in the magnitude or duration of a violation).
• Person. Any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, governmental entity, or any other legal entity, or their legal representatives, agents, or assigns.The masculine gender shall include the feminine; the singular shall include the plural where indicated by the context.
• pH.The logarithm (base ten) of the reciprocal of the concentration of the hydrogen ion expressed in grams per liter of solution, indicating the acidity or alkalinity of the solution.
• Pollutant. Any substance discharged into the system that, if discharged directly, would alter the quality of the water of the state to a degree which unreasonably affects the water for beneficial use.
• Pretreatment or Treatment. The reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutants properties in wastewater prior to or in lieu of introducing the pollutants into the municipal wastewater system.The reduction or alteration may be obtained by physical, chemical or biological processes, by process changes or by other means.
• Pretreatment Requirement. Any substantive or procedural requirements related to pretreatment, other than national pretreatment standards, imposed on an industrial user.
• Prohibited Discharge Standard. Absolute prohibitions against the discharge of certain types or characteristics of wastewater as established by EPA, DEQ and/or the Director.
• Properly Shredded Garbage.The wastes from the preparation, cooking and dispensing of foods that have been shredded to a degree that all particles will be carried freely under the flow conditions normally prevailing in public sewers, with no particle greater than a half-inch (1.27 centimeters) in any dimension.
• Public Sewer. A sewer, either sanitary or storm, in which all owners of abutting property have equal rights, and which is controlled by public authority.
• Publicly Owned Treatment Work (POTW). A “treatment works” as defined Section 212 of the Act (33 U.S.C. 1292), which is owned by the state or municipality.The definition includes any devices or systems used in the collection, storage, treatment, recycling and reclamation of sewage or industrial wastes and any conveyances which convey wastes and any conveyances which convey wastewater to a treatment plant.The term also means the municipal entity having jurisdiction over the industrial users and responsibility for the operation and maintenance of the treatment works.
• Receiving Stream or Water of the State. All streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, reservoirs, aquifers, irrigation systems, drainage systems and all other bodies or accumulations of water, surface or underground, natural or artificial, public or private, which are contained within, flow through, or border upon the state or any portion thereof.
• Replacement. Acquisition and installation of equipment, accessories appurtenances that are necessary during the service life of the treatment works to maintain the capacity and performance for which the works were designed and constructed.
• Sanitary Sewer. A sewer that carries sewage and to which storm, surface and groundwaters are not intentionally admitted.
• Service Areas. The area served by the treatment works and for which there is no uniform user charge system.
• Sewage. Water-carried human wastes or a combination of water-carried wastes from residences, commercial buildings, institutions and industrial establishments, together with the ground, surface, storm or other waters as may be present.
• Sewage Works. All facilities for collecting, pumping, treating and disposing of sewage.
• Sewer. A pipe or conduit for carrying sewage.
• Shall. Is mandatory; “May” is permissive.
• Significant Industrial User. Except as provided in division (3) below, the term Significant Industrial User means:

(1) All industrial users subject to Categorical Pretreatment Standards under 40 CFR 403.6 and 40 CFR Chapter I, Sub-chapter N;

(2) Any other industrial user that discharges an average of 25,000 gallons per day or more process wastewater to the POTW (excluding sanitary, non-contact cooling and boiling blow-down wastewater); contributes a process waste stream which makes up 5% or more of the average dry weather, hydraulic or organic capacity of the POTW treatment plant; or is designated as by the Control Authority as defined in 40 CFR 403.12 (a) on the basis that the industrial user has a reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement (in accordance with 40 CFR 403.8 (f)(6)); and

(3) Upon finding that an industrial user meeting the criteria in division (2) above has no reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement, the Control Authority (as defined in 40 CFR 403.12 (a)) may at any time, on its own initiative or in response to a petition receive from an industrial user or POTW, and in accordance with 40 CFR 403.8 (f)(6), determine that the industrial user is not a significant user.

• Slugload. Any pollutant including BOD and COD, released in a non-routine, episodic, non-customary batch discharge at a flow rate or concentration which has the potential to cause a violation of the specific discharge prohibitions in §51.092.
• Storm Drain or Storm Sewer. A sewer which carries stone and surface waters and drainage, but excludes sewage and industrial waste, other than unpolluted cooling waters.
• Storm Water. Any flow occurring during or following any form of natural precipitation and resulting therefrom, including snowmelt.
• Suspended Solids or Total Suspended Solids (TSS). The total suspended matter that floats on the surface of, or is suspended in water, wastewater or other liquid, and which is removable by laboratory filtering.
• Treatment Plant. The portion of the POTW designed to provide treatment of sewage and industrial wastes.
• Toxic Pollutants or Pollutants. Those substances listed in 40 CFR Part 122, Appendix D, which is expressly incorporated herein, and any other substance(s) which, either singly or by interaction, may injure or interfere with any wastewater treatment process; may constitute a hazard to humans or animals; or may exceed any limitation adopted as a Categorical Pretreatment Standard.
• Upset. An exceptional incident in which a discharger unintentionally and temporarily is in a state of noncompliance with the standards set forth in this regulation, or limitation of a discharge permit, due to factors beyond the reasonable control of the discharger and excluding noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance or careless improper operation thereof.
• USEPA.The United States Environmental Protection Agency.
• User. Any person who contributes, causes or permits the contribution of wastewater into the city wastewater collection system and treatment facility. User is also defined as the person who is responsible for the payment of the sewer system charge.
• User Charge. The periodic charges levied on all users of the public treatment works, and shall, at a minimum, cover each user's proportionate share of the cost of operation and maintenance.
• Waste. Wastewater and all other Waste substances, liquid, solid or gaseous Waste resulting from any industrial, manufacturing, trade or business process or from the development recovery or processing of natural resources.
• Wastewater. Waste and water, whether treated or untreated, discharged into or permitted to enter a public sewer.
• Wastewater System or System or City Wastewater System or City System . All city treatment works; all city sewers, pipes, and other conveyances discharging thereat and all devices and systems used in the storage, treatment, recycling and reclamation of sewage or industrial wastes of a liquid nature.This shall include any portion of the system owned and maintained by a city.
• Watercourse. A channel in which a flow of water occurs, either continuous or intermittently.

  (Ord. 1941, passed 11-24-97)

§ 51.092 General Sewer Use Conditions

(A) General discharge prohibitions.

(1) No person shall discharge or cause to be discharged any storm water, surface water, ground water, road runoff, subsurface drainage, uncontaminated cooling water or unpolluted industrial process waters to any sanitary sewer.

(2) Storm water and all other unpolluted drainage shall be discharged to the sewers as are specifically designated as combined sewers or storm sewers or to a natural outlet approved by the City Administration. Industrial cooling water or unpolluted process waters may be discharged, on approval of the city and applicable regulatory agencies to a storm sewer, combined sewer or natural outlet.

(3) No Industrial User (IU) shall discharge, cause or permit to be discharged, directly or indirectly, any pollutant or wastewater which will cause interference or pass through. These general and specific prohibitions apply to all IUs of the city's wastewater system whether or not the user is subject to categorical pretreatment standards or any other national, state or local pretreatment standards or requirements.

(B) Specific discharge prohibitions. No person shall discharge or cause to be discharged the following described substances, materials, waters or wastes into the system:

(1) Any liquids, solids or gases which by reason of their nature or quantity are, or may be sufficient either alone or by interaction to cause fire or explosion or be injurious in any other way to the facilities or operations of the city. This prohibition include waste streams with a closed cup flash point of less than 140°F or 6°C, using the test method specified in 40 CFR 261.21; or any waste stream which two consecutive readings on an explosive hazard meter, at the point discharge into the system (or at any point in the system), are more than 5% nor any single reading over 10% of the lower explosive limit (LEL) of the meter.

(2) The flammable or explosive substances including, but are not limited to, gasoline, kerosene, naphtha, benzene, hexane, toluene, xylene, ethers, alcohols, ketones, aldehyde peroxides, chlorates, perchlorates, bromates, carbides, hydrides and sulfides.

(3) Solids (greater than ½-inch in any dimension) or viscous substances (including but not limited to petroleum oil, non-biodegradable cutting oil or products of mineral oil origin which will or may cause obstruction to the flow in a sewer or other interference with the operation of the wastewater system including, but not limited to: animal and vegetable-based fats, wax, grease or oils, emulsified or not, in excess of 100 mg/l or containing substances which may solidify or become viscous at temperatures between 32°F and 150°F (0°C and 65°C).

(4) Any wastewater having a pH less than 5.5 or greater than 9.5 or having any other corrosive property capable of causing damage or hazard to structures, equipment, personnel of the city system, unless the city approves the waste in variance because special conditions in the system, but in no case shall the pH be less than 5.0.

(5) (a) Any wastewater containing pollutants or other wastes in sufficient quantity (flow concentration including, but not limited to BOD, COD, etc.), either singly or by interaction, to pass through or interfere with any wastewater treatment or solids handling and utilization process, or constitute a hazard to humans or animals, or to exceed any limitations adopted as categorical pretreatment standards.

(b) A toxic pollutant shall include, but not be limited to, any pollutant identified in the “Toxic Pollutant List” set forth in 40 CFR Part 122, Appendix D.

(c) All toxic pollutants shall be deemed to be prohibited or regulated substances for purposes of this sub-chapter.

(6) Any noxious or malodorous liquids, gases, solids or other wastewater which either singly or by interaction are capable of creating a public nuisance or hazard to life or are sufficient to prevent entry into the sewers for their maintenance and repair. No discharge shall result in toxic gases, vapors or fumes within the collection or treatment system in a quantity that may cause worker health and safety problems.

(7) Any substance which may cause the system's effluent or treatment residues, sludges, or scums, to be unsuitable for reclamation and reuse or to interfere with the reclamation process or any substance which may cause the system to be in noncompliance with sludge use or disposal criteria, guidelines or regulations developed under Section 405 of the Act; any criteria, guidelines or regulations affecting sludge use or disposal developed pursuant to the Solid Waste Disposal Act, the Clean Air Act, the Toxic Substances Control Act or state standards applicable to the solids management methods being used.

(8) Any sludges, screenings or other residues from the pretreatment of industrial wastes.

(9) Any substance discharged in such a strength as to potentially cause the city system to violate its NPDES and/or other disposal system permits.

(10) Any trucked or hauled pollutants, except at discharge points designated by the city.

(11) Any substances identified as hazardous waste according to 40 CFR Part 261, except specifically authorized by the city.

(12) Any wastewater having a temperature which will inhibit biological activity in any city treatment plant resulting in interference; but in no case, wastewater with a temperature at the introduction into the POTW (measured at the nearest downstream manhole) which exceeds 104°F or 40°C.

(13) Any slugload.

(14) Any unpolluted water including, but not limited to, non-contact cooling water, rainwater, groundwater, surface drainage, roof drainage, water from yard fountains, ponds or pool (except filter backwash water from swimming pools and to reject water) unless prior written approval has been obtained from the city.

(15) Any wastewater containing any radioactive wastes or isotopes (except those included in “Oregon Regulations for the Control of Radiation,” OAR 333-22-150, of the half-life or concentration as to exceed limits established by the city or any applicable state or federal regulations.

(16) Any wastewater which imparts color which cannot be removed by the treatment process such as, but not limited to, dye wastes and vegetable tanning solutions, which consequently imparts color to the treatment plants effluent thereby violating the city NPDES permit.

(17) Materials which exert or cause:

(a) Unusual concentrations of inert suspended solids (such as but not limited to fullers, earth, lime substrate and lime residues) or of dissolved solids (such as but not limited to sodium chloride and sodium sulfate);

(b) Excessive discoloration (such as but not limited to dye wastes and vegetable tanning solutions);

(c) Unusual BOD, chemical oxygen demand (COD) or chlorine requirements in the quantities as to constitute a significant load on the sewage treatment works; and/or

(d) Unusual volume of flow or concentrations of wastes constituting “slugs” as defined herein.

(18) Waters or wastes containing substances which are not amenable to treatment or reduction by sewage treatment processes employed or are amenable to treatment only to the degree that the sewage treatment plant effluent cannot meet the requirements of other agencies having jurisdiction over discharge to the receiving waters.

(19) Wastes prohibited by this section shall not be processed or stored in a manner so that these wastes could be discharged to the municipal wastewater system.

(C) Dilution. No user shall increase the use of potable or process water in any way, for the purpose of diluting a discharge as a partial or complete substitute for adequate treatment to achieve compliance with the standards set forth in this sub-chapter or its discharge permit or in lieu of proper disposal of any material as solid waste. The city may impose mass limitations on dischargers that in its judgment appear to be using dilution to meet applicable pretreatment standards or requirements of this section, or in cases where the imposition of mass limitations is otherwise deemed appropriate by the city.

(D) More stringent limitations. The city retains the right to amend this sub-chapter to provide for more stringent limitations or requirements on discharges to the city system when deemed necessary.

(E) Categorical pretreatment standards. IU's subject to categorical pretreatment standards are required to comply with applicable standards set out in 40 CFR Chapter 1, Sub-chapter N, Parts 405-471.

(F) State requirements. Users are required to comply with applicable state pretreatment standards and requirements set out in OAR Chapter 340. These standards and requirements are incorporated herein.

(G) Specific pollutant limitations and local limitations. In addition to categorical pretreatment standards referenced in other portions of this sub-chapter, no SIU shall discharge wastewater containing pollutants into the system in excess of limitations specified in its wastewater discharge permit or other limits established by the city. The city may establish and revise from time to time standards for specific restricted substances. These standards shall be developed in accordance with 40 CFR Section 403.5 and shall implement the objectives of this subchapter. Standards established in accordance with this section will be deemed pretreatment standards for the purposes of Section 307(d) of the Act. Wherever a discharger is subject to both categorical pretreatment standards and a local limit for a give pollutant, the more stringent shall apply.

(H) Mass limitations. The city may issue mass limitations for dischargers in addition to or in place of concentration-based limitations.

I) Grease interceptor. A grease interceptor shall be installed on all building sewers for all commercial and multiple dwelling unit users. Any conversion to commercial or multiple dwelling use may be required to install a grease interceptor. The requirement for a grease interceptor may be waived by the city administration when a written request is filed indicating all of the following:

(1) The waste stream from the commercial establishment meets the terms of domestic waste defined in this sub-chapter; and

(2) No kitchen facilities for public service or service to more than ten residents or dwelling units as defined herein.

(J) Oil and sand interceptors. Oil and sand interceptors shall be required when they are necessary for the proper handling of liquid wastes containing grease in excessive amounts or any flammable wastes, sand or other harmful ingredients; except that the interceptors shall not be required for private living quarters or dwelling units. All interceptors shall be of a type and capacity approved by the city administration and shall be located as to be ready and easily accessible for cleaning and inspection. The city administration shall be the final determination of the requirements.

(Ord. 1941, passed 11-24-97) Penalty, see §51.999

§ 51.093 Industrial Wastewater Permits

(A) Discharge requirements.

(1) When requested by the city, an IU discharging or proposing to discharge industrial or commercial wastewater into any public sewer to the city system shall first apply for an industrial wastewater discharge permit, hereafter called “discharge permit” from the city.

(2) This discharge permit is required in addition to the commercial connection permit required for sanitary/domestic discharge.

(3) It is a violation of this sub-chapter for any IU to discharge non-domestic wastewater into the system if an application has been requested and a permit has not be issued.

(B) Application for discharge permit. Application for a discharge permit shall to made to the city on a city-approved format. Unless a specific exemption is granted in writing by the city, no discharge of non-domestic wastewater from the facility shall be allowed nor shall a permit be issued unless all conditions and provisions of this sub-chapter are met. A new application shall be required whenever federal categorical standards apply to a discharge, or when an SIU proposes a substantial change in its discharge. An application shall include a “baseline monitoring report” described in §51.094 (D), where applicable.

(C) Application time frame. Proposed new IUs shall apply for a discharge permit at least 90 days prior to the date that the discharge is proposed to commence. Additional data, information and drawings may be requested before a discharge permit is issued. The permit applicant shall promptly provide all requested information to the city.

(D) Hazardous waste compliance. Any industrial user who commences discharging after August 23, 1990, shall provide written notification in accordance with 40 CFR 403.120 of the discharge of any substance which, if otherwise disposed of, would be a hazardous waste under 40 CFR, Part 261.

(E) Certification. All applications, reports and information submitted to the City shall be signed and certified in accordance with 40 CFR 403.12(l). Any reports required in this sub-chapter and any other documents required to be submitted to the city or maintained by the industrial user shall be subject to applicable civil and criminal provisions of the city's rules and regulations, state law relating to fraud and false statements. In addition, the industrial user shall be subject to:

(1) The provisions of 18 USC Section 1001 relating to the fraud and false statements;

(2) The provisions of Sections 309(c)(4) of the Clean Water Act, governing false statements; and

(3) The provision of Section 309(c)(6) of the Act regarding responsible corporate officers.

(F) Application/permit evaluation period. The city will evaluate the application and may require additional information. Within 60 days of receipt of a complete permit application, the city will determine whether or not to issue a wastewater permit. If no determination is made within this time period, the application will be deemed denied.

(G) Application/permit rejection. If any waters or wastes are discharged or are proposed to be discharged to the city's sewer system, which contain the substances or possess the characteristics enumerated in other sections of this sub-chapter, and which in the judgment of the city, may have a deleterious effect upon the system, or which otherwise create a hazard to life, worker safety or constitute a public nuisance, the city may take any of the following actions:

(1) Reject the wastes;

(2) Require pretreatment to an acceptable condition prior to discharging to the system;

(3) Require control over the quantities and rates of discharge; or

(4) Require payment to cover the added cost of handling and treating the wastes not converted by existing taxes or sewer charges under the provisions of §51.096 of this chapter.

(H) Compliance schedules. The city may require compliance schedules in any permit to ensure that the appropriate technology is installed in a time period acceptable to the city.

(I) Permit contents. Wastewater discharge permits shall contain at a minimum the conditions of 40 CFR 403.8 (f)(1)(iii)(A)-(E). In addition, permits may contain the following:

(1) Fees and charges to be paid upon initial permit issuance;

(2) Limits on average and maximum rates and time of discharge and requirements for flow regulations and equalization;

(3) Requirements for installation and maintenance of inspection and sampling facility compatible with facilities of the city;

(4) Compliance schedules;

(5) Requirements for submission of special technical reports or discharge reports where the same differ from those prescribed by this sub-chapter; and

(6) An effective date and expiration date of the permit.

(J) Right of revision or permit modification. The city reserves the right to amend any wastewater discharge permit issued hereunder in order to assure compliance by the city with applicable laws and regulations. Upon promulgation, a new federal categorical standard for a particular industrial subcategory, if more stringent than the limits established under the city's current rules and regulations, will supersede the local standard. Permits will be modified as soon as possible subsequent to a change in the federal requirements. The city shall notify the user of any proposed changes in its permit prior to the effective date of the change.

(K) Permit duration and property interest acquired. All wastewater discharge permits shall be issued for an initial period not to exceed five years as determined by the city. All permits are subject to amendment, revocation, suspension or termination as provided in these rules. No user acquires any property interest by virtue of permit approval. Continued approval is expressly contingent upon compliance with all applicable federal, state and location requirements.

(L) Limitations on permit transfer. Wastewater discharge permits are issued to specific user for a specific operation and are not assignable to another user or transferable to an other person or location without the prior written approval of the city. If a permitted industry facility is sold, the seller shall provide a copy of the existing discharge permit to the new owner or operator.

(M) Wastewater discharge permit revocation. Wastewater discharge permits may be revoked for any of the following reasons:

(1) Failure to notify the city of significant changes to the wastewater prior to the changed discharge;

(2) Falsifying self-monitoring reports or other required reports;

(3) Tampering with monitoring equipment or sample;

(4) Refusing to allow the city timely access to the facility premises or records;

(5) Failure to meet effluent limitations;

(6) Failure to pay fines, penalties or sewer service charges;

(7) Failure to meet compliance schedules;

(8) Failure to complete a wastewater survey;

(9) Failure to provide advance notice of the transfer of a permitted facility; or

(10) Violation of any pretreatment standard or requirement or any terms of the permit or the sub-chapter.

(N) Voiding permits. Permits shall be voided upon non-use or cessation of operations for a period of two years or longer, transfer of business ownership or upon issuance of a new wastewater discharge permit replacing a previous permit.

(Ord. 1941, passed 11-24-97) Penalty, see §51.999

§ 51.094 Responsibility of Permit Holder

(A) Sampling facilities. When required by the city, the IU shall provide and operate at the users expense, a monitoring facility, together with necessary meters and other appurtenances to allow inspection, sampling and flow measurement of each industrial sewer discharge to the city. The monitoring facility shall be approved by the city prior to being installed. When possible the sampling site shall be located outside the building or structure, on the user's premises and be easily accessible from a public road, street, parking lot or paved area. The user shall maintain safe access to the sampling site at all times.

(1) There shall be ample room in or near the facility to allow for accurate sampling and preparation of samples for analysis. The facility, sampling and measuring equipment shall be maintained at all times in a safe and proper operating condition at the expense of the permit holder, as directed in the city-approved permit.

(2) All sampling facilities shall be constructed and maintained in accordance with all applicable local construction standards and specifications. The sampling facility may be revised, but the city must approve these revisions. All sampling facility plans must be submitted to and approved by the city prior to construction, regardless of whether or not the standard details are used. Construction shall be completed within 60 days of city approval or within ten days of receipt of permit by the permit holder, except as otherwise approved by the city.

(B) Operation and maintenance. Where preliminary treatment or flow-equalizing facilities are provided for any waters or wastes, the owner, at his expense, shall maintain then continuously in satisfactory and effective operation.

(C) Plans review.

(1) All plans for pretreatment facilities, interceptors, etc., required pursuant to these rules shall be approved by the city prior to implementation. Approval of pretreatment facilities, interceptors, etc., by the city, does not relieve the owner of the responsibility to install and operate equipment necessary to perform the required function and to meet all permit requirements.

(2) The permit holder shall maintain records of all pretreatment facilities which reflect routine maintenance check dates, calibration, cleaning, waste removal dates, manifests of wastes removed from the site and the means of disposal of accumulated wastes.

(3) Approval by the city of plans under this section does not represent assurance that the facilities will meet a discharge permit.

(D) Control of discharge. It shall be the responsibility of the user to control the discharge into the city sewerage system or any private or side sewer which drains into the city's system so as to comply with this sub-chapter and the requirements of any applicable wastewater discharge permit issued pursuant to the provisions of this sub-chapter. Notwithstanding an permit conditions, the city may (after notification to the user) order that any discharge which may appear to present an imminent endangerment to the health and welfare of persons be immediately and effectively halted from entering the collection system.

(E) IU facility inspections. The city may inspect the facilities of any IU to determine compliance with the requirements of city rules and regulations. The user shall allow the city or its representatives to enter upon the premises of the user at all reasonable hours and without prior notification by the city, for the purposes of inspection, sampling, and records examination and copying. The city shall have the right to set upon the user's property the devices as at necessary to conduct sampling, inspection, compliance monitoring and/or metering operation:

(1) Where a user has security measures in force which require proper identification and clearance before entry into their premises, the industrial user shall make necessary arrangements with its security guards so that, upon presentation of suitable identification personnel from the city, state, and USEPA will be permitted to enter, without delay, for the purposes of performing their specific responsibilities.

(2) The city, state, and USEPA shall have the right to set up or require installation of, on the industrial user's property, the devices as are necessary to conduct sampling, and/or metering of the user's operations.

(3) The city may require the industrial user to install monitoring equipment, as necessary. The facility's sampling and monitoring equipment shall be maintained at all times in safe and proper operating condition by the industrial user at the industrial user's expense. All devices used to measure wastewater flow and quality shall be calibrated periodically to ensure their accuracy.

(4) Any temporary or permanent obstruction to safe and easy access to the industrial facility to be inspected and/or sampled shall be promptly removed by the industrial user at the written or verbal request of the city and shall not be replaced. The costs of clearing the access shall be borne by the industrial user.

(5) Unreasonable delay in allowing city personnel access to the industrial user's premises shall be a violation of this sub-chapter.

(F) Sampling requirements. Except as otherwise expressly stated in a permit, sampling shall be performed according to this division. If an IU subject to self-monitoring and reporting requirements as set forth in their city discharge permit, monitors any pollutant more frequently than required in the discharge permit, using the procedures prescribed in 40 CFR 403.12(g)(4), the results of this monitoring shall be included in the IU's reports.

(1) SIUs shall submit to the city at least once every six months or a otherwise specified by the city, a description of the nature, concentration and flow of the pollutants required to be reported to the city. These reports shall be based on sampling and analysis performed in the period covered by the report, and performed in accordance with the techniques described in 40 CFR Part 136.

(2) The IU shall submit the results of sampling and analysis identifying the nature and concentration (or mass, where required by the city) of regulated pollutants in the discharge from each regulated process. Both daily maximum and average concentration (or mass, where required) shall be reported. The sample shall be representative of the operations.

(3) A minimum of four grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide and volatile organics. For all other pollutants, a 24-hour composite sample must be obtained through flow-proportional composite sampling techniques when feasible. The city may waive flow-proportional composite sampling for any IU that demonstrates that flow-proportional sampling is unfeasible. In the case samples may be obtained through time-proportional composite sampling techniques through a minimum of four grab samples where the user demonstrates that this would provide a representative sample of the effluent being discharged.

(4) The IU shall take a minimum of one representative sample to compile that data necessary to comply with the requirements of this division. Samples shall be taken immediately downstream from pretreatment facilities if such exists or immediately downstream from the regulated process if no pretreatment exists. If other wastewaters are mixed with the regulated wastewater prior to pretreatment the IU shall measure the flows at concentrations necessary to allow use of the combined waste stream formula of 40 CFR 403.6(e) in order to evaluate compliance with the pretreatment standards. Where alternate concentration or mass limit has been calculated in accordance with 40 CFR 403.6(e) this adjusted limit and supporting data shall be submitted to the city.

(5) Where 40 CFR Part 136 does not contain sampling analytical techniques for the pollutant in question, or where the USEPA Administrator determines that the Part 136 sampling and analytical techniques are inappropriate for the pollutant in question, sampling at analysis shall be performed by using validated analytical methods or any other applicable sampling and analytical procedures, including procedures suggested by the city or other persons approved by the USEPA Administrator. This sampling and analysis may, upon approval by the city may be performed by the city in lieu of the industrial user.

(G) Special agreements. No statement contained in this section shall be construed as preventing any special agreement or arrangement between the city and any industrial concern whereby an industrial waste of unusual strength or character may be accepted by the city for treatment, subject to payment therefore, buy the industrial concern.

(H) Records retention. All users subject to this sub-chapter shall retain and preserve for less than three years, all records, books, documents, memoranda, reports, correspondence and any and all summaries thereof, relating to monitoring, sampling and chemical analysis made by or in behalf of a user in connection with its discharge. All records shall be subject to review by the city. The retention period may be extended beyond three years of the request of the city. All records which pertain to matters which are the subject of an enforcement or litigation activities brought by the city pursuant hereto shall be retained and preserved by the user until all enforcement activities have concluded and all periods of limitation with respect to any and all appeals have expired.

(I) Wastewater permit renewals. SIUs may be required to apply for permit renewals within 90 days prior to the expiration date in the existing wastewater permit.

(Ord. 1941, passed 11-24-97) Penalty, see §51.999

§ 51.095 Reporting Requirements

(A) General requirements.

(1) All measurements, tests and analysis of the characteristics of wastewater to which reference is made in this section shall be in accordance with 40 CFR Part 136 or alternate protocols approved by EPA Region 10 Administrator or NPDES permit- specific basis and shall be determined at the control manhole provided, or upon testing of suitable samples taken at the control manhole.

(2) IUs may be required to submit test results from samples of their wastewater discharged or other appropriate information requested by the city on a routine and continuing basis for any or of the following reasons:

(a) To comply with the terms and provisions of 40 CFR Part 403.12;

(b) If requested by any applicable state or local public agencies;

(c) If required to determine monthly sewer service charges as described by applicable city ordinance;

(d) If deemed necessary by the city for the proper treatment, analysis or control wastewater discharges. The IU shall bear the costs of any tests and reports. The city shall have the right to enforce the requirements of 40 CFR 403.12. When deemed necessary by the city, an IU may be required to obtain, install, operate and maintain an automatic sampler and/or analyzer to monitor its industrial waste discharges; or

(e) If required by the discharge permit.

(B) User's responsibility. It is the IU's responsibility to keep informed of all state and federal wastewater analysis and reporting requirements. Any failure to do so shall not excuse the permit holder from compliance with the requirements.

(C) Discharge reports. Discharge reports shall contain all results of sampling and analysis of the discharge, including the flow, the nature and concentration of pollutants, and production and mass where require by the city.

(D) Baseline monitoring report.

(1) Within 180 days after the effective date of a categorical pretreatment standard, or 180 days after the final administrative decision on a category determination under 40 CFR 403.6 (a)(4), whichever is later, existing users currently discharging to or proposing to discharge to the city shall submit to the city a report containing the information listed in division (E) below.

(2) At least 90 days prior to commencement of their discharge, new sources, including existing users which have changed their operation or processes so as to become new sources, shall be required to submit to the city a report which contains the information listed in division (E). A new source shall also report the method it intends to use to meet applicable pretreatment standards, and give estimates of its anticipated flow and quantity of pollutants discharged.

(E) Information required. The information required by this section includes:

(1) Identifying information. The user shall submit the name and address of the facility, including the name of the operator and owners;

(2) Permits. The user shall submit a list of any environmental control permits held by or for the facility;

(3) Description of operation. The user shall submit a brief description of the natural average rate of production, and standard industrial classifications of the operations carried out by the industrial user. This description should include a schematic process diagram which indicates points of discharge to the system from the regulated processes;

(4) Flow measurement. The user shall submit information showing the measured average daily and maximum daily flow, in gallons per day, to the system from regulated process streams and other streams as necessary to allow use of the combined waste stream formula set out in 40 CFR 403.6(e).

(5) Measurement of pollutants.

(a) The industrial user shall identify the categorical pretreatment standard applicable to each process;

(b) In addition, the IU shall submit the results of sampling and analysis identifying the nature and concentration (and/or mass, where required) of regulated pollutants in the discharge from each regulated process. Instantaneous, daily maximum and long term average concentrations (or mass, where required) shall be reported. The sample shall be representative of daily operations and shall be performed in accordance with procedures set out in 40 CFR Part 136, or an city approved equal; and

(c) A minimum of four grab samples must be used for pH, cyanide, total phenols, oil and grease, sulfide, and volatile organics. All other pollutants will be measured by composite samples obtained through flow proportional sampling technique. If flow proportional composite sampling is unfeasible samples may be obtained through time proportional sampling techniques or through four grab samples if the user proves the samples will be representative of the discharge.

(F) Report on compliance with categorical deadlines. Within 90 days following the date for final compliance with applicable categorical pretreatment standards, or in the case of a new source, following commencement of the introduction of wastewater in the sewer system, any industrial user subject to pretreatment standards and requirements shall submit to the city a report indicating the nature and concentration of all pollutants in the waste stream, as required by division (D) above.

(1) For IUs subject to equivalent mass or concentration limits established by the city in accordance with 40 CFR 403.6(c), this report shall contain a reasonable measure of the user's long term production rate. For all other IUs subject to categorical pretreatment standards expressed in terms of allowable pollutants discharge per unit of production or other measure of operation, this report shall include the IU's actual production during the appropriate sampling period.

(2) This report shall also contain the average and maximum daily flows for the process waste streams, and whether the applicable pretreatment standards are being met on consistent basis. If they are not being met on a consistent basis, the report shall identify what additional pretreatment or operation and maintenance is necessary to bring the industrial user into compliance. This report shall be signed by an authorized representative of the industrial user, and certified to by a qualified professional.

(G) Schedule of compliance. If the industrial user is required to install additional pretreatment or provide additional operation and maintenance, he or she will be required to submit a schedule.

(1) The schedule shall contain increments of progress in the form of milestone dates for commencement and completion of major events leading to the construction and operations of additional operation and maintenance or pretreatment (e.g., hiring an engineer, completing preliminary, plans, completing final plans, executing contracts for major components, commencing construction, completing construction, etc.). No increment of progress shall exceed nine months.

(2) The industrial user shall submit a progress report to the city including, at a minimum whether or not it complied with the increment of progress to be met on the date and if not, the date on which it expects to comply with this increment of progress, the reason for delay and the steps being taken by the industrial user to return the construction to the, schedule established. This progress report shall be submitted no later than 14 days following each date in the schedule and the final date of compliance. In no event shall more than nine months elapse between the progress reports to the city.

(3) If compliance milestone dates are not met or reports not submitted when due, the city may take appropriate enforcement action for lack of satisfactory progress toward compliance. (See §51.096.) Schedules of compliance may be inserted into an IU's discharge permit, as provided in division (G).

(H) Periodic compliance reports. Any IU subject to categorical pretreatment standards, or subject to sampling, testing and reporting schedules set out in the user's permit shall submit to the city all reports required indicating the nature of the effluent discharged since the last reporting period.

(1) The report shall include, but is not limited to, a record of the concentrations (and mass limited in the permit) of the limited pollutants that were measured and a record of all pH and flow measurements that were taken.

(2) If an industrial user subject to the reporting requirements listed above monitors any pollutant more frequently than required by the city, the results of this monitoring shall be included in the report.

(I) Reporting of violation/resampling requirement. If sampling performed by an industrial user indicates a violation, the user shall notify the city within 24 hours of becoming aware of the violation. The user shall also repeat the sampling and analysis an submit the results of the repeat analysis to the city within 30 days after becoming aware of violation.

(J) Slugload reporting.

(1) Dischargers shall notify the city immediately upon occurrence of a “slug” or accidental discharge of substances prohibited by this sub-chapter. The notification shall include the location of discharge, date and time thereof, type of waste, concentration and volume, corrective action and steps being taken to reduce any adverse impact.

(2) Any discharger who discharges a “slug(s)” of prohibited materials shall be liable for any expense, loss or damage to the POTW, in addition to the amount of any fines imposed on the city under state or federal law, and may also incur monetary penalties by the city.

(K) Change in discharge. The IU shall report to the city any changes, permanent or temporary to the permittee's premises or operations that may result in change of the quality or volume of the wastewater discharge.

(1) Changes in the discharge involving the introduction of a waste stream(s) not included in or covered by the discharge permit application shall be considered a new discharge requiring completion of an application as described under §51.093. Any reporting shall not be deemed to exonerate the permittee from liability for violations of the sub-chapter.

(2) All industrial users shall promptly notify the city in advance of any proposed anticipated change in the volume or character of pollutants in their discharge, including the listed or characteristic hazardous wastes for which the industrial user has submitted initial notification under 40 CFR 403.12(p).

(L) Notification of significant production change.

(1) In accordance with 40 CFR 403.6 (c)(7), any IU operating under a city permit incorporating equivalent mass or concentration limits calculated from a production based standard shall notify the city with two business days after the IU has a reasonable basis to know that the production level will significantly change within the next calendar month.

(2) Any IU not notifying the city of anticipated change will be required to meet the mass or concentration limits in its permit that were based on the original estimate of the long-term average production rate.

(M) Industrial user hazardous waste reporting. Industrial users shall notify the city (POTW), the EPA Regional Waste Management Division Director, and state hazardous waste authorities in writing of any discharge into the POTW of a substance, which, if otherwise disposed of, would be a hazardous waste under 40 CFR Part 261. Notification must include the name of the hazardous waste as set forth in 40 CFR Part 261, the EPA hazardous waste number, and the type of discharge (continuous, batch or other).

(N) TTO reporting. Those industries which are required by EPA to eliminate and/or reduce the levels of toxic organics (TTO's) discharged into the sewer system must follow the federal effluent guidelines for that industry.

(O) Certification of all reports. All reports submitted by significant industrial user shall include the certification statement defined in 40 CFR 403.6 (a)(2)(ii), and signed by the appropriate official as designated in 40 CFR 403.12(l).

(Ord. 1941, passed 11-24-97) Penalty, see §51.999

§ 51.096 Administrative and Judicial Enforcement

(A) Industrial user violation process. If the city determines that a violation has occurred or is taking place, a representative of the city shall make a reasonable effort to notify the user of the violation. All violations including the first violation shall receive a written notice of violation, and may also incur a monetary penalty.

(1) All written notices of violations shall describe the violation and any potential penalty (monetary or additional pretreatment). The written notice may further require that response to the violation be submitted to the city within a ten day time period.

(2) If a written notice of violation requires submittal of a response, the response shall include an explanation of the violation, a plan for the satisfactory correction and prevention of future violations, and specific corrective or preventive action submission of this plan in no way relieves the user of liability for any violation occurring before or after receipt of the notice of violation. Nothing in this section shall limit the authority of the city to take emergency action without first issuing a notice of violation.

(B) Violation.

(1) A violation of limitations established under §51.092 of this sub-chapter, any applicable federal, state or city pretreatment standards, or specific requirements of a discharge permit shall constitute a violation of this sub-chapter and shall be cause for enforcement action by the city, including but not limited to levying of administrative penalties described in this section, regardless of the intent of the user. Each day of a continuing violation shall constitute a separate offense for purposes of computing the applicable penalty.

(2) Whenever the city finds that any IU has violated or is violating this sub-chapter, wastewater permit or order issued hereunder, or any other pretreatment requirement, the city shall cause to be served upon the IU a written notice of violation. The notice of violation shall be delivered to the user's premises or be sent by regular mail to the address of the permit holder on record with the city. It may be sent together with the industrial user's monthly billing notice.

(C) Permit parameters.

(1) For the maximum daily allowable concentration, if the concentration of any single sample (whether grab or a sample within a series) exceeds the limitations, a violation will have occurred;

(2) For the monthly average allowable concentration, if the average of all sample(s) (grab or composite) taken exceeds the limitation, a violation will have occurred. One sample collected may constitute a monthly average violation.

(D) Additional violation parameters. Included, but are not limited to the following:

(1) For noncompliance with any special reporting requirements established by permit, written request of the city, or as specified by general federal pretreatment standards (40 CFR 403.12);

(2) Pollutants prohibited in §51.092 are discharged into the system;

(3) Failure to apply for and obtain a permit prior to discharge of industrial wastewater in the system.

(E) IU notifying city of violation. If sampling performed by an industrial user indicating a violation, the industrial user shall notify the city within 24 hours of becoming aware of the violation. The user shall also re-sample and report the results within 30 days of becoming away of violation pursuant to 40 CFR 403.12(g)(2). Re-sampling must continue until it is evident the discharge is within compliance.

(F) Affirmative defense. The city does not recognize the “affirmative action” defense defined in the federal regulations.

(G) Consent orders. The city may enter into consent orders, assurance of volunteer compliance, or other similar documents establishing an agreement with the IU responsible for the noncompliance. Orders will include specific action to be taken by the IU to correct the noncompliance within a time period also specified by the order. Consent orders shall have the same force and effect as administrative orders and upon issuance, orders shall be judicial enforceable.

(H) Show cause hearing.

(1) The city may order any IU which causes or contributes violation(s) of this sub-chapter, wastewater permits or orders issued hereunder or any other, pretreatment requirement, to appear before the city and show cause why a proposed enforcement action should not be taken. Notice shall be served on the IU specifying the time and place for the hearing, the proposed enforcement action, the reasons for the action, and an order that the IU show cause why this proposed enforcement action should not be taken.

(2) The notice of the hearing shall be served personally or by registered mail (return receiving requested) at least ten days prior to the hearing. The notice may be served on any authorized representative of the IU. Whether or not the IU appears as notified, immediate enforcement action may be pursued following the hearing date.

(I) Compliance orders.

(1) When the city finds that an IU has violated or continues to violate the sub-chapter, permits or orders issued hereunder, or any other pretreatment requirement, an order may be issued to the IU responsible for the discharge directing that, following a specific time period, sewer service shall be discontinued unless adequate treatment facilities, device or other related appurtenances are installed and properly operated. Compliance orders may also contain other requirements as might be reasonably necessary and appropriate to address the noncompliance, including additional self-monitoring, and management practices designed to minimize the amount of pollutants discharged to the sewer.

(2) In addition to compliance orders, the city may require additional self-monitoring for at least 90 days after consistent compliance has been achieved, after which time the self-monitoring conditions in the discharge permit shall control.

(J) Significant noncompliance. Significant noncompliance is deemed to have occurred if a violation meets one or more of the following criteria:

(1) Chronic violations of wastewater discharge limits, defined as those in which 66% or more of all of the measurements taken during a six-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same polluted parameter;

(2) Technical review criteria (TRC) violations are defined here as those in which 33% or more of all of the measurements for each pollutant parameter taken during a six-month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC. (TRC = 1.4 for BOD, TSS, fats, oil and grease, and 1.2 for all other pollutants except pH);

(3) Any other violation of a pretreatment effluent limit (daily maximum or longer-term average) that the city determines has caused alone or in combination with other discharges, interference or pass through (including endangering the health of city personnel or the general public);

(4) Any discharge of a pollutant that has caused imminent endangerment to human health welfare or to the environment or has resulted in the city's exercise of its emergency authority, as defined in 40 CFR 403.8 (f)(1)(vi)(B), to halt or prevent a discharge;

(5) Failure to meet, within 90 days after the scheduled date, a compliance schedule contained in a local control mechanism or enforcement order, for starting construction, completing construction or attaining final compliance;

(6) Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports (BMR), 90-day compliance reports, periodic self-monitoring reports and reports on compliance with compliance schedules;

(7) Failure to accurately report noncompliance; and

(8) Any other violation or group of violations which the city determines will adversely affect the operation and implementation of the local pretreatment program.

(K) Publication of significant violators. A list of all industrial users which were in significant noncompliance (as defined above) during the 12 previous months, shall be annually published by the city in the largest daily newspaper, published in the municipality in which the city is located, summarizing the enforcement actions taken against users during the previous 12 months.

(L) Other penalties.

(1) If the violation is not corrected within a reasonable period of time determined by the city, or as specified in a consent order or compliance order, or if there appears to be indications of repetition of the violation, a notice of civil penalties may be issued as described in the applicable city ordinance. The city may seek or assess a specific fine violation not to exceed $1,000 per day per violation of pretreatment standards and may impose an applicable compliance schedule. Compliance schedules may not extend the compliance date beyond any applicable federal deadlines.

(2) Notwithstanding any other provision of this sub-chapter, the city may, in its discretion and at any time, impose discharge permit limitations penalties/charges or seek civil and criminal penalties pursuant to applicable city ordinance.

(M) Cease and desist orders. When the city finds that an industrial user has violated or continued to violate this sub-chapter, any permit or order issued hereunder, or any other pretreatment requirement, the city may issue an order to the industrial user directing it to cease and desist all violations and directing the user to:

(1) Immediately comply with all requirements; or

(2) Take appropriate remedial or preventative action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge.

(N) Administrative appeals of enforcement actions.

(1) An industrial user desiring to dispute any fine, penalty or other administrative enforcement action under this sub-chapter must, within ten days of receipt of notice of any action, file a written request for review with the City Council and the city administration.

(2) The request for review shall state any facts and mitigating circumstances which the IU wishes to be considered. Upon receipt of a request for review, the Council and city administration shall review the requests and any other information available. They shall render a written decision within 15 working days of receipt. The Council or city administration may sustain, reduce or eliminate any fine, and may modify any enforcement action upon a finding that:

(a) The original action of the city in imposing a fine or other enforcement action was based upon a substantial error of fact, which shall be stated;

(b) The original action of the city was based upon improper application of city ordinance or regulations to the facts, in which case the correct application shall be stated; or

(c) The user has presented mitigating facts or circumstances to the city which would justify modification of the original order.

(3) If the Council or city administration finds that the facts and application of this sub-chapter were correct, and mitigating circumstances do not justify modifying the original action, that shall sustain that action.

(O) Emergency suspensions. The city may suspend the wastewater permit of an industrial user, whenever suspension is necessary in order to stop an actual or threatened discharge which reasonably appears to present or cause an imminent or substantial endangerment to the health or welfare of persons, interferes with the operation of the municipal wastewater system or which present or may present an endangerment to the environment.

(1) Any industrial user notified of a suspension of its wastewater permit shall immediately stop or eliminate its discharge. In the event of an industrial user's failure to immediately comply voluntarily with the suspension order, the city may take steps as it deems necessary, including immediate severance of the sewer connection, to prevent minimize damage to the system, its receiving stream, or to any person. The city shall allow the industrial user to recommence its discharge when the user has demonstrated the satisfaction of the city that the period of endangerment has passed, and no repetition is likely, unless termination proceedings set forth in §51.096 are initiated against the user.

(2) An industrial user which causes or permits any discharge presenting immediate endangerment to the public or the environment shall submit a detailed written statement describing the causes of the harmful contribution and the measures taken to prevent any future occurrence to the city prior to the date of any show cause or termination hearing discussed elsewhere in this sub-chapter.

(P) Termination of permit.

(1) In addition to all other penalties and remedies in the sub-chapter, the city may terminate the permit of any industrial user. Violations of the conditions of this sub-chapter, wastewater permits or orders issued hereunder is subject to permit termination. Justification for permit termination include, but are not limited to the following:

(a) Violation of permit conditions;

(b) Failure to accurately report the wastewater constituents and characteristics of its discharge;

(c) Failure to report significant changes in operations or wastewater volume, constituents and characteristics prior to discharge; and

(d) Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring or sampling.

(2) Prior to terminating a permit, the city shall notify the permittee of its proposed termination. A show cause opportunity under other sections identified in this sub-chapter will be offered.

(Q) Judicial enforcement remedies.

(1) Whenever an industrial user has violated or continues to violate the provisions of this sub-chapter, permits or orders issued hereunder, or any other pretreatment requirements, the city, may petition the courts for the issuance of temporary or permanent injunction, as may be appropriate, which restrains or compels the specific performance of the wastewater permit, order or other requirement imposed by this sub-chapter on activities of the industrial user.

(2) Other action as may be appropriate for legal and/or equitable relief may also be sought by the city. The court shall grant an injunction without requiring a showing of a lack of an adequate remedy at law.

(Ord. 1941, passed 11-24-97) Penalty, see §51.999

§ 51.097 Additional Provisions Concerning Industrial Users

(A) Miscellaneous information. The city may request at any time reports, data or information from any user to ensure compliance with all applicable laws by the city and the user. The user shall promptly provide the city with any reports, data or information requested.

(B) Inspection warrants. Judges and magistrates authorized to issue search warrants may upon application of the city, issue an inspection warrant pursuant to this section. The warrant shall be allowed whenever the city has requested of the property owner or his/her agent access to any premises to ascertain information necessary to carry out the provisions of this sub-chapter and the request has been denied. Information necessary to carry out these provisions shall include, but not be limited to, verification of owner-supplied data.

(C) Confidential information.

(1) Information and data on an industrial user obtained from reports, questionnaires, permit application, permits and monitoring programs, and from city inspection and sampling activities shall be available to the public without restriction unless the industrial user specifically requests and is able to demonstrate to the satisfaction of the city that the release of the information would divulge information, processes or methods of production entitled to protection as trade secrets under applicable state laws.

(2) Wastewater constituents and characteristics and other “effluent data” as defined by 40 CFR 2,302 will not be recognized as confidential information and will be available to the public without restriction.

(3) When requested and demonstrated by the industrial user finishing a report that the information should be held confidential, the portions of a report which might disclose a trade secret or secret processes shall not be made available for inspection by the public but shall be made available immediately upon request to governmental agencies for uses related to this sub-chapter, the National Pollutant Discharge Elimination System (NPDES) program, and enforcement proceedings involving the person furnishing the report.

(D) Pretreatment charges and fees. The city may adopt reasonable charges and fees for reimbursement of costs of setting up and operating the city's pretreatment program which may include:

(1) Fees for permit applications including the cost of processing applications;

(2) Fees for monitoring, inspection and surveillance procedures including the cost of reviewing, monitoring reports submitted by the industrial user;

(3) Fees for reviewing and responding to accidental discharge procedures and construction;

(4) Fees for filing appeals;

(5) Other fees as the city may deem necessary to carry out the requirements contained herein. These fees relate solely to the matters covered by this sub-chapter and are separate from all other fees, fines and penalties chargeable by the city.

(Ord. 1941, passed 11-24-97) Penalty, see §51.999

§ 52.01 Definitions

For the purpose of this sub-chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Classification of Accounts The accounts of all consumers shall be classified by the Water Department as follows:

(1) Commercial. Water service to apartment and boarding houses, hotels, offices, office buildings, retail and wholesale commercial establishments, laundries, private schools and colleges, private hospitals and other like premises where water is not used primarily for industrial purposes.

(2) Industrial. Water service to manufacturing and industrial consumers, including aircraft and metal product manufacturers, public utilities, stockyards, packing houses, grain elevators, bottling works, food processors and similar enterprises. On premises where manufacturing is the principal business, all services shall be classified as Industrial.

(3) Miscellaneous. Water service for building and construction purposes to parties other than the city; for water sold at the pumping station; water service to circuses and other uses where the connection is of a temporary nature.

(4) Municipal. Water service for municipal and other public purposes other than public fire protection including usage for sewer and street flushing, street and sidewalk construction when done by the city; parks; schools; churches and Municipal buildings; county, state and federal agencies and departments.

(5) Residential. Water service to private residences of one family or more than one family when each is supplied through a separate meter.

• Consumer. Any person, firm or corporation furnished water by the Water Department.
• Consumer Service Line. A supply pipe installed, maintained and owned by the consumer extending from the outlet side of the meter to the premises served.
• Cross Connection. A connection direct or indirect, with water mains or street service lines leading to any other source of water or source of possible contamination.
• Master Meter. One meter measuring the water furnished to serve two or more premises.
• Meter. A mechanical device which measures and records the quantity of water furnished to the consumers.
• Meter Setting. A box, vault or tile, with coverings, containing a meter and connecting appurtenances.
• Premises.

(1) A building or group of buildings occupied by a family unit or business entity and used for residential, business or commercial purposes;

(2) A building or group of buildings used and operated as a hospital, educational or religious institutions;

(3) A separate dwelling unit within a structure designated for multi-family occupancy;

(4) A building containing areas and spaces separately rented to tenants;

(5) A single tract of land upon which areas are rented for occupancy by mobile homes used for residential purposes;

(6) A tract of land used for park, a playground or recreational purposes; or

(7) Any other structure or structures, public or private, the use or occupancy of which requires water and water service.

• Special Service. Any water service that involves the installation of facilities and equipment other than designated as standard service which involves a use of water other than for normal residential, commercial or industrial purposes.
• Standard Service. Facilities normally installed for residential, commercial or industrial usage not requiring special or unusual methods of installation, construction and engineering.
• Street Service Line. A pipe with appurtenances connected to a water main for the purpose of controlling the flow of water and extending from the water main to the inlet side of the meter.
• Water Main. A water pipe owned by the city under the control of its Water Department to which street service lines may be connected.
• Water Department. An administrative unit consisting of city personnel headed by a Superintendent of Waterworks designated by the City Manager to conduct all operations in connection with the supplying and furnishing of water and water service by the city to consumers in the city and environs pursuant to the provisions of this sub-chapter.

(Ord. 429, passed 6-14-61)

§ 52.02 Consent of Users; Service to be Furnished Only to Premises in Compliance with Rules

(A) Every person, firm or corporation using water from a city's waterworks system shall thereby be deemed to have consented and agreed to the terms and provisions of this sub-chapter and to have acknowledged the right of the Water Department to discontinue water services without notice in the event of failure of the consumer to make timely payment of all rates and charges herein below fixed and established or to otherwise comply with the terms and provisions hereof.

(B) Water service will be furnished only to premises complying with the applicable plumbing and sanitary codes and regulations of the city and state.

(Ord. 429, passed 6-14-61)

§ 52.03 Applications for Water Service, account set-up fee

(A)  Requests for water service shall be made at the office of the Finance Director/Recorder by or on behalf of the person, firm or corporation requesting water and/or water service.  Persons requesting water and/or water service will be bound by the terms of this subchapter and all rules and regulations as may be adopted by the City Council in implementation of this subchapter.  A non‑refundable account set‑up fee is due at the time of requesting water service. The account set‑up fee covers administrative costs including, but not limited to: setting up an account, reading the meter, verifying that water is on and other related matters.  The amount and duration of the account set‑up fee will be and is set by resolution of the City Council from time‑to‑time.

(B) If the application is for water service to premises not previously served, the following requirements shall be met:

(1) Where water mains exist adjacent to the property to be served and upon submission to the Water Department of information as to the location and nature of the premises to be served with water, the applicant will be furnished with information as to the proposed location of the meter setting.  If the customer's service line has been installed prior to the application for service, it shall be the applicant's responsibility to clearly mark the location thereof.  The Water Department shall have sole jurisdiction, however, to determine the location of the street service line, and the feasibility of a connection to the customer's service line.  It shall be the applicant's responsibility at his own expense to run his service line from the premises being served to the meter setting at or near the curb line.  Service pipes and connections from the water main to and including the meter setting shall be placed within the line of the public right‑of‑way and shall be installed at the consumer's expense by the Water Department.  The City Manager or his designee shall determine a reasonable installation charge based on the actual average cost.  All installation charges are payable in advance.

(2) Where water mains adjacent to the consumer's property have been installed under a construction reimbursement agreement as provided herein, the customer shall pay the construction charge established per front foot of property abutting the line in addition to all other charges prescribed.

(3) Where water mains adjacent to the consumer's property have been installed by the Water Department without assessment of the costs to the benefiting property, the consumer shall pay a construction charge to the city for exclusive credit to the utility fund as prescribed by resolution of the City Council.  The charges shall be in addition to all other charges.

(4) The applicant shall be responsible for the maintenance, repair and any leakage in the piping from the meter to place of use.  Installation of the consumer's service lines shall be done by the consumer personally or by a licensed plumber in accordance with city design and specifications and in accordance with the building and plumbing codes of the city.  Installation shall avoid cross connections.  Upon notification of the Water Department that a cross connection exists, service shall be refused until the same is eliminated to the satisfaction of the Water Department and/or the City Plumbing Inspector.

(5) The Water Department shall determine the size of the meter to be installed, based upon information furnished by the applicant.  Any change in meter size requested by a consumer after the initial meter installation shall be granted insofar as is reasonable, but the entire cost shall be borne by the consumer.  In cases of dispute as to meter size, the Water Department shall have sole jurisdiction.

(6) The size of the street service line shall be determined by the Water Department based upon information furnished by the applicant.  However, in no case shall the street service line be the same size or any greater size than the water main to which it is connected.  Any change in size or location of the street service line after the original installation shall be done at the consumer's expense.  Installation charges cover all cost of excavation, installation, connecting and resurfacing from the water main to the point where the meter is installed, including the meter box and the meter.  Where service lines must be run a distance greater than 40 feet, the customer shall pay all costs incident to the excess footage.

(a)   Installation and maintenance.  The installation and maintenance of service connections shall be performed only by the duly authorized employees of the Water Department.

(b)   Meters.  Meters shall be installed at the customer's end of the service connection and shall be owned by the Water Department and installed at the applicant's expense.

(c)   Care of meter.  It shall be the duty of the property owner or his agent to keep the meter box free of debris and to take all reasonable precautions to protect the meter from freezing.  If the property owner or his agent shall neglect or refuse to protect the meter from freezing, he shall be charged with the cost of repairing any damage which may result from neglect or refusal.
(Ord. 429, passed 6-14-61; Am. Ord. 1653, passed 3‑14-88; Am. Ord. 1736, passed 6-24-91; Am. Ord. 1913, passed 11-25-96; Am. Ord. 2160, passed 8‑10‑09)

§ 52.04 Water to be Metered; Installation of Meters and Street Service Lines

(A) All water furnished to consumers shall be metered, except in cases where the Superintendent of Waterworks shall determine that the nature of a particular usage necessitates a measurement by other means.

(B) The installation of meters and street service lines shall be in accordance with the following specifications and requirements:

(1) One and only one street service line, meter setting, and meter shall be installed for each premise.  Additional meters, meter settings, street service lines and other appurtenances may be installed as approved by the Superintendent of Waterworks, and all additional costs shall be borne by the applicant.

(2) Street service lines shall be at right angles to the water main and street service lines shall not be installed unless sufficient footage of water main exists adjacent to the premises requesting service to allow meter setting installation free of obstructions such as fences, trees, driveways, culverts, and mail boxes.

(3) The Water Department shall permit no master metering of water.  Each and every unit, business, or place of business shall be on a separate service and meter excluding service to transient occupancy such as hotel, motel, recreational vehicle park and Ahotel@ as defined by the transient room tax ordinance.  Where water is now supplied through one service to one or more separately owned premises through pipes previously installed, the Superintendent of Waterworks may, at his discretion, refuse to furnish water until separate services are provided.  However, if the owner of premises whereon more than one unit or business is receiving water through a single meter and approval for same is granted by the Superintendent of Waterworks, service may be continued under the following conditions:

(a) The minimum charge for the service shall be determined by multiplying the established minimum charge for the meter size installed in the service by the number of dwellings, units or businesses served through the single meter;

(b) For the purpose of calculating the charge for water used through the meter the established rate structure shall be revised as follows:  the number of gallons in each bracket of the established rate structure shall be increased by multiplying that number of gallons by the number of dwellings, units or businesses served through the single meter. (Ord. 429, passed 6-14-61; Am. Ord. 1972, passed 10-12-98)
Cross-reference: Transient room tax, see Chapter 112

§ 52.05 Water Meters

(A) It shall be unlawful for any person, firm or corporation to open, interfere with, injure, deface or in any way impair the working of any water meter. It shall also be unlawful for any person, other than a duly authorized representative of the Water Department, to remove any meter from its setting.

(B) No meter shall be installed or water used through a new consumer's service line until approval therefor has been obtained from the office of the City Plumbing Inspector.

(C) All meters now in service and hereinafter installed shall remain the sole property of the Water Department. Meters shall be installed only in public ways and it shall be unlawful for any person to obstruct access thereto by the Water Department.

(D) The Water Department shall have the right at any time to test meters but if the testing is not in pursuance of request of consumer, it shall be without charge.

(E) Whenever the Water Department finds a meter to be inoperative, an adjustment of charges for the preceding billing period shall be made by averaging the water used for the corresponding billing period of the three prior years, or, if the records are not extant, from the best other method practicable.

(F) Whenever the Water Department shall find a meter not measuring accurately according to the standards of the American Water Works Association, an adjustment of charges for the preceding billing period shall be made.

(Ord. 429, passed 6-14-61; Am. Ord. 1560, passed 2-25-85) Penalty, see § 52.99

§ 52.06 Applications for Special Service; Requirements

Applications for special service shall be made in writing in the same manner as required for standard service and shall, in addition, conform to the following requirements:

(A) Applications for private fire service connections shall have attached a sketch showing pipes, valves, hydrants, tanks, openings and appurtenances contemplated. The sketch shall be submitted on a scale of one inch equals 50 feet. The applicant shall be required to pay the entire cost of the installation, including the connection to the main and necessary appurtenances. All new private fire service connections with the exception of the so-called “dry type” may be metered. All materials shall be approved by the Water Department, and all fire service lines must be provided with a suitable gate valve outside the building at or near the property line. The valve installed at the water main shall be under the exclusive control of the Water Department. All fire service lines shall be used exclusively for extinguishement of fires and no connection from any other use may be attached thereto. The size of fire service connections shall in no case be smaller than four inches and in no case attached or tapped to a water main of less than six inches. In the event a main extension is required for private fire service connection, the costs of same shall be borne by the applicant.

(B) All miscellaneous special service shall be installed and maintained at the sole cost of the applicant and an advance of the estimated costs of installation shall be required as a condition precedent to the granting of the application. The billing for the service shall be determined by the Water Superintendent.

(C) Any customer requiring pressures higher than normally maintained in the system, or abnormal quantities of water for fire protection or other special purposes, shall provide additional pumping and storage facilities within his or her property and shall also pay for the additional expense to the city in providing additional transmission mains or other facilities required to provide the special service, either through rates or through contributions to the construction of additional facilities.

(D) Service of a special nature will be rendered only at the option of the city and under conditions which will not interfere with normal service to other customers.

(Ord. 429, passed 6-14-61) Penalty, see § 52.99

§ 52.07 Consumer Deposits

(A) A separate account of each consumer deposit shall be made showing the date on which the deposit is received, the name of the depositor, and the amount thereof. The city shall pay to the consumer making the deposit (and to consumers who have made deposits prior to the enactment of this sub-chapter) interest at a rate as established by resolution of the City Council, the interest to be credited on the first day of January succeeding the deposit and on the first day of January thereafter, and shall be payable at the Finance Director/Recorder's office in the City Hall, in cash, on demand of the depositor. Any interest credited shall be subject to call and payment at any time, but shall not draw interest.

(B) Upon discontinuance of service the deposit shall be returned to the consumer together with unpaid interest on the same provided all bills for water, repairs, or other services rendered have been paid by the consumer and the consumer surrenders the original deposit receipt.

(C) The advance deposit, together with the interest due thereon, may be applied to the payment of any accrued bills, or bills due on discontinuance of service.

(D) Deposits received from consumers as security for the payment of service which remain uncollected for a period of two years after the discontinuance of service to the consumer may be transferred to the waterworks fund. The deposit money may be invested from time to time by the city.

(Ord. 429, passed 6-14-61; Am. Ord. 1560, passed 2-25-85)

§ 52.08 Water Service Charges

(A) Miscellaneous charges.

(1) When water service shall have been terminated for any cause other than temporary discontinuance in the manner provided below, the consumer shall be charged a sum of money as established by resolution of the City Council to cover the cost of shutting off water service, and in the event the service is reinstated, shall be charged an additional amount as established by resolution of the City Council to cover the cost of reinstating the service.

(2) If a consumer requests inspection and testing of a meter, a sum of money as established by resolution of the City Council as a testing fee shall be paid. If upon examination and test conducted in the presence of the consumer or his or her representative the meter is found to be inaccurate according to the standards of the American Water Works Association, a meter will be substituted and the water bill for the preceding billing period shall be adjusted.

(3) Any consumer desiring to discontinue temporarily the use of water must make application therefor at the office of the Finance Director/Recorder not less than two days prior to the date on which the service is desired to be discontinued, and after the effective date of the discontinuance all charges for water and water service shall cease for the period during which the service shall be shut off, provided that the period of discontinuance shall not be less than 30 days.

(B) All water bills rendered in accordance with the regular schedule of meter rates are due and payable when rendered and must be paid at the City Hall on or before ten days thereafter.

(C) This governing body retains continuing jurisdiction and authority to change from time to time the schedules of rates and charges and the regulations herein provided as changes shall be determined expedient and necessary.

(D) Charges for water used shall be as established by the City Council by resolution.

(Ord. 429, passed 6-14-61; Am. Ord. 1560, passed 2-25-85)

§ 52.09 Billing; Delinquency

(A) All bills for water and water services shall be rendered monthly at the same time that bills for sewage services rendered by the sanitary sewage treatment plant and system of the city are rendered; provided, however, that bills for miscellaneous accounts shall be rendered at times as shall be determined by the Superintendent of Waterworks in each separate instance. The officers or employees of the city charged with the duty of preparing bills for water and water service shall calculate the amount thereof and shall add the same to the amount of any bills presented to the consumer for sewage service, and the bills shall be collected as a combined bill for water and sewage service furnished the consumer.

(B) All water bills shall be paid at the City Hall in the city or at other places as may be designated by the City Manager. All bills unpaid ten days after date of issuance shall be considered delinquent and an additional charge of 5% shall be made on the gross amount of the billing and notification by mail shall be given to the consumer at the address of the premises being served that the bill, with the 5% delinquency charge, shall be paid within ten days or water service to the property will be disconnected and a disconnection charge in an amount of money established by resolution of the City Council will be assessed. Notification of termination of water service may be made by mail or hand delivery or posting at the consumer's place of use. If the bill not be paid within the period of ten days, water service to the property shall be disconnected and the service to the delinquent consumer shall remain disconnected until the consumer shall pay the full amount of all water and sewer bills, including the delinquency charge and also the disconnection charge and a reconnection charge in amounts of money as established by resolution of the City Council. It shall be the duty of the representative of the city at the time in charge of the collection of water bills to notify the Superintendent of Waterworks of all delinquencies in the payment of monthly bills and the Superintendent shall proceed immediately to disconnect the water service to any consumer who is in arrears for the period herein before specified.

(C) Water service may also be shut off to any consumer by the Water Department without notice if the consumer shall tamper or in any way interfere with any meter, connections, service pipes, valves or other appurtenances belonging to the city or for any violation by a consumer of the terms of this or any other applicable ordinance of the city or the statutes of the state relating to the waterworks system.

(D) In instances where the public health, safety or welfare so requires, the Water Department shall have the right to shut off the flow of water in its mains without notice but will endeavor insofar as possible to notify consumers affected of the intention to so interrupt the service. Interruption of service under the conditions shall not give rise to any claim on the part of any consumer against the Water Department of the city.

(E) The Water Department does not guarantee to maintain any specific water pressure for its service and no complaint concerning the pressure shall give any right of claim against the city or the Water Department.

(Ord. 429, passed 6-14-61; Am. Ord. 1560, passed 2-25-85; Am. Ord. 1926, passed 4-14-97)

§ 52.10 Use of Fire Hydrants; Unauthorized Use of Waterworks System

(A) Water necessary for municipal uses, such as the flushing of streets and sewers, street sweepers and dust control may be obtained from fire hydrants by authorized employees of the city. The use of water shall not be construed to include or authorize its use in connection with paving, sewer or other construction of public improvements performed by private contractors.

(B) It shall be unlawful for any person, firm or corporation to use water from any part of the waterworks system of the city without proper permit or other authority therefor from the Water Department. It shall further be unlawful for any person, firm or corporation, other than an authorized representative of the city, to shut off or turn on water from any part of the city's waterworks system, including fire hydrants; provided, however, that nothing in this section contained shall be construed as prohibiting plumbers duly licensed under the ordinances of the city from turning on or shutting off water service if such is necessary in the course of the work in which they are engaged.

(Ord. 429, passed 6-14-61) Penalty, see § 52.99

§ 52.11 Service Refused to Premises with Conditions Leading to Contamination

The Water Department may refuse to deliver water to any premises whereon any condition exists which might lead to the contamination of the public water supply and may continue to refuse the delivery of water to any premises until the condition is remedied.

(Ord. 429, passed 6-14-61)

§ 52.12 Shut-Off Water not to be Turned on by Unauthorized Persons

After the water has been shut off by the city, if it should be turned on by any person but the Water Superintendent or a person authorized by him, the meter will be removed, and it will not be replaced until the cost of removing and replacing the meter in addition to all charges and arrearages due have been paid.

(Ord. 429, passed 6-14-61) Penalty, see § 52.99

§ 52.13 Unlawful Acts

It shall be unlawful for any person, firm, or corporation not authorized by the city to do, commit or assist in committing any of the following things or acts in the city:

(A) To open or close any fire hydrant or stopcock connected with the waterworks system of the city, or lift or remove the cover of any gate, valve or shutoff thereof;

(B) To interfere with, destroy, deface, impair, injure or wantonly force open any gate, or door, or in any way whatsoever destroy, injure, or deface any part of any reservoir, standpipe, tank, building or buildings, or appurtenances, fences, trees, shrubs, or fixtures or property appertaining to the waterworks system;

(C) To go upon or ascend the stairway or steps on any elevated water storage tank, reservoir, or standpipe of the waterworks system;

(D) To place any telegraph, telephone, electric light pole, or any obstruction whatsoever within three feet of any fire hydrant;

(E) To resort to any fraudulent device or arrangement for the purpose of procuring water for himself or others from private connections on premises contrary to the city regulations or ordinances;

(F) To interfere with or injure any reservoir, tank, fountain, hydrant, pipe, cock, valve, or other apparatus pertaining to the waterworks system, or to turn on or off the water in any street hydrant or other public water fixture or to hitch or tie any animal thereto;

(G) To make or permit to be made any connection with the main or service pipes of the waterworks system, or to turn on or use the water of the system without first obtaining a permit therefor;

(H) To cover over or conceal from view any water valve box, service or meter box;

(I) To remove any water meter that has been placed by the city, or to in any manner change, interfere with or with any water meter;

(J) To turn on the water supply to any building or to any supply pipe where the supply has been turned off for the nonpayment of the monthly water charge or for the violation of any rule, regulation, or ordinance of the city.

(Ord. 429, passed 6-14-61) Penalty, see § 52.99

§ 52.14 No Resale or Distribution of Water

No water shall be resold or distributed by the recipient thereof from the city supply to any person except upon application to and approval by the city. City water may be resold or distributed only at the rates, charges and fees established by the city and subject to the other conditions as deemed reasonable by the city.

(Ord. 429, passed 6-14-61; Am. Ord. 1967, passed 9-14-98) Penalty, see § 52.99

§ 52.15 Construction of Water Mains

(A) The minimum size of water mains required to serve any part of the city shall be eight inches in diameter. Any developer or subdivider shall install the necessary water system and all appurtenant work at its sole expense. Should a development require water main sizing in excess of eight inches, the City Manager, or his/her designee, will make the final decision on the size of mains required to be installed by the developer or subdivider. If the City Manager, or his/her designee, requires the developer or subdivider to install water lines in excess of eight inches in order to provide for future water line capacity, the City Manager, or his/her designee, may negotiate a reimbursement agreement with the developer or subdivider for the balance between the developer's or subdivider's actual cost for materials of eight inch water mains and the size required by the city, subject to budget fund availability. Only the cost for increases in materials is reimbursable.

(B) When any individual constructs a water main through undeveloped areas, or adjacent to property not currently served by the municipal utility, the individual initiating construction shall be required to pay for all construction in the manner provided in this sub-chapter. If no assessment for improvement is levied against adjacent property, the individual may request a reimbursement agreement with the city. The agreements shall provide for the city to collect a construction charge from any individual who connects a service connection to the main; charges to be established based on a front foot or area basis shall not exceed the actual installation cost of the system. All agreements shall preclude any payment for individuals connecting a water main as described herein to the furthest extent of the water mains included in the agreement.

(C) An individual's right to reimbursement through agreements shall not exceed ten years from the date of the completion of construction of the covered main. All payments to the original installer shall cease at the expiration of the agreement. A construction charge as provided herein may be collected by the city subsequent to the expiration of the agreement. Any fees so charges shall be credited to the utility fund exclusively for the improvement of production or distribution facilities of the city. This section shall not affect those agreements in place at the time of adoption of Ordinance 429.

(D) The city may establish a charge by front foot or area for all mains within the municipal system installed by municipal contract or by municipal employees. Charges shall be established by resolution of the City Council and shall be payable when benefitted properties connect to the water system.

(1) The construction charge shall apply to property which is not served by the water system at the time of construction and is not assessed for the costs of improvements. The construction charge established may vary by project and area dependent upon the costs of construction of the improvements.

(2) All construction charges shall be paid in addition to all other fees prescribed in this ordinance. Failure to pay the charges, or provide for a payment agreement, shall be cause for denial of water service.

(Ord. 429, passed 6-14-61; Am. Ord. 1653, passed 3-14-88; Am. Ord. 2028, passed 12-18-00)

§ 52.25 Purpose and Intent

(A) Whenever the City Council by resolution declares that a water shortage emergency condition prevails in the area served by the city due to drought conditions and that the ordinary demands and requirements of water consumers cannot be satisfied without depleting the water supply of the city to the extent that there would be insufficient water for human consumption, sanitation and fire protection, this sub-chapter shall be in effect until the City Council by resolution declares the emergency conditions over. This sub-chapter establishes a first and second level of water curtailment to be initiated as water shortage conditions prudently dictate.

(B) In order to conserve the city's water supply for the greatest public benefit with particular regard for domestic use, sanitation and fire protection, the City Council hereby adopts the following regulations and restrictions on the delivery and consumption of water to take effect immediately upon the passing of a resolution declaring an emergency.

(C) The specific uses regulated or prohibited in this sub-chapter are nonessential, and if allowed would constitute wasted water and shall be regulated.

(Ord. 1822, passed 6-28-93)

§ 52.26 Definitions

For the purpose of this sub-chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Customer. Any person using water supplied by the city.
• Person. Any person, firm, entity, partnership, association, corporation, company or organization of any kind.
• Water.Water from the city, unless expressly provided otherwise or required by the contract.

(Ord. 1822, passed 6-28-93)

§ 52.27 Application of Provisions

The provisions of this sub-chapter shall apply to all customers using water provided by the city.

(Ord. 1822, passed 6-28-93)

§ 52.28 First Level of Curtailment

(A) Nonessential residential uses defined; prohibiting nonessential water use. Uses of water for residential purposes in excess of the following daily usage allotment are determined to be nonessential and are prohibited:

(1) The use of water to wash any motorbike, motor vehicle, boat, trailer, airplane or other vehicle, except at a commercial fixed washing facility existing prior to the enactment of this sub-chapter or one that recycles and/or reuses the water.

(2) The use of water to wash down any sidewalks, walkways, driveways, parking lots, tennis courts or other hard-surfaced area, or building or structure.

(3) The use of water to fill, refill or add to any indoor or outdoor swimming pools or jacuzzi pools except for neighborhood fire control (when deemed needed by the City Manager), where the pools have recycling water systems and evaporative covers, or where the use of the pool is required by a medical doctor's prescription.

(4) The use of water in a fountain or pond for aesthetic or scenic purposes except where necessary to support pre-existing fish life, e.g. goldfish, etc.

(B) Nonessential commercial or industrial use. The following commercial or industrial water uses are hereby determined to be nonessential and are prohibited:

(1) The use of water to serve a customer in a restaurant unless requested by the customer;

(2) The use of water for scenic and recreational ponds and lakes, except for the minimum amount required to support fish life;

(3) The use of water from hydrants for construction purposes, (unmetered), fire drills or any purpose other than fire fighting;

(4) A minimum of 15% reduction in the use of water by a cemetery (owned by a separate taxing district), golf course or similar outdoor sport activities to irrigate any portion of its grounds except those areas designated as tees and greens or similar limited areas;

(5) The use of water for dust control.

(C) Gutter flooding. No person or customer shall cause or permit water to run to waste in any gutter or drain.

(D) Regulation of applications for new water service. No applications for new, additional, further expanded or increased- in-size water service connections, meters, service lines, pipeline extensions, mains or other water service facilities of any kind shall be allowed, approved or installed during the period of this emergency, except for replacement of leaking water lines and interties (looping) of system.

(E) Discontinuance of service.

(1) The City Manger may, after one warning by certified mail or in person by staff, disconnect the water service of any person or customer whenever he determines that the person or customer has failed to comply with any provisions of this sub-chapter. Service so disconnected shall be restored only upon payment of the turn-on charge, in an amount of money as established by resolution of the City Council, or as otherwise specified by law, and any other costs incurred by the city in the discontinuance of service and the giving of suitable assurances to the city that the action causing the discontinuance will not be repeated.

(2) In addition to the foregoing, the city may, prior to restoration of service, install a flow-restrictive device on the customer's service.

(F) Variances.

(1) The City Manager may in his sole discretion, in writing, grant temporary variances for prospective uses of water otherwise prohibited after determining that due to unusual circumstances to fail to grant the variance would cause an emergency condition affecting health, welfare, sanitation or fire protection of the applicant or the public.

(2) No variance shall be retroactive or otherwise justify any violation of this sub-chapter occurring prior to issuance of the temporary variance.

(Ord. 1822, passed 6-28-93) Penalty, see § 52.99

§ 52.29 Second Level of Curtailment

In addition to the restrictions in §52.28, the following curtailments are to be enforced:

A) One or two residential units - daily usage allotment.

(B) Multi-residential units.

(1) Daily usage allotment for each unit shall be 100 gallons per day.

(2) Each customer in whose name water is supplied to a residence, or residences or apartment or other dwelling units, shall upon request of the City Manager advise the city under penalty of perjury the number of permanent residents using water supplied to the residence, residences, apartments or other dwelling units. If the customer fails to advise the City Manager, each residence, apartment or dwelling unit shall be permitted the water allocation herein provided for one permanent resident.

(C) Nonessential commercial uses defined. Uses of water for commercial purposes in excess of the following amounts are determined to be nonessential and are prohibited:

(1) The use of water for schools (irrigation), parks, cemeteries, recreation areas, golf courses, community food gardens, residential gardens, and similar recreation or memorial type facilities in excess of 75% of the amount consumed in the same time period of the previous year.

(2) The use of water for schools (domestic), for nursery facilities, restaurants, shopping centers, gasoline service stations, health and swim clubs, and all other commercial uses in excess of 90% of the amount consumed in the same time period as the previous year.

(D) Nonessential industrial uses defined. Uses of water for industrial purposes in excess of the following amounts are determined to be nonessential:

(1) The use of water for manufacturing, food processing, cooling or cleaning of equipment in excess of 85% of the amount consumed in the same time period as the previous year. Customers may, with proper documentation of need, obtain a variance from the City Manager, granting the level of relief needed.

(2) The use of water for agricultural irrigation in excess of 75% of the amount consumed in the same time period as the previous year.

(E) Other nonessential uses. All other uses of water not expressly set forth in this subchapter in excess of 75% of the amount consumed in the same time period as the previous year are determined to be nonessential.

(F) Determination of amount of prior water consumption. The amount of water consumed in the same time period as the previous year shall be determined by the city from its records. Where no records exist, the amount shall be the average use of similar existing services as determined by the city from its records.

(G) Evaluation of applications for new water service. No applications for new, additional, further expanded or increased-in-size water service connections, meters, service lines, pipeline extensions, mains or other water service facilities of any kind shall be allowed, approved or installed during the time this emergency is declared by City Council resolution to be in effect, except for replacement of leaking water lines, making interties (looping), areas where the pressure provided by the city is very low and relief can only be obtained by providing a larger service line(s).

(Ord. 1822, passed 6-28-93)

§ 52.30 Enforcement

Each city law officer of the city's police force shall diligently enforce the provisions of this sub-chapter. All employees of the city, Public Works Department and Fire Department have the duty and are hereby authorized and directed to notify the City Manager of violations of the provisions of this sub-chapter.

(Ord. 1822, passed 6-28-93)

§ 52.31 Variances

(A) The City Manager in his sole discretion may, in writing, adjust any consumer's usage allotment if it is determined that due to unusual circumstances to fail to do so would cause an emergency condition affecting health, sanitation or fire protection of the applicant or the public.

(B) No variance or adjustment shall be retroactive or otherwise justify any violation of this sub-chapter occurring prior to issuance of temporary variance or adjustment.

(Ord. 1822, passed 6-28-93)

§ 52.32 Provisions Controlling

The provisions of this sub-chapter shall prevail and control in the event of any inconsistency between this sub-chapter and any other rules or regulations of the city.

(Ord. 1822, passed 6-28-93)

§ 52.99 Penalty

(A) Any person violating any of the provisions of §§52.01 through 52.15 commits a Class A violation.

(Ord. 429, passed 6-14-61; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

(B)

(1) Any person violating any provision of §§52.25 through 52.32 commits a Class A violation.

(2) After notice, each day is a separate violation. In addition, the City Manager may, after written or personal warning, disconnect the water service of any customer that repeatedly violates §§52.25 through 52.32. Water service disconnected shall be restored only upon payment of any turn-on charge and any other costs incurred by the assurances that the action causing the discontinuance will not be repeated.

(3) In addition to the foregoing, the city may, prior to restoration of service, install a flow-restrictive device on the customer's service.

(Ord. 1822, passed 6-28-93; Am. Ord. 1976, passed 10-26-98)

§73.01 Bicycle to be in Safe Condition: Compliance with Laws

It shall be unlawful for any person to ride or operate a bicycle in the city unless the bicycle is equipped as otherwise provided in this chapter and unless the bicycle is in safe mechanical condition. Every person riding or operating a bicycle on any street, alley, or public place in the city shall be subject to all provisions of the laws of the state and the ordinances of the city applicable to the drivers of vehicles, except the provisions thereof that by their very nature can have no application.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.02 Compliance with Traffic Signals

Every person operating a bicycle in the city shall stop for all stop signs and traffic signals.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.03 Unlawful to Ride on Sidewalk in Commercial Zone

It shall be unlawful to ride or operate a bicycle on any sidewalk in the city inside of the commercial zone. It shall be lawful to ride or operate a bicycle on any sidewalk in the city outside of the commercial zone.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.04 Riding Abreast

Every person riding or operating a bicycle on any street, alley, or public place in the city shall keep the bicycle on the extreme right of the traffic lane, and it shall be unlawful for two or more operators of bicycles to travel abreast on any street, alley, or public place in the city or to operate the bicycle on traffic lanes otherwise than in single file.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.05 Clinging to Moving Vehicles

No person riding or operating a bicycle in the city shall cling or attach himself or his bicycle to any other moving vehicle or person in any other vehicle.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.06 Single Riders

No person shall operate or ride on any bicycle upon the streets, alleys, or public highways of the city two or more persons upon the same bicycle; provided, however, that this restriction shall not apply to tandem bicycles or other bicycles equipped for two or more riders.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.07 Carrying Articles

No person riding or operating a bicycle in the city shall carry any package, bundle, or article which prohibits the rider from having full control of the bicycle at all times.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.08 Racing; Trick Riding

(A) Racing. No person riding or operating a bicycle upon a public highway or street shall participate in any race, speed,or endurance contest unless such race or endurance contest has the written permission of and is under supervision of the Chief of Police.

(B) Trick riding. No person riding or operating a bicycle shall perform or attempt to perform any acrobatic fancy, or stunt riding upon any public highway or street in the city

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.09 Parking Regulations

(A) No person shall park any bicycle against windows or parking meters or on the main traveled portion of the sidewalk nor in such manner as to constitute a hazard to pedestrians, traffic, or property.

(B)If there are no bicycle racks or other facilities intended to be used for parking of bicycles in the vicinity, bicycles may be parked on the sidewalk in an upright position parallel to and within 24 inches of the curb.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.10 Speed

No person shall ride or operate a bicycle faster than is reasonable and proper, and every bicycle shall be operated with reasonable regard to the safety of the operator and other persons upon the streets, sidewalks, and public highways of the city.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.11 Riding on Parks, Playgrounds and Schools

No person shall ride or operate a bicycle upon any playground, park, or school ground where children are playing without permission of the person having supervision thereof.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.12 Turns

(A) Turning. Every person riding or operating a bicycle upon the streets and highways of the city shall turn only at intersections except as otherwise provided herein.

(B) Right turn. Every person riding or operating a bicycle intending to turn to the right at an intersection or into an alley or driveway, shall approach the turning point in the line of traffic nearest the right-hand curb of the street.

(C) Left turn. Every person riding or operating a bicycle intending to turn left at an intersection or to enter an alley or driveway shall approach the joint of turning in the line of traffic nearest to the center of the roadway. The operator of a bicycle in turning left at an intersection shall pass to the right of the center of the intersection before turning unless otherwise directed by markers, buttons, or signs.

(D) U-turns.

(1) No bicycle shall be turned in any business district so as to proceed in the opposite direction, except at intersections.

(2) No bicycle operated in a residence district shall be turned so as to proceed in the opposite direction when any other vehicle is approaching from either direction within 200 feet, except at an intersection.

(E) Turn right against red light. The operator of a bicycle which is stopped as close as practicable to the entrance of an intersection in obedience to a red light or stop signal may make a right turn but shall yield the right-of-way to pedestrians and other traffic proceeding as directed by the signal at the intersection, unless a sign has been posted at the intersection prohibiting such turn.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.13 Crossing

The operator of a bicycle on leaving an alley or driveway, when his view of either the sidewalk or street area is obstructed shall stop such bicycle immediately prior to riding upon such sidewalk or street area.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.14 Signals

No person shall turn a bicycle or stop a bicycle which he is riding or operating unless such movement can be made with safety, and then only after giving an appropriate signal during the last 50 feet traveled by the bicycle before turning or stopping.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.15 Accidents

(A) The operator of any bicycle involved in an accident shall take reasonable steps to ascertain whether or not anyone was injured, and he shall give his name, address, and the license number of his bicycle to the person with whom he was in collision, and he shall obtain the same information from the other person.

(B) It shall be the duty of the bicycle operator to make a written report of any accident resulting in death or injury to the Police Department with 24 hours of such accident.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.25 Certificate Required

It shall be unlawful for any person to operate or use a bicycle propelled wholly or in part by muscular power upon any of the streets, highways, or alleys of the city without first obtaining from the Police Department or its authorized agent a certificate therefor.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.256 Issuance of Certificate by Police; Records

(A) The Police Department is hereby authorized and directed to issue bicycle certificates of title which shall be good until revoked. Such certificates, when issued, shall entitle the holder thereof to operate such bicycle for which the certificate was issued upon the streets, alleys, or public highways of the city, exclusive of the sidewalks, except as hereinafter provided.The Police Department may issue a bicycle certificate of title for a bicycle when so requested by the owner. The Police Department shall charge a fee for issuing a certificate as established by resolution of the City Council.

(B) The Chief of Police may issue to each bicycle dealer certificate of title forms which shall be executed in duplicate at time of sale of each bicycle, the original thereof which shall be delivered to the purchaser, the duplicate forwarded within 24 hours to the Chief of Police. The certificate of title form shall include such information as the make and model of the bicycle sold, the color thereof, the frame number, date of sale, name and address of purchaser, and such other information as the Chief of Police may direct. There will be no fee for the issuance of such certificate. (C) The purchaser shall promptly take the certificate to the Police Department which shall issue a number therefor, and will cause the identical number to be stamped upon the underside of the sprocket of the bicycle. The Police Department will maintain a record of the bicycle by name and address of certificate holder, together with complete description of the bicycle and any other information which might serve to promptly identify the bicycle.

(Ord. 558, passed 12-22-65)

§73.267 Safe Mechanical Condition

Every person desiring a bicycle certificate must satisfy the Chief of Police or his authorized agent that the bicycle for which the applicant desires to secure license plates meets the following requirements as to safe mechanical condition.

(A) Brakes. Every bicycle shall be equipped with a brake adequate to skid the front or rear tire of the bicycle upon application of the brake.

(B) Warning devices. Every bicycle may be equipped with a horn or bell capable of emitting sound audible for a distance of not less than 100 feet under normal conditions.

(C) Sirens and whistles. It shall be unlawful to equip a bicycle with a siren or whistle.

(D) Handlebar grips. Every bicycle that is equipped with handlebar grips must have the grips securely glued or cemented to the handlebars.

(E) Carriers. Every bicycle equipped with a carrier must have the carrier securely attached to the bicycle.

(F) Stands. Every bicycle should be equipped with a stand of either kick or “U” type.

(G) Lights. Every bicycle operated at any time from a half-hour after sunset to a half hour before sunrise and at any other time when there is not sufficient light to render clearly discernible any person or vehicle on the streets or sidewalks shall be equipped with a lamp affixed to the front of the bicycle, which lamp shall exhibit a white light visible for a distance of 500 feet from the front of the bicycle, and the bicycle shall be equipped with a red lamp or reflector affixed to the rear fender, which shall exhibit a red light visible for a distance of 300 feet from the rear of the bicycle.

(Ord. 558, passed 12-22-65) Penalty, see 73.99

§73.99 Penalty

Any person who shall violate any of the provisions of this chapter shall, upon conviction thereof, be punished as provided in 10.99 commits a Class A violation.

(Ord. 558, passed 12-22-65; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

§90.01 Definitions

For the purpose of §§90.03 through 90.05 only, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Persons. Any natural person, firm, corporation, partnership, association or other legally identifiable group, whether he or it is acting for himself or itself or as the clerk, servant, employee or agent of another.
• Premises Open to the Public. Has the same meaning as that set forth in ORS 801.400.

(Ord. 1976, passed 10-26-98)

§90.02 Animals Running at Large Prohibited

No person, persons or corporation owning or having possession or control of any livestock or poultry shall allow the livestock or poultry to run at large or to be or remain at large upon the streets, sidewalks, public grounds or unfenced lots or grounds within the limits of the city. Hereafter in this chapter whenever the word “animal” or “animals” is used it shall mean and include any and all kinds of livestock or poultry.

(Ord. 4, passed 8-7-07; Am. Ord. 366, passed 9-11-57)

§90.03 Vehicles Injuring Animals

Any person operating a vehicle as defined by the motor vehicle laws of Oregon, upon any premises open to the public, who shall run over, strike, injure, maim or kill any animal shall immediately stop and render aid to the animal, if injured, or provide for the disposition of the carcass, if the animal be killed. If it is a domestic animal, the person shall make due and diligent inquiry to determine the owner of such and, if located, shall notify him of the occurrence.

(Ord. 1976, passed 10-26-98) Penalty, see § 90.99

§90.04 Killing of Birds

It shall be unlawful for any person to discharge any firearm, air gun, blow gun or other similar device, or throw any missile at any non-game bird with the intent to injure or kill the same.

(Ord. 1976, passed 10-26-98) Penalty, see § 90.99

Cross-reference:

Discharging of firearms, see §130.31

§90.05 Removal of Animal Carcasses

It shall be unlawful for any person to suffer or permit the carcass of any animal owned by them to remain upon any premises open to the public, and no person who is the owner or occupant of any property shall suffer or permit the carcass of any animal to remain thereon. It shall be the duty of the owner or occupant forthwith to cause the carcass to be disposed of in a manner approved by law.

(Ord. 1976, passed 10-26-98) Penalty, see § 90.99

§90.15 Definitions

For the purpose of this sub-chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• At Large. Any dog off the premises of the owner and/or not under the control of the owner or a member of his immediate family either by leash, cord, chain or otherwise.
• Dog. Both male and female.
• Owner. Any person or persons, firm, association or corporation owning, keeping or harboring a dog.

(Ord. 1503, passed 3-26-84)

§90.16 Dogs Running at Large: Impoundment Procedures

(A) It shall be unlawful for a dog to run at large or to be a public nuisance, and the owner of the dog shall be guilty of a violation of this chapter if the dog is found to be in violation.

(B) All dogs taken up and impounded under this section shall be held in an adequate and sanitary pound. Any dog so impounded shall be held for at least five days from the date of the impounding before being destroyed or otherwise disposed of. After any dog is impounded, the owner will be notified, or, if the owner of the dog is unknown, written notice shall be posted for three days at three conspicuous places in the city describing the dog and the place and time of taking. If the owner appears and redeems the dog, he shall pay, in amounts as established by resolution of the City Council, an impoundment fee and in addition a sum for each day, or part thereof, the dog was impounded, this fee being the actual cost of boarding the animal at the pound. The boarding fee will not be assessed for the first day of impoundment if the dog is taken after 8:00 pm. If no owner appears and redeems the dog within five days from its impounding or five days from the date the owner was notified or notices were posted, or if the dog was impounded as a public nuisance for killing or seriously injuring a person, it shall be killed in a humane manner; except that if, in the opinion of the Chief of Police, the dog is not dangerous and can be safely kept, the Chief of Police may release the dog to any responsible person upon receiving assurance that the person will properly care for the dog and not allow it to become a nuisance, and upon payment of a sum of money as established by resolution of the City Council, plus the cost of keeping during its impounding. The person shall thereafter be liable as owner of the dog.

(C) Notwithstanding the provisions of division (B) of this section, any dog impounded for biting a person shall be held for not less than ten days before redemption or destruction to determine if the dog is rabid.

(Ord. 1503, passed 3-26-84; Am. Ord. 1613, passed 10-27-86)

§90.17 Vaccination

It shall be unlawful for the owner to keep or maintain any dog unless it shall have been vaccinated by a licensed veterinary surgeon with anti-rabies vaccine within one year of the date on which the dog is kept or maintained.

(Ord. 1503, passed 3-26-84) Penalty, see §90.99

§90.18 Public Nuisances

A dog is a public nuisance if it:

(A) Bites or attempts to bite a person;

(B) Chases vehicles or persons;

(C) Attacks other dogs;

(D) Damages or destroys property of persons other than the owner of the dog;

(E) Scatters refuse;

(F) Habitually trespasses on private property of persons other than the owner of the dog;

(G) Disturbs any person by frequent or prolonged noises; or

(H) Is a female in heat and running at large.

(Ord. 1503, passed 3-26-84) Penalty, see §90.99

§90.19 Exceptions

A dog shall not be considered a public nuisance if he bites a person wrongfully assaulting the dog or the dog's owner, or if he bites a person trespassing upon premises occupied by the dog's owner after being provoked by that person.

(Ord. 1503, passed 3-26-84)

§90.20 Licenses and Records

(A) Every person owning or keeping any dog which has a set of permanent canine teeth shall, not later than March 1 of each year or within 30 days after he becomes owner or keeper of the dog, procure from the Finance Director/Recorder a license for the dog by paying to the Finance Director/Recorder a license fee. The license fee shall be in an amount as established by resolution of the City Council for each dog, except that the fee shall not be greater than a lesser amount as established by resolution of the City Council for each spayed female or neutered male dog for which a veterinarian's certificate of operation for the spaying or neutering of the dog is presented to the Finance Director/Recorder. If the person fails to procure the license within the time provided by this section, an additional penalty in a sum established by resolution of the City Council for each dog shall be assessed.

(B) The Finance Director/Recorder shall at the time of issuing the license and as a part thereof supply the licensee, without charge, with a suitable tag having legibly stamped with dies across one side thereof, to wit: year license issued, license No. and to be imprinted with “City of Hermiston, OR.” The tag shall be fastened by the licensee to a collar and kept on the dog at all times when not in the immediate possession of the licensee. The license fee shall be the only license or tax required for the ownership or keeping of a dog within the city.

(C) This section does not apply to dogs owned by dealers, breeders or exhibitors where they are kept in kennels exclusively for sale or exhibition purposes, or while the dogs are being transported by dealers, breeders or exhibitors to and from a dog show or fair. No license shall be required for the dogs kept for these purposes until they are sold or otherwise disposed of to another person.

(D) No license shall be required to be paid for any dog owned by a blind person who uses it as a guide. A license shall be issued for the dog upon filing with the Finance Director/Recorder an affidavit by the blind person showing the dog to come within this requirement.

(E) The Finance Director/Recorder shall keep a record of dog licenses in a special book for such purposes.

(Ord. 1503, passed 3-26-84)

§90.21 Destruction of Certain Dogs

(A) When a dog habitually runs at large and is so elusive, or when a dog shows obvious symptoms of being rabid, or if a dog cannot be impounded without grave risk, or if the dog is badly injured and suffering, the police officer may destroy the animal in the safest, most humane way available.

(B) When a dog has been found by the judge, in a judicial proceeding, to be of vicious temperament, the judge may order the destruction of the animal either by the owner or by the pound authorities should the dog have been impounded. Destruction will be performed in a humane manner and at the expense of the owner of the animal.

(Ord. 1503, passed 3-26-84; Am. Ord. 1613, passed 10-27-86)

§90.99 Penalty

(A) Anyone who violates any provision of this chapter for which another penalty is not specifically provided commits a Class A violation. (Ord. 4, passed 8-7-07; Ord. 1503, passed 3-26-84; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

(B) Whoever violates §§90.03 through 90.05 commits a Class A violation. Any person who shall attempt to commit any of the offenses mentioned in §§90.03 through 90.05, but who for any reason is prevented from consummating the act, shall be guilty of an offense of attempt to commit as to that offense.

(Ord. 1976, passed 10-26-98)

§ 92.01 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• PEOPLE RESPONSIBLE.  The persons jointly and severally for abating a nuisance and liable for penalties upon conviction of a violation of this subchapter include:

(1) The owner of the property on which the nuisance originated.

(2) The person in charge of property, as defined in this section.

(3) The person who caused a nuisance, as defined in this subchapter or another ordinance of the city, to come into or continue in existence.

• PERSON.  A natural person, firm, general partnership, limited partnership, association, foundation, trust, limited liability company, or corporation.
• PERSON IN CHARGE OF PROPERTY.  An agent, occupant, lessee, contract buyer or other person having possession or control of property or supervision of a construction project.
• PUBLIC PLACE.  A building, way, place or accommodation, publicly or privately owned, open and available to the general public. (Ord. 1750, passed 10-28-91; Am. Ord. 1944, passed 11-24-97)

§ 92.02 Nuisances Affecting Public Health

No person shall cause or permit a nuisance affecting public health on property owned or controlled by him.  The following are nuisances affecting public health and may be abated as provided in this subchapter:

(A) Open vaults or privies constructed and maintained within the city, except those constructed or maintained in connection with construction projects in accordance with State Health Division regulations.

(B) Accumulations of debris, rubbish, manure and other refuse that are not removed within a reasonable time and that affect the health of the city.

(C) Stagnant water that affords a breeding place for mosquitoes and other insect pests.

(D) Pollution of a body of water, well, spring, stream or drainage ditch by sewage, industrial wastes or other substances placed in or near the water in a manner that will cause harmful material to pollute the water.

(E) Decayed or unwholesome food offered for human consumption.

(F) Premises that are in a state or condition as to cause an offensive odor or that are in an unsanitary condition.

(G) Drainage of liquid wastes from private premises.

(H) Cesspools or septic tanks that are in an unsanitary condition or that cause an offensive odor.

(I) Mastics, oil, grease or petroleum products allowed to be introduced into the sewer system by a user connected to the sewer system. (Ord. 1750, passed 10-28-91)  Penalty, see 92.99

§ 92.03 Creating a Hazard

No person shall create a hazard by:

(A)  Maintaining, leaving, abandoning, discarding or storing in the open, in a place accessible to children, a container with a compartment of more than 12 cubic feet capacity and a door or lid that locks or fastens automatically when closed and that cannot be easily opened from the inside, including but not limited to ice boxes, refrigerators or freezers.

(B) Being the owner or otherwise having possession of property on which there is a well, cistern, cesspool, excavation, or other hole of a depth of four feet or more, and a top width of 12 inches or more and failing to cover or fence it with a suitable protective construction.

(Ord. 1750, passed 10-28-91)  Penalty, see ' 92.99 Cross-reference: Attractive nuisances, see '92.11

§ 92.04 Noxious Vegetation

(A) No owner or person in charge of property within 100 feet of a public access, roadway, adjacent or abutting streets, alleys, other adjacent or abutting properties, or from any combustible structure, including a fence, shall permit weeds or other noxious vegetation to grow upon his property over 15 inches high.  The owner or person in charge of property shall cut down, destroy or remove grass, shrubbery, brush, weeds, or other noxious vegetation as often as necessary to prevent them from becoming a fire hazard, or from maturing or going to seed.

(B) For purpose of this section, NOXIOUS VEGETATION means:

(1) Vegetation that is, or is likely to become:

(a) A health hazard;

(b) A fire hazard; or

(c) A traffic hazard, because it impairs the view of a public thoroughfare, or otherwise makes use of the thoroughfare hazardous.

(2) Weeds commonly known as puncture vines, sandburs, bull thistles, Canadian thistles, and star thistles  regardless of their height and or distance from public access, roadway, adjacent or abutting streets, alleys, other adjacent or abutting properties.  Blackberry bushes that extend into a public way or a pathway frequented by children or across a property line.

(Ord. 1750, passed 10-28-91; Am. Ord. 2159, passed 7-13-09)  Penalty, see ' 92.99

§ 92.05 Depositing Rubbish

No person shall deposit, on public or private property, rubbish, trash, debris, refuse or any substance that would mar the appearance, create a stench or fire hazard, detract from the cleanliness or safety of the property or would be likely to injure a person, animal or vehicle traveling on a public way.

(Ord. 1750, passed 10-28-91)  Penalty, see ' 92.99

§ 92.06 Trees

(A) No owner or person in charge of property that abuts on a street or public sidewalk shall permit trees or bushes on the property to interfere with street or sidewalk traffic.  An owner or person in charge of property that abuts on a street or public sidewalk shall keep all trees and bushes on the premises, including the adjoining parking strip, trimmed so that they do not project over a sidewalk at an elevation of less than eight feet above the level of the sidewalk or over a street at an elevation of less than 13 feet above the level of the street.

(B) No owner or person in charge of property shall allow a dead or decaying tree to stand if it is a hazard to the public or to persons or property on or near property.

(Ord. 1750, passed 10-28-91)  Penalty, see ' 92.99

§ 92.07 Fences

(A) No owner or person in charge of property shall construct or maintain a barbed‑wire or razor wire fence, or permit barbed or razor wire to remain as part of a fence, along a sidewalk; except the wire may be placed above the top of other fencing not less than six feet, six inches high so long as it does not extend over the sidewalk.

(B) No owner or person in charge of property shall construct, maintain or operate an electric fence along a sidewalk or public way or along the adjoining property line of another person.

(Ord. 1750, passed 10-28-91)  Penalty, see ' 92.99

§ 92.08 Radio and Television Interference

(A) No person shall operate or use an electrical, mechanical or other device, apparatus, instrument or machine that causes reasonably preventable interference with radio or television reception by a radio or television receiver of good engineering design.

(B) This section does not apply to devices licensed, approved and operated under the rules and regulations of the Federal Communications Commission.

(Ord. 1750, passed 10-28-91)  Penalty, see ' 92.99

§ 92.09 Junk

(A) No person shall keep junk outdoors on a street, yard, lot, or premises or in a building that is not wholly or entirely enclosed except for doors used for ingress and egress.

(B) The term JUNK, as used in this section, includes a motor vehicle or vehicles unless currently registered and operable, or an accumulation of any of the following: old motor vehicle parts, tires, abandoned automobiles, old machinery, old machinery parts, old appliances or appliance parts, old iron or other metals, glass, paper, lumber, wood or other waste or discarded material.

(C)  This section does not apply to junk kept, salvaged, used or resold as part of a business being conducted on property in compliance with all city zoning laws where zoning laws authorize the use.

(Ord. 1750, passed 10-28-91)  Penalty, see ' 92.99

§ 92.10 Odoriferous Nuisances

(A) Odoriferous nuisances.  No person in charge of property on which obnoxious, offensive or objectionable odors are crated or generated shall cause or permit odors to escape from that property so as to endanger the health of, cause significant discomfort to, or otherwise deleteriously affect the convenience, safety or welfare of any person within the city limits. All obnoxious, offensive and/or objectionable odors within the city limits are odoriferous nuisances affecting public health and safety, may be penalized as provided in ' 92.99, and may be abated as provided in ' 92.14, notwithstanding any governmental authorizations or permits issued to the odor-causing activity and irrespective of the location of the activity or the economic or social utility thereof.

(B) Evidence of odoriferous nuisances.  All or any of the following shall be evidence of the existence of obnoxious, offensive or objectionable odors within the city limits:

(1) The oral or written complaint of three or more persons, within any 12-hour period, to the effect that odors emanating from any activity within or in the vicinity of the city are causing adverse health effects, significant discomfort, or serious inconvenience to the persons (or to minors within the custody or care of the persons) at a residence or place of business within the city limits; or

(2) The detection and measurement, by a qualified person employing appropriate technology, of one or more of the following odor constituents, at or above the following concentrations, within the city limits:

(a) Hydrogen sulfide at or in excess of six parts per billion (ppb);

(b) Ammonia at or in excess of 50 ppb; or

(3) The finding, by an odor panel, that odors emanating from a source inside or outside the city limits exceed two odor units at the property boundary or at the city limits (whichever is closest to the source.)  The odor panel shall be comprised of six residents of the city appointed by the Mayor and confirmed by the City Council.  The determination by the odor panel shall be based on substantial adherence to the following procedure:  A sample is collected in a glass sampling bulb (25 to 10,000 ml in size) and delivered immediately to the odor panel for a series of dilutions and sniffings using the triangle olfactometer method, in which three samples are presented to each panelist from a series of glass sniffing ports. Two are

test room air (blanks), and the third is odorous air diluted with test room air.  The olfactometer supplies six dilution level.  An odor unit is defined as the volumetric amount of the odorous gas which is detectable by only half the odor panel in 0.03m3 (1 cu. ft.) of odor-free air.  The strength of an odor is determined by the number of dilutions with odor-free air needed to reduce an odor to a barely detectable level.

(C) Abatement of odoriferous nuisances.  The creation or generation of any odoriferous nuisance may be abated upon the motion, petition or complaint of the city or any resident of the city:

(1) By an order of the municipal court of the city enjoining an odor-causing activity within the city limits until such time as the person in charge of the property has given verifiable and enforceable assurances that the activity will no longer create an odoriferous nuisance;

(2) By an order of the circuit court of the State of Oregon for Umatilla County enjoining an odor-causing activity either within or outside the city limits until such time as the person in charge of the property has given verifiable and enforceable assurances that the activity will no longer create an odoriferous nuisance within the limits of the city; or

(3) By any other appropriate legal or equitable remedy available to the city or its residents for the abatement of nuisances.

(Ord. 1944, passed 11-24-97)  Penalty, see ' 92.99

§ 92.11 Attractive Nuisances

(A) Definition.  The following definition shall apply to this section.

• PERSON.  Any natural person, firm, corporation, partnership, association or other legally identifiable group, whether he or it is acting for himself or itself or as the clerk, servant, employee or agent of another.

(B) Unlawful activity.  It shall be unlawful for any owner, lessee, occupant or any person having control, custody or management of any premises to suffer or permit to remain unguarded upon the premises any machinery, equipment or other device having the characteristics of an attractive nuisance or which is liable to attract children.  It shall further be unlawful for any of the aforementioned persons to suffer or permit to remain unguarded upon the premises any pit, quarry, cistern, well or other excavation.

(Ord. 1976, passed 10-26-98)  Penalty, see ' 92.99

§ 92.12 Blowing Dust

(A) It is unlawful for any owner, contractor, developer, or other person in charge of property, who disturbs land, including, but not limited to, clearing, grading, grubbing, excavating, filling, landscaping, or erecting buildings, or allows, contracts for, or directs the disturbance of the land, to cause or permit dust, sand, and dirt, etc., from blowing from the disturbed land site to other real property, including streets and dry wells in sufficient quantities and of such characteristics and duration as to be inconvenient, annoying, or injurious to human health, plant or animal life, or property.

(B) As part of any development agreement entered into between the city and a developer, or when another person intends to disturb one acre or more of land at any one time by one or more phases of development, and the disturbance is located on the same parcel of land or on contiguous parcels of land under the same ownership, or as part of any public improvement contract let by the city involving disturbance of one or more acres of land, a written Blowing Dust Control Plan must be filed with the city for review. No Development Agreement or Notice to Proceed will be issued until the city has certified that the Blowing Dust Control Plan contains reasonably acceptable control measures that, if followed, will prevent or substantially reduce blowing dust during high winds. A cash deposit, performance bond, letter of credit, or other security to secure performance of the Blowing Dust Control Plan, in an amount as established by resolution of the City Council, must be submitted with the Blowing Dust Control Plan.

(C) It is an affirmative defense to a blowing dust violation that the owner, contractor, developer, or other person in charge of property, who disturbs land made a good faith effort, to the maximum extent possible, to control dust, sand, and dirt, etc., from blowing from the disturbed land site to other real property, including streets and dry wells.

(D) The Blowing Dust Control Plan shall identify the reasonably acceptable control measures that will be utilized to prevent blowing dust, including persons who will check the site during weekends and holidays and have the ability and means to take corrective action. Corrective action must be available 24 hours per day, seven days per week. The names and phone numbers of such persons shall be included in the plan, and the city shall be advised immediately, in writing, if there are any changes in the names or phone numbers of the person or persons to contact. The Blowing Dust Control Plan and security deposit shall remain in effect for the full period of the activity which disturbs the land. The city may require the Blowing Dust Control Plan and the security deposit to continue beyond the final completion of the land disturbance activity for up to, but not to exceed, two years if the extension is necessary to ensure that the disturbed soil has stabilized.

(E) Actions by a public utility, the city, or other governmental agency to remove or alleviate an emergency condition, restore utility service, or reopen a public thoroughfare to traffic are exempt from controlling dust.

(F) Where the occurrence of blowing dust can be reasonably attributable to a given site, the city shall notify the offender to immediately suppress the blowing dust. In addition the city may order the suspension of all activity on the offending site and require the immediate employment of sufficient efforts to control the blowing dust. If the person in possession or control of the site or the contact person or persons listed in the Blowing Dust Control Plan are unavailable or do not initiate sufficient dust control efforts within four hours of being notified to do so, the city may initiate such efforts as it deems reasonable to suppress the blowing dust. The costs incurred by the city for dust suppression efforts shall be borne by the owner, developer, and other persons responsible for the land disturbance activity on the site. The cost for labor and equipment used or hired by the city for dust suppression shall be set by resolution of the Council. Such costs may be deducted from any security filed with a Blowing Dust Control Plan. These costs are in addition to any penalty assessed against a violator.

(G) Violation of division (A) involving a site of less than one acre is a Class A violation. Failure to notify the city within 24 hours of any changes in the names and phone numbers of persons listed in a Blowing Dust Control Plan who will check the site during weekends and holidays and have the ability and means to take corrective action is a Class A violation. Violation of division (A) involving a site of one acre or more, or failing to implement a Dust Control Plan, or sufficient dust control efforts within four hours of being notified to do so is punishable by a fine of up to $2,500 per day per violation. In addition, failure to pay the fine and the costs incurred by the city for dust suppression shall be grounds for withholding issuance of requested permits or licenses, issuance of a stop work order, if applicable, or revocation or suspension of any issued permits or licenses.

(Ord. 1992, passed 6-14-99; Am. Ord. 2024, passed 10-9-00) Penalty, see §92.99

§ 92.13 Unenumerated Nuisances

(A) The acts, conditions or objects specifically enumerated and defined in §§92.02 et seq. are declared public nuisances.

(B) In addition to the nuisances specifically enumerated in this sub-chapter, every other thing, substance or act that is determined by the Council to be injurious or detrimental to the public health, safety or welfare of the city is declared a nuisance and may be abated as provided in this sub-chapter.

(Ord. 1750, passed 10-28-91)

§ 92.14 Abatement Procedure

(A) Abatement notice.

(1) Upon determination by the City Manager or his or her designate that a nuisance exists as defined in the ordinances of this city, a notice shall be posted on the premises liable for the nuisance directing removal or abatement.

(2) At the time of posting, the city shall mail notice by certified mail with return receipt to the owner or agent, or occupant if occupied, in charge of the property at the last known address of the owner or agent.

(3) The notice to abate shall contain:

(a) A description of the real property, by street address or otherwise, on which or adjacent to which the nuisance exists;

(b) A direction to remove the nuisance within 15 days from the date of the notice or a date certain;

(c) A description of the nuisance;

(d) A statement that unless the nuisance is removed or abated, the city will do so and the cost thereof shall be a lien against the property;

(e) A statement that the owner or agent in charge of the property may protest the action by actual delivery of notice to the City Manager within 15 days from the date of the notice or the certain date.

(4) The person posting and mailing the notice as provided herein shall, upon completion of the posting and mailing, execute and file in the office of the Finance Director/Recorder a certificate stating the date and place of mailing and posting.

(5) An error in the name or address of the owner or agent in charge of the property or the use of a name other than that of the owner or agent shall not make the notice void and in a case the posted notice shall be deemed sufficient.

(B) Abatement by the owner.

(1) Within the time allowed by the notice as provided in division (A)(3) above, the owner or agent in charge of the property shall remove and abate the nuisance or show that no nuisance exists.

(2) Upon the city's determination that a nuisance does in fact exist, the owner or agent in charge shall within a reasonable time but not more than seven days, remove or abate the nuisance.

(C) Abatement by the city.

(1) If within the time fixed, as provided in this chapter, the nuisance has not been abated by the owner or agent in charge of the property, the city shall cause the nuisance to be abated.

(2) The city shall maintain an accurate record of the expense incurred by the city in abating the nuisance and shall include therein an overhead charge of 10% of the total cost for administration.

(3) The total cost, including the administrative overhead, shall thereupon be assessed to the property as hereinafter provided.

(D) Assessment of cost.

(1) A notice of the assessment shall be forwarded by certified mail with return receipt to the owner or agent in charge of the property by the Finance Director/Recorder. The notice shall contain:

(a) The total cost, including the administrative overhead, of the abatement.

(b) A statement that the cost as indicated will become a lien against the property unless paid within 60 days.

(c) A statement that if the owner or agent in charge of the property objects to the cost of the abatement as indicated, he may file a notice of objection with the Finance Director/Recorder within 30 days from the date of the notice.

(d) Notice that fee for recording in County Deed Records may be added.

(2) Objections to the proposed assessment shall be heard and determined by the City Manager or his designate.

(3) An assessment for the cost of the abatement as determined by the City Manager or his designate and adopted as a matter of record by resolution of the Council shall thereupon be entered in the docket of city liens, and upon the entry being made, it shall constitute a lien against the property from which the nuisance was removed or abated. Also, it may be recorded in the County Deed Records.

(4) The lien shall be collected in the same manner as improvement liens are collected and shall bear interest at a rate as established by resolution of the City Council. The interest shall commence to run 30 days after the entry in the lien docket.

(5) An error in the name of the owner or agent in charge of the property shall not void the assessment nor will a failure to receive the notice of the assessment render the assessment void, but it shall remain a valid lien against the property.

(E) Supplemental nature of provisions. The procedure provided by this section is not exclusive but in addition to procedure provided by other ordinances, and furthermore, the city may proceed summarily to abate a sanitary or other nuisance which exists and from which there is imminent danger to human life or property.

(Ord. 1887, passed 6-26-95; Am. Ord. 1907, passed 7-8-96)

§ 92.25 Definitions

For the purpose of this sub-chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• A-Scale (dBA). The sound level in decibels measured using the A-weighted network as specified in the American National Standard Specification for Sound Level Meters (ANSI S1.4-1971).
• Decibel (dB). A unit for measuring the volume of a sound.
• Noise Sensitive. Any authorized land use of a church, temple, synagogue, day care center, hospital, rest home, retirement home, group care home, school, dwelling unit (single-family dwelling, duplex, triplex, mult-ifamily dwelling, or mobile home) or other use of the same general type, and rights-of-way appurtenant thereto, whether publicly or privately owned.
• Plainly Audible Sound. Unambiguously communicated to the listener. Plainly Audtible Sounds include but are not limited to understandable musical rhythms, understandable spoken words and vocal sounds other than speech which are distinguishable as raised or normal.
• Sound Level Meter. A sound measuring device, either Type 1 or Type 2, as defined by American National Standard Specification for Sound Level Meters (ANSI S1.4-1971).
• Sound Producing Device. Any of the following:

(1) Loudspeakers, public address systems;

(2) Radios, tape recorders and/or tape players, phonographs, television sets, stereo systems, including those installed in a vehicle;

(3) Musical instruments, amplified or unamplified;

(4) Sirens, bells;

(5) Vehicle engines or exhausts, when the vehicle is not in a public right-of-way, particularly when the engine is operated above idling speed;

(6) Vehicle tires, when caused to squeal by speed or acceleration;

(7) Domestic tools, including electric drills, chainsaws, lawn mowers, electric saws, hammers and similar tools, but only between the hours of 6:00 p.m. and 7:00 a.m. of the following day;

(8) Vehicles inclusive of automobiles, motorcycles, motorbikes, trucks, buses, snowmobiles, boats or any similar piece of equipment equipped with a propelling device;

(9) Persons or animals causing sound to emanate.

(Ord. 1709, passed 6-25-90)

§ 92.26 Sound Measurement

(A) If measurements are made, they shall be made with a sound level meter. The sound level meter shall be an instrument meeting the requirements of Type 1 or Type 2 meter in accord with ANSI Standard 1.4-1971.

(B) Measurements may be made at or within the boundary of the property on which a noise sensitive location is located which is not the source of the sound or within a noise sensitive building or location which is not the source of the sound.

(Ord. 1709, passed 6-25-90)

§ 92.27 Prohibitions

It shall be unlawful for any person to produce or permit to be produced, with any sound producing device, sound which:

(A) When measured at or within the boundary of the property on which a noise sensitive unit is located which is not the source of the sound, or, within a noise sensitive unit which is not the source of the sound, exceeds:

(1) 50 dBA at any time between 6:00 p.m. and 7:00 a.m. of the following day;

(2) 60 dBA at any time between 7:00 a.m. and 6:00 p.m. of the same day.

(B) Any person knowingly creating, assisting in creating, continuing, or permitting the creation of any of the following noise disturbances shall be deemed in violation of this sub-chapter, regardless of the decibel level of disturbance:

(1) Use of dynamic braking devices on any motor vehicle, except to avoid imminent danger to persons or property. A dynamic braking device is one used primarily on trucks and buses to convert a motor from an internal combustion engine to an air compressor for the purpose of vehicle braking without the use of wheel brakes.

(2) Repair and testing of motor vehicle or other engine which is plainly audible within a noise sensitive unit between the hours of 11:00 p.m. and 7:00 a.m.

(3) Operation of a motor vehicle, air compressor or similar mechanical device without a muffler or with a muffling devices as defined in ORS 815.025.

(4) The sounding of any horn or signal device on any vehicle, except as a necessary warning of danger to property or person.

(5) The use of any gong, bell or siren upon any vehicle other than a police, fire or emergency vehicle.

(6) The operation of any vehicle in a manner to cause the tires to squeal or skid, except to avoid imminent danger to persons or property.

(7) The detonation of a blasting or explosive device, except as allowed when performed under a permit issued by appropriate governmental authorities.

(8) The playing, using or operation of any radio, musical instrument, phonograph, television set, tape recorder, loud speaker or sound amplifier, either stationary or mobile, or other machine or device for the producing or reproducing of sound in such a manner as to project sound upon public streets, or other public property, or upon private property owned by someone other than the owner or operator of the sound producing device in such a manner as to disturb any other person.

(Ord. 1709, passed 6-25-90; Am. Ord. 1745, passed 8-26-91) Penalty, see § 92.99

§ 92.28 Exceptions

The following exceptions from this sub-chapter are permitted when the following conditions are met:

(A) Emergency equipment not operating on a regular or scheduled basis, whether or not the work is performed by a public or private agency.

(B) Sounds caused by sources regulated as to sound production by federal law, including sounds caused by railroad or aircraft operations.

(C) Sounds caused by the use of emergency warning devices and alarm systems.

(D) Sounds caused by organized athletic activities conducted out of doors on property designated areas used for such purposes, including stadiums, parks, schools, churches and athletic fields, provided, however, that the exception shall not impair the power of any duly authorized law enforcement officer or designated municipal employee to require the curtailment of any sound producing device at the location if complaints are received from surrounding properties.

(Ord. 1709, passed 6-25-90)

§ 92.29 Permits Required for Certain Events

The use of amplified voice and music at levels which would otherwise exceed those permissible under this sub-chapter may be allowed upon application to the City Council of the city. The applicant shall identify the date, location and time of the event for which the permit is sought. The permit may be issued, denied or conditioned at the sole discretion of the Council.

(Ord. 1709, passed 6-25-90)

§ 92.30 Additional Ordinances and Laws

The provisions of this sub-chapter shall be cumulative and nonexclusive and shall not affect any other claim, cause of action or remedy; nor, except for Section 23 of Ordinance 1260 which is hereby repealed, amend or modify any law, ordinance or regulation relating to noise or sound, but shall be deemed additional to existing legislation and common law on the subject.

(Ord. 1709, passed 6-25-90)

§ 92.31 Administration and Enforcement

The direction of the administration of this sub-chapter shall be by the City Manager, or by his order, specifically designated employees and peace officers. Enforcement of this sub-chapter may include:

(A) Upon citation of a person for a violation of this sub-chapter, the person issuing the citation may seize the sound producing device which was the source of the sound as evidence, only if the violation is determined by the use of a sound level meter. The sound producing device, if seized, will be impounded subject to disposition of the issued citation and the determination by the court whether the sound producing device shall be returned to the cited person or deemed contraband, subject to confiscation and disposition as provided in this sub-chapter. It is the intent of this sub-chapter to avoid the seizures except where the person being cited has received two previous citations within the previous six months for the use of the same or similar sound producing device. The previous citation may, but need not, occur on the same date as the citation which prompts the seizure.

(B) Standard city forms may be used to cite violations of this sub-chapter.

(Ord. 1709, passed 6-25-90)

§ 92.99 Penalty

(A) Anyone who violates any provision of §§92.01 through 92.10, §92.12, and §92.13 commits a Class A violation. The court may, in addition to the fine, order the convicted person to reimburse the city for the actual expenses incurred by the city in abating the nuisance and to order the person to abate the nuisance. Each day's violation of a provision of the sections constitutes a separate offense. (Ord. 1750, passed 10-28-91; Am. Ord. 1976, passed 10-26-98; Am. Ord. 1992, passed 6-14-99)

(B) Violation of any provision of §92.11 is a Class A violation. The court may order the convicted person to pay court costs, assessments, and restitution, when applicable. Any person who shall attempt to commit any of the offenses mentioned in §92.11, but who for any reason is prevented from consummating the act, shall be guilty of an offense of attempt to commit as to that offense. (Ord. 1976, passed 10-26-98)

(C) Violation of any provision of §§92.25 through 92.31 shall constitute a Class A violation, and the court may order any sound producing device found to have been used to violate these sections seized, confiscated and destroyed as contraband, or sold with the proceeds of sale to be deposited in the city general fund.

(Ord. 1709, passed 6-25-90; Am. Ord. 1976, passed 10-26-98)

§ 94.01 City's Jurisdiction Over Public Rights-of-Way

(A) Definitions. For the purpose of this section, the following mean:

(1) City. The City of Hermiston.

(2) Person. Individual, corporation, association, firm, partnership, joint stock company and similar entities.

(3) Public Rights-of-Way. Include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways or areas, including subsurface and air space over these areas.

(4) Within the City. Territory over which the city now has or acquires jurisdiction for the exercise of its powers.

(B) Jurisdiction. The City of Hermiston has control over all public rights-of-way within the city under the authority of the city charter and state law.

(C) Scope of regulatory control. The city has jurisdiction and exercises regulatory control over each public right-of-way whether the city has a fee, easement or other legal interest in the right-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.

(D) City permission requirement. No person may occupy or encroach on a public right-of-way without the permission of the city. The city grants permission to use rights-of-way by franchises, licenses and permits.

(E) Obligations of the city. The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way and does not obligate the city to maintain or repair any part of the right-of-way.

(Ord. 1923, passed 2-10-97)

§ 94.02 Sidewalk Repair

(A) It shall be the duty of every owner of any lot or part thereof or parcels of land fronting any of the public streets of the city where sidewalks have been constructed abutting the lots or parcels of land to keep sidewalks in good repair, and in a safe and sound condition for the travel of the public, and to keep sidewalks clear of sand, weeds or other obstructions.

(1) The owner of real property responsible for maintaining the adjacent sidewalk shall be liable to any person injured because of any negligence of owner in failing to maintain the sidewalk in good condition.

(2) If the city is required to pay damages for an injury to persons or property caused by the failure of a person to perform the duty which this section imposes, the person shall compensate the city for the amount of the damages thus paid. The city may maintain an action in a court of competent jurisdiction to enforce the provisions of this section.

(B) If the owner of any lot or part thereof or parcel of land shall suffer any sidewalk along the same to become out of repair, it shall be the duty of the City Engineer to post a notice of repair on the adjacent property headed “Notice to Repair Sidewalk” in letters not less than one inch in length and the notice shall, in legible characters, direct the owner, agent or occupant of the property immediately to repair the same in good and substantial manner, and the City Engineer shall file with the Finance Director/Recorder an affidavit of the posting of the notice stating the date when and the place where the same was posted.

(C) It shall be the duty of the owner, agent or occupant immediately after the posting of the notice and before making repair to obtain from the City Engineer a permit so to do which shall prescribe the kind of repairs to be made, the material to be used and specifications therefor; and the owner, agent or occupant shall make repairs within 20 days from the posting of the notice. If the owner, agent or occupant of any lot or part thereof or parcel of land shall fail, neglect or refuse to make the sidewalk repairs within the time designated, the Council may authorize the City Engineer to make the same, the City Engineer to keep an accurate account of the cost of labor and materials in making the repairs in front of each lot or part thereof or parcel of land fronting on the sidewalk upon which repairs are made.

(D) The Council shall, at the first regular meeting in the month of September of each year, examine the reports upon sidewalk repairs field by the City Engineer in the office of the Finance Director/Recorder during the preceding year, and by ordinance assess upon each of the lots or parts thereof or parcels of land fronting upon sidewalks which have been so repaired, the cost of making repairs and 10% additional to defray the cost of notice, engineering and supervision. In each case all assessments may be combined in one assessment roll and the same shall be entered on the docket of city liens and collected in the same manner as is provided for special assessments for street improvements.

(Ord. 56, passed 5-31-11; Am. Ord. 1100, passed 11-7-77)

§ 94.03 Planting and Maintenance of Trees

(A) Planting trees in public place. No trees or shrubs shall be planted in, or removed from, any public parking strip or other public place in the city without permission from the City Manager or his duly authorized representative.

(B) Street tree plans.

(1) All trees and shrubs hereafter planted in any public parking strip or other public place in the city shall conform as to species and location to the street tree plan for the public place, street, or portion thereof.

(2) Street tree plans for streets or public places within the city shall be adopted by resolution of the City Council. These plans shall consist of maps of streets, blocks, or portions of streets and public places where the planting is permitted and shall by appropriate legends and symbols specify the species and location of the trees and shrubs which may be planted along each street or block or portion thereof or public place shown by the map thereof.

(3) In formulating and adopting street tree plans, the public safety in the use of streets, sidewalks, and public places, the protection and preservation of public improvements, and the beautification of public places shall be taken into consideration by the following means:

(a) Species of trees and shrubs shall be chosen with due regard to their size, appearance, rate, and manner of growth and other characteristics and to the size, nature, and construction and traffic volume on the street or other public place involved; and

(b) Regulations regarding location and setback of trees permitted in public parking strips and other public places shall be adopted with due regard to traffic visibility, utility lien clearance, and relative location of public paving and other facilities.

(C) Certain trees prohibited. No person shall plant in any public parking strip the following trees: poplar, Russian olive, Chinese elm, cottonwood, and certain locust. No person shall plant willow, cottonwood, or poplar trees anywhere in the city unless the City Manager or his duly authorized representative approves the site as one where the tree roots will not interfere with a public sewer.

(D) Trimming and pruning of trees. The City Manager or his duly authorized representative may cause to be trimmed, pruned, or removed any trees, shrubs, plants, or vegetation in any parking strip or other public place, or may require any property owner to trim, prune, or remove any trees, shrubs, plants, or vegetation in a parking strip abutting upon the owner's property; and failure to comply therewith, after 30 days' notice by the Finance Director/Recorder, shall be deemed a violation of this section.

(E) Trimming or removal of overhanging trees. If any tree or shrub, or part thereof, overhangs any public street or alley or sidewalk at a height of less than 14 feet above the street or alley surface or less than ten feet above the sidewalk or in any other way endangers or is likely to endanger the security or usefulness of any public street, sewer, or sidewalk, the same is hereby declared to be a public nuisance and may be abated as provided in §92.14.

(F) Right to appeal. Appeals from orders made under sections on trimming, pruning or removal may be made to the City Council.

(G) Damage to trees in public place prohibited. No person shall abuse, destroy, or mutilate any tree, shrub, or plant in a public parking strip or in any other public place, or attach or place any rope or wire (other than one used to support a young or broken tree), sign, poster, handbill, or other thing to or on any tree growing in a public place, or cause or permit any wire charged with electricity to come into contract with any tree, or allow any gaseous, liquid, or solid substance which is harmful to trees to come in contact with their roots or leaves.

(Ord. 696, passed 4-26-71) Penalty, see §94.99

§ 94.04 Running of Water on Streets Prohibited

(A) No person, firm or corporation shall cause, permit or allow any irrigation water or water used for domestic or other purposes to run upon or cross any of the streets of the city unless the same is confined in properly constructed flumes, ditches, pipelines or culverts and no ditches, flumes, pipelines or culverts for water shall be constructed in, upon or across any of the streets of the city until a permit therefor shall first be obtained from the Finance Director/Recorder of the city, and any ditch, flume, pipeline or culvert shall be constructed under the supervision of the City Engineer and of material as the Engineer may prescribe.

(B) It shall be the duty of every person who uses such ditch, flume, pipeline or culvert for the transmission of water, or whose land is served by water which passes through the ditch, flume, pipeline or culvert to keep the same in repair.

(Ord. 92, passed 7-5-17) Penalty, see § 94.99

§ 94.05 Definitions

For the purpose of §§94.05 through 94.10, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Person. Any natural Person, firm, corporation, partnership, association or other legally identifiable group, whether he or it is acting for himself or itself or as the clerk, servant, employee or agent of another.
• Premises Open to the Public. Has the same meaning as that set forth in ORS 801.400.

(Ord. 1976, passed 10-26-98)

§ 94.06 Driving on Sidewalks

It shall be unlawful for any person to ride or drive any animal or vehicle within any city park or upon, over, or across any sidewalk, except where a proper incline or crossing is provided for that purpose. This section does not apply to vehicles being used to maintain these areas or when specific permission has been granted by the city to do so.

(Ord. 1976, passed 10-26-98) Penalty, see § 94.99

§ 94.07 Obstructing Streets and Sidewalks

It shall be unlawful for any person or persons to gather or to stand upon any sidewalk or street so as to prevent, interrupt or obstruct the travel or free passage over the same by the public, or to place or deposit any article which has the same effect. This section does not apply when specific permission has been granted by the city to do so.

(Ord. 1976, passed 10-26-98) Penalty, see § 94.99

§ 94.08 Vending Goods from Streets or Sidewalks

It shall be unlawful for any person to use or occupy any portion of a street or sidewalk for the purpose of vending goods, services, wares or merchandise by public outcry or otherwise, except when granted specific permission by the city to do so.

(Ord. 1976, passed 10-26-98) Penalty, see § 94.99

§ 94.09 Leaving Cellar Door or Grating Open on Sidewalk

It shall be unlawful for any person to keep or leave open any cellar door or grating of any kind in or upon any sidewalk except when the same is necessarily open during the immediate use thereof. During the time the opening shall be properly guarded and protected.

(Ord. 1976, passed 10-26-98) Penalty, see § 94.99

§ 94.10 Removal of Ice and Snow

It shall be unlawful for the owner, lessee, occupant or person having control or custody of any premises or unimproved property to allow snow or ice to stand upon any sidewalks abutting upon the premises or property for a period longer than two hours after the snow or ice has ceased to fall thereon; provided, however, that if the snow is falling or the ice accumulating after the hour of 6:00 p.m., the same shall be removed within two hours after 7:00 a.m. on the next day.

(Ord. 1976, passed 10-26-98) Penalty, see § 94.99

§ 94.20 Uniform System

All streets shall be designated and all structures fronting on streets, except accessory structures, shall be numbered in accordance with this subchapter and the maps and plans on file in the office of the City Engineer.

(Ord. 556, passed 11-24-65; Am. Ord. passed - - ; Am. Ord. 1475, passed 7-25-83)

§ 94.21 Base Lines

First Street and First Street extended to the south along the section lien shall be the north-south base line; Main Street east from First Street and Hermiston Avenue west, from First street shall constitute the east-west base lien for the establishment of quadrants, with each base line extended to the city limits.

(Ord. 556, passed 11-24-65)

§ 94.22 Suffixes

(A) All streets running northerly and southerly shall be denominated by numbers, that is, First Street, and shall be designated as "streets".

(B) A street lying between numbered streets shall be denominated by number and designated “place", for example, First Place.

(C) All streets running in an easterly and westerly direction, with the exception of Main Street, shall be named and designated “avenues.”

(D) Circular and semi-circular streets shall be designated as “drives.”

(Ord. 556, passed 11-24-65)

§ 94.23 Prefixes

To indicate the general location of any street, it shall bear the prefix of the quadrant in which it is located, for example, “S.E. Third Street”; and for the same purpose, each avenue shall bear the prefix of the half in which it is located, for example, “East Hurlburt Avenue.”

(Ord. 556, passed 11-24-65)

§ 94.24 Numbering of Lots and Structures

A lot or structure fronting a street shall be numbered as follows:

(A) Even numbers shall be assigned lots and structures to the right of an observer facing out from the base lines and uneven numbers to the opposite side.

(B) Numbers shall be fixed by grids as established by the maps and plans on file in the office of the City Engineer. Whenever feasible, each grid section shall encompass a square block and each grid's length shall be allowed 100 numbers. Numbers shall run consecutively with a new 100, starting at each grid line.

(C) Owner of groups of dwelling units may place an assigned number upon the principal building or office of the group and use numbers or letters to designate each of the units as may be required.

(Ord. 556, passed 11-24-65)

§ 94.25 Authority to Assign Numbers

In conformity with the provisions of this subchapter, the City Engineer shall assign numbers to all lots and structures now or hereafter to be constructed. A person who obtains a building permit for construction of a new building shall, at the time of receipt of the permit, obtain from the City Engineer the number for the building.

(Ord. 556, passed 11-24-65)

§ 94.26 Location and Type of Numbers

Numbers assigned shall be at least 3½ inches high including background and shall be of a nature and location as to be easily legible from the center line of the street, and shall be installed within 60 days from the date of issue of the number.

(Ord. 556, passed 11-24-65) Penalty, see § 94.99

§ 94.35 Short Title

This subchapter shall be known and may be cited as the Street Excavation Ordinance of the city.

(Ord. 1942, passed 11-10-97)

§ 94.36 Definitions

For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• City Manager.The City Manager or his designate, including the Street Superintendent, city inspectors and others.
• Excavation. Any opening in the surface of a public place made in any manner whatsoever, except an opening into a lawful structure below the surface of a public place, the top of which is flush with the adjoining surface and so constructed as to permit frequent openings without injury or damage to the public place.
• Facility. Pipe, pipeline, tube, main, service trap, vent, vault, manhole, meter, gauge, regulator, valve, conduit, wire, tower, pole, pole line, anchor, cable, junction box, transformer or any other material, structure or object of any kind or character, whether enumerated herein or not, which is or may be lawfully constructed, left, placed or maintained in, upon, along, across, under of over any public place.
• Public Place. Any public street, street right-of-way, place, alley, sidewalk, park, square, plaza or any other public property owned or controlled by the city.
• Substructure. Any pipe, conduit, duct, tunnel, manhole, vault, buried cable or wire or any other structure located below the surface of any public place.
• Vital Structures.Those elements of the fire and safety protection system of the city and those elements of public and private utility systems which are vital to the health and safety of the city.

(Ord. 1942, passed 11-10-97)

§ 94.37 Permit Application

(A) No excavation permit shall be issued unless a written application for the issuance of an excavation permit is submitted to the City Manager. The written application shall state that the applicant agrees to comply with prescribed procedures for making and restoring cuts and to make the necessary payments for work performed by the city. The application, when approved and signed by the City Manager, shall constitute a permit. The permit fees shall be in amounts as established by resolution of the City Council. Fees shall be doubled if the start of construction occurs prior to application of the permit.

(B) One permit may cover more than one cut providing the following conditions are met:

(1) Cuts shall be within a 400-foot section of street.

(2) All work to all cuts is performed by the same contractor.

(3) Each cut is listed on the cut permit with a map showing the location and size.

(C) No permit shall be given to an applicant without information regarding the contractor performing the restoration of the city right-of-way. If more than one contractor is used to perform the cut restoration, or the contractor changes, a new cut permit shall be required.

(Ord. 1942, passed 11-10-97)

§ 94.38 Routing and Protection of Traffic

(A) The permittee shall take appropriate measures to assure that during the performance of the excavation work, traffic conditions as near normal as practicable shall be maintained at all times so as to cause as little inconvenience as possible to the occupants of the abutting property and to the general public, provided that the City Manager may permit the closing of streets and alleys to all traffic for a period of time prescribed by him, if in his opinion it is necessary.

(B) The permittee shall maintain safe crossings for two lanes of vehicle traffic at all street intersections where possible and safe crossings for pedestrians at intervals of not more than three hundred feet. If an excavation is made across a public street, alley or sidewalk, at least one safe crossing shall be maintained when possible for vehicles and pedestrians. If the street is not wide enough to hold the excavated material without using part of the adjacent sidewalk, a passageway at least one half of the sidewalk width shall be maintained along the sidewalk line.

(C) It shall be the duty of every person making an excavation in or upon any public place to place and maintain barriers and warning devices necessary for safety according Oregon Department of Transportation specifications. Warning signs shall be placed far enough back of the construction operation to alert traffic within a public street, and cones or other approved devices shall be placed to channel traffic, all in accordance with Oregon Department of Transportation specifications. The permittee shall notify the city when the public street is again usable to traffic. He shall see that all barriers are removed at this time so that normal traffic routing can proceed. Barriers shall meet Oregon Department of Transportation specifications.

(D) Warning lights shall be electrical markers or flashers used to indicate a hazard to traffic from sunset of each day to sunrise of the next day. Electrical markers or flashers shall emit a light at sufficient intensity and frequency to be visible at a reasonable distance for safety. Reflectors or reflecting materials may be used to supplement, but not replace, light sources.

(E) The permit for a street excavation may require that the permittee give notification to various public agencies and to the general public. In such case, the permit shall not be valid until the notice is given.

(Ord. 1942, passed 11-10-97) Penalty, see §94.99

§ 94.39 Relocation and Protection of City-Owned Facilities

The permittee shall not interfere with any existing city-owned utility without the written consent of the City Manager. If it becomes necessary to relocate an existing city-owned utility, this shall be done by the city. No utility owned by the city shall be moved to accommodate the permittee unless the cost of the work be borne by the permittee.

(Ord. 1942, passed 11-10-97)

§ 94.40 Protection of Watercourses

(A) The permittee shall maintain all gutters free and unobstructed for the full depth of the adjacent curb and for at least one foot in width from the face of the curb at the gutter line. Whenever a gutter crosses an intersection street, an adequate waterway shall be provided and at all times maintained.

(B) The permittee shall make provisions to take care of all surplus water, muck, silt, slickings or other run-off pumped from excavations or resulting from sluicing or other operations and shall be responsible for damage resulting from his failure to so provide.

(Ord. 1942, passed 11-10-97)

§ 94.41 Preservation of Monuments

Any monument set for the purpose of locating or preserving the lines of any street or property subdivision or a precise survey reference point or a permanent survey bench mark within the city shall not be removed or disturbed or caused to be removed or disturbed without first obtaining permission in writing from the City Manager to so do. Permission to remove or disturb the monuments, reference points or bench marks shall only be granted upon condition that the person applying for the permission shall pay all expenses incident to the proper replacement of this monument by the city.

(Ord. 1942, passed 11-10-97)

§ 94.42 Clearance for Vital Structures

The excavation work shall not interfere with access to vital structures.

(Ord. 1942, passed 11-10-97) Penalty, see §94.99

§ 94.43 Breaking Through Pavement

(A) The City Manager shall require cutting of pavement surfaces ahead of excavations in a manner as to confine pavement damage to the limits of the trench. Pavement wearing surface cuts shall be made with a sharp edged tool which will result in a smooth edge along the sides of the excavation.

(B) Sections of sidewalks shall be removed to the nearest score line or saw cut edge.

(C) Unstable pavement shall be removed over cave-outs and over-breakers, and the subgrade shall be treated as the main trench.

(D) Pavement edges shall be trimmed to a vertical face and neatly aligned with the center line of the trench.

(E) Cutouts outside of the trench lines must be normal or parallel to the trench line.

(F) Boring or other methods to prevent cutting of new pavement may be required by the City Manager.

(G) The permittee shall not be required to repair damage existing prior to excavation unless his cut results in small floating sections that my be unstable, in which case the permittee shall remove and refill the area.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.44 Depth of Structures

(A) No person shall, without written permission of the City Manager, install any substructure, except manholes, vaults, valve casings, culverts and catch basins at a distance less than:

(1) Streets. Thirty inches below the established street or alley grade.

(2) Parkways.

(a) The minimum depth of any substructure shall be 24 inches below established street or alley grade when the substructure parallels the parkway.

(b) The minimum depth of any substructure shall be 24 inches below the top of the established sidewalk or curb when a substructure is at right angles to the parkway.

(3) Other public places. The minimum depth of any substructure in any other public place shall be 24 inches below the surface; provided, however, that the City Manager may permit a lesser depth in special cases.

(B) Nothing in this section shall impose a duty upon the permittee to maintain the specifications as required herein upon subsequent changes of grade in the surface unless the grade in the substructure interferes with the maintenance of, or travel on, a public street.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.45 Backfilling

(A) Selected backfill material shall be placed in trenches containing pipe simultaneously on both sides of the pipe for the full width of the trench in layers about six inches in depth and tamped thoroughly with a pneumatic tamper. The entire depth of the trench shall be thoroughly compacted with selected material and by means of hand or mechanically operated tampers, in layers of approximately six inches and shall be brought to the required surface grade without damage to the pipe.

(B) In lieu of the backfilling procedure specified above, river run gravel or crushed rock or gravel may be used for backfilling that portion of the trench more than six inches above the top of the pipe, provided the maximum size of material shall not exceed four inches in diameter and shall be of uniform graduation with 20% or more passing a ¼-inch square screen, ¾”- 0 crushed rock shall be placed in the final 12 inches of the trench and compacted in six-inch lifts, to a smooth finished grade equal to the existing surface.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.46 Noise, Dust and Debris

Each permittee shall conduct excavation work in a manner as to avoid unnecessary inconvenience and annoyance to the general public and occupants of neighboring property. The permittee shall take appropriate measures to reduce to the fullest extent practicable in the performance of the excavation work, noise, dust and unsightly debris.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.47 Inspections

The City Manager shall have inspections made as are reasonably necessary in the enforcement of this subchapter. The permittee shall notify the city prior to backfilling an excavation so that proper inspection may be made.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.48 Maintenance of Drawings

Every person owning, using, controlling or having an interest in substructures under the surface of any public place used for the purpose of supplying or conveying gas, electricity, communication impulse, water, steam, ammonia or oil in the city shall file with the City Manager within 120 days after adoption of this chapter a map or set of maps each drawn to a scale of not less than one inch to 200 feet showing in detail the location, size, description and date of installation, if known, of all substructures, except service line designed to serve a single property owner, beneath the surface of the public place belonging to, used by or under the control of the person having any interest and shall file with the City Manager within 15 days after the first day of January of each and every year a corrected map or set of maps each drawn to the scale including all installations made during the previous year to and including the last day of the year provided, however, that a public utility owner may at its option provide corrected atlas sheets at more frequent intervals.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.49 Clean Up of Area

Immediately after completion of the work, the permittee shall, at his or its own expense, clean up and remove all refuse and unused materials of any kind resulting from the work, and upon failure to do so within 24 hours after having been notified to do so by the City Manager, the work may be done by the city and the cost thereof charged to the permittee.

(Ord. 1942, passed 11-10-97) Penalty, see § 94.99

§ 94.50 Emergency Action

Nothing in this subchapter shall be construed to prevent the making of the excavations as may be necessary for the preservation of life or property or for the location of trouble in a conduit or pipe or for making repairs provided that the person making the excavation shall apply to the City Manager for a permit on the first working day after the work is commenced.

(Ord. 1942, passed 11-10-97)

§ 94.51 Liability of City

This subchapter shall not be construed as imposing upon the city or any official or employee any liability responsibility for damages to any person injured by the performance of any excavation work for which an excavation permit is issued hereunder, nor shall the city or any official or employee thereof be deemed to have assumed any liability or responsibility by reason of inspections authorized hereunder, the issuance of any permit or by the approval of any excavation work.

(Ord. 1942, passed 11-10-97)

§ 94.52 Penalty Charge for Excavating Newly Surfaced Streets

In order to conserve new paving and resurfacing of streets, pavement cuts are prohibited therein except for emergency repairs or upon payment of a penalty charge. The maximum period of time for which a penalty shall apply to a street shall be five years. The penalty shall be five times the cost of restoring the pavement surface during the first year, four times the restoration costs during the second year, three times the restoration costs during the third year, two times the restoration costs during the fourth year and equal to the restoration costs during the fifth year. This penalty fee shall be computed in addition to the normal resurfacing charge and shall be computed from the date at which the city accepted the newly paved surface. In order to avoid the necessity of these penalties, the city shall inform utilities and affected property owners before new paving or resurfacing is performed. Provided, however, this section shall not apply to any necessary reservicing of utility lines serving existing structures.

(Ord. 1942, passed 11-10-97)

§ 94.65 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Business Driveway Approach. A driveway approach providing ingress and egress to any property other than residential property.
• Corner. The point of intersection of the lines of two street curb faces extended into the street intersection.
• Curb Parking Space. A length of curb equal to 18 feet where an automobile or other vehicle can park.
• Curb Return.That portion of a curb next to a driveway approach which includes the radius of curvature or the ramp-type lug on commercial or industrial type pavements and which connects the driveway approach to the street curb.
• Driveway. A place on private property for the operation of automobiles and other vehicles.
• Driveway Approach. An area, construction, or facility between the roadway of a public street and private property intended to provide access for vehicles from a roadway of a public street to private property. For clarification, a Driveway Approach must provide access to something definite on private property such as a parking area, a driveway, or a door at least seven feet wide intended and used for the entrance of vehicles.
• Outside Sidewalk Line. A line parallel to the property line lying along the edge of the sidewalk nearest the street roadway or curb; or where no sidewalk exists, a line in the street right-of-way parallel to and four feet from the line of the private property.
• Parcel of Land. A lot or lots, or a tract officially registered under one ownership.
• Resident Driveway Approach. A driveway approach providing ingress and egress to residential property.

(Ord. 490, passed 8-23-63)

§ 94.66 Prohibited Activity

(A) It shall be unlawful for any person to cut, break out, or remove any curb along a street or alley without first obtaining a permit for a driveway approach, as hereinafter provided.

(B) It shall be unlawful for any person to construct, alter, or extend, or permit or cause to be constructed, altered, or extended, any driveway approach which can be used only as a parking space or area between the curb and private property.

(C) All permits granted for the use of public property under the terms of this sub-chapter shall be revocable at the will of the City Council.

(Ord. 490, passed 8-23-63) Penalty, see § 94.99

§ 94.67 Permit Application and Issuance

(A) Any person desiring to construct a driveway approach across any curbing, parking, sidewalk, or sidewalk space shall first make application to the City Engineer for a permit therefor. The application shall be in writing upon a form provided by the city, and made available at the office of the City Engineer. The application shall contain information showing type of construction, the width of the proposed driveway approach, the location of the driveway approach by lot and block number, as well as by street and house number, and other information as may be required by the City Engineer. The application shall be filed by the property owner desiring to construct the driveway approach or by his or her duly authorized agent.

(B) The permit shall be issued, at no charge, by the City Engineer if he has determined that the applicant has complied with the terms of this sub-chapter.

(Ord. 490, passed 8-23-63)

§ 94.68 Supervision of Construction

All work done under a permit issued in compliance with this subchapter shall be under the direction and supervision of the City Engineer, who is hereby authorized to make the necessary rules, regulations, and specifications with respect to materials for and method of construction of driveway approaches. A permit issued under the provisions of this subchapter may be revoked by the City Engineer at any time he is satisfied that the work is not being performed according to the provision hereof.

(Ord. 490, passed 8-23-63)

§ 94.69 Construction Requirements

In addition to the rules, regulations, and specifications promulgated by the City Engineer with respect to driveway approaches, the following requirements shall be complied with in the work done under the provisions of this subchapter.

(A) The outside of the driveway approach shall be a straight grade from the top of the curb to the grade of the outside sidewalk line.

(B) No curb cuts shall be made beyond any property line as projected except when consented to in writing by the adjoining property owner involved.

(C) The top of the paving of the driveway slab at the back of the curb line shall be 1e inches above the flow line of the gutter and shall slope in a straight line to the flow line of the gutter, and shall be constructed in a manner that will not interfere with or obstruct the drainage in the street.

(D) The owner and contractor shall protect the public from injury or damage during the construction of driveway approaches, and it is herein stipulated, as an essential condition of the issuance of a permit, that the city shall not be liable for damage which may arise from the prosecution of work.

(Ord. 490, passed 8-23-63) Penalty, see § 94.99

§ 94.70 Approach Classification, Width and Location

(A) Classification of driveway approaches.

(1) Driveway approaches shall be of two classes, namely, resident driveway approaches and business driveway approaches. Resident driveway approaches shall not exceed 20 feet in width at the outside sidewalk line, and the curb cut shall not exceed the width of the driveway approach at the outside sidewalk line by more than ten feet.

(2) Business driveway approaches shall not exceed 35 feet in width at the outside sidewalk line, shall have at least one curb parking space between driveway approaches and the curb cut shall not exceed the width of the driveway approach at the outside sidewalk line by more than ten feet. All business driveway approaches shall be paved.

(B) Width and location of driveway approaches. In addition to the width restrictions relative to driveway approaches set out in division (A) above, the following limitations on the width and location of driveway approaches for each parcel of land shall also be complied with, to wit:

(1) Where the frontage of the parcel of land does not exceed 38 feet in width, there may be constructed only one driveway approach.

(2) Where the frontage of the parcel of land exceeds 38 feet in width, the curb cuts for driveway approaches shall not exceed 60% of the frontage of the parcel of land, provided however, that at least one curb parking space shall separate each driveway approach.

(3) No portion of a driveway approach except the curb return shall be constructed within 18 feet of a corner.

(Ord. 490, passed 8-23-63) Penalty, see § 94.99

§ 94.71 Cooperation with Building Inspector

Any plans submitted to the Building Inspector for approval which include or involve unusual driveway approaches or problems shall be referred by the Building Inspector to the City Engineer for his approval before a building permit shall be issued.

(Ord. 490, passed 8-23-63)

§ 94.72 Maintenance and Removal

(A) Every driveway approach or entrance to abutting property shall be maintained and kept in a safe condition by the owner of the abutting property, and any driveway approach which shall not be so maintained and kept or which shall interfere with or obstruct the drainage carried by a street or the use of the street for the purpose of travel shall be repaired to conform with the specifications of this ordinance and the City Engineer or be removed. Upon the removal of any driveway approach, that portion of the street occupied by the same shall be restored as nearly as practicable to its former condition and all curbing shall be replaced, all by and at the expense of the owner of the abutting property.

(B) Whenever any driveway approach constructed under the provisions of this chapter no longer provides access for vehicles to something definite on private property, such as a parking area, a driveway, or a door at least seven feet wide, intended and used for the entrance of vehicles, the driveway approach shall be removed forthwith, and that portion of the street occupied by the driveway approach shall be restored as nearly as practicable to its former condition and all curbing shall be replaced, all by and at the expense of the owner of the abutting property.

(Ord. 490, passed 8-23-63) Penalty, see § 94.99

§ 94.73 Unusual Conditions

The City Engineer is hereby authorized to grant in writing variances from the strict application of the provisions of this chapter, provided he first determines that the following conditions are present:

(A) The exception or variance desired arises from peculiar physical conditions not ordinarily existing in similar districts in the city or is due to the nature of the business or operation on the abutting property.

(B) The exception or variance desired is not against the public interest, particularly safety, convenience, and general welfare.

(C) The granting of the permit for the exception or variance will not adversely affect the rights of adjacent property owners or tenants.

(D) That the strict application of the terms of this subchapter will work unnecessary hardship on the property owner or tenant.

(Ord. 490, passed 8-23-63)

§ 94.99 Penalty

(A) The owner, agent or occupant of any lot or part or parcel of land abutting or fronting upon any sidewalk which is now or may hereafter be constructed upon any street of the city, who shall suffer or permit the accumulation of sand drifts or banks of dirt or the growth of weeds or the accumulation of filth and trash or other obstruction upon the sidewalk abutting upon his or her property commits a Class A violation.

(Ord. 56, passed 5-31-11; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

(B) Any person, firm, or corporation violating any provision of §94.03, or failing to comply therewith, commits a Class A violation.

(Ord. 696, passed 4-26-71; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

(C) Any person who shall fail to make any repair required by §94.04 within five days after notified so to do by the Finance Director/Recorder commits a Class D violation.

(Ord. 92, passed 7-5-17; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

(D) Offenses set forth in §§94.05 through 94.10 are Class A violations. Any person who shall attempt to commit any of the offenses mentioned in this division, but who for any reason is prevented from consummating the act, shall be guilty of an offense of attempt to commit as to that offense.

(Ord. 1976, passed 10-26-98; Am. Ord. 1976, passed 10-26-98)

(E) Any person, firm or corporation violating any of the provisions of §§94.20 through 94.26 commits a Class A violation. Each day a violation is committed or permitted to continue shall constitute a separate offense and shall be punished.

(Ord. 556, passed 11-24-65; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

(F) Anyone who violates a provision of §§94.35 through 94.51 commits a Class A violation. Every full business day during which a business activity continues to be conducted in violation of §§94.35 through 94.51 shall be considered a separate offense. Offenses under §§94.35 through 94.51 shall be heard by the Board of Appeals as a violation and not as a crime. As a violation, there is no right to jury trial or court-appointed counsel.

(Ord. 1942, passed 11-10-97; Am. Ord. 1976, passed 10-26-98)

(G) Any person violating any of the provisions of §§94.65 through 94.73, or causing, permitting, or suffering the same to be done, commits a Class A violation. Each person shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of any of the provisions of §§94.65 through 94.73 is committed, continued or permitted. The issuance or granting of a permit shall not be deemed or construed to be a permit for, or approval of, any violation of §§94.65 through 94.73.

(Ord. 490, passed 8-23-63; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

§ 110.01 Purpose and Intent

(A) The minimum standards for commercial activity, operation or service hereinafter set forth have been developed to promote in a reasonable manner the best interest of the public concerning the competent and qualified operation of the Hermiston Municipal Airport.

(B) These standards shall be administered on fair and reasonable terms in accordance with the provisions of Section 308 of the Federal Aviation Act; Title VI, of the Civil Rights Act of 1964; Part 21, of Department of Transportation Regulations; FAA Advisory Circular, 150/5190-1A, dated December 16, 1985; and FAA Advisory Circular 150/5190-1, dated September 2, 1966.

(C) Any standard which a tenant operator is required to meet must be uniformly applicable to all operators seeking the same franchise privileges, and the basic premises herein contained are applicable to all.

(Ord. 1034, passed 2-14-77)

§ 110.02 Waiver Provisions

(A) The Council may in its discretion waive any portion of these rules and regulations for the benefit of a commercial airline licensed by the CAB, any governmental agency, or a person performing nonprofit public service performing air search and rescue operations, or engaging in fire fighting operations.

(B) The Council may consider an application by an individual for a license to perform in one of the following functions and not connected with a fixed base operation when in the Council's discretion the service is necessary for the convenience of the public:

(1) Special flight instructor;

(2) Ground school instructor;

(3) Aircraft mechanic;

(4) Avionics or other specialist technician;

(5) Agricultural applicator pilot.

(C) The Council may in its discretion waive any portion of these rules and regulations for the benefit of non-aviation-related activities and developments on airport lands.

(Ord. 1034, passed 2-14-77)

§ 110.03 Rates, Charges, Taxes and Assessments

(A) The rates and charges for any and all activities and services of operators shall be determined by the operators, subject to the approval of the City Council, and subject, further, to the requirement that all rates or charges shall be reasonable and be equally and fairly applied to all users of the services.

(B) All fixed base operators shall at their own expense pay all taxes and assessments against any buildings or other structures placed on the premises by them as well as all taxes and assessments against the personal property used by them in their operations.

(Ord. 1034, passed 2-14-77)

§ 110.04 Utility and Service Charges

All operators shall provide and pay for all lights, gas, electrical current, water, sewer charges and garbage collection charges used or incurred anywhere in or about the leased premises and shall pay the charges made therefor by the suppliers thereof promptly when due.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.05 Operator Requirements

All operators at the airport shall be full-time, financially sound and progressive business enterprises, with adequately manned and equipped facilities, including ample office facilities, and who observe normal or specifically required business hours.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.06 Laws, Ordinances and Regulations

All operators shall abide by and comply with all state, county and city laws and ordinances, the rules and regulations of the city and the rules and regulations of the State and Federal Aviation Administration.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.07 Subordinate Provisions

All contracts and leases between operators and the city shall be subordinate to the provisions of any existing or future agreement between the city and the United States, relative to the operation or maintenance of the airport, the execution of which has been or may be required as a condition precedent to the expenditure of federal funds for the development of the airport properties.

(Ord. 1034, passed 2-14-77)

§ 110.08 Subleases and Sublets Prohibited

(A) No fixed base operator shall sublease or sublet any premises leased by the operator from the city, or assign any lease without the prior written approval of the City Council; and any subletting or assignment shall be subject to all of the minimum standards herein set forth.

(B) In the event the lessee sublets any portion of his lease, the sublease must agree to assume the full obligations of the lease as set out herein and must agree to fully cooperate with the city in seeing that these standards are complied with. The sublease shall immediately comply with any reasonable request or direction of the city as it relates to the enforcement of these standards.

(Ord. 1034, passed 2-14-77)

§ 110.09 Rights in Common

Fixed base operators shall have the right, in common with others authorized so to do, to use common areas of the airport, including runways, taxiways, aprons, roadways, floodlights, landing lights, signals and other conveniences for the takeoff, flying and landing of aircraft of lessee.

(Ord. 1034, passed 2-14-77)

§ 110.10 Public Benefits

(A) Lessees will, at all times during the continuance of the term of the lease and any renewal or extension thereof, conduct, operate and maintain for the benefit of the public the fixed base operation provided for and described therein, and all aspects and parts and services thereof as defined and set forth, and will make all services available to the public and that they will devote their best efforts for the accomplishment of the purposes, and that they will at all times make charges to patrons and customers for all merchandise or materials and services furnished or rendered, but that they will refrain from imposing or levying excessive or otherwise unreasonable charges or fees for any facilities or services.

(B) Notwithstanding anything contained in a lease that may be or appear to the contrary, it is expressly understood and agreed that the rights granted thereunder are nonexclusive, and the lessor reserves the right to grant similar privileges to another operator or operators on other parts of the airport when, in its sole discretion the City Council feels a need exists.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.11 Hazardous Conditions

The city reserves the right to take any actions it considers necessary to protect the aerial approaches to the airport against obstructions, together with the right to prevent any fixed base operator from erecting, or permitting to be erected, any building, sign or other structure on the airport which, in the opinion of the city, would limit the usefulness of the airport or constitute a hazard to aircraft.

(Ord. 1034, passed 2-14-77)

§ 110.12 Maintenance of Premises

The lessee shall remove from the airport, or otherwise dispose of in a manner approved by the City Manager, all garbage, debris and other waste material (whether solid or liquid) arising out of its occupancy of the premises or out of its operations. The lessee shall keep and maintain his leased premises in a neat and orderly manner; lessee shall keep the grass cut and the buildings painted. Any garbage debris waste which may be temporarily stored in the open shall be kept in suitable garbage or waste receptacles, the same to be made of metal and equipped with tight-fitting covers and to be of a design safely and properly to contain whatever may be placed therein and all in accordance with city ordinances. The lessee shall use extreme care when effecting removal of all waste.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.13 Future Developments

The City Council reserves the right to further develop or improve all areas of the airport as it sees fit, regardless of the desires or views of any fixed base operators, and without interference or hindrance from any fixed base operators.

(Ord. 1034, passed 2-14-77)

§ 110.20 Fixed Base Operations

(A) A Fixed Base Operator is defined as any person, firm or corporation performing any of the functions or furnishing any of the services as hereinafter set out for fixed base operators at the Hermiston Municipal Airport . No person, firm or corporation shall engage in any commercial activity as a fixed base operator as herein defined unless the same is done in full compliance with the standards, rules and regulations herein set forth.

(B) All activities, operations or services provided on the airport property for compensation shall be considered commercial and shall meet the standards as set forth in this section.

(C) Only fixed base operators shall conduct a commercial activity on the airport. The following sections have been set forth as possible services.

(Ord. 1034, passed 2-14-77)

§ 110.21 Primary Services

(A) The sales, rental and leasing of aircraft, accessories and supplies.

(B) Flight training, ground school (instruction) and related operations.

(C) Charter and/or air taxi service.

(D) Maintenance activities to include repair, overhaul, rebuilding and modification of aircraft, engines and accessories.

(E) Line services to include aviation fuel and oil sales and other miscellaneous service activities.

(F) Provide hangar facilities and non-public tie down areas.

(Ord. 1034, passed 2-14-77)

§ 110.22 Specialty Services

(A) Aerial photography.

(B) Air ambulance service.

(C) Agni-chemical spraying.

(D) Radio and/or instrument repair.

(E) Propeller and/or avionics shop.

(F) Other specialty services not listed.

§ 110.23 Application for Operator Rights

An applicant desiring a lease or license to provide a commercial service at the airport shall submit a written application to the City Council containing all the pertinent information as set forth in Appendix (A), attached to Ordinance 1034, titled “Application for Fixed Base Operator,” six months prior to the desired occupancy date. The Council within 90 days shall arrive at some contract agreement or reject the application.

(A) Special provisions.

(1) The Council may grant licenses for special services.

(2) Land areas and/or facilities used or needed shall be by lease or license only and shall not be transferable unless authorized in writing by the Council.

(3) All proposals for fixed base operations shall include a sufficient land lease area to accommodate the required services and to provide for suitable buildings in which to conduct proposed activities.

(4) All buildings or structures used by fixed base operators are considered “public buildings” and shall comply with state and local laws and codes and regulations pertaining to their construction.

(5) An applicant shall specify each and every activity, operation or service to be provided as listed in §§ 110.21 and 110.22; and he shall conduct only those activities, operations or services for which he qualifies and which are specified in his lease and/or license.

(B) The intent of the city in granting a lease or license is that no fixed base operator shall have any preferential advantage over another fixed base operator, and that the true variable of success shall be good and sound business practice.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.24 Construction Cost

When, and in the manner as authorized by the City Council, a fixed base operator shall at his own expense provide, construct, install, equip and maintain all utilities, buildings, structures, ramps, tie downs and other facilities and improvements used for his own business. The city may at its discretion provide assistance for the development of the operational area and also lease any existing city-owned structures as it sees fit.

(Ord. 1034, passed 2-14-77)

§ 110.25 Conduct of Business

Each fixed base operator shall, upon being authorized by the Council, complete the structures, facilities and/or improvements necessary for his operation or activity within a time limit as included and set forth in his lease or license.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.26 Approval of City Council

Applicant shall satisfy the City Council of his ability to perform the services to be provided in the application and shall be stipulated in the lease or license.

(Ord. 1034, passed 2-14-77)

§ 110.27 Liability Insurance

(A) The fixed base operator shall secure minimum public liability insurance coverage from an acceptable insurance company as follows:

(1) Bodily injury: $250,000 each person or $500,000 each occurrence

(2) Property damage: $200,000 each occurrence

(B) The insurance coverage shall name the city as a co-insured with the fixed base operator. The policy or policies shall be maintained in full force and effect during all terms of existing leases, contracts or agreements and renewals or extensions of same. A copy of the policy shall be delivered to the Finance Director/Recorder. Each policy shall contain a provision that the policy may not be canceled without at least ten days prior notice in writing to the City Manager.

(Ord. 1034, passed 2-14-77)

§ 110.28 Fire and Damage Insurance

At all times during the term of a lease, lessor shall insure, at lessor's own cost or expense, all hangars and structures on the leased ground against any loss or damage by fire, windstorm, hail, explosion or smoke with a responsible insurance company which is acceptable to the City Council.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.29 Records and Books of Accounts

Lessee shall keep accurate records and book of accounts on the operation of its facility, and the records and books shall be open to examination by the City Council or its authorized representative.

(Ord. 1034, passed 2-14-77)

§ 110.30 Repair and Maintenance

The leased area facilities and structures shall be kept in an acceptable state of repair and maintained at all times. Lessor shall be responsible for the structural supports and exterior walls of the facilities which are owned by the city; lessee shall be responsible for all else.

(Ord. 1034, passed 2-14-77)

§ 110.31 Revocation of Lease or License

The Council in its discretion shall have the right to terminate any lease, license or agreement authorizing the fixed base operator to conduct any service or activity and to revoke a lease on any land or facility upon the airport for any cause or reason provided by these rules or by law, and in addition, upon the happening of one or more of the following:

(A) Filing a petition of voluntary or involuntary bankruptcy by the operator;

(B) The making by the fixed base operator of any general assignment for the benefit of creditors;

(C) The abandonment or discontinuance of any permitted operation at the airport by the fixed base operator or the failure to conduct any service, operation or activity which the lessee or licensee has agreed to provide under the terms of his contract. If this condition exists for a period of ten days without prior approval of the Council, it will constitute an abandonment of the land or facilities and the lease and/or license shall become null and void;

(D) The failure of the fixed base operator to promptly pay to the city, when due, all rents, charges, fees or other payments which are payable to the city in accordance with applicable leases or licenses;

(E) The failure of the fixed base operator to remedy any default or breach or violation of these rules and regulations by him or his employees within 30 days after notice from the City Manager;

(F) Violates any of these rules and regulations or fails to maintain current FAA licenses required for his operation;

(G) Supplies the city with false or misleading information or misrepresents any material facts on his application or documents, or in statements to or before the Council, or fails to make full disclosure on his financial statement or other required documents; and

(H) Operates or allows any employee to operate an aircraft or equipment in a dangerous or hazardous manner which may endanger the public in any manner.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.32 Certificates

Fixed base operators and/or employees shall be competent and shall hold all current valid certificates, permits, licenses or other authorities required by the CAB and the FAA, including any required air taxi permits and public utility commission certificates, and shall not utilize any pilot in any aircraft operations who does not hold valid and current certificates from CAB and FAA, nor shall they allow any aircraft to be flown which does not have a current and valid license and permit.

(Ord. 1034, passed 2-14-77) Penalty, see § 110.99

§ 110.33 Complaints in Writing

All complaints against any fixed base operator or his employees for violation of these rules and regulations shall be in writing and signed by the complainant and filed with the Finance Director/Recorder.

(Ord. 1034, passed 2-14-77)

§ 110.34 Rights of Inspections

To the extent necessary to protect the rights and interests of the city or to investigate the terms of these rules and regulations, the City Manager or his authorized representative shall have the right to inspect, during reasonable hours, all aircraft, structures, premises, facilities and improvements on the airport, preferably in the presence of the lessee or owner.

(Ord. 1034, passed 2-14-77)

§ 110.99 Penalty

Any person who violates a provision of this chapter commits a Class B violation.

(Ord. 1034, passed 2-14-77; Am. Ord. 1549, passed 12-10-84; Am. Ord. 1632, passed 6-22-87)
(Ord. 1034, passed 2-14-77)

§ 112.01 Title

This chapter shall be known as the Transient Room Tax Ordinance.

(Ord. 1719, passed 3-11-91)

§ 112.02 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Accrual Accounting. A system of accounting in which the operator enters the rent due from a transient on his records when the rent is earned, whether or not it is paid.
• Cash Accounting. A system of accounting in which the operator does not enter the rent due from a transient on his records until the rent is paid.
• Council. The City Council.
• Hotel. Any structure or any portion of any structure which is occupied or intended or designed for transient occupancy for 30 days or less, for dwelling, lodging or sleeping purposes, and includes any hotel, inn, tourist home or house, motel, studio hotel, bachelor hotel, lodging house, rooming house, apartment house, public or private dormitory, fraternity, sorority, public or private club, space in mobile home park, recreational vehicle park or trailer park or similar structure, or portions thereof so occupied, provided the occupancy is for less than a 30-day period.
• Occupancy. The use or possession, or the right to use or possess lodging or sleeping purposes of any room or rooms in a hotel, or space in a mobile home or trailer park, or portion thereof.
• Operator. The person who is proprietor of a hotel in any capacity. Where the Operator performs his functions through a managing agent of any type or character other than an employee, the managing agent shall also be deemed an Operator for the purposes of this chapter and shall have the same duties and liabilities as his principal. Compliance with the provisions of this chapter by either the principal or the managing agent shall be considered to be compliance by both.
• Person. Any individual, firm, partnership, joint venture, association, social club, fraternal organization, fraternity, sorority, public or private dormitory, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit.
• Rent. The consideration charged, whether or not received by the operator, for the occupancy of space in a hotel valued in money, goods, labor, credits, property, or other consideration valued in money, without any deduction.
• Rent Package Plan. The consideration charged for both food and rent where a single rate is made for the total of both. The amount applicable to rent for determination of transient room tax under this chapter shall be the same charge made for rent when consideration is not a part of a package plan.
• Tax. Either the Tax payable by the transient, or the aggregate amount of Taxes due from an operator during the period for which he is required to report his collections.
• Transient. Any individual who exercises occupancy or is entitled to occupancy in a hotel for a period of 30 consecutive calendar days or less, counting portions of calendar days as full days. The day a Transient checks out of the hotel shall not be included in determining the 30-day period if the Transient is not charged rent for that day by the operator. Any individual so occupying space in a hotel shall be deemed to be a Transient until the period of 30 days has expired unless there is an agreement in writing between the operator and the occupant providing for a longer period of occupancy.

(Ord. 1719, passed 3-11-91; Am. Ord. 1971, passed 10-12-98)

§ 112.03 Registration of Operator Required

(A) Every person engaging or about to engage in business as an operator of a hotel in this city shall register with the Finance Director/Recorder on a form provided by him.

(B) Operators engaged in business at the time this chapter is adopted must register not later than 30 calendar days after passage of this chapter. Operators starting business after this chapter is adopted must register within 15 calendar days after commencing business. The privilege of registration after the date of imposition of the tax shall not relieve any person from the obligation of payment or collection tax regardless of registration.

(C) Registration shall set forth the name under which an operator transacts or intends to transact business, the location of his place or places of business and other information to facilitate the collection of the tax as the Finance Director/Recorder may require. The registration shall be signed by the operator. The Finance Director/Recorder shall, within ten days after registration, issue without charge a certificate of authority to each registrant to collect the tax from the occupant, together with a duplicate thereof for each additional place of business for each registrant.

(D) Certificates shall be non-assignable and non-transferable and shall be surrendered immediately to the Finance Director/Recorder upon the cessation of business at the location named or upon its sale or transfer. Each certificate and duplicate shall state the place of business to which it is applicable and shall be prominently displayed therein so as to be seen and come to the notice readily of all occupants and persons seeking occupancy.

(E) The certificate shall, among other things, state the following:

(1) The name of the operator;

(2) The address of the hotel;

(3) The date upon which the certificate was issued;

(4) This “Transient Occupancy Registration Certificate” signifies that the person named on the face hereof has fulfilled the requirements of the “Transient Room Tax Ordinance” of the city by registration with the Finance Director/Recorder for the purpose of collection from transients the room tax imposed by the city and remitting the tax to the Finance

• Director/Recorder. This certificate does not authorize any person to conduct any unlawful business or to conduct any lawful business in an unlawful manner, or to operate a hotel without strictly complying with all local applicable laws including but not limited to those requiring a permit from any board, council, department or office of the city. This certificate does not constitute a permit.

(Ord. 1719, passed 3-11-91)

§ 112.04 Tax Imposed

(A) For the privilege of occupancy in any hotel, on and after April 1, 2003, each transient shall pay a tax in the amount of 8% of the rent charged on each room, rental space, or other occupancy defined in this chapter for each day of occupancy, provided, however, the occupancies rented for seven consecutive days to the same individual or party shall pay a rate of 2½% of the rent charged per night of occupancy up to the 30-day limitation of this chapter. The tax constitutes a debt owed by the transient to the city which is extinguished only by payment to the operator or to the city. The transient shall pay the tax to the operator of the hotel at the time the rent is paid. The operator shall enter the tax on his records when rent is collected if the operator keeps his records on the cash accounting basis and when earned if the operator keeps his records on the accrual accounting basis.

(B) If rent is paid in installments, a proportionate share of the tax shall be paid by the transient to the operator with each installment. If for any reason the tax due is not paid to the operator of the hotel, the Finance Director/Recorder may require that the tax shall be paid directly to the city. In all cases, the rent paid or charged for occupancy shall exclude the sale of any goods, services and commodities, other than the furnishing of rooms, accommodations, and parking space in mobile home parks or trailer parks.

(C) Rates established herein shall not be increased for at least five years from effective date hereof.

(Ord. 1719, passed 3-11-91; Am. Ord. 1850, passed 8-8-94; Am. Ord. 2067, passed 1-27-03)

§ 112.05 Rules for Collection

(A) Every operator renting rooms in this city, the occupancy of which is not exempted under the terms of this chapter, shall collect a tax from the occupant. The tax collected or accrued by the operator constitutes a debt owed by the operator to the city.

(B) In all cases of credit or deferred payment of rent, the payment of tax to the operator may be deferred until the rent is paid, and the operator shall not be liable for the tax until credits are paid or deferred payments are made.

(C) The Finance Director/Recorder shall enforce provisions of this chapter and shall have the power to adopt rules and regulations not inconsistent with this chapter as may be necessary to aid in the enforcement.

(D) For rent collected on portions of a dollar, fractions of a penny of tax shall not be remitted.

(Ord. 1719, passed 3-11-91)

§ 112.06 Duties of Operator

Each operator shall collect the tax imposed by this chapter at the same time as the rent is collected from every transient. The amount of tax shall be separately stated upon the operator's records, and any receipt rendered by the operator. No operator of a hotel shall advertise that the tax or any part of the tax will be assumed or absorbed by the operator, or that it will not be added to the rent, or that, when added, any part will be refunded, except in the manner provided by this chapter.

(Ord. 1719, passed 3-11-91) Penalty, see § 112.99

§ 112.07 Due Date for Returns and Payment

(A) The tax imposed by this chapter shall be paid by the transient to the operator at the time that rent is paid. All amounts of the taxes collected by any operator accrue and are payable to the Finance Director/Recorder on a quarterly basis. The taxes accrue on the last day of the quarter and are delinquent 30 days thereafter.

(B) On or before the thirtieth day following each quarter of collection a return for that quarter's tax shall be filed with the Finance Director/Recorder. The return shall be filed in the form as the Finance Director/Recorder may prescribe by every operator liable for payment of tax.

(C) Returns shall show the amount of tax collected or otherwise due for the related period. The Finance Director/Recorder may require returns to show the total rentals upon which tax was collected or otherwise due, and an explanation in detail of any discrepancy between reported rentals and amounts tendered, the amount of rents exempt, if any, and description of units rented for periods of seven consecutive days, or for more than 30 days.

(D) The person required to file the return shall deliver the return, together with the remittance of the amount of tax due, to the Finance Director/Recorder at his office either by personal delivery or by mail. If the return is mailed, the postmark shall be considered the date of delivery for determining delinquencies.

(E) For good cause, the Finance Director/Recorder may extend, but not to exceed, one month the time for making any return or payment of tax. No further extension shall be granted, except by action of the City Council as provided herein. Any operator to whom an extension is granted shall pay interest at the rate of 1% per month on the amount of tax due without proration for a fraction of a month. If a return is not filed, and the tax and interest due is not paid by the end of the extension granted, then the interest shall become a part of the tax for computation of penalties described elsewhere in this chapter.

(Ord. 1719, passed 3-11-91)

§ 112.08 Delinquencies and Interest

(A) Original delinquency. Any operator who has not been granted an extension of time for remittance of tax due and who fails to remit any tax imposed by this chapter prior to delinquency shall pay a penalty of 10% of the amount of the tax due in addition to the amount of the tax.

(B) Continued delinquency. Any operator who has not been granted an extension of time for remittance of tax due, and who failed to pay any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay a second delinquency penalty of 15% of the amount of tax due plus the amount of the tax and the 10% penalty first imposed.

(C) Fraud. If the Finance Director/Recorder determines that the nonpayment of any remittance due under this chapter is due to fraud or intent to evade the provisions thereof, a penalty of 25% of the amount of the tax shall be added thereto in addition to the penalties stated in divisions (A) and (B) above of this section.

(D) Interest. In addition to the penalties imposed, any operator who fails to remit any tax imposed by this chapter shall pay interest at the rate of .5% per month or fraction thereof without proration for portions of a month, on the amount of the tax due, exclusive of penalties, from the date on which the remittance first became delinquent until paid.

(E) Penalties merged with tax. Every penalty imposed and the interest as accrues under the provisions of this section shall be merged with and become a part of the tax herein required to be paid.

(F) Petition for waiver. Any operator who fails to remit the tax herein levied within the time herein stated shall pay the penalties herein stated provided, however, the operator may petition the City Council for waiver and refund of the penalty or any portion thereof, and the Council may, if a good and sufficient reason is shown, waive and direct a refund of the penalty or any portion thereof.

(Ord. 1719, passed 3-11-91)

§ 112.09 Deficiency Determinations

(A) Deficiency determination.  If the Finance Director/Recorder determines that the returns are incorrect, he may compute and determine the amount required to be paid upon the basis of the facts contained in the return or returns or upon the basis of any information within his possession or that may come into his possession.  One or more deficiency determinations may be made of the amount due for one, or more than one period, and the amount so determined shall be due and payable immediately upon service of notice as herein provided after which the amount determined is delinquent.  Penalties on deficiencies shall be applied as set forth in ' 112.08.

(1) In making a determination the Finance Director/Recorder may offset overpayment if any, which may have been previously made for a period or periods, against any underpayment for a subsequent period or periods, or against penalties, and interest, on the underpayment. The interest on underpayment shall be computed in the manner set forth in ' 112.08.

(2) The Finance Director/Recorder shall give to the operator or occupancy a written notice of his determination.  The notice may be served personally or by mail; if by mail, the notice shall be addressed to the operator at his address as it appears in the records of the Finance Director/Recorder.  In case of service by mail or any notice required by this chapter the service is complete at the time of deposit in the United States Post Office.

(3) Except in the case of fraud, intent to evade this chapter or authorized rules and regulations, every deficiency determination shall be made and notice thereof mailed within three years after the last day of the month following the close of the monthly period for which the amount is proposed to be determined or within three years after the return is filed, whichever period expires the later.

(4) Any determination shall become due and payable immediately upon receipt of notice and shall become final within ten days after the Finance Director/Recorder has given notice thereof, provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as herein provided.

(B) Fraud, refusal to collect, evasion.  If any operator shall fail or refuse to collect the tax or to make, within the time provided in this chapter, any report and remittance of the tax or any portion thereof required by this chapter, or makes a fraudulent return or otherwise wilfully attempts to evade this chapter, the Finance Director/Recorder shall proceed in the manner he may deem best to obtain facts and information on which to base an estimate of the tax due.  As soon as the Finance Director/Recorder has determined the tax due that is imposed by this chapter from any operator who has failed or refused to collect the same and to report and remit the tax, he shall proceed to determine and assess against the operator the tax, interest, and penalties provided for by this chapter.  In case a determination is made, the Finance Director/Recorder shall give a notice in the manner aforesaid of the amount so assessed.  The determination and notice shall be made and mailed within three years after discovery by the Finance Director/Recorder of any fraud, intent to evade or failure or refusal to collect the tax, or failure to file return.  Any determination shall become due and payable immediately upon receipt of notice and shall become final within ten days after the Finance Director/Recorder has given notice thereof, provided, however, the operator may petition redemption and refund if the petition is filed before the determination becomes final as herein provided.

(C) Operator delay.  If the Finance Director/ Recorder believes that the collection of any tax or any amount of tax required to be collected and paid to the city will be jeopardized by delay, or if any determination will be jeopardized by delay, he shall thereupon make a determination of the tax or amount of tax required to be collected, noting the fact upon the determination.  The amount so determined as herein provided shall be immediately due and payable, and the operator shall immediately pay same determination to the Finance Director/Recorder after service of notice thereof, provided, however, the operator may petition, after payment has been made, for redemption and refund of determination, if the petition is filed within ten days from the date of service of notice by the Finance Director/Recorder.

(Ord. 1719, passed 3-11-91)

§ 112.10 Redeterminations

(A) Any person against whom a determination is made under 112.09 or any person directly interested may petition for a redetermination and redemption and refund within the time required in 112.09 hereof.  If a petition for redetermination and refund is not filed within the time required in 112.09, the determination becomes final at the expiration of the allowable time.

(B) If a petition for redetermination and refund is filed within the allowable period, the Finance Director/Recorder shall reconsider the determination and if the person has so requested in his petition, shall grant the person an oral hearing and shall give him ten days notice of the time and place of the hearing.  The Finance Director/Recorder may continue the hearing from time to time as may be necessary.

(C) The Finance Director/Recorder may decrease or increase the amount of the determination as a result of the hearing and if any increase is determined the increase shall be payable immediately after the hearing.

(D) The order or decision of the Finance Director/Recorder upon a petition for redetermination of redemption and refund becomes final ten days after service upon the petitioner of notice thereof, unless appeal of the order or decision is filed with the Council within the ten days after service of the notice.

(E) No petition for redetermination of redemption and refund or appeal therefrom shall be effective for any purpose unless the operator has first complied with the payment provisions hereof.

(Ord. 1719, passed 3-11-91)

§ 112.11 Lien on Property

(A) The tax imposed by this chapter together with the interest and penalties herein provided and the filing fees paid to the Clerk of Umatilla County, the advertising costs which may be incurred when same becomes delinquent as set forth in this chapter shall be and, until paid, remain a lien from the date of its recording with the Clerk of Umatilla County, Oregon. The lien shall be superior to all subsequently recorded liens on all tangible personal property used in the hotel of an operator within Hermiston and may be foreclosed on and the necessary property sold to discharge the lien, if the lien has been recorded.

(B) Personal property subject to the lien may be foreclosed in the same manner as a nonpossessory chattel lien for labor or material expended on chattel in ORS Chapter 87.  When the Finance Director/ Recorder files a notice of claim of lien with the County Recorder, the Finance Director/Recorder or deputy shall send forthwith a copy of the notice to the operator and the owner of the chattel (if different from the operator) by certified mail at their last‑known address.

(C) At any time within three years after any tax or any amount of tax required to be collected becomes due and payable, or at any time within three years after any determination becomes final, the Finance Director/Recorder may bring an action in the courts of this state, or any other state, or of the United States, in the name of the city, to collect the amount delinquent, together with penalties and interest.

(D) In suits to foreclose the lien the court shall, upon entering judgment, allow as part of the lien the moneys paid for the filing or recording of the lien. The court shall also allow reasonable attorney fees at trial and on appeal to the prevailing party.

(E) Any lien for taxes as shown on the records of the proper county official shall, upon the payment of all taxes, penalties, and interest thereon, be released by the Finance Director/Recorder when the full amount determined to be due has been paid to the city and the operator or person making the payment shall receive a receipt therefor stating that the full amount of taxes, penalties, and interest thereon have been paid and that the lien is thereby released and the record of lien is satisfied.
 

(Ord. 1719, passed 3-11-91; Am. Ord. 2162, passed 10-26-09)

§ 112.12 Refunds

(A) Operators' refunds.  Whenever the amount of any tax, penalty, or interest has been paid more than once or has been erroneously or illegally collected or received by the Finance Director/ Recorder under this chapter, it may be refunded, provided a verified claim in writing therefor, stating the specific reason upon which the claim is founded, is filed with the Finance Director/Recorder within three years from the date of payment.  The claim shall be made on forms provided by the Finance Director/ Recorder.  If the claim is approved by the Finance Director/Recorder, the excess amount collected or paid may be refunded or may be credited on any amounts then due and payable from the operator from whom it was collected or by whom paid and the balance may be refunded to each operator, his administrators, executors or assignees.

(B) Transient refunds.  Whenever the tax required by this chapter has been collected by the operator, and deposited by the operator with the Finance Director/Recorder, and it is later determined that the tax was erroneously or illegally collected or received by the Finance Director/Recorder, it may be refunded by the Finance Director/Recorder to the transient, provided a verified claim in writing therefor, stating the specific reason on which the claim is founded, is filed with the Finance Director/ Recorder within three years from the date of payment.

(Ord. 1719, passed 3-11-91)

§ 112.13 Exemptions

No tax imposed under this chapter shall be imposed upon:

(A) Any occupant for more than 30 successive calendar days; (a person who pays for lodging on a monthly basis, irrespective of the number of days in the month, shall not be deemed a transient).

(B) Any occupant whose rent is of a value less than $3 per day.

(C) Any person who rents a private house, vacation cabin, or like facility from any owner who rents the facilities incidentally to his own use thereof.

(D) Any occupant whose rent is paid for a hospital room or to a medical clinic, convalescent home or home for aged people, to a public institution owned and operated by a unit of government, to a shelter home, half‑way house or other rehabilitation facility.

(Ord. 1719, passed 3-11-91)

§ 112.25 Distribution of Taxes; Fees

(A) Distribution.

(1) Five‑eighths of the taxes remitted to the city, less 5% retained by the operator, shall be distributed as follows:

(a) 45% to improve, maintain and operate the Hermiston Community Center;

(b) 15% for recreation and recreation‑related programs and activities and park improvements administered by the advisory committee pursuant to ' 112.27(B);

(c) 25% to offset costs of programs such as the senior citizen taxi program, economic development, streets maintenance and similar programs funded from the general fund; and

(d) 15% for city parks and recreation development administered by the Parks and Recreation Committee pursuant to ' 112.27(D). The proceeds of the tax for parks and recreation development shall accumulate in a reserve account and may not be diverted or utilized in any other manner.

(2) Three‑eighths of the taxes remitted to the city, less 5% retained by the operator, shall be distributed to offset the cost of constructing a community outdoor swimming pool, including the retirement of any bonds issued for its construction.

(B) Records required from operators; forms.  Every operator shall keep guest records of room sales and accounting books and records of the room sales.  All records shall be retained by the operator for a period of three years and six months after they come into being.

(C) Collection fee.  Every operator liable for collection and remittance of the tax imposed by this chapter may withhold 5% of the net tax herein collected to cover the operator's expenses in collection and remittance of the tax.

(D) Examination of records; investigations.  The Finance Director/Recorder or any person authorized in writing by him may examine during normal business hours, the books, papers, and accounting records relating to room sales of any operator after notification to the operator liable for the tax and may investigate the business of the operator in order to verify the accuracy of any return made, or if no return is made by the operator, to ascertain and determine the amount required to be paid.

(E) Confidential character of information obtained; disclosure unlawful.  It shall be unlawful for the Finance Director/Recorder or any person having an administrative or clerical duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any person required to obtain a transient occupancy registration certificate, or pay a transient occupancy tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof to be seen or examined by any person.  Provided that nothing in this subsection shall be construed to prevent:

(1) The disclosure to, or the examination of records and equipment by another city official, employee, or agent for collection of taxes for the sole purpose of administering or enforcing any provisions of this chapter; or collecting taxes imposed hereunder.

(2) The disclosure after the filing of a written request to that effect, to the taxpayer himself, receivers, trustees, executors, administrators, assignees, and guarantors, if directly interested, of information as to any paid tax, any unpaid tax or amount of tax required to be collected, or interest, and penalties; further provided, however, that the City Attorney approves each disclosure and that the Finance Director/Recorder may refuse to make any disclosure referred to in this division when in his opinion the public interest would suffer thereby.

(3) The disclosure of the names and addresses of any persons to whom transient occupancy registration certificates have been issued.

(4) The disclosure of general statistics regarding taxes collected or business done in the city.

(Ord. 1719, passed 3-11-91; Am. Ord. 1766, passed 5‑11‑92; Am. Ord. 1850, passed 8-8-94; Am. Ord. 2056, passed 6‑10‑02; Am. Ord. 2067, passed 1‑27‑03)

§ 112.26 Appeals to City Council

(A) Any dispute in the amount of taxes due, refunds, or other provisions of this chapter, may be filed with the Finance Director/Recorder.  If not satisfied by the Finance Director/Recorder, the operator may appeal the decision of the Finance Director/Recorder to the City Manager, and if not satisfied by the Manager, to the City Council.

(B) The Council, acting as the review authority for disputes, may:

(1) Hear and determine appeals of decisions of the personnel of the city, prescribe the forms, rules and regulations relating to appeals, and take other actions consistent with the appeal function.  In reviewing a decision or dispute the Council may take evidence and make an investigation.  The Council shall give notice of determinations and shall file a certified copy of each determination with the Finance Director/Recorder. A determination of the Council becomes final after 20 days and becomes due, subject to interest and penalties, and enforceable by the city in the same manner as an order or decision of the Finance Director/Recorder as described herein.

(2) Approve, modify or disapprove all forms, rules and regulations prescribed by the Finance Director/Recorder if the forms, rules and regulations are challenged in the administration and enforcement of this chapter.

(3) Hear and determine protests made to a form, rule or regulation approved or prescribed by the Finance Director/Recorder.

(4) Prescribe rules for extensions and, for good cause, grant extensions of time in excess of one month for filing a return or paying the tax.

(5) Make investigations regarding imposition and administration of the tax and report findings publicly; assist in directing enforcement actions; and determine the necessity to amend or alter this chapter.

(6) Any other duties not specifically enumerated herein which are consistent with this chapter.

(Ord. 1719, passed 3-11-91)

§ 112.27 Disposition of Proceeds

(A) The city shall receipt for the proceeds of the tax in the ATransient Room Tax Fund.@

(B) The Council shall appoint an advisory committee consisting of a motel operator, a member of the Parks and Recreation Committee, a representative of the Chamber of Commerce, a member of the Council and one citizen at large not affiliated with any of the organizations potentially funded through the proceeds of the tax, to consider potential projects eligible for funding from the portion of the tax designated for recreation and recreation‑related programs and activities and park improvements in 112.25(A)(2). Committee members shall be appointed in accord with the charter of the city and rules of the Council.

(C) Advisory committee members will be appointed for three‑year staggered terms, and may be any individual dwelling within the boundaries of Hermiston School District 8R.  The type of projects, method of administration, and similar matters shall be established by the Committee, with the advice and consent of the City Council. The Committee shall recommend annual appropriations to the City Manager and the Council. The proceeds accounted in this fund may not be expended for any project until the Committee and the Council have agreed on the project and the amounts to be expended.  Should the Committee and the Council fail to agree, the proceeds of the tax shall continue to accumulate in this account and may not be diverted or utilized in any other manner.

(D) Pursuant to 112.25(A)(4), the Parks and Recreation Committee shall act as the advisory committee for parks and recreation development.  The Parks and Recreation Committee shall recommend types of projects to be funded to the City Manager and Council. The proceeds accounted in this fund may not be expended for any project until the Parks and Recreation Committee and Council have agreed on the project and the amount to be expended. Should the Parks and Recreation Committee and the Council fail to agree, the proceeds of the tax for parks and recreation development shall continue to accumulate in this account and me not be diverted or utilized in any other matter.

(Ord. 1719, passed 3-11-91; Am. Ord. 1766, passed 5-11-92; Am. Ord. 1850, passed 8-8-94; Am. Ord. 2056, passed 6-10-02)

§ 112.28 Violations

It is unlawful for any operator or other person so required to fail or refuse to register as required herein, or to  furnish any return required to be made, or fail or refuse to furnish a supplemental return or other data required by the Finance Director/Recorder or to render a false or fraudulent return.  No person required to make, render, sign, or verify any report shall make any false or fraudulent report, with intent to defeat or evade the determination of any amount due required by this chapter.

(Ord. 1719, passed 3-11-91)  Penalty, see ' 112.99

§ 112.99 Penalty

Anyone who fails to register pursuant to this chapter commits a Class A violation for each continuing day of violation, and in addition is subject to the penalties assessed for non-payment as set forth in this chapter.

(Ord. 1719, passed 3-11-91; Am. Ord. 1976, passed 10-26-98)

§ 115.001 Purpose

The purpose of this chapter is to:

(A) Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, Carriers and the services they offer;

(B) Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of Carriers and services;

(C) Promote competition on a competitively neutral basis in the provision of telecommunications services;

(D) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses, institutions and residents of the city;

(E) Permit and manage reasonable access to the public rights-of-way of the city for telecommunications purposes on a competitively neutral basis and conserve the limited physical capacity of those public rights-of-way held in trust by the city;

(F) Assure that the city's current and ongoing costs of granting and regulating private access to and the use of the public rights-of-way are fully compensated by the persons seeking such access and causing such costs to be incurred;

(G) Secure fair and reasonable compensation to the city and its residents for permitting private use of the public rights-of-way;

(H) Assure that all Carriers providing facilities or services within the city, or passing through the city, register and comply with the ordinances, rules and regulations of the city;

(I) Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;

(J) Enable the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.002 Jurisdiction and Management of the Public Rights-of-Way

(A) The city has jurisdiction and exercises regulatory control over all public rights-of-way within the city under authority of the city charter and state law.

(B) Public rights-of-way include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways or areas, including the subsurface under and air space over these areas.

(C) The city has jurisdiction and exercises regulatory control over each public right-of-way whether the city has a fee, easement or other legal interest in the right-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.

(D) No person or entity may occupy or encroach on a public right-of-way without the permission of the city. The city grants permission to use rights-of-way by franchises and permits.

(E) The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way, and does not obligate the city to maintain or repair any part of the right-of-way.

(F) The city retains the right and privilege to remove any telecommunications facilities located within the public rights-of-way of the city, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.003 Applicability to Cable Service and Open Video System

To the extent not specifically precluded by the Cable Act or any other federal law, this chapter shall apply to cable service provided within the city and to Open Video Systems, as that term is used in section 653 of the Telecommunications Act.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.004 Regulatory Fees and Compensation Not a Tax

(A) The regulatory fees and costs provided for in this chapter, and any compensation charged and paid for the public rights-of-way provided for in this chapter, are separate from, and in addition to, any and all federal, state, local and city taxes as may be levied, imposed or due from a Carrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services.

(B) The city has determined that any fee imposed by this chapter is not subject to the property tax limitations of Chapter XI, Section 11(b) of the Oregon Constitution.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.005 Definitions

For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning defined in this chapter. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined in this chapter shall be given the meaning set forth in the Communications Policy Act of 1934, as amended, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning.

• Aboveground or Overhead Facilities. Utility poles, utility facilities and telecommunications facilities above the surface of the ground, including the underground supports and foundations for such facilities.
• Affiliated Interest. The same meaning as ORS 759.010.
• Cable Act. The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521, et seq., as now and hereafter amended.
• Cable Service. The one-way transmission to subscribers of video programming, or other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
• Carrier. Any provider of telecommunications services within the city. Carrier includes Telecommunications Carriers, Telecommunications Utilities and Resellers.
• City Property. All real property owned by the city, other than public streets and utility easements as those are defined in this chapter, and all property held in a proprietary capacity by the city, which are not subject to right-of-way licensing and franchising as provided in this chapter.
• Conduit. Any structure, or section of any structure, containing one or more ducts, conduits, manholes, handholes, bolts, or other facilities used for any telegraph, telephone, cable television, electrical, or communications conductors, or cable right-of-way, owned or controlled, in whole or in part, by one or more public or private utilities.
• Control or Controlling Interest. Actual working control in whatever manner exercised.
• Duct. A single enclosed raceway for conductors or cable.
• FCC or Federal Communications Commission. The federal administrative agency, or lawful successor, authorized to regulate and oversee Carriers, services and providers on a national level.
• Franchise. An agreement between the city and a Grantee which grants a privilege to use public right-of-way and utility easements within the city for a dedicated purpose and for specific compensation.
• Grantee. The person to which a franchise or permit is granted by the city.
• Gross Revenue. Except for a telecommunications utility, gross revenue means gross revenue derived by Grantee from the provision of telecommunications services originating or terminating in the city using facilities covered by the franchise. For the purposes of this definition, net uncollectibles from revenue included in gross revenues may be excluded from gross revenues. For a telecom-munications utility, gross revenue means those revenues derived from exchange access services, as defined in ORS 401.710, less net uncollectibles from such revenues. If a telecommunications utility provides telecommunication services in addition to exchange access services, then gross revenue for those additional services shall have the meaning defined in the first sentence of this section.
• Local Exchange Service. Service provided within the boundaries of an exchange as the exchange appears on the exchange maps filed with and approved by the Oregon Public Utility Commission. Local exchange service includes “shared telecommunications service,” as defined in ORS Chapter 759.
• Oregon Public Utilities Commission or OPUC. The statutorily created state agency in the State of Oregon responsible for licensing, regulation and administration of certain communications providers as set forth in Oregon Law.
• Person. An individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company.
• Private Telecommunictions Network. A system, including the construction, maintenance or operation of the system, for the provision of a service or any portion of a service, by a person for the exclusive use of that person and not for resale, directly or indirectly. Private Telecommunications Network includes services provided by the State of Oregon pursuant to ORS 190.240 and 283.140.
• Public Rights-of-Way. Include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways, including the subsurface under and air space over these areas, but only to the extent of the city's right, title, interest or authority to grant a franchise to occupy and use such streets and easements for telecommunications facilities. Public Rights-of-Way do not include trails, paths or sidewalks within parks or other areas of the city unless the trail, path or sidewalk has been dedicated as a right-of-way.
• Public Street. Any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and regulatory control of the city which has been acquired, established, dedicated or devoted to vehicular travel and pedestrian purposes not inconsistent with telecommunications facilities.
• Reseller. Any person that provides telecommunications service using a telecom-munications facility within a public right-of-way for which service a separate charge is made, where that person does not own, lease, control or manage the telecommunications facility used to provide the service.
• Telecommunications. The transmission between and among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
• Telecommunications Act. The Telecommunications Act of 1996 (47 U.S.C. §§ 151 et seq.) as adopted and as hereafter amended.
• Telecommunications Carrier. Any competitive telecommunications services provider that provides telecommunications services within the city. Telecommunications Carrier includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities within the city but does not include a telecommunications utility acting in its capacity as an incumbent local exchange carrier.
• Telecommunications Facilities or System. The equipment, other than customer premises equipment, used by a carrier to provide telecommunications services.
• Telelecommunications Service. The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. Telecommunications Services includes but is not limited to any service provided for the purpose of voice, video or data transmission, including, but not limited to, local exchange service, access service, extended area service, call origination, interconnection, switching, transport, or call termination and any other telecommunications services identified and authorized by the FCC or the OPUC.
• Telecommunications Utility. Has the same meaning as ORS 759.005(1)(a) and is limited to incumbent local exchange carriers (ILECs).
• Underground Facilities. Utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for “Overhead facilities.”
• Usable Space. All the space on a pole, except the portion below ground level, the 20 feet of safety clearance space above ground level, and the safety clearance space between communications and power circuits.
• Utility Easement. Any easement within the public right-of-way designated on a subdivision plat or partition map as a utility easement, public utility easement or “P.U.E.” or any easement granted to or owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with the telecommunications facilities.
• Utility Facilites. The plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, transformers, plant and equipment located under, on, or above the surface of the ground within the public right-of-way of the city and used or to be used for the purpose of providing utility or telecommunications services.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.020 Purpose

The purpose for registration is:

(A) To assure that all Carriers who have facilities or provide services within the city comply with the ordinances, rules and regulations of the city.

(B) To provide the city with accurate and current information concerning the Carriers who offer to provide telecommunications services within the city, or that own or operate telecommunications facilities within the city.

(C) To assist the city in the enforcement of this title and the collection of any city franchise fees or charges that may be due the city.

(D) To assist the city in monitoring compliance with local, state and federal laws as they apply to Grantees under this title.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.021 Registration Required

Except as provided in § 115.023, all Carriers having telecommunications facilities within the corporate limits of the city, and all Carriers that offer or provide telecommunications service to customer premises within the city, shall register with the city. Registration shall be on forms to be provided by the City Manager or his designee which shall include the following:

(A) The identity and legal status of the registrant, including any affiliates.

(B) The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement.

(C) A description of the registrant's existing or proposed telecommunications facilities within the city.

(D) A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the city.

(E) Information sufficient to determine whether the registrant is subject to public right-of-way licensing or franchising under this title.

(F) Information sufficient to determine whether the transmission, origination or receipt of the telecommunications services provided or to be provided by the registrant constitutes an occupation or privilege subject to any municipal telecommunications tax, utility tax or other occupation tax imposed by the city.

(G) Information sufficient to determine that the applicant has applied for and received any certificate of authority or permit required by the FCC or the OPUC to provide telecommunications services within the city.

(H) Information sufficient to determine that the applicant has applied for and received any construction permit, operating license or other approvals required by the FCC or the OPUC to have telecommunications facilities within the city.

(I) Such other information as the city may reasonably require.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.022 Registration Fee

Each application for registration as a Carrier shall be accompanied by a non-refundable registration fee, in an amount to be established by resolution by the City Council.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.023 Exceptions to Registration

The following Carriers are excepted from registration:

(A) Telecommunications Carriers that are owned and operated exclusively for its own use by the state or a political subdivision of this state and provide telecommunications services for governmental purposes only.

(B) A private telecommunications network, provided that such network does not use or occupy any public rights-of-way of the city.

(C) Carriers that are Grantees under a telecommunications franchise with the city or are actively and expeditiously pursuing such a franchise.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.030 General

No person shall commence or continue with the construction, installation or operation of telecommunications facilities within public rights-of-way in the city except as provided in this chapter.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.031 Construction Codes

Telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations including the National Electrical Code and the National Electrical Safety Code.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.032 Construction Permits

(A) No person shall construct or install any telecommunications facilities within a public right-of-way in the city without first obtaining a construction permit and paying the construction permit fee established in § 115.035.

(B) No permit shall be issued for the construction or installation of telecommunications facilities in the public rights-of-way unless the Carrier has first applied for and received a franchise pursuant to §§ 115.070 - 115.088.

(C) No permit shall be necessary for the installation of a customer specific wire (“a drop”) by a franchise Grantee where no excavation within the right-of-way occurs.

(D) No permit shall be necessary for the installation of telecommunication facilities within a utility easement that is not otherwise within, under or over a public street, road, highway, bridge, alley, bikeway, sidewalk, trail or path.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.033 Permit Applications

Applications for permits to construct telecommunications facilities within a public right-of-way shall be submitted upon forms to be provided by the city and shall be accompanied by drawings, plans, specifications and maps, in sufficient detail to demonstrate:

(A) That the facilities will be constructed in accordance with all applicable codes, rules and regulations and that the facilities will be constructed in accordance with the franchise agreement.

(B) The location and route of all facilities on or in the public rights-of-way to be installed above-ground or on existing utility poles. The location and route of all facilities to be located under the surface of the ground within the public rights-of-way. Existing facilities shall be differentiated on the plans from new construction.

(C) The location of all of applicant's existing underground utilities, conduits, ducts, pipes, mains and installations which are within the public rights-of-way along the underground route proposed by the applicant.

(D) A typical cross section shall be provided showing new or existing facilities in relation to the street, curb, sidewalk or right-of-way.

(E) The location, dimension and types of all trees which will be substantially trimmed, removed or replaced as a result of the areas disturbed during construction and which are within or adjacent to the public rights-of-way along the route proposed by the applicant. The applicant shall submit a landscape plan, satisfactory to the city, for the replacement of such trees.

(F) The application shall also be accompanied by computer generated electronic maps of the proposed installations in a format specified by the city unless the applicant demonstrates that the format utilized was developed by the applicant and is proprietary and that maps cannot reasonably be created that conform to the city's specifications.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.034 Traffic Control Plan

All work on, in, under, across or along any public rights-of-way shall be performed consistent with the Uniform Manual of Traffic Control Devices, to prevent injury or damage to persons or property and to minimize disruptions to efficient pedestrian and vehicular traffic.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.035 Construction Permit Fee

Unless otherwise provided in a franchise agreement, prior to issuance of a construction permit, the applicant shall pay a permit fee in an amount to be determined by resolution of the City Council. Nothing in this section shall require a telecommunications utility to pay a permit fee unless the utility is providing telecommunication services in addition to exchange access services.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.036 Diminished Pavement Life Fee

The Grantee, for any construction requiring pavement cuts, shall pay to the city an amount to reimburse the city for the pavement degradation and shortened pavement life that results from such cuts. Such fees shall be set by resolution of the City Council and shall be based upon the linear feet of the pavement cut, the age of the pavement when cut and whether the excavation is transverse or longitudinal. This section shall not apply to a Telecommunication Utility if such fee is determined to fall within the restrictions of ORS 221.515(3).

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.037 Issuance of Permit

If satisfied that the applications, plans and documents submitted comply with all requirements of this title, the City Manager or his designee shall issue a permit authorizing construction of the facilities, subject to such further conditions, restrictions or regulations affecting the time, place and manner of performing the work as they may deem necessary or appropriate.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.038 Construction Schedule

The permittee shall submit a written construction schedule to the City Manager or his designee before commencing any work in or about the public rights-of-way. At the city's request, the construction schedule shall include a best estimate deadline for completion of construction. The schedule is subject to approval by the City Manager or his designee. The permittee shall further notify the City Manager or his designee not less than two working days in advance of commencing the project under the issued permit for excavation or work in the public rights-of-way. When advance notice is not possible because of an emergency, the permittee shall give notice within 24 hours of the excavation or work. When feasible, permittee shall contact all other Grantees or utilities located within the public right-of-way where construction is to occur. The purpose of the contact is to determine if joint projects are feasible in order to allow joint projects if desired to minimize duplication of work and unnecessary excavation. For those Grantees or utilities expressing interest in a joint project, permittee shall give them reasonable notice of the particular dates on which open trenching exists. Upon mutual agreement, permittee shall make the trench available to Grantees and utilities for installation of conduit, pedestals, vaults, laterals, wires, lines or equipment. The payment for the cost of trenching and installation shall be as mutually agreed to by the parties. Provided permittee demonstrates a good faith attempt to coordinate, the city shall not withhold issuance of any permit due to the inability of the permittee and any Grantee or utility to agree upon scheduling of the project and/or reimbursement of costs associated with the project.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.039 Locates

The permittee is responsible for becoming familiar with, and understanding the provisions of ORS Chapter 757, governing the location of underground facilities (the “One-Call statutes”). Grantee shall comply with the terms and conditions set forth in the One-Call statutes. Every Grantee under this chapter shall join and maintain membership in the Oregon Utility Notification Center and shall comply with the rules adopted by the center regulating the notification and marking of underground facilities.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.040 Compliance With Permit

All construction practices and activities shall be in accordance with the permit and approved final plans and specifications for the facilities. The City Manager or his designee and its representatives shall be provided access to the work site and such information that is not confidential, sensitive or proprietary as they may require to ensure compliance with such requirements.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.041 Noncomplying Work

Upon order of the City Manager or his designee, after reasonable notice and an opportunity to cure has been given, all work which does not comply with the permit, the approved plans and specifications for the work, the franchise agreement or the requirements of this chapter, shall be removed at the sole expense of the permittee.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.042 Completion of Construction

The permittee shall promptly complete all construction activities so as to minimize disruption of the city rights-of-way and other public and private property. All construction work authorized by a permit within city rights-of-way, including restoration, must be completed within 120 days of the date of issuance unless the City Manager or his designee agrees to a longer period.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.043 As-Built Drawings

Within 60 days after completion of construction, the permittee shall furnish the city with two complete sets of plans in hard copy format and a set in a computerized format specified by the city, drawn to scale and certified to the city as accurately depicting the location of all telecommunications facilities constructed pursuant to the permit.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.044 Restoration of Public Rights-of-Way and City Property

(A) When a permittee, or any person acting on its behalf, does any work in or affecting any public rights-of-way or city property, it shall, at its own expense, promptly remove any obstructions and restore such ways or property to as near the original condition as reasonably possible, unless otherwise directed by the city.

(B) If weather or other conditions do not permit the complete restoration required by this section, the permittee shall temporarily restore the affected rights-of-way or property. Such temporary restoration shall be at the permittee's sole expense and the permittee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

(C) If the permittee fails to restore rights-of-way or property to as good a condition as existed before the work was undertaken, the city shall cause such restoration to be made at the expense of the permittee.

(D) A permittee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such rights-of-way or property.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.045 Landscape Restoration

(A) All trees, landscaping and grounds removed, damaged or disturbed as a result of the construction, installation, maintenance, repair or replacement of telecommunications facilities, whether such work is done pursuant to a franchise or permit shall be replaced or restored as nearly as may be practicable, to the condition existing prior to performance of work.

(B) All restoration work within the public ways shall be done in accordance with landscape plans approved by the city.

(C) Any tree, shrub or other landscaping that shows substantial damage within 18 months of completion of construction, attributable to construction, must be replaced at the sole expense of the Grantee.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.046 Construction and Completion Bond

(A) Unless otherwise provided in a franchise agreement, or unless the city otherwise specifically approves an alternative security to assure performance, a performance bond written by a corporate surety acceptable to the city, and authorized to transact business in Oregon, equal to at least 100% of the estimated cost of constructing Grantee's telecommunications facilities within the public rights-of-way of the city shall be deposited before construction is commenced.

(B) The performance bond shall remain in force until 60 days after substantial completion of the work, as determined in writing by the city, including restoration of public rights-of-way and other property affected by the construction.

(C) The performance bond shall guarantee, to the satisfaction of the city:

(1) Timely completion of construction;

(2) Construction in compliance with applicable plans, permits, technical codes and standards;

(3) Proper location of the facilities as specified by the city;

(4) Restoration of the public rights-of-way and other property affected by the construction;

(5) The submission of “as-built” drawings after completion of the work as required by this title; and

(6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.060 Location of Facilities

(A) Grantee shall install its telecommunications facilities in accordance with the city's generally applicable aboveground and underground utility facility placement policies in effect as of the date of adoption of this chapter. No entity with existing attachments to utility poles shall be required to install new or existing facilities underground except as provided in the following subsection.

(B) Grantee agrees that, at such time as the city adopts policies and requirements permitting or requiring the underground installation of telecommunications facilities. Grantee shall fully comply with such policies and requirements provided they are imposed on Carriers in a competitively neutral and nondiscriminatory manner.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.061 Interference with Public Rights-of Way

No Grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public rights-of-way by the city, by the general public or by other persons authorized to use or be present in or upon the public rights-of-way. All such facilities shall be moved by the Grantee, temporarily or permanently, as determined by the city at the sole expense of the Grantee. All use of public rights-of-way shall be consistent with city codes, ordinances and regulations.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.062 Relocation or Removal of Facilities

(A) Within 60 days following written notice from the city, a Grantee shall, at no expense to the city, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public rights-of-way whenever the city shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

(1) The construction, repair, maintenance or installation of any city or other public improvement in or upon the public rights-of-way.

(2) The operations of the city or other governmental entity in or upon the public rights-of-way.

(B) Notwithstanding the 60 day limit, a Grantee shall, at no expense to the city, relocate overhead facilities within 30 days following written notice from the City Manager or his designee that a joint pole owner has space on poles for such purpose. The 30 or 60 day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.063 Removal of Unauthorized Facilities

(A) Within 30 days following written notice from the city, any Grantee, Carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public rights-of-way of the city shall, at its own expense, remove such facilities or appurtenances from the public rights-of-way of the city.

(B) A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

(1) One year after the expiration or termination of the Grantee's telecommunications franchise.

(2) Upon abandonment of a facility within the public rights-of-way of the city. A facility will be considered abandoned when it is deactivated, out of service, or not used for its intended and authorized purpose for a period of 90 days or longer. A facility will not be considered abandoned if it is temporarily out of service during performance of repairs, if the facility is excess capacity of a current Grantee who is not in default, if the facility is being replaced or if the facility has been disconnected because the building or property being served is vacant.

(3) If the system or facility was constructed or installed without the prior grant of a telecommunications franchise.

(4) If the system or facility was constructed or installed without the prior issuance of a required construction permit.

(5) If the system or facility was constructed or installed at a location not permitted by the Grantee's telecommunications franchise.

(6) If the system interferes with or adversely affects existing telecommunication facilities.

(C) The 30 day limit may be waived by consent of the parties. Waivers shall not be unreasonably withheld.

(D) If all the facilities and appurtenances are not removed within one year after the termination or expiration of the franchise or such further time as may be granted by the city, they shall be forfeited to the city. The city may notify the Grantee, Carrier or other person described above that it waives forfeiture and may compel removal from the public right-of-way and restoration of the right-of-way and may maintain court suit to require such removal and restoration by the Grantee, Carrier or other person or the payment of the cost thereof by the Grantee, Carrier or other person.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.070 Telecommunications Franchise

A telecommunications franchise shall be required of any Carrier who desires to occupy public rights-of-way of the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.071 Application

Any person that desires a telecommunications franchise pursuant to this chapter shall file an application with the City Manager or his designee which shall include the following information:

(A) The identity of the applicant, including all affiliates of the applicant doing business in the state.

(B) A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities within the city.

(C) A description of the transmission medium that is being used or will be used by the applicant to offer or provide such telecommunications services within the city.

(D) Preliminary engineering plans, specifications and a network map of the facilities to be located within the public rights-of-way in the city, including copies in hard copy and computerized format specified by the city and all in sufficient detail to identify:

(1) The location and route requested for applicant's proposed telecommunications facilities;

(2) The location of all aboveground and underground public utility, telecommunication, cable, water, sewer, storm drainage and other facilities in the public rights-of-way along the proposed route;

(3) The location(s), if any, for interconnection with the telecommunications facilities of other Carriers;

(4) The specific trees, structures, improvements, facilities and obstructions, if any, the applicant proposes to temporarily or permanently remove or relocate.

(E) If the applicant is proposing to install aboveground facilities, to the extent that the applicant will be using utility poles, evidence from the pole owner that usable space is available for locating the applicant's telecommunications facilities on existing poles along the proposed route; and if usable space is not available in some or all service areas, an indication of these locations and a “make ready” schedule for completion.

(F) If the applicant is proposing an underground installation in existing ducts or conduits within the public rights-of-way, provide information in sufficient detail to identify:

(1) The excess capacity currently available in such ducts or conduits before installation of the applicant's telecommunications facilities;

(2) The excess capacity, if any, that will exist in such ducts or conduits after installation of the applicant's telecommunications facilities.

(G) If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the public rights-of-way:

(1) The location proposed for the new ducts or conduits;

(2) The excess capacity that will exist in such ducts or conduits after the installation of applicant's telecommunications facilities.

(H) A preliminary construction schedule and completion date.

(I) Financial statements prepared in accordance with generally accepted accounting principles

demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities.

(J) Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application.

(K) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services proposed.

(L) Whether the applicant intends to provide cable service, video dial tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising.

(M) An accurate map showing the location of any existing telecommunications facilities in the city that the applicant intends to use or lease.

(N) A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.

(O) A description of the applicant's access and line extension policies.

(P) The area or areas of the city the applicant desires to serve and a schedule for build-out to the entire franchise area.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.072 Application and Review Fee

(A) Any applicant for a franchise pursuant to this chapter shall pay an application and review fee in an amount to be determined by resolution of the City Council. This section shall not apply to a telecommunication utility which provides only local exchange access.

(B) The application and review fee shall be deposited with the city as part of the application filed pursuant to § 115.071.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.073 Determination by the City

(A) The city shall issue a written determination granting or denying the application in whole or in part, applying the standards listed below.

(B) If the application is denied, the written determination shall include the reasons for denial. The standards to be applied by city are:

(1) The financial and technical ability of the applicant.

(2) The capacity of the public rights-of-way to accommodate the applicant's proposed facilities.

(3) The capacity of the public rights-of-way to accommodate additional utility and telecommunications facilities if the franchise is granted.

(4) The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.

(5) The public interest in minimizing the cost and disruption of construction within the public rights-of-way.

(6) The availability of alternate routes or locations for the proposed facilities.

(7) Applicable federal and state telecommunications laws, regulations and policies.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.074 Rights Granted

No franchise granted under this chapter shall convey any right, title or interest in the public rights-of-way, but shall be deemed a grant to use and occupy the public rights-of-way for the limited purposes and term, and upon the conditions stated in the franchise agreement.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.075 Term of Grant

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this title shall be in effect for a term of five years.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.076 Franchise Territory

Unless otherwise specified in a franchise agreement, a telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the franchise Grantee, and the public rights-of-way necessary to serve such areas.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.077 Compensation to City

Each franchise granted under this chapter is subject to the city's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the privileges granted; provided, nothing in this chapter shall prohibit the city and a Grantee from agreeing to the compensation to be paid.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.078 Amendment of Grant

(A) Conditions for amending a franchise:

(1) A new application and grant shall be required of any Carrier that desires to extend or locate its telecommunications facilities in public rights-of-way of the city which are not included in a franchise previously granted under this chapter.

(2) If ordered by the city to locate or relocate its telecommunications facilities in public rights-of-way not included in a previously granted franchise, the city shall grant an amendment without further application.

(B) A new application and grant shall be required of any Carrier that desires to provide a service which was not included in a franchise previously granted under this chapter.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.079 Renewal Applications

A Grantee that desires to renew its franchise under this chapter shall, not less than 90 days before expiration of the current agreement, file an application with the city for renewal of its franchise which shall include the following information:

(A) The information required pursuant to § 115.071 that has not previously been provided to the city in connection with the Grantee's existing franchise agreement.

(B) Any information required pursuant to the franchise agreement between the city and the Grantee.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.080 Renewal Determinations

(A) Within 90 days after receiving a complete application under § 115.071, the city shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards.

(1) The financial and technical ability of the applicant.

(2) The continuing capacity of the public rights-of-way to accommodate the applicant's existing facilities.

(3) The applicant's compliance with the requirements of this chapter and the franchise agreement.

(4) Applicable federal, state and local telecommunications laws, rules and policies.

(B) If the renewal application is denied, the written determination shall include the reasons for non-renewal.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.081 Obligation to Cure as a Condition of Renewal

No franchise shall be renewed until any ongoing violations or defaults in the Grantee's performance of the agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the Grantee has been approved by the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.082 Assignments or Transfers of Grant, Notice to City

Ownership or control of a majority interest in a telecommunications system or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Grantee, by operation of law or otherwise, without the prior consent of the city, which consent shall not be unreasonably withheld or delayed, and then only on such reasonable conditions as may be prescribed in such consent.

(A) Grantee and the proposed assignee or transferee of the franchise or system shall agree, in writing, to assume and abide by all of the provisions of the franchise.

(B) No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this chapter.

(C) Unless otherwise provided in a franchise agreement, the Grantee shall reimburse the city for all direct and indirect fees, costs, and expenses reasonably incurred by the city in considering a request to transfer or assign a telecommunications franchise.

(D) Any transfer or assignment of a telecommunications franchise, system or integral part of a system without prior approval of the city under this section or pursuant to a franchise agreement shall be void and is cause for revocation of the grant.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.083 Transactions Affecting Control of Grant

Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the Grantee, of the ownership or working control of a telecommunications franchise, of the ownership or working control of affiliated entities having ownership or working control of the Grantee or of a telecommunications system, or of control of the capacity or bandwidth of the Grantee's telecommunication system, facilities or substantial parts of such capacity or bandwidth, shall be considered an assignment or transfer requiring city approval pursuant to § 115.0082. Transactions between affiliated entities are not exempt from city approval.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.084 Revocation or Termination of Franchise

A franchise to use or occupy public rights-of-way of the city may be revoked for the following reasons:

(A) Construction or operation in the city or in the public rights-of-way of the city without a franchise grant of authorization.

(B) Construction or operation at an unauthorized location.

(C) Unauthorized substantial transfer of control of the Grantee.

(D) Failure to comply with sections of this chapter regarding sale, transfer or assignment of a telecommunications franchise or system.

(E) Unauthorized sale, assignment or transfer of the Grantee's franchise assets, or a substantial interest in the franchise.

(F) Misrepresentation by or on behalf of a Grantee in any application to the city.

(G) Abandonment of telecommunications facilities in the public rights-of-way.

(H) Failure to relocate or remove facilities as required in this title.

(I) Willful or continued failure to pay taxes, compensation, fees or costs when and as due the city unless subject to a bona fide dispute.

(J) Insolvency or bankruptcy of the Grantee.

(K) Violation of a material provision of this chapter.

(L) Violation of a material term of a franchise agreement.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.085 Notice and Duty to Cure

Pursuant to § 115.084, in the event that the city believes that grounds exist for revocation of a franchise, the city shall give the Grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Grantee a reasonable period of time not exceeding 30 days to furnish evidence:

(A) That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.

(B) That rebuts the alleged violation or noncompliance.

(C) That it would be in the public interest to impose some penalty or sanction less than revocation.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.086 Public Hearing

In the event that a Grantee fails to provide evidence reasonably satisfactory to the city as provided in § 115.087, the City Manager or his designee shall refer the apparent violation or non-compliance to the City Council. The City Council shall provide the Grantee with notice and a reasonable opportunity to be heard concerning the matter.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.087 Standards for Revocation or Lesser Sanctions

If persuaded that the Grantee has violated or failed to comply with material provisions of this chapter, or of a franchise agreement, the City Council shall determine whether to revoke the franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

(A) Whether the misconduct was egregious.

(B) Whether substantial harm resulted.

(C) Whether the violation was intentional.

(D) Whether there is a history of prior violations of the same or other requirements.

(E) Whether there is a history of overall compliance.

(F) Whether the violation was voluntarily disclosed, admitted or cured.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.088 Other City Costs

All Grantees shall, within 30 days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the franchise agreement.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.100 Facilities

Each Grantee shall provide the city with an accurate map or maps certifying the location of all telecommunications facilities within the public rights-of-way. Each Grantee shall provide updated maps annually including copies in paper and a computerized format specified by the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.101 Damage to Grantee's Facilities

Unless directly and proximately caused by willful, intentional or malicious acts by the city, the city shall not be liable for any damage to or loss of any telecommunications facility within the public rights-of-way of the city as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the public rights-of-way by or on behalf of the city, or for any consequential losses resulting directly or indirectly from such work.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.102 Duty to Provide Information

Within ten days of a written request from the city, each Grantee shall furnish the city with information sufficient to demonstrate:

(A) That the Grantee has complied with all requirements of this chapter.

(B) All books, records, maps and other documents, maintained by the Grantee with respect to its facilities within the public rights-of-way shall be made available for inspection by the city at reasonable times and intervals.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.103 [Reserved]

§ 115.103 [Reserved]

§ 115.104 Compensation for City Property

If any right is granted, by lease, franchise or other manner, to use and occupy city property for the installation of telecommunications facilities, the compensation to be paid for such right and use shall be fixed by the city and is not subject to the limits contained in this chapter.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.105 Franchise Fees

(A) Unless otherwise provided in a franchise agreement, in which case such franchise term shall govern.

(B) As compensation for the benefits and privileges under its franchise and in consideration of permission to use the right-of-way of the city, the Grantee shall pay a quarterly franchise fee to the city, through the duration of its franchise, as follows:

(1) The minimum quarterly franchise fee shall be set by resolution of the City Council.

(2) The franchise fee for a telecom-munication utility shall equal a percentage (to be set by resolution of the City Council) of the gross revenue on exchange access services earned by the telecommunications utility within the boundaries of the city. In addition, a telecommunication utility shall pay the fee in this section on telecommunications services which are not local exchange access services.

(3) Except for limited use telecommunication franchise Grantees, the franchise fee shall equal a percent of the Grantee's gross revenues derived from Grantee's provision of telecommunications services and telecommunications facilities within the city. The percentage shall be set by resolution of the council.

(4) A limited use telecommunication franchisee shall pay a fee based on the number of linear feet of right-of-way used by the franchisee. A limited use telecommunication franchisee is defined as one whose franchise limits the amount of linear feet of right-of-way in the city the Grantee may occupy. The fee per linear foot shall be set by resolution of the council.

(5) Grantee shall be considered to be providing telecommunications services or facilities if it sells, leases, resells, or otherwise conveys such services or facilities for consideration, monetary or otherwise.

(6) A Grantee providing resold telecommunications services or facilities shall be entitled to a credit against its franchise fee for an amount equal to a percentage of the price paid for such services or facilities at wholesale. Such percentage shall be set by resolution of the council.

(7) So long as it registers with the city as required in this chapter and pays the fees required for Grantees set forth in this division (A), a reseller may use another person's facilities to engage in telecommunications activities in the right-of-way without obtaining a franchise, providing the reseller does not, either itself or through an affiliate, own or lease, control or manage any facilities in the right-of-way and is not involved in construction or repair of facilities in the right-of-way. For purposes of calculating the fees to be paid by a reseller, the amount of compensation paid by the reseller to the owner or manager of facilities in the right-of-way for the services it resells shall be deducted from the reseller's gross revenues before applying the percentage rates described in division (A) above.

(8) Payment shall be made by each April 25, July 25, October 25 and January 25 for the quarter just ended.

(C) Any Grantee who fails to remit any fee imposed by this chapter within 30 days of the date it is due, shall pay interest at the rate of one percent (1%) per month or fraction thereof on the amount of the fee from the date on which the remittance first became due until paid.

(D) To the extent that federal or state law, or an existing franchise agreement, limits the amount of fees which the city may impose on, or the compensation it may require from a Carrier, nothing in this section shall require the payment of any greater amount, unless and until the federal or state limits are raised, or the franchise agreement expires or is otherwise terminated.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.106 Cable Franchise

Carriers providing cable service shall be subject to the city's cable franchise requirements governing the provision of cable service. Notwithstanding the foregoing, Carriers providing cable service shall be subject to the requirements of this chapter if they provide telecommunications service or local exchange service.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.107 [Reserved]

§ 115.107 [Reserved]

§ 115.108 Grantee Insurance

(A) Unless otherwise provided in a franchise agreement, each Grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the Grantee and the city, and its elected and appointed officers, officials, agents and employees as coinsured:

(1) Comprehensive general liability insurance with limits not less than $1,000,000 for bodily injury or death to each person; $1,000,000 for property damage resulting from any one accident; and $1,000,000 for all other types of liability.

(2) Automobile liability for owned, non-owned and hired vehicles with a limit of $1,000,000 for each person and $1,000,000 for each accident.

(3) Workers' compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.

(4) Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $1,000,000.

(B) The liability insurance policies required by this section shall be maintained by the Grantee throughout the term of the telecommunications franchise, and such other period of time during which the Grantee is operating without a franchise, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement:

“This policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the city, by registered mail, of a written notice addressed to the City Manager or his designee of such intent to cancel or not to renew.”

(C) Within 60 days after receipt by the city of such notice, and in no event later than 30 days prior to the cancellation, the Grantee shall obtain and furnish to the city evidence that the Grantee meets requirements of this section.

(D) The insurance policy requirements of this section may be met by a program of self-insurance acceptable to the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.109 General Idemnification

Each franchise agreement shall include, to the extent permitted by law, Grantee's express undertaking to defend, indemnify and hold the city and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the Grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a grant agreement made or entered into pursuant to this chapter.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03

§ 115.110 Performance Surety

Unless the city otherwise specifically approves an alternative security to assure performance, before a franchise granted pursuant to this chapter is effective, the Grantee shall provide and maintain a performance bond, in form and substance acceptable to the city, as security for the full and complete performance of this chapter, including any costs, expenses, damages or loss the city pays or incurs because of any failure attributable to the Grantee to comply with the codes, ordinances, rules, regulations or permits of the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.120 Governing Law

Any franchise granted under this chapter is subject to the provisions of the Constitution and laws of the United States, the State of Oregon, and the ordinances and charter of the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.121 Written Agreement

No franchise shall be granted unless the agreement is in writing.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.122 Nonexclusive Grant

No franchise granted under this chapter shall confer any exclusive right, privilege or franchise to occupy or use the public rights-of-way of the city for delivery of telecommunications services or any other purposes.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.123 Preemption

In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this chapter, then the provision shall be read to be preempted to the extent and/or the time required by law. In the event such federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision that had been preempted is no longer preempted, such provision shall return to full force and effect, and shall be binding, without the requirement of further action on the part of the city.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.124 Other Remedies

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.125 Compliance with Laws

Any Grantee under this chapter shall comply with all federal and state laws and regulations, including regulations of any administrative agency, as well as all ordinances, resolutions, rules and regulations of the city now in effect or adopted in the future or established during the entire term of any franchise granted under this chapter, which are relevant and relate to the construction, maintenance and operation of a telecommunications system.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.126 Consent

Wherever the consent of either the city or of the Grantees under this chapter is specifically required in a franchise granted, such consent will not be unreasonably withheld.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.127 Application to Existing Ordinance and Agreements

To the extent that this chapter is not in conflict with and can be implemented with ordinances and franchise agreements in effect as of May 22, 2000 (“pre-existing franchise”), this chapter shall apply to all existing ordinance and franchise agreements for use of the public right-of-way for telecommunications. In the event of a conflict between a term contained in a pre-existing franchise and this chapter, the term of the pre-existing franchise shall govern so long as such pre-existing franchise is effective.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.128 Confidentiality

The city agrees to use its best efforts to preserve the confidentiality of information designated by the Grantee as a trade secret, to the extent permitted by the Oregon Public Records Law.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.999 Penalty

Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall have committed a Class A violation. A separate and distinct offense shall be deemed committed each day on which a violation occurs.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 130.01 City Prosecutor

Subject to statutory provisions, prosecution of offenses under this chapter and any city ordinance in Municipal Court shall be by the appointed City Prosecutor or appointed City Attorney, or deputies or assistants thereof, properly appointed, whose term shall continue until resignation or release, or by other proper authority as might be allowed by law. Where so appointed the City Prosecutor shall have the statutory authority of the City Attorney under Oregon law.

(Ord. 2009, passed 8-28-00)

§ 130.02 Controlled Substances

(A) Any person who delivers, for no consideration, less than five grams of the dried leaves, stems, and flowers of the plant cannabis family moraceae is guilty of a violation, punishable by a fine of not less than $500 and not more than $1,000.

(B) Any person who knowingly or intentionally is in unlawful possession of a controlled substance in Schedule V is guilty of a Class A violation.

(C) Any person who knowingly or intentionally is in unlawful possession of less than one avoirdupois ounce of the dried leaves, stems, and flowers of the plant cannabis family moraceae is guilty of a violation, punishable by a fine of not less than $500 and not more than $1,000.

(Ord. 2009, passed 8-28-00)

§ 130.03 Disturbing Religious Assemblies

(A) It shall be unlawful for any person to disturb or disquiet any congregation or assembly lawfully met for religious worship or for any other lawful purpose by making loud and unnecessary noises or by rude and indecent behavior or profane language within any place of assembly, or so near to the same as to disturb the order and solemnity of the meeting.

(B) The offense described in this section, disturbing religious assemblies, is a Class A violation.

(Ord. 2009, passed 8-28-00) Penalty, see § 10.99

§ 130.04 Unauthorized Posters

(A) It shall be unlawful for any person to affix a placard, bill or poster upon any personal or real property, private or public, without first obtaining permission of the owner or proper public official.

(B) A corporation, including a business sponsor, entertainer, facility, or other entity mentioned in any placard, bill or poster placed in violation of division (A) above shall be liable as to the placement of the placard, bill or poster, where the corporation, through its agents, officers, contracted advertisers, or employees, knew of the placement, authorized, solicited, requested, commanded or knowingly tolerated the placement thereof or failed to promptly cause to be removed any placards, bills, or posters upon receiving notice of the placement of such placards, bills or posters.

(C) A non-corporate entity, through its owner or owners, such as a partnership, limited liability company, or sole proprietorship or other legally recognized business operating entity, mentioned in any placard, bill or poster placed in violation of division (A) above shall be liable as to the placement of the placard, bill or poster, where the entity, through its agents, officers, members, contracted advertisers, or employees, knew of the placement, authorized, solicited, requested, commanded or knowingly tolerated the placement or failed to promptly cause to be removed such placards, bills, or posters upon receiving notice of the placement of such placards, bills or posters.

(D) A person shall be liable under division (A) above for placards, bills, or posters placed in violation thereof setting forth a place for an event, thing or happening, and the person apparently in charge of the event, thing or happening, or in apparent charge, or ownership of the location of the event, thing or happening, knew of the placement, authorized, solicited, requested, commanded or knowingly tolerated the placement or failed to promptly remove the placards, bills, or posters upon receiving notice of the placement of such placards, bills or posters.

(E) The offense described in this section, unauthorized posters, is a Class D violation.

(Ord. 2009, passed 8-28-00) Penalty, see § 10.99

§ 130.05 Endangering Pedestrians

(A) It shall be unlawful for the owner, lessee or occupant of any building or structure to suffer or permit rain water, ice or snow, which has accumulated on the building or structure of such owner, lessee or occupant, to fall from such structure onto a sidewalk or other public way.

(B) The offense described in this section, endangering pedestrians, is a Class C violation.

(Ord. 2009, passed 8-28-00) Penalty, see § 10.99

§ 130.06 Failure to Maintain Water Overflow Drainage System

(A) Every owner, lessee or occupant of land shall at all times keep and maintain in a proper state of repair an adequate drainage system sufficient to maintain and to dispose on site, or in a facility approved by the city, any water accumulating on the roof of any structure and on or about the premises.

(B) The offense described in this section, failure to maintain water overflow drainage system, is a Class D violation.

(Ord. 2009, passed 8-28-00) Penalty, see § 10.99

§ 130.07 Drinking in Public Places

(A) No person shall drink or consume alcoholic liquor in or on a street, alley, mall, parking lot, including private parking lots open to the public, or structure, motor vehicle, public grounds, or other public place unless the place has been licensed for that purpose by the Oregon Liquor Control Commission; provided, however, consumption of alcoholic liquor is permitted in McKenzie Park in accordance with rules and regulations established in Chapter 93, Parks and Recreation, of this Code.

(B) The offense described in this section, drinking in public places, is a Class D violation. (Ord. 2009, passed 8-28-00; Am. Ord. 2134, passed 5-21-07; Am. Ord. 2136, passed 7-11-07) Penalty, see § 10.99

§ 130.08 Spitting in Public Places

Any person who spits or expectorates upon any public sidewalk, street, parking lot, building, drinking fountain, or in any public place, except in receptacles and recognized places provided for those purposes, commits a Class D violation.

(Ord. 2009, passed 8-28-00)  Penalty, see ' 10.99

§ 130.09 Urinating in Public Places

Any person who urinates upon any public sidewalk, street, parking lot or building, or in any public place, except in receptacles and recognized places provided for those purposes, commits a Class B violation.

(Ord. 2009, passed 8-28-00)  Penalty, see ' 10.99

§ 130.10 Obstructing Building Entrances

(A) It shall be unlawful for any person to obstruct in any manner the entrance to any building or stairway or hall leading to any building.

(B) The offense described in this section, obstructing building entrances, is a Class A violation.

(Ord. 2009, passed 8-28-00)  Penalty, see ' 10.99

§ 130.11 Failing to Supervise a Minor

(A) A person commits the offense of failing to supervise a minor if the person is the parent, legal guardian or person with legal responsibility for the safety and welfare of a child under 18 years of age and the child violates a provision of this Code or of state statutes or state regulations.

(B) Nothing in this section applies to a childcaring agency as defined in ORS 418.205 or to foster parents.

(C) In a prosecution of a person for failing to supervise a child under division (A) of this section, it is an affirmative defense that the person:

(1) Is the victim of the act that violated a provision of this Code;

(2) Reported the act to the appropriate authorities; or

(3) Took reasonable steps to control the conduct of the child at the time the person is alleged to have failed to supervise the child.

(D) The offense described in this section, failing to supervise a minor, is a Class A violation.

(E) In addition to any fine or penalty imposed pursuant to this chapter, the court may order the person to pay any restitution to a victim of the minor's conduct. The amount of restitution ordered pursuant to this section shall not exceed $2,500. The municipal court shall credit the person ordered to pay restitution the actual dollars paid by the minor pursuant to any juvenile court order or juvenile code agreement.

(Ord. 2009, passed 8-28-00; Am. Ord. 2163, passed 3-22-10)

§ 130.12 Social Games

Social games as defined in ORS 167.117 are hereby permitted in the city.

(Ord. 2009, passed 8-28-00)

§ 130.30 Discharging Air Guns and Non-Firearm Weapons

(A) It shall be unlawful for any person to discharge an air gun, bow and arrow, bean shooter, blow gun, paint ball gun, slingshot or other similar weapon or device on public property or any premises open to the public.

(B) The offense described in this section, discharging air guns and non-firearm weapons, is a Class C violation.

(Ord. 2009, passed 8-28-00)  Penalty, see ' 10.99

§ 130.31 Discharging of Firearms

(A) It shall be unlawful for any person to discharge any type of firearm; provided, however, that nothing herein contained shall apply to any peace officer while acting in performance of duties or to any person lawfully using a firearm in defense of himself or the life of another or to any person firing on a target range which has been constructed to standards as determined by pertinent building codes of the city, providing absolute entrapment of all fired rounds and control of all offensive noises.

(B) The offense described in this section, discharging of firearms, is a Class A violation.

(Ord. 2009, passed 8-28-00)

§ 131.01 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Aerosol Paint Container. Any aerosol container adapted or made for spraying paint.
• Etching Device. A glass cutter, awl or any device capable of scratching or etching the surface of any structure or personal property.
• Felt-Tip Marker. Any indelible marker or similar implement with a tip which, at its broadest width, is greater than one-fourth inch.
• Graffiti. Any inscription, word, figure or design that is marked, etched, scratched, drawn or painted on any surface that is not authorized by the owner or person in charge of the property.
• Graffiti Implement. An aerosol paint container, a felt tip marker, an etching device or a graffiti stick.
• Graffiti Stick. A device containing a solid form of paint, chalk, wax, epoxy or other similar substance capable of being applied to a surface by pressure, and upon application, leaving a mark at least one-fourth of an inch in width.

(Ord. 1873, passed 1-23-95)

§ 131.02 Possession of Graffiti Implement

(A) No person may possess, with the intent to unlawfully apply graffiti on any real or personal property of another, any graffiti implement.

(B) Unlawfully possessing a graffiti implement is a violation.

(Ord. 1873, passed 1-23-95) Penalty, see § 131.99

§ 131.03 Seizure and Impoundment

In addition to any citation issued, a graffiti implement possessed in violation of § 131.02 may be immediately seized and impounded by the Police Department. The court, upon disposition of the issued citation, shall determine whether the instrument shall be returned to the defendant or deemed contraband and disposed of according to state law.

(Ord. 1873, passed 1-23-95)

§ 131.04 Parental Responsibility

(A) No parent, guardian or other person having the legal custody of a minor person under the age of 18 years may allow or permit the minor to be in violation of § 131.02 above.

(B) Upon a subsequent violation by a minor, the parent, guardian or person having legal custody shall be served with a subpoena to appear before the court with the minor and show cause why § 131.02 above has been violated a second time.

(Ord. 1873, passed 1-23-95) Penalty, see § 131.99

Cross-reference:

Parental responsibility for minors, see § 130.15

§ 131.05 Parental Civil Liability

In addition to any other remedy provided by law, the parent or parents of an emancipated minor child shall be liable for actual damages to person or property in connection with the removal of graffiti caused by the child in accordance with the provisions of ORS 30.765.

(Ord. 1873, passed 1-23-95)

§ 131.06 Community Service

In lieu of any fine that may be imposed for violation of § 131.02, the court may order community service as follows:

(A) Upon conviction for unlawfully possessing a graffiti implement, the person shall perform at least 20 hours of community service;

(B) The entire period of community service shall be performed under the supervision of a community service provider approved by the court; and

(C) Reasonable effort shall be made to assign the subject person to a type of community service that is reasonably expected to have the most rehabilitative effect on the person. To the extent that the offense giving rise to the offer of community service constitutes a violation of § 131.02, reasonable effort shall be made by the court to assign the person to community service which constitutes in significant part the removal of the graffiti.

(Ord. 1873, passed 1-23-95)

§ 131.99 Penalty

A conviction for the violation of § 131.02, or violating parental responsibility under § 131.04, is punishable as a Class A violation. Upon conviction for unlawfully possessing a graffiti implement, the court shall impose a mandatory minimum specific fine violation of $100.

(Ord. 1873, passed 1-23-95; Am. Ord. 1976, passed 10-26-98)

§ 132.01 Definition

For the purpose of this chapter, the following definition shall apply unless the context clearly indicates or requires a different meaning.

• Drug Paraphernalia. All equipment, products and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

(1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

(3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

(4) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness or purity of controlled substances;

(5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

(6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

(7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana;

(8) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

(9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

(10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

(11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;

(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, cocaine, hashish, or hashish oil into the human body, such as:

(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(b) Water pipes;

(c) Carburetion tubes and devices;

(d) Smoking and carburetion masks;

(e) Roach clips: meaning objects used to hold burning material, such as marihuana cigarette, that has become too small or too short to be held in the hand;

(f) Miniature cocaine spoons, and cocaine vials;

(g) Chamber pipes;

(h) Carburetor pipes;

(i) Electric pipes;

(j) Air-driven pipes;

(k) Chillums;

(l) Bongs;

(m) Ice pipes or chillers.

(Ord. 1408, passed 4-12-82)

§ 132.02 Determinations of Objects

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, the following:

(A) Statements by an owner or by anyone in control of the object concerning its use;

(B) Prior convictions, if any, of an owner, or of anyone in control of the object, under any city, state, or federal law relating to any controlled substance;

(C) The proximity of the object, in time and space, to a direct violation of this chapter;

(D) The proximity of the object to controlled substances;

(E) The existence of any residue of controlled substances on the object;

(F) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object to deliver it to persons whom he knows, or should reasonably know, intend to use the object to facilitate a violation of this chapter; the innocence of an owner or of anyone in control of the object, as to a direct violation of this chapter shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(G) Instructions, oral or written, provided with the object concerning its use;

(H) Descriptive materials accompanying the object which explain or depict its use;

(I) National and local advertising concerning its use;

(J) The manner in which the object is displayed for sale;

(K) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(L) Direct or circumstantial evidence of the ratio of sales of the object(s) to the total sales of the business enterprise;

(M) The existence and scope of legitimate uses for the object in the community;

(N) Expert testimony concerning its use.

(Ord. 1408, passed 4-12-82)

§ 132.03 Possession, Manufacture and Sale

(A) It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

(B) It is unlawful for any person to deliver, sell, possess, with intent to deliver or sell, or manufacture with intent to deliver or sell, drug paraphernalia, knowing that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter.

(C) It is unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.

(D) This section does not apply to manufacturers, practitioners, pharmacists, owners of pharmacies and other persons whose conduct was in accordance with appropriate statutes.

(E) Any drug paraphernalia used in violation of this section shall be seized and forfeited to the city.

(Ord. 1408, passed 4-12-82) Penalty, see § 132.99

§ 132.99 Penalty

Any person who violates any of the provisions of this chapter commits a Class A violation. For each day that a violation shall continue, every person shall be deemed guilty of a separate offense.

(Ord. 1408, passed 4-12-82)

§ 133.01 Unlawful Hours

(A) It shall be unlawful for any person under the age of 16 years to be upon the streets or in any public place in the city between the hours of 10:00 p.m. and 5:30 a.m. during any day of the year, unless the child be in the custody of or accompanied by a parent or guardian. Nothing herein contained shall be deemed to apply to any child while actually engaged in traveling to and from a place of employment, school classes, religious meetings or while upon any errand of mercy, emergency or under direction of his parent, guardian or other adult person having the immediate care, custody or control of the child.

(B) It shall be unlawful for any child over the age of 16 years and under the age of 18 years, unless accompanied by a parent, guardian or other person having the legal custody of the child, to be on any of the streets, alleys, public squares, parks or sidewalks of the city after the hour of 12:00 a.m. or before the hour of 5:30 a.m. on any day of the year unless the child is in possession of a special written permit from parent or guardian.

(Ord. 319, passed 3-7-56) Penalty, see § 133.99

§ 133.02 Duties of the Officer

If any child be found upon the streets or in any public place in violation of this chapter, and the violation be his or her first offense, it shall be the duty of any peace officer to forthwith place the child under custody and to take, or cause the child to be taken to his or her home and the parent, guardian or other person having the custody and care of the child shall be notified of the violation.

(Ord. 319, passed 3-7-56)

§ 133.03 Delinquency

Whenever a peace officer learns that a child has violated the provisions of this chapter under circumstances which tend to render him delinquent, the officer shall place an appropriate complaint with the juvenile court for further proceedings as the court deems appropriate.

(Ord. 319, passed 3-7-56)

§ 133.99 Penalty

When a parent, guardian or other adult person in custody of a child, after having been notified that the child has violated this chapter, permits the child to violate the provisions of this chapter a second time, the parent commits a Class A violation.

(Ord. 319, passed 3-7-56; Am. Ord. 1632, passed 6-22-87; Am. Ord. 1976, passed 10-26-98)

Cross-reference:

Attempt to commit offenses, see § 130.12
Parental responsibility for minors, see § 130.15

§ 134.01 Definitions

For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Chronic Nuisance Property.

(1) Property on which three or more nuisance activities exist or have occurred during any 90-day period; or

(2) Property on which or within 400 feet of which any person associated with the property has engaged in three or more nuisance activities during any 90-day period; or

(3) Property which, upon request for execution of a search warrant, has been the subject of a determination by a court that probable cause does exist that possession, manufacture, or delivery of a controlled substance or related offenses as defined in ORS 167.203, 475.005 through 475.285 and/or ORS 475.940 through 475.995 has occurred within the previous 90 days, and the city Police Department has determined that the search warrant was based on evidence of continuous or repeated nuisance activities at the property; or

(4) Property on which continuous or repeated “nuisance activities” as defined in divisions (7), (8), (13) and (14) of that definition, exist or have occurred.

• Control. The ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on a property.
• Nuisance Activities. Any of the following activities, behaviors or conduct:

(1) Harassment as defined in ORS 166.065(l)(a).

(2) Intimidation as defined in ORS 166.155 through 166.165.

(3) Disorderly conduct as defined in ORS 166.025.

(4) Assault or menacing as defined in ORS 163.160 through 163.190.

(5) Sexual abuse, contributing to the delinquency of a minor or sexual misconduct as defined in ORS 163.415 through 163.445.

(6) Public indecency as defined in ORS 163.465.

(7) Prostitution or related offenses as defined in ORS 167.007 through 167.017.

(8) Alcoholic liquor violations as defined in ORS Chapter 471.105 through 471.482.

(9) Offensive littering as defined in ORS 164.805.

(10) Criminal trespass as defined in ORS 164.243 through 164.265.

(11) Theft as defined in ORS 164.015 through 164.140.

(12) Arson or related offenses as defined in ORS 164.315 through 164.335.

(13) Possession, manufacture, or delivery of a controlled substance or related offenses as defined in ORS 167.203, ORS 475.005 through 475.285, and/or ORS 475.940 through 475.995.

(14) Illegal gambling as defined in ORS 167.117, and/or ORS 167.122 through 167.127.

(15) Criminal mischief as defined in ORS 164.345 through 164.365.

(16) Any attempt to commit (as defined in ORS 161.405), and/or conspiracy to commit (as defined in ORS 161.450), any of the above activities, behaviors or conduct.

(17) Fire or discharge of a firearm as defined in § 130.31.

(18) Unlawful operation of sound producing or reproducing equipment as defined in § 92.27(B)(8).

(19) Curfew as defined by ORS 419C.680.

(20) Curfew as defined in § 133.01.

• Person. Any natural person, agent, association, firm, partnership, corporation or other entity capable of owning, occupying or using property in the city.
• Person Associated With. Any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize or visit, or waited to enter, patronize or visit a property or person present on a property, including without limitation any officer, director, customer, agent, employee, or any independent contractor of a property, person in charge, or owner of a property.
• Person in Charge. Any person, in actual or constructive possession of a property, including but not limited to an owner or occupant of property under his or her ownership or control.
• Property. Any property, including land and that which is affixed, incidental or appurtenant to land, including but not limited to any business or residence, parking area, loading area, landscaping, building or structure or any separate part, unit or portion thereof, or any business equipment, whether or not permanent. For property consisting of more than one unit, property may be limited to the unit or the portion of the property on which any nuisance activity has occurred or is occurring, but includes areas of the property used in common by all units of property including without limitation other structures erected on the property and areas used for parking, loading and landscaping.

(Ord. 2077, passed 10-27-03)

§ 134.02 Violation

(A) Any property determined by the Police Department to be chronic nuisance property is in violation of this chapter and subject to its remedies.

(B) Any person in charge of property determined by the Police Department to be chronic nuisance property is in violation of this chapter and subject to its remedies.

(Ord. 2077, passed 10-27-03)

§ 134.03 Procedure

(A) When the Police Department receives two or more reports documenting the occurrence of nuisance activities on or within 400 feet of a property, the reports shall be reviewed to determine whether they describe the activities, behaviors or conduct enumerated under § 134.01 “nuisance activities” (1) through (20). Upon such a finding, the Police Department may notify the person in charge in writing that the property is in danger of becoming chronic nuisance property. The notice shall contain the following information:

(1) The street address or a legal description sufficient for identification of the property.

(2) A statement that the Police Department has information that the property may be chronic nuisance property, with a concise description of the nuisance activities that exist, or that have occurred. The Police Department shall offer the person in charge an opportunity to propose a course of action that the Police Department agrees will abate the nuisance activities giving rise to the violation.

(3) Demand that the person in charge respond to the city Police Department within ten days to discuss the nuisance activities.

(B) When the Police Department receives a police report documenting the occurrence of additional nuisance activity on or within 400 feet of a property after notification as provided by division (A); or, in the case of “chronic nuisance property” as defined in § 134.01, division (3) or (4), for which notice under division (A) is not required, the Police Department shall notify the person in charge in writing that the property has been determined to be a chronic nuisance property.

The (1) The street address or a legal description sufficient for identification of the property.

(2) A statement that the Police Department has determined the property to be chronic nuisance property with a concise description of the nuisance activities leading to his/her determination.

(3) Demand that the person in charge respond within ten days to the city Police Department and propose a course of action that the Police Department agrees will abate the nuisance activities giving rise to the violation.

(4) Service shall be made either personally or by first class mail, postage prepaid, addressed to

the person in charge at the address of the property determined to be a chronic nuisance property, or such other place which is likely to give the person in charge notice of the determination by the Police Department.

(5) A copy of the notice shall be served on the owner at the address shown on the tax rolls of the county in which the property is located, and/or the occupant at the address of the property, if these persons are different than the person in charge, and shall be made either personally or by first class mail, postage prepaid.

(C) If the person in charge fails to respond as required by division (B)(3), the Police Department may refer the matter to the City Attorney. Prior to referring the matter to the City Attorney, the notice required by division (B) shall also be posted at the property.

(D) If the person in charge responds as required by division (B)(3) and agrees to abate nuisance activities giving rise to the violation, the Police Department may postpone referring the matter to the City Attorney. If an agreed course of action does not result in the abatement of the nuisance activities within 60 days; or, if no agreement concerning abatement is reached within 60 days, the Police Department may refer the matter to the City Attorney.

(E) When a person in charge makes a response to the Police Department as required by divisions (A)(3) or (B)(3) any conduct or statements made in connection with the furnishing of that response shall not constitute an admission that any nuisance activities have occurred or are occurring. This section does not require the exclusion of any evidence which is otherwise admissible or offered for any other purpose.

(F) The failure of any person to receive notice as provided by divisions (A) or (B) shall not invalidate or otherwise affect the proceedings under this chapter.

(Ord. 2077, passed 10-27-03)

§ 134.04 Commencement of Actions; Remedies; Burden of Proof

(A) The city Police Department may request the City Attorney to commence legal proceedings in a court to abate chronic nuisance property and to seek closure, the imposition of civil penalties against any or all of the persons in charge thereof, and, any other relief deemed appropriate.

(B) If the court determines the property to be chronic nuisance property, the court shall order that the property be closed and secured against all unauthorized access, use and occupancy for a period of not less than 30 days, nor more than one year. The order shall be entered as part of the final judgment. The court shall retain jurisdiction during any period of closure.

(C) If the court determines a property to be chronic nuisance property, the court may impose a civil penalty of up to $100 per day for each day nuisance activities occurred on the property, following notice pursuant to § 134.03(B); or the cost to the city to abate the nuisance activities at the property whichever is greater. The amount of the civil penalty shall be assessed against the person in charge and/or the property and may be included in the city's money judgment.

(D) If satisfied of the good faith of the person in charge, the court shall not award civil penalties if the court finds that the person in charge at all material times could not, in the exercise of reasonable care or diligence, determine that the property had become chronic nuisance property.

(E) In establishing the amount of any civil penalty, the court may consider any of the following factors and shall cite those found applicable:

(1) The actions taken by the person in charge to mitigate or correct the nuisance activities at the property;

(2) The financial condition of the person in charge;

(3) Repeated or continuous nature of the problem;

(4) The magnitude or gravity of the problem;

(5) The cooperation of the person in charge with the city;

(6) The cost to the city of investigating and correcting or attempting to correct the nuisance activities;

(7) Any other factor deemed relevant by a court.

(F) The city shall have the initial burden of proof to show by a preponderance of the evidence that the property is chronic nuisance property.

(G) Evidence of a property's general reputation and/or the reputation of persons residing in or frequenting it shall be admissible.

(Ord. 2077, passed 10-27-03)

§ 134.05 Summary Closure

Any summary closure proceeding shall be based on evidence showing that nuisance activities exist or have occurred on the property and that emergency action is necessary to avoid an immediate threat to public welfare and safety. Proceedings to obtain an order of summary closure shall be governed by the provisions of ORCP 79 for obtaining temporary restraining orders. In the event of summary closure, the city is not required to comply with the notification procedures set forth in § 134.03(A) and (B).

(Ord. 2077, passed 10-27-03)

§ 134.06 Enforcement

(A) The court may authorize the city to physically secure the property against all unauthorized access, use or occupancy in the event that the person in charge fails to do so within the time specified by the court. In the event that the city is authorized to secure the property, the city shall recover all costs reasonably incurred by the city to physically secure the property as provided by this section. The city department(s) physically securing the property shall prepare a statement of costs, and the city shall thereafter submit that statement to the court for its review as provided by ORCP 68.

(B) The person in charge shall pay reasonable relocation costs of a tenant as defined by ORS 90.100(28), if, without actual notice, the tenant moved into the property after either:

(1) A person in charge received notice of the determination of the Police Department pursuant to § 134.03(B); or

(2) A person in charge received notice of an action brought pursuant to § 134.05.

(C) A lien shall be created against the property for the amount of the city's money judgment. In addition, any person who is assessed penalties under § 134.04(C) and/or costs under § 134.06(A) shall be personally liable for payment thereof to the city. Judgments imposed by this chapter shall bear interest at the statutory rate.

(Ord. 2077, passed 10-27-03)

§ 134.07 Attorney Fees

The court may, in its discretion, award attorneys' fees to the prevailing party.

(Ord. 2077, passed 10-27-03)

§ 135.001 Title

This chapter shall be known as “Property Maintenance Regulations” and is referred to herein as “this chapter.”

(Ord. 2081, passed 4-12-04)

§ 135.002 Purpose

The purpose of this chapter is to protect the health, safety and welfare of citizens, to prevent deterioration of existing housing, and to contribute to vital neighborhoods by:

(A) Establishing and enforcing minimum standards for residential structures regarding basic equipment, facilities, sanitation, fire safety, and maintenance.

(B) Establishing and enforcing minimum standards of maintenance for outdoor areas and adjacent rights of way.

(C) Regulating and abating dangerous and derelict buildings.

(Ord. 2081, passed 4-12-04)

§ 135.003 Scope

The provisions of this chapter shall apply to all property in the city except as otherwise excluded by law.

(Ord. 2081, passed 4-12-04)

§ 135.004 Application of Building Codes and Ordinances

Any alterations to buildings, or changes of their use, which may be a result of the enforcement of this chapter shall be done in accordance with applicable state building codes and the city codes and ordinances.

(Ord. 2081, passed 4-12-04)

§ 135.005 Definitions

For the purpose of this chapter, certain abbreviations, terms, phrases, words and their derivatives shall be construed as specified in this section. Words used in the singular include the plural and the plural the singular. Words used in the masculine gender include the feminine and the feminine the masculine. “And” indicates that all connected items or provisions apply. “Or” indicates that the connected items or provisions may apply singly or in combination. Terms, words, phrases and their derivatives used, but not specifically defined in this chapter, either shall have the meanings defined in the city building codes, or if not defined, shall have their commonly accepted meanings. The definitions of words with specific meaning in this chapter are as follows:

• Abatement of a Nuisance. The act of removing, repairing, or taking other steps as may be necessary in order to remove a nuisance.
• Accessory Structure. Any structure not intended for human occupancy which is located on residential property. Accessory structures may be attached to or detached from the residential structure. Examples of accessory structures include: garages, carports, sheds, and other non-dwelling buildings; decks, awnings, heat pumps, fences, trellises, flag poles, tanks, towers, exterior stairs and walkways, and other exterior structures on the property.
• Adjacent Right-of-Way. The sidewalks and planting strips that border a specific property as well as the near half of the streets, alleys, or other public rights of way that border a specific property.
• Apartment House. See “Dwelling Classifications.”
• Approved. Meets the standards set forth by applicable Hermiston City Code including any applicable regulations for electric, plumbing, building, or other sets of standards included by reference in this chapter.
• Basement. The usable portion of a building which is below the main entrance story and is partly or completely below grade.
• Boarded. Secured against entry by apparatus which is visible off the premises and is not both lawful and customary to install on occupied structures.
• Building. Any structure used or intended to be used for supporting or sheltering any use or occupancy.
• Building, Existing. Existing building is a building erected prior to the adoption of this chapter, or one for which a legal permit has been issued.
• Building Regulations. City building codes, or any other safety or health statute, ordinance, regulation, rule standard, or order the City Manager or Building Official is authorized to enforce.
• Ceiling Height The clear distance between the floor and the ceiling directly above it.
• City Manager. City Manager or his/her designee, charged with the enforcement and administration of this chapter.
• Court. A space, open and unobstructed to the sky, located at or above grade level on a lot and bounded on three or more sides by walls of a building.
• Dangerous Building. See “Dangerous Structure.”
• Dangerous Structure. Any structure which has any of the conditions or defects described in § 135.052, to the extent that life, health, property, or safety of the public or its occupants are endangered.
• Demolition Warrant. An order from a court of competent jurisdiction authorizing the demolition of a dangerous structure as authorized by this chapter, including disposal of all debris in an approved manner, and returning the lot to a clean and level condition.
• Derelict Building. Any structure which has any of the conditions or defects described in § 135.051(A).
• Disabled Vehicle. Any vehicle which is or appears to be inoperative, wrecked or dismantled, or partially dismantled.
• Duplex. See “Dwelling Classifications, two-family dwelling.”
• Dwelling. Any structure containing dwelling units, including all dwelling classifications covered by the chapter.
• Dwelling Classifications. Types of dwellings covered by this chapter include:

(1) Single-Family Dwelling. A structure containing one dwelling unit.

(2) Two-Family Dwelling. A structure containing two dwelling units, also known as a “duplex.”

(3) Apartment House. Any building or portion of a building containing three or more dwelling units, which is designed, built, rented, leased, let, or hired out to be occupied for residential living purposes.

(4) Hotel. Any structure containing six or more dwelling units that are intended, designed, or used for renting or hiring out for sleeping purposes by residents on a daily, weekly, or monthly basis.

(5) Motel. For purposes of this chapter, a motel shall be defined the same as a hotel.

(6) Single-Room Occupancy Housing Unit. A one-room dwelling unit in a hotel providing sleeping, cooking, and living facilities for one or two persons in which some or all sanitary or cooking facilities (toilet, lavatory, bathtub or shower, kitchen sink, or cooking equipment) may be shared with other dwelling units.

(7) Manufactured Dwelling. The term “manufactured dwelling” includes the following types of single-family dwellings:

(a) Residential Trailer. A structure constructed for movement on the public highways that has sleeping, cooking, and plumbing facilities, that is intended for human occupancy, that is being used for, or is intended to be used for, residential purposes, and that was constructed before January 1, 1962.

(b) Mobile Home. A structure constructed for movement on the public highways that has sleeping, cooking, and plumbing facilities, that is intended for human occupancy, that is being used for, or is intended to be used for, residential purposes, and that was constructed between January 1, 1962 and June 15, 1976, and met the construction requirements of Oregon mobile home law in effect at the time of construction.

(c) Manufactured Home. A structure constructed for movement on the public highways that has sleeping, cooking, and plumbing facilities, that is intended for human occupancy, that is being used for, or is intended to be used for, residential purposes, and that was constructed in accordance with federal manufactured housing construction and safety standards and regulations.

(d) Manufactured dwelling does not include any unit identified as a recreational vehicle by the manufacturer.

(8) Floating Home. A floating structure used primarily as a dwelling unit. Application of this chapter shall be modified for floating homes, when appropriate, by nautical application.

• Dwelling Unit. One of more habitable rooms that are occupied by, or designed or intended to be occupied by, one person or by a family or group of housemates living together as a single housekeeping unit that includes facilities for living and sleeping and also includes facilities for cooking, eating, and sanitation.
• Exit (Means of Egress). A continuous, unobstructed means of escape to a public way, including intervening doors, doorways, exit balconies, ramps, stairways, smoke-proof enclosures, horizontal exits, passageways, exterior courts and yards.
• Exterior Property Area. The sections of residential property which are outside the exterior walls and roof of the dwelling.
• Extermination. The elimination of insects, rodents, vermin or other pests at or about the affected building.
• Fee-Paid Inspection. Any requested inspection which is not a part of the city’s code enforcement program including but not limited to inspections done prior to moving houses, for establishing tax exempt status, for housing and urban development properties.
• Floor Area. The area of clear floor space in a room exclusive of fixed or built-in cabinets or appliances.
• Habitable Room (Space). Habitable room or space is a structure for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space, and similar areas are not considered habitable space.
• Hotel. See “Dwelling Classifications.”
• Immediate Danger. Any condition posing a direct immediate threat to human life, health, or safety.
• Infestation. The presence within or around a dwelling of insects, rodents, vermin or other pests to a degree that is harmful to the dwelling or its occupants.
• Inspection. The examination of a property by the City Manager whose primary function is the inspection of properties and the enforcement of this chapter.
• Inspection Warrant. An order from a court of competent jurisdiction authorizing a safety or health inspection or investigation to be conducted at a designated property.
• Inspector. An authorized representative of the City Manager whose primary function is the inspection of properties and the enforcement of this chapter.
• Interested Party. Any person or entity that possesses any legal or equitable interest of record in a property including but not limited to the holder of any lien or encumbrance of record on the property.
• Kitchen. A room used or designed to be used for the preparation of food.
• Lavatory. A fixed wash basin connected to hot and cold running water and the building drain and used primarily for personal hygiene.
• Lawn Area. Any area of a property where lawn grasses are used as ground cover, or any area of a property where the ground covering vegetation does not permit passage to substantial portions of the property without walking directly on the vegetation.
• Lawn Grass. Varieties of grass that were planted, or are commonly sold, for the purpose of maintaining a mowed lawn.
• Maintained Compost Area.A small portion of a property set aside for the purpose of encouraging the rapid decomposition of yard debris and other vegetable matter into a suitable fertilizer for the soil on the property. A maintained compost area shows clear indicators that the yard debris placed there is being actively managed to encourage its rapid decomposition. Possible signs of such active management may include evidence of regular turning, a mixture of yard debris types, any woody material present having been chopped into small sizes, and the presence of internal heat in the composting mixture. A location where yard debris is placed primarily as a means to store it or dump it without reasonable expectation of rapid decomposition is not a maintained compost area.
• Maintenance. The work of keeping property in proper condition to perpetuate its use.
• Manufactured Dwelling. See “Dwelling Classifications.”
• Mote. See “Dwelling Classifications.”
• Naturescape. Landscaping and gardening approaches that use predominately native plants for the purpose of creating improved outdoor habitat for native insects, birds, and mammals and reducing the need for pesticides, chemical fertilizers, and summer watering.
• Nuisance Abatement Warrant. An order from a court of competent jurisdiction authorizing the removal and abatement of any nuisance as authorized by this chapter, including disposal of the nuisance items removed in an appropriate manner.
• Occupancy. The lawful purpose for which a building or part of a building is used or intended to be used.
• Occupant. Any person (including an owner or operator) using a building, or any part of a building, for its lawful, intended use.
• Occupied. Used for an occupancy.
• Operator. Any person who has charge, care or control of a building or part of a building in which dwelling units are let or offered for occupancy.
• Outdoor Area. All parts of property that are exposed to the weather including the exterior of structures built for human occupancy. This includes, but is not limited to, vehicles parked on the property; open and accessible porches, carports, garages, and decks; accessory structures, and any outdoor storage structure.
• Owner. The person whose name and address is listed as the owner of the property by the County Tax Assessor on the county assessment and taxation records.
• Plumbing or Plumbing Fixtures. Plumbing or plumbing fixtures mean any water heating facilities, water pipes, vent pipes, garbage or disposal units, waste lavatories, bathtubs, shower baths, installed clothes-washing machines or other similar equipment, catch basins, drains, vents, or other similarly supplied fixtures, together with all connection to water, gas, sewer, or vent lines.
• Property Any real property and all improvements, buildings or structures on real property, from property line to property line.
• Public Right-of-Way. Any sidewalk, planting strip, alley, street, or pathway, improved or unimproved, that is dedicated to public use.
• Resident. Any person (including owner or operator) hiring or occupying a room or dwelling unit for living or sleeping purposes.
• Residential Property. Real property and all improvements or structures on real property used or intended to be used for residential purposes including any residential structure, dwelling, or dwelling unit as defined in this chapter and any mixed-use structures which have one or more dwelling units. Hotels that are used exclusively for transient occupancy, as defined in this chapter, are excluded from this definition of residential property.
• Residential Rental Property. Any property within the city on which exist one or more dwelling units which are not occupied as the principal residence of the owner.
• Residential Structure. Any building or other improvement or structure containing one or more dwelling units as well as any accessory structure. This includes any dwelling as defined in this chapter.
• Shall. As used in this chapter, is mandatory.
• Single-Family Dwelling. See “Dwelling Classifications.”
• Single-Family Occupancy Housing Unit. See “Dwelling Classifications.”
• Sink. A fixed basin connected to hot and cold running water and a drainage system and primarily used for the preparation of food and the washing of cooking and eating utensils.
• Sleeping Room. Any room designed, built, or intended to be used as a bedroom as well as any other room used for sleeping purposes.
• Repair. The reconstruction or renewal of any part of an existing structure for the purpose of its maintenance.
• Smoke Detector. An approved detector which senses visible or invisible particles of combustion and which plainly identifies the testing agency that inspected or approved the device.
• Stagnant Water. Any impoundment of water in which there is no appreciable flow of water through the impoundment and the level of water does not vary during any 48 hour period.
• Structure. That which is built or constructed, an edifice or building of any kind, or any piece or work artificially built up or composed of parts joined together in some definite manner.
• Substandard. In violation of any of the minimum requirements as set out in this chapter.
• Summary Abatement. Abatement of a nuisance by the city, or by a contractor hired by the city, without obligation to give prior notice of the abatement action to the owner or occupant of the property.
• Supplied. Installed, furnished or provided by the owner or operator.
• Swimming Pool. An artificial basin, chamber, or tank constructed of impervious material, having a depth of 18 inches or more, and used or intended to be used for swimming, diving, or recreational bathing.
• Toilet. A flushable plumbing fixture connected to running water and a drainage system and used for the disposal of human waste.
• Toilet Compartment. A room containing only a toilet or only a toilet and lavatory.
• Transient Occupancy. Occupancy of a dwelling unit in a hotel where the following conditions are met:

(1) Occupancy is charged on a daily basis and is not collected more than six days in advance.

(2) The lodging operator provides maid and linen service daily or every two days as part of the regularly charged cost of occupancy.

(3) The period of occupancy does not exceed 30 days; and

(4) If the occupancy exceeds five days, the resident has a business address or a residence other than at the hotel.

• Two-Family Dwelling. See “Dwelling Classifications.”
• Unoccupied. Not used for occupancy.
• Unsecured. Any structure in which doors, windows, or apertures are open or broken so as to allow access by unauthorized persons.
• Vehicle. Any device in, on, upon, or by which any person or property is or may be transported or drawn upon a public highway, except a device moved by human power or used exclusively upon stationary rails or tracks, including but not limited to a body, an engine, a transmission, a frame, or other major part.
• Yard. An open, unoccupied space, other than a court, unobstructed from the ground to the sky, and located between a structure and the property line of the lot on which the structure is situated.

(Ord. 2081, passed 4-12-04)

§ 135.020 Outdoor Maintenance Requirements

It is the responsibility of the owner of any property, improved or unimproved, to maintain the outdoor areas of the property and adjacent rights of way in a manner that complies with the following requirements:

(A) Holes, tanks, and child traps. Remove, or fill where filling will abate the nuisance, all holes, cisterns, open cesspools, open or unsanitary septic tanks, excavations, open foundations, refrigerators, freezers, or iceboxes with unlocked attached doors and any other similar substance, material or condition which may endanger neighboring property or the health or safety of the public (B) Unsecured structures. Board over or otherwise secure, and keep boarded over or otherwise secured, all open or broken exterior doors, windows, or apertures of any structure so as to prevent access by unauthorized persons through such openings.

(C) Rat harborage. Remove or repair, and keep removed or repaired, any condition that provides a place where rats gain shelter, feed, or breed.

(D) Emergency access routes. Remove and keep removed all brush, vines, overgrowth and other vegetation located within ten feet of a structure or within ten feet of a property line which is likely to obstruct or impede the necessary passage of fire or other emergency personnel.

(E) Thickets that conceal hazards. Cut and remove and keep cut and removed all blackberry vines and other thickets when such growth is found to be:

(1) Concealing trash and debris; or

(2) Creating rat harborage; or

(3) Creating harborage for people involved in criminal activity or for products used for criminal activity.

(F) Overgrown lawn areas. Cut and remove and keep cut and removed all weeds and grass that are located in lawn areas and have a prevailing height of more than 15 inches.

(G) Trash and debris. Remove, and keep removed, unless specifically authorized by ordinance to do otherwise:

(1) All household garbage, offal, dead animals, animal and human waste, and waste materials (All household garbage shall be stored as specified in § 135.034);

(2) Accumulations of litter, glass, scrap materials (such as wood, metal, paper, and plastics), junk, combustible materials, stagnant water, or trash;

(3) All dead bushes, dead trees, and stumps with the exception of such material which:

(a) Is being maintained as part of a naturescaped property;

(b) Does not result in a nuisance as otherwise defined in this chapter; and

(c) Is located on a property which is otherwise substantially in compliance with this chapter;

(4) All trees or bushes which are dying and are determined to require removal in order to safeguard people or property;

(5) Accumulations of dead organic matter and yard debris, with the exception of small accumulations of such material in a maintained compost area on the property and only if such material does not result in a nuisance, such as creating rat harborage, as otherwise defined in this chapter; and

(6) Accumulations of clothing and any other items not designed for outdoor storage.

(7) All irrigation water or water used for domestic or other purposes to run across or upon any city street as specified in § 94.04.

(H) Storage of non-trash items. Remove, and keep removed, unless specifically authorized by this code to do otherwise:

(1) Accumulations of wood pallets.

(2) All firewood that is not stacked and usable. “Usable” firewood has more wood than rot and is cut to lengths that will fit an approved fireplace or wood stove on the property.

(3) Accumulations of vehicle parts or tires.

(4) All construction materials, except those that are stored in a manner to protect their utility and prevent deterioration and are reasonably expected to be used at the site.

(5) All appliances or appliance parts except for storage of appliances that are reasonably expected to be used at the site and are stored in a manner to protect their utility and prevent deterioration.

(6) All indoor furniture except that which is stored in a manner to protect its utility and prevent deterioration and is reasonably expected to be used at the property.

(7) All recycling materials except for reasonable accumulations (amounts consistent with a policy of regular removal) that are stored in a well-maintained manner.

(8) All other non-trash items which:

(a) Are a type or quantity inconsistent with normal and usual use; or

(b) Are likely to obstruct or impede the necessary passage of fire or other emergency personnel.

(I) Disabled vehicles. Neither store nor permit the storing of a disabled vehicle for more than seven days unless the vehicle is enclosed within a legally permitted building or unless it is stored by a licensed business enterprise dealing in junked vehicles lawfully conducted within the city. Removal and disposition of such disabled vehicles shall be in accordance with all applicable city codes to the extent that such provisions are applicable.

(J) Obstructions to sidewalks, streets, and other rights of way. Keep the adjacent rights of way free of anything that obstructs or interferes with the normal flow of pedestrian or vehicular traffic, unless specifically authorized by ordinance to do otherwise. This responsibility includes, but is not limited to, removal of earth, rock, and other debris, as well as projecting or overhanging bushes and limbs that may obstruct or render unsafe the passage of persons or vehicles. This responsibility also includes, but is not limited to, the obligation to maintain all rights-of-way referenced in this subsection to meet the following minimum clearances:

(1) Sidewalks. All sidewalks must be clear of obstructions by earth, rock, or vegetation from edge to edge and to an elevation of ten feet above sidewalk level. For example, bushes that encroach on or over any part of a sidewalk area must be cut back or removed and limbs of trees that project over the sidewalk area at an elevation of less than ten feet above the sidewalk level must be removed.

(2) Improved streets. All improved streets must be clear of obstructions to vehicle movement and parking from edge to edge and to an elevation of 14 feet above street level. For example, bushes that encroach on or over any part of a street must be cut back or removed; limbs of trees that project over a street at an elevation of less than 14 feet above street level must be removed; and no wires or other things shall be maintained over the street level at any elevation less than 11 feet.

(3) Alleys and unimproved rights-of-way. All alleys, unimproved streets, and other public rights of way must be clear of obstructions that may hinder the normal flow of traffic or render the right of way unsafe for its current and necessary use.

(Ord. 2081, passed 4-12-04)

§ 135.021 Other Endangering Conditions

It is the responsibility of the owner of any property, improved or unimproved, to remove or repair:

(A) Any damage to or failure of an on-site sewage disposal system, private sewer line, or rain drain system, and

(B) Any other substance, material or condition which is determined by the City Manager to endanger neighboring property, the health or safety of the public, or the occupants of the property.

(Ord. 2081, passed 4-12-04)

§ 135.022 Nuisance Defined, Summary Abatement Authorized

All conditions in violation of §§ 135.020 and 135.021 of this chapter shall constitute a nuisance.

Any person whose duty it is to correct such conditions and who fails to do so shall be subject to the penalties provided for by this chapter. In cases where the City Manager determines that it is necessary to take immediate action in order to meet the purposes of this chapter, summary abatement of such nuisances is authorized.

(Ord. 2081, passed 4-12-04)

§ 135.030 Compliance

No owner shall maintain or permit to be maintained any residential property which does not comply with the requirements of the code. All residential property shall be maintained to the building code requirements in effect at the time of construction, alteration, or repair and shall meet the requirements described in §§ 135.030 through 135.040.

(Ord. 2081, passed 4-12-04)

§ 135.031 Display of Address Number

Address numbers posted shall be the same as the number listed on the county assessment and taxation records for the property. All dwellings shall have address numbers posted in a conspicuous place so they may be read from the listed street or public way. Units within apartment houses shall be clearly numbered, or lettered, in a logical and consistent manner.

(Ord. 2081, passed 4-12-04)

§ 135.032 Accessory Structures

All accessory structures on residential property shall be maintained structurally safe and sound and in good repair.

(Ord. 2081, passed 4-12-04)

§ 135.033 Insect and Rodent Harborage

Every dwelling shall be kept free from insect and rodent infestation, and where insects and rodents are found, they shall be promptly exterminated. After extermination, proper precautions shall be taken to prevent re-infestation.

(Ord. 2081, passed 4-12-04)

§ 135.034 Cleanliness and Sanitation

(A) All exterior property areas shall be maintained in a clean and sanitary condition free from any excessive accumulation of rubbish or garbage. All household garbage shall be stored in receptacles which are free from holes and covered with tight fitting lids.

(B) The owner or occupant of any residential rental property shall provide in a location accessible to all dwelling units at least one 30-gallon receptacle for each dwelling unit, or receptacles with a capacity sufficient to prevent the overflow of garbage and rubbish from occurring, into which garbage and rubbish from the dwelling units may be emptied for storage between days of collection. Receptacles and lids shall be watertight and provided with handles. All receptacles shall be maintained free from holes and covered with tight-fitting lids at all times. The owner or occupant of the units shall subscribe to and pay for weekly garbage removal service for the receptacles required by this section, by a refuse collection permittee or franchisee as defined in the code.

(Ord. 2081, passed 4-12-04)

§ 135.035 Plumbing Facilities

(A) Every plumbing fixture or device shall be properly connected to a public or an approved private water system and to a public or an approved private sewer system.

(B) All required sinks, lavatory basins, bathtubs and showers shall be supplied with both hot and cold running water. Every dwelling unit shall be supplied with water heating facilities which are installed in an approved manner, properly maintained, and properly connected with hot water lines to all required sinks, lavatory basins, bathtubs and showers. Water heating facilities shall be capable of heating water enough to permit an adequate amount of water to be drawn at every required facility at a temperature of at least 120E at any time needed.

(Ord. 2081, passed 4-12-04)

§ 135.036 Exterior Walls and Exposed Surfaced

(A) Every exterior wall and weather-exposed surface or attachment shall be free of holes, breaks, loose or rotting boards or timbers and any other conditions which might admit rain or dampness to the interior portions of the walls or the occupied spaces of the building.

(B) All exterior wood surfaces shall be made substantially impervious to the adverse effects of weather by periodic application of an approved protective coating of weather-resistant preservative, and be maintained in good condition. Wood used in construction of permanent structures and located nearer than six inches to earth shall be treated wood or wood having a natural resistance to decay.

(C) Exterior metal surfaces shall be protected from rust and corrosion.

(D) Every section of exterior brick, stone, masonry, or other veneer shall be maintained structurally sound and be adequately supported and tied back to its supporting structure.

(Ord. 2081, passed 4-12-04)

§ 135.037 Overcrowding

No dwelling unit shall be permitted to be overcrowded. A dwelling unit shall be considered overcrowded if there are more residents than one plus one additional resident for every 100 square feet of floor area of the habitable rooms in the dwelling unit.

(Ord. 2081, passed 4-12-04)

§ 135.038 Hazardous Materials

(A) When paint is applied to any surface of a residential structure, it shall be lead free.

(B) Residential property shall be free of dangerous levels of hazardous materials, contamination by toxic chemicals, or other circumstances that would render the property unsafe. Where a governmental agency authorized by law to make the determination has verified that a property is unfit for use due to hazardous conditions on the property, the property shall be in violation of this chapter. Any such property shall remain in violation of this chapter until such time as the agency has approved the abatement of the hazardous conditions. The City Manager may order such property vacated pursuant to § 135.076.

(C) No residential property shall be used as a place for the storage and handling of highly combustible or explosive materials or any articles which may be dangerous or detrimental to life or health. No residential property shall be used for the storage or sale of paints, varnishes or oils used in the making of paints and varnishes, except as needed to maintain the dwelling.

(D) Residential property shall be kept free of friable asbestos.

(Ord. 2081, passed 4-12-04)

§ 135.039 Maintenance of Facilities and Equipment

In addition to other requirements for the maintenance of facilities and equipment described in §§ 135.030 through 135.040:

(A) All required facilities in every dwelling shall be constructed and maintained to properly and safely perform their intended function.

(B) All non-required facilities or equipment present in a dwelling shall be maintained to prevent structural damage to the building or hazards of health, sanitation, or fire.

(Ord. 2081, passed 4-12-04)

§ 135.040 Swimming Pool Enclosures

Each swimming pool not totally enclosed by a structure shall be enclosed by a substantial fence at least four feet in height and equipped with a self-closing and latching gate except where bordered by a wall of an adjacent structure at least four feet in height. No swimming pool shall be nearer than three feet from any lot line, and no enclosing fence or wall shall be constructed nearer than three feet to the outer walls of the swimming pool. Pool enclosures shall meet the city building code, and the city’s code of ordinances.

(Ord. 2081, passed 4-12-04)

§ 135.050 Repair or Demolition Required

No property shall contain any dangerous structure or derelict building as described in §§ 135.051 and 135.052. All such structures shall be repaired or demolished.

(Ord. 2081, passed 4-12-04)

§ 135.051 Derelict Buildings

(A) A derelict building shall be considered to exist whenever any building, structure, or portion thereof which is unoccupied meets any of the following criteria or any residential structure which is at least 50% unoccupied meets any of the following criteria:

(1) Has been ordered vacated by the City Manager pursuant to § 135.076;

(2) Has been issued a correction notice by the City Manager pursuant to § 135.074;

(3) Is unsecured;

(4) Has been posted for violation of §§ 135.021 through 135.022 more than once in any two year period; or

(5) Has, while vacant, had a nuisance abated by the city pursuant to this chapter.

(B) Any property which has been declared by the City Manager to include a derelict building shall be considered in violation of this chapter until:

(1) The building has been lawfully occupied;

(2) The building has been demolished and the lot cleared and graded under building permit, with final inspection and approval by the City Manager; or

(3) The owner has demonstrated to the satisfaction of the City Manager that the property is free of all conditions and in compliance with all notices listed in the definition of a derelict building in this section.

(Ord. 2081, passed 4-12-04)

§ 135.052 Dangerous Structures

Any structure which has any or all of the following conditions or defects to the extent that life, health, property, or safety of the public or the structure’s occupants are endangered, shall be deemed to be a dangerous structure and such condition or defects shall be abated pursuant to §§ 135.074 and 135.075 of this chapter.

(A) High loads. Whenever the stress in any materials, member, or portion of a structure, due to all dead and live loads, is more than 1 1/2 times the working stress or stresses allowed in the Oregon Structural Specialty Code and Fire and Life Safety Code for new buildings of similar structure, purpose, or location.

(B) Weakened or unstable structural members or appendages.

(1) Whenever any portion of a structure has been damaged by fire, earthquake, wind, flood, or by any other cause, to such an extent that the structural strength or stability is materially less than it was before such catastrophe and is less than the minimum requirements of the Oregon State Structural Specialty Code and Fire and Life Safety Code for new buildings of similar structure, purpose, or location.

(2) Whenever appendages including parapet walls, cornices, spires, towers, tanks, statuaries, or other appendages or structural members which are supported by, attached to, or part of a building, and which are in a deteriorated condition or otherwise unable to sustain the design loads which are specified in the Oregon State Structural Specialty and Fire and Life Safety Code.

(C) Buckled or leaning walls, structural members. Whenever the exterior walls or other vertical structural members list, lean or buckle to such an extent that a plumb line passing through the center of gravity does not fall inside the middle one-third of the base.

(D) Vulnerability to earthquakes, high winds.

(1) Whenever any portion of a structure is wrecked, warped, buckled, or has settled to such an extent that walls or other structural portions have materially less resistance to winds or earthquakes than is required in the case of similar new construction; or

(2) Whenever any portion of a building, or any member, appurtenance, or ornamentation of the exterior thereof is not of sufficient strength or stability, or is not so anchored, attached or fastened in place so as to be capable of resisting a wind pressure of one-half of that specified in the Oregon Structural

Specialty Code and Fire and Life Safety Code for new buildings of similar structure, purpose, or location without exceeding the working stresses permitted in the Oregon State Structural Specialty Code and Fire and Life Safety Code for such buildings.

(E) Insufficient strength or fire resistance. Whenever any structure which, whether or not erected in accordance with all applicable laws and ordinances:

(1) Has in any non-supporting part, member, or portion, less than 50% of the strength or the fire-resisting qualities or characteristics required by law for a newly constructed building of like area, height, and occupancy in the same location; or

(2) Has in any supporting part, member, or portion less than 66% of the strength or the fire-resisting qualities or characteristics required by law in the case of a newly constructed building of like area, height, and occupancy in the same location.

(3) This section does not apply to strength required to resist seismic loads.

(F) Risk of failure or collapse.

(1) Whenever any portion or member of appurtenance thereof is likely to fail, or to become detached or dislodged, or to collapse and thereby injure persons or damage property; or

(2) Whenever the structure, or any portion thereof, is likely to partially or completely collapse as a result of any cause, including but not limited to:

(a) Dilapidation, deterioration, or decay;

(b) Faulty construction;

(c) The removal, movement, or instability of any portion of the ground necessary for the purpose of supporting such structure; or

(d) The deterioration, decay, or inadequacy of its foundation.

(G) Excessive damage or deterioration. Whenever the structure exclusive of the foundation:

(1) Shows 33% or more damage or deterioration of its supporting member or members;

(2) 50% damage or deterioration of its non-supporting members; or

(3) 50% damage or deterioration of its enclosing or outside wall coverings.

(H) Demolition remnants on site. Whenever any portion of a structure, including unfilled excavations, remains on a site for more than 30 days after the demolition or destruction of the structure.

(I) Lack of approved foundation. Whenever any portion of a structure, including unfilled excavations, remains on a site, including:

(1) Where a structure is not placed on an approved foundation and no valid permit exists for a foundation for that structure; or

(2) For more than 90 days after issuance of a permit for a foundation for a structure, where the structure is not placed on an approved foundation.

(J) Fire hazard. Whenever any structure is a fire hazard as a result of any cause, including but not limited to: dilapidated condition, deterioration, or damage; inadequate exits; lack of sufficient fire-resistive construction; or faulty electric wiring, gas connections, or heating apparatus.

(K) Other hazards to health, safety, or public welfare.

(1) Whenever, for any reason, the structure, or any portion thereof, is manifestly unsafe for the purpose for which it is lawfully constructed or currently is being used; or

(2) Whenever a structure is structurally unsafe or is otherwise hazardous to human life, including but not limited to whenever a structure constitutes a hazard to health, safety, or public welfare by reason of inadequate maintenance, dilapidation, unsanitary conditions, obsolescence, fire hazard, disaster, damage, or abandonment.

(L) Public nuisance.

(1) Whenever any structure is in such a condition as to constitute a public nuisance known to the common law or in equity jurisprudence; or

(2) Whenever the structure has been so damaged by fire, wind, earthquake or floor or any other cause, or has become so dilapidated or deteriorated as to become:

(a) An attractive nuisance, or

(b) A harbor for vagrants or criminals.

(M) Chronic dereliction. Whenever a derelict building, as defined in this chapter, remains unoccupied for a period in excess of six months or period less than six months when the building or portion thereof constitutes an attractive nuisance or hazard to the public.

(N) Violations of codes, laws. Whenever any structure has been constructed, exists, or is maintained in violation of any specific requirement or prohibition applicable to such structure provided by the building regulations of this city, as specified in the Oregon State Structural Code and Fire and Life Safety Code or any law or ordinance of this state or city relating to the condition, location, or structure or buildings.

(Ord. 2081, passed 4-12-04)

§ 135.053 Abatement of Dangerous Structures

All structures or portions thereof which are determined after inspection by the City Manager to be dangerous as defined in this chapter are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition, or removal in accordance with the procedures specified herein. If the City Manager determines that a structure is dangerous, as defined by this chapter, the City Manager may commence proceedings to cause the repair, vacation, or demolition of the structure.

(Ord. 2081, passed 4-12-04)

§ 135.060 Permits Required

No person, firm or corporation shall construct, alter, repair, move, improve, or demolish any structure without first obtaining applicable building permits as required by the code and the Oregon Code of Ordinances and the Oregon State Specialty Codes as adopted by the state and the city.

(Ord. 2081, passed 4-12-04)

§ 135.061 Inspections Required

All buildings, structures, or other improvements within the scope of this chapter and all construction work for which a permit is required shall be subject to inspection by the Building Official and shall meet all pertinent Oregon State Codes and this code.

(Ord. 2081, passed 4-12-04)

§ 135.062 Occupancy of Residential Property After Notice of Violation

(A) If a notice of violation of §§ 135.030 through 135.040 or §§ 135.050 through 135.053 has been issued, and if the affected structure or any portion thereof is or becomes vacant, it shall be:

(1) Unlawful to re-enter the affected structure or any portion thereof between the hours of 10:00 p.m. and 7:00 a.m. for any use of, or presence in, the affected structure or portion thereof unless authorized in writing by the City Manager.

(2) Unlawful to re-enter the affected structure or portion thereof between the hours of 7:00 a.m. and 10:00 p.m. for any purpose other than work associated with the correction of violations noted in the notice of violation.

(3) Except as provide above in division (2), it is unlawful to occupy the affected structure or portion thereof without prior written approval from the City Manager.

(B) In addition to any civil penalties imposed pursuant to § 135.092 (D), and as collected through a municipal lien process, any person unlawfully occupying any such affected structure or portion thereof shall upon conviction be punished by a fine of not more than $500.

(Ord. 2081, passed 4-12-04)

§ 135.063 Illegal Residential Occupancy

When a property has an illegal residential occupancy, including but not limited to occupancy of tents, campers, motor homes, recreational vehicles, or other structures or spaces not intended for permanent residential use or occupancy of spaces constructed or converted without permit, the use shall be abated or the structure brought into compliance with the present regulations for a building of the same occupancy.

(Ord. 2081, passed 4-12-04)

§ 135.064 Interference with Repair, Demolition, or Abatement Prohibited

It is unlawful for any person to obstruct, impede, or interfere with any person lawfully engaged in:

(A) The work of repairing, vacating, warehousing, or demolishing any

(B) The abatement of a nuisance pursuant to the provisions of this chapter; or

(C) The performance of any necessary act preliminary to or incidental to such work as authorized by this chapter or directed pursuant to it.

(Ord. 2081, passed 4-12-04)

§ 135.070 Administration Authority and Responsibility

The City Manager is hereby authorized to administer and enforce all of the provisions of this chapter. In accordance with approved procedures, the City Manager may employ qualified officers, inspectors, assistants, and other employees as shall be necessary to carry out the provisions of this chapter. The authority of the City Manager to enforce the provisions of this chapter is independent of and in addition to the authority of other city officials to enforce the provisions of any other chapter of the city code.

(Ord. 2081, passed 4-12-04)

§ 135.071 Authorization to Inspect

The City Manager is authorized to make inspection of property for the purposes of enforcing this chapter. Wherever possible, inspections made by the personnel of the city Building Department or the city Fire and Emergency Services will be coordinated to avoid the issuance of multiple or conflicting orders.

(Ord. 2081, passed 4-12-04)

§ 135.072 Enforcing Compliance

To enforce any of the requirements of this chapter, the City Manager may gain compliance by:

(A) Instituting an action before the Code Hearings Officer as outlined by Chapter 136;

(B) Causing appropriate action to be instituted in a court of competent jurisdiction; or

(C) Taking other action as the City Manager in the exercise of the City Manager’s discretion deems appropriate.

(Ord. 2081, passed 4-12-04)

§ 135.073 Right of Entry; Inspection Warrants

(A) Right of entry. The City Manager may enter property, including the interior of structures, at all reasonable times whenever an inspection is necessary to enforce any building regulations, or whenever the City Manager has reasonable cause to believe that there exists in any structure or upon any property any condition which makes such property substandard as defined in any building regulations. In the case of entry into area of property that are plainly enclosed to create privacy and prevent access by unauthorized persons, the following steps shall be taken:

(1) Occupied property. If any structure on the property is occupied, the City Manager shall first present credentials and request entry. If entry is refused, the City Manager may attempt to obtain entry by obtaining an inspection warrant.

(2) Unoccupied property.

(a) If the property is unoccupied, the City Manager shall contact the property owner, or other persons having charge or control of the property, and request entry. If entry is refused, the City Manager may attempt to obtain entry by obtaining an inspection warrant.

(b) If structures on the property are unoccupied, the City Manager shall first make a reasonable attempt to locate the owner or other persons having charge or control of the property and request entry. If entry is refused, the City Manager may attempt to obtain entry by obtaining an inspection warrant.

(3) Open, unoccupied property. If any structure on the property is unoccupied and open:

(a) The City Manager shall notify the owner of the property’s condition and order the owner, or other persons having charge or control of the property, to immediately secure the premises against the entry of unauthorized persons. If the property is not secured within 15 days from the date notice is sent, the City Manager may secure the property as provided in §§ 135.020 through 135.022.

(b) If the City Manager believes that a hazardous condition exists, the City Manager may immediately secure the property as provided in §§ 135.020 through 135.022. Following the summary abatement, the City Manager shall notify the owner, or other persons having charge or control of the property, of the condition of the property and request entry. If entry is refused, the (B) Grounds for issuance of inspection warrants; affidavit.

(1) Affidavit. An inspection warrant shall be issued only upon cause, supported by affidavit, particularly describing the applicant’s status in applying for the warrant, the statute, ordinance or regulation requiring or authorizing the inspection or investigation, the property to be inspected or investigated and the purpose for which the inspection or investigations is to be made including the basis upon which cause exists to inspect. In addition, the affidavit shall contain either a statement that entry has been sought and refused, or facts or circumstances reasonably showing that the purposes of the inspection or investigations might be frustrated if entry were sought without an inspection warrant.

(2) Cause. Cause shall be deemed to exist if reasonable legislative or administrative standards for conducting a routine, periodic or area inspection are satisfied with respect to any building or upon any property, or there is probable cause to believe that a condition of nonconformity with any building regulation exists with respect to the designated property, or an investigation is reasonably believed to be necessary in order to discover or verify the condition of the property for conformity with building regulations.

(C) Procedure for issuance of inspection warrant.

(1) Examination. Before issuing an inspection warrant, the judge may examine under oath the applicant and any other witness and shall be satisfied of the existence of grounds for granting such application.

(2) Issuance. If the judge is satisfied that cause for the inspection or investigation exists and that the other requirements for granting the application are satisfied, the judge shall issue the warrant, particularly describing the person or persons authorized to execute the warrant, the property to be entered and the purpose of the inspection or investigation. 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.

(3) Police assistance. In issuing an inspection warrant on unoccupied property, including abatement warrants pursuant to § 135.075, the judge may authorize any peace officer, as defined in Oregon Revised Statutes, to enter the described property to remove any person or obstacle and assist the City Manager or representative of the department inspecting the property in any way necessary to complete the inspection.

(D) Execution of inspection warrant.

(1) Occupied property. Except as provided in division (D)(2) of this section, in executing an inspection warrant, the person authorized to execute the warrant shall, before entry into the occupied premises, make a reasonable effort to present the person’s credentials, authority and purpose to an occupant or person in possession of the property designated in the warrant and show the occupant or person in possession of the property designated in the warrant and show the occupant or person in possession of the property and warrant or a copy thereof upon request.

(2) Unoccupied property. In executing an inspection warrant, the person authorized to execute the warrant need not inform anyone of the person’s authority and purpose, as prescribed in division (D)(1) of this section, but may promptly enter the property if it is at the time unoccupied or not in the possession of any person or at the time reasonable believed to be in such condition. In such a case a copy of the warrant shall be conspicuously posted upon the property.

(3) Return. An inspection warrant must be executed within ten working days of its issue and returned to the judge by whom it was is issued within ten working days from its date of execution. After the expiration of the time prescribed by this section, the warrant unless executed is void.

(Ord. 2081, passed 4-12-04)

§ 135.074 Notice and Order

(A) Notification required.

(1) Except in the case of summary abatement or immediate danger, if the City Manager finds one or more violations of the provisions of this chapter on a property or adjacent right of way, the City Manager shall notify the property owner to repair, remove or take any other action as necessary to correct the violations. Notification to the property owner shall be accomplished by mailing a notice to the owner, at the owner’s address as recorded in the county assessment and taxation records for the property. The notice may be sent via first class mail or certified mail at the City Manager’s discretion. Notice to the property owner may also be accomplished by posting notice on the property.

(2) In addition to the above notice to the property owner, prior notice before towing a disabled vehicle must be provided by mailing a notice to the registered owner and any other persons who reasonably appear to have an interest in the vehicle within 48 hours, Saturdays, Sundays and holidays excluded, after the notice has been posted on the property.

(B) Content of the notice. The notice shall include:

(1) The date of posting (if notice was posted at the property);

(2) The street address or a description sufficient for identification of the property;

(3) A statement that one or more violations of this chapter exist at the property with a general description of the violation;

(4) Disclosure that penalties, charges, and liens may result from a failure to remedy the violations, and in the case of a disabled vehicle, a statement that the city intends to tow and remove the vehicle if the violation is not corrected;

(5) Specification of a response period during which the property may be brought into compliance with this chapter before penalties, charges, or liens will be assessed; and

(6) Disclose the owner’s right to appeal the findings of the notice of violation and a description of the time limits for requesting an administrative review or a hearing, as described in §§ 135.100 through 135.102 of this chapter.

(C) Notification by mail. An error in the name of the property owner or address listed in the county assessment and taxation records for the property shall not render the notice void, but in such case the posted notice, if a notice was posted on the property, shall be deemed sufficient.

(D) Notification following summary abatement. When summary abatement is authorized by this chapter, the decision regarding whether or not to use summary abatement shall be at the City Manager’s discretion. In the case of summary abatement, notice to the owner or occupant of the property prior to abatement is not required. However, following summary abatement, the City Manager shall post upon the property liable for the abatement a notice describing the action taken to abate the nuisance violation. In addition, a notice of summary abatement shall be mailed to the property owner. The notice of summary abatement shall include:

(1) The date the nuisance on the property was abated;

(2) The street address or description sufficient for identification of the property;

(3) A statement of the violations of Chapter 135 that existed at the property and were summarily abated;

(4) Disclosure that penalties, charges and liens will result from the summary abatement;

(5) Disclosure of the owner’s right to appeal the findings of the notice.

(E) Compliance inspections and penalties. The City Manager shall monitor compliance with the notice through periodic tracing and inspection. Once a notice has been mailed, the owner shall be responsible for all enforcement penalties associated with the property, as described in §§ 135.090 through 135.093, until the violations are corrected and the City Manager has been so notified. Except in the case of summary abatement, whenever the owner believes that all violations listed in the first or any subsequent notice of violation have been corrected, they shall notify the City Manager.

(F) Time limits for repair. The City Manager may set time limits in which the violations of this chapter are to be corrected. Failure to comply with the time limits shall be a violation of this chapter.

(G) Effective date of notice. All notices served pursuant to this section shall be considered served as of the date and time of mailing the notice described in divisions (A) and (C) of this section.

(H) Information filed with county recorder. If the City Manager finds violations of this chapter on any property, the City Manager may record with the County Recorder information regarding City code violations and possible liens on the property.

(Ord. 2081, passed 4-12-04)

§ 135.075 Nuisance Abatement; Warrants

(A) Abatement. If, within the time limit set by the City Manager in the notice of violation, any nuisance described in the notice has not been removed and abated, or cause shown, as specified in §§ 135.100 through 135.102 of this chapter, why such nuisance should not be removed or abated, or where summary abatement is authorized, the City Manager may cause the nuisance to be removed and abated, including disposal in an approved manner.

(B) Warrants. The City Manager may request a judge from a court of competent jurisdiction to issue a nuisance abatement warrant whenever entry onto private property is necessary to remove and abate any nuisance, or whenever the City Manager has reasonable cause to believe that there exists in any building or upon any property any nuisance which makes such property substandard as defined in any building regulations.

(C) Grounds for issuance of nuisance abatement warrants; affidavit.

(1) Affidavit. A nuisance abatement warrant shall be issued only upon cause, supported by affidavit, particularly describing the applicant’s status in applying for the warrant, the statute, ordinance or regulation requiring or authorizing the removal and abatement of the nuisance, the building or property to be entered, the basis upon which cause exists to remove or abate the nuisance, and a statement of the general types and estimated quantity of the items to be removed or conditions abated.

(2) Cause. Cause shall be deemed to exist if reasonable legislative or administrative standards for removing and abating nuisances are satisfied with respect to any building or upon any property, or if there is cause to believe that a nuisance violation exists, as defined in this chapter, with respect to the designated property.

(D) Procedure for issuance of a nuisance abatement warrant.

(1) Examination. Before issuing a nuisance abatement warrant, the judge may examine the applicant and any other witness under oath and shall be satisfied of the existence of grounds for granting such application.

(2) Issuance. If the judge is satisfied that cause for the removal and abatement of any nuisance exists and that the other requirements for granting the application are satisfied, the judge shall issue the warrant, particularly describing the person or persons authorized to execute the warrant, the property to be entered, and a statement of the general types and estimated quantity of the items to be removed or conditions abated. 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.

(3) Police assistance. In issuing a nuisance abatement warrant, the judge may authorize any peace officer, as defined in Oregon Revised Statutes, to enter the described property to remove any person or obstacle and to assist the representative of the bureau in any way necessary to enter the property and remove and abate the nuisance.

(E) Execution of nuisance abatement warrants.

(1) Occupied property. Except as provided in division (E)(2) of this section, in executing a nuisance abatement warrant, the person authorized to execute the warrant shall, before entry into the occupied premises, make a reasonable effort to present the person’s credentials, authority and purpose to an occupant or person in possession of the property designated in the warrant and show the occupant or person in possession of the property the warrant or a copy thereof upon request.

(2) Unoccupied property. In executing a nuisance abatement warrant on unoccupied property, the person authorized to execute the warrant need not inform anyone of the person’s authority and purpose, as prescribed in division (E)(1) of this section, but may promptly enter the designated 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 nuisance abatement warrant shall be conspicuously posted on the property.

(3) Return. A nuisance abatement warrant must be executed within ten working days of its issue and returned to the judge by whom it was issued within ten working days from its date of execution. After the expiration of the time prescribed by this subsection, the warrant unless executed is void.

(F) Disposal of nuisance items removed. The City Manager may cause the nuisance items removed pursuant to the nuisance abatement warrant to be disposed of in an approved manner whenever the City Manager, in the City Manager’s sole discretion, finds that the fair and reasonable value of the items at resale would be less than the cost of storing and selling the items. In making the above determination, the City Manager may include in the costs of sale the reasonable cost of removing the items to a place of storage, of storing the items for resale, of holding the resale including reasonable staff allowances, and all other reasonable and necessary expenses of holding the sale.

(Ord. 2081, passed 4-12-04)

§ 135.076 Vacating Structures

(A) Any structure found to be in violation of §§ 135.030 through 135.040 to such an extent as to be a hazard or declared a dangerous structure under §§ 135.050 through 135.053 may be vacated, secured, and maintained against entry by order of the Code Hearings Officer.

(B) If the City Manager finds violations to the extent that an immediate danger is posed to the health, safety, or welfare of the occupants, or that of the general public, the City Manager may order part of the structure, or all of the structure, to be vacated or demolished forthwith, if in the City Manager’s discretion, circumstances are found that do not allow time for prior application to the Hearings Officer.

(1) The owner or any tenant of the property, who has been affected by the City Manager’s determination to vacate may appeal that determination to the Code Hearings Officer by following the procedure as outlined by the city code.

(2) Upon receipt of a request for a hearing the Code Hearings Officer shall schedule and hold an appeal hearing within with ten days after the receipt of the request.

(C) Upon vacation of the structure a notice shall be posted at or on each exit of the building. Whenever such notice is posted, the City Manager shall include in such notice a statement declaring the building unsafe to occupy and specifying the conditions that necessitate the posting.

(D) Unless authorized by the City Manager, it is unlawful for any person knowingly to enter or remain in any structure that the City Manager has ordered vacated pursuant to this section. In addition to any civil penalties imposed pursuant to §§ 135.090 through 135.093, any person knowingly entering or remaining in such a structure shall upon conviction be punished by a fine of not more than $500.

(Ord. 2081, passed 4-12-04)

§ 135.077 Referral to the Hearings Officer for Repair or Demolition of Dangerous Structures

At any time after the City Manager identifies a property as containing a dangerous structure and has notified the owner as specified in § 135.074, the City Manager may cause an action to be instituted before the Code Hearings Officer as provided in the city code.

(Ord. 2081, passed 4-12-04)

§ 135.078 Demolition: Warrants

(A) Abatement. If, within the time limit set by the Hearings Officer’s order for demolition, the dangerous structure described in the order has not been removed and abated, or cause shown, as specified in §§ 135.100 through 135.102 of this chapter, why such dangerous structure should not be removed or abated, or where summary abatement is authorized, the City Manager may cause the dangerous structure to be removed and abated, including disposal in an approved manner.

(B) Warrants. The City Manager may request any judge from a court of competent jurisdiction to issue a demolition warrant whenever entry onto private property is necessary to demolish a dangerous structure.

(C) Grounds for issuance of demolition warrants; affidavit.

(1) Affidavit. A demolition warrant shall be issued only upon cause, supported by affidavit, particularly describing the applicant’s status in applying for the warrant, the statute, ordinance or regulation requiring or authorizing the demolition of the dangerous structure, the building or property to be entered, the basis upon which cause exists to demolish the dangerous structure and a general statement describing the structure to be demolished. In addition, the affidavit shall contain a statement describing the conditions under which the demolition is to be completed, including completion of all work on the property within a 30-day period.

(2) Cause. Cause shall be deemed to exist if reasonable legislative or administrative standards are satisfied with respect to the demolition of the dangerous structure.

(D) Procedure for issuance of a demolition warrant.

(1) Examination. Before issuing a demolition warrant, the judge may examine the application and any other witness under oath and shall be satisfied of the existence of grounds for granting such application.

(2) Issuance. If the judge is satisfied that cause for the demolition of any dangerous structure exists and that the other requirements for granting the application are satisfied, the judge shall issue the demolition warrant, particularly describing the person or persons authorized to execute the warrant, the property to be entered, and a statement describing the structure to be demolished and the work to be performed. 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.

(3) Police assistance. In issuing a demolition warrant, the judge may authorize any peace officer, as defined in Oregon Revised Statutes, to enter the described property to remove any person or obstacle and to assist the representative of the bureau in any way necessary to enter the property and demolish the dangerous structure.

(E) Execution of demolition warrant.

(1) Execution. In executing the demolition warrant, the person authorized to execute the warrant need not inform anyone of the person’s authority or purpose but may promptly enter the designated property if it is or at the time reasonably appears to be a) unoccupied, or b) not in the possession of any person. A copy of the demolition warrant shall be conspicuously posted on the property.

(2) Return. A demolition warrant must be executed with ten working days of its issuance by the judge. The authority to enter into the property and perform the demolition work shall continue for a period of up to 30 days after the date of execution, unless the judge extends this time before it has expired. The executed warrant shall be returned to the judge upon the completion of the demolition or the expiration of the authorized time, whichever occurs first. If the warrant is not executed within ten days after the issuance by the judge, the warrant shall be void.

(F) Disposal of demolition debris. The City Manager may cause the debris to be removed pursuant to the demolition warrant and disposed of in an approved manner whenever the City Manager, in the City Manager’s sole discretion, finds that the fair and reasonable value of the debris would be less than the cost of storing and selling the items. In making the above determination, the City Manager may include in the costs of sale the reasonable cost of removing debris to a place of storage, of storing the items of resale, of holding the resale including reasonable allowances for costs of staff, and any other reasonable and necessary expenses of holding a sale.

(Ord. 2081, passed 4-12-04)

§ 135.079 Exceptions

(A) The City Manager may grant an exception when the enforcement of the requirements of this chapter would cause undue hardship to the owner or occupants of the affected property, or whenever the City Manager deems it necessary in order to accomplish the purpose of this chapter.

(B) To carry out the intent of this section the City Manager shall establish written policies in the form of waivers to explain the exceptions that are available to property owners. The waivers shall include the following information:

(1) An explanation of the purpose of the waiver;

(2) A list of the requirements the owner must meet in order to qualify for the waiver;

(3) An explanation of the period of time during which the waiver will be in effect;

(4) A list of the actions the owner must perform to fulfill their responsibilities to maintain the waiver and to prevent the waiver from being canceled.

(C) The owner must apply for a waiver in writing.

(Ord. 2081, passed 4-12-04)

§ 135.090 City Manager Shall Impose Penalties

In order to defray the costs of enforcement of, and to encourage compliance with this chapter, the City Manager shall impose penalties on those properties which are found to be in violation of this chapter.

(Ord. 2081, passed 4-12-04)

§ 135.091 Enforcement Fees for Housing and Dangerous and Derelict Buildings

(A) The city shall charge a penalty in the form of a monthly enforcement fee for each property found in violation of §§ 135.030 through 135.040 or §§ 135.050 through 135.053 of this chapter that meets the following conditions:

(1) The property is a subject of a notice of violation of this chapter as described in § 135.074;

(2) A response period of 30 days has passed since the effective date of the initial notice of violation; and

(3) The property remains out of compliance with the initial notice of violation or any subsequent notice of violation.

(B) (1) The amount of the monthly enforcement fee shall be charged according to the Property Maintenance Regulations Fee Schedule as approved by resolution of the City Council.

(2) If all violations are not corrected within six months from the date of the initial notice of violation, subsequent enforcement fees shall be twice the amount stated in the Property Maintenance Regulations Fee Schedule as approved by the City Council.

(C) Whenever the owner believes that all violations listed in the first or any subsequent notice of violation have been corrected, they shall so notify the City Manager. Upon receipt of such notice, the City Manager shall promptly schedule an inspection of the property and shall notify the owner if any violations remain uncorrected.

(D) Once monthly enforcement fees begin, they shall continue until all violations listed in the first or any subsequent notice of violation have been corrected, inspected and approved.

(E) When a property meets the conditions for charging an enforcement fee as described in this section, the City Manager shall file a statement with the City Finance Director that identifies the property, the amount of the monthly fee, and the date from which the charges are to begin. The Finance Director shall then:

(1) Notify the property owner of the assessment of the enforcement fees;

(2) Record a property lien in the Docket of City Liens;

(3) Bill the property owner monthly for the full amount of enforcement fees owing, plus additional charges to cover administrative costs of the City Auditor; and

(4) Maintain lien records until:

(a) The lien and all associated interest, penalties, and costs are paid in full; and

(b) The City Manager certifies that all violations listed in the original or any subsequent notice of violation have been corrected.

(Ord. 2081, passed 4-12-04)

§ 135.092 Costs and Penalties for Abatement of Nuisances, Disabled Vehicles, and Re-Occupancy in Violation

(A) Nuisances.

(1) Whenever a nuisance is abated by the city, the City Manager shall keep an accurate account of all expenses incurred for each nuisance abated including but not limited to abatement costs, civil penalties, administrative costs, recorders fees and chapter report charges according to the Property Maintenance Regulations Fee Schedule as approved by City Council.

(2) When the city has abated a nuisance maintained by any owner of real property, for each subsequent nuisance which is abated by the city within two consecutive calendar years concerning the real property, owned by the same person, an additional civil penalty according to the Property Maintenance Regulations Fee Schedule shall be added to the costs, charges and civil penalties provided for in division (A)(1) of this section. The additional civil penalty shall be imposed without regard to whether the nuisance abated by the city involved the same real property or are of the same character.

(3) Costs and penalties resulting from nuisance abatement shall be assessed as a lien upon the real property as provided in division (D).

(B) Disabled Vehicles.

(1) Whenever a vehicle is removed from real property by the city, the City Manager shall keep an accurate account of all expenses and penalties incurred for each disabled vehicle removed including but not limited to abatement costs, civil penalties, administrative costs, recording fees, and chapter report charges according to the Property Maintenance Regulations Fee Schedule as approved by the City Council.

(2) Whenever a disabled vehicle, which has been tagged by the city, is removed from real property and placed on the public right-of-way, the owner of the real property shall be responsible for that vehicle. The City Manager shall remove the disabled vehicle from the right-of-way and keep an accurate account of all expenses and penalties incurred for each disabled vehicle removed including but not limited to abatement costs, civil penalties, administrative costs, recording fees and chapter report charges according to the Property Maintenance Regulations Fee Schedule as approved by the City Council.

(3) Costs and penalties resulting from the abatement of disabled vehicles shall be assessed as a lien upon the real property as provided in division (D).

(C) Occupancy of property after notice of violation.

(1) Whenever an owner causes or permits a vacant structure or portion thereof to be occupied in violation of this chapter, a penalty according to the Property Maintenance Fee Schedule as approved by the City Council shall be imposed per structure or portion thereof.

(2) Costs and penalties resulting from the occupancy of property after notice of violation shall be assessed as a lien upon the real property as provided in division (D).

(D) When a property meets the conditions for assessment of costs and/or penalties as described in divisions (A), (B), or (C) above, the city code enforcement officer shall file a statement of such costs and/or penalties with the Finance Director. Upon receipt of the statement, the Finance Director. Upon receipt of the statement, the Finance Director shall mail an assessment notice to the property owner. The notice shall include the amount due plus charges to cover the administrative costs of the City Finance Director. At the same time the notice is mailed by the Finance Director, the Finance Director shall enter the amount due or the amount of the unpaid balance, plus charges to cover the administrative cost of the City Finance Director, in the Docket of City Liens which shall thereafter constitute a lien against the property. The property owner is responsible for paying all liens assessed against the property.

(Ord. 2081, passed 4-12-04)

§ 135.093 Building Demolition Costs and Penalties

(A) Whenever a building is demolished by the city, the City Manager shall keep an accurate account of all expenses incurred for each building demolished, including but not limited to abatement costs, civil penalties plus administrative costs according to the Property Maintenance Regulations Fee Schedule as approved by the City Council.

(B) Costs and penalties resulting from the demolition by the city of any structure pursuant to this chapter plus charges to cover the administrative costs of the City Finance Director shall be assessed as a lien upon the real property on which the structure was located pursuant to the provisions of the code.

(Ord. 2081, passed 4-12-04)

§ 135.100 Administrative Review

(A) Whenever an owner has been given a notice pursuant to this chapter and has been directed to make any correction or to perform any act and the owner believes the finding of the notice was in error, the owner may have the notice reviewed by the City Manager. If a review is sought, the owner shall submit a written request to the City Manager within 15 days of the date of the notice. Such review shall be conducted by the City Manager. The owner requesting such review shall be given the opportunity to present evidence to the City Manager. Following the review, the City Manager shall issue a written determination.

(B) Nothing in this section shall limit the authority of the City Manager to initiate a proceeding under the code.

(Ord. 2081, passed 4-12-04)

§ 135.101 Appeals to the Code Hearings Officer

A determination issued pursuant to § 135.090 may be appealed to the Code Hearings Officer as provided by the code.

(Ord. 2081, passed 4-12-04)

§ 135.102 Further Appeals

All appeals from the Code Hearings Officer’s determination pursuant to § 135.091 shall be by writ of review as authorized by ORS 34.010 through 34.100.

(Ord. 2081, passed 4-12-04)

§ 136.01 Established

The office of Code Hearings Officer is hereby created. The Code Hearings Officer shall act on behalf of the Council in considering and applying regulatory enactments and policies pertaining to the matters set forth in other sections of this chapter. The Code Hearings Officer shall be appointed by the City Manager. The appointment of a Code Hearings Officer may be for a specific term, for a particular proceeding, or for a group of proceedings.

(Ord. 2083, passed 4-26-04)

§ 136.02 Jurisdiction

The Code Hearings Officer shall have jurisdiction over all cases submitted in accordance with the procedures and under the conditions set forth in this code.

(Ord. 2083, passed 4-26-04)

§ 136.03 Definitions

For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Code Hearings Officer. The Code Hearings Officer appointed pursuant to § 136.01.
• Party

(1) The City of Hermiston.

(2) Any person named by the city as a respondent in the complaint.

(3) Any person requesting and entitled to an appeal hearing pursuant to § 136.10.

• Respondent. The party or parties who the city alleges in the complaint to have committed a violation of city code or to be responsible for such violation.

(Ord. 2083, passed 4-26-04)

§ 136.04 Enforcement

(A) The city may institute appropriate suit or legal action, in law or equity, in any court of competent jurisdiction to enforce the provisions of any order of the Code Hearings Officer, including, but not limited to, a suit or action to obtain judgment for any civil penalty imposed by an order of the Code Hearings Officer pursuant to § 136.23(A)(5) and/or any assessment for costs or penalties imposed pursuant to § 136.24(C).

(B) Unless authorized by the Code Hearing Officer, it is unlawful for any person to knowingly enter or remain in any building or structure that the Code Hearings Officer has ordered vacated pursuant to § 136.23(C)(2). In addition to any civil penalties imposed pursuant to § 136.23(A)(5), any person knowingly entering or remaining in such building or structure shall upon conviction be punished by a fine of not more than $500, or by imprisonment not exceeding six months, or both.

(Ord. 2083, passed 4-26-04)

§ 136.10 Initiation of Proceeding

(A) A proceeding before the Code Hearings Officer may be initiated only as specifically authorized elsewhere in the code

(B) Except as provided in § 136.32, a proceeding before the Code Hearings Officer shall be initiated only by the city filing a compliant with the office of the Code Hearings Officer on forms provided by that office. The complaint shall contain:

(1) The name of the respondent.

(2) The address or location at which the violation is alleged to have occurred.

(3) A short and plain statement of the alleged violations, including a reference to the particular statutes, rules, or regulations involved.

(4) The nature of the relief sought by the city.

(5) The name, title, and signature of the person initiating the proceeding on behalf of the city.

(Ord. 2083, passed 4-26-04)

§ 136.11 Setting of Hearings

(A) Upon filing of a complaint, the Code Hearings Officer shall specify a time, date, and place for a public hearing on the complaint and the matters alleged therein.

(B) The date set for hearing shall be not less than 14 days nor more than 30 days after the date the complaint is filed, except that the Code Hearings Officer may specify a date for hearing less than 14 days after the complaint is filed where it appears that the alleged violation poses an immediate and serious hazard to the public health, safety, or welfare or to the life, health, safety, welfare, or property of any person.

(C) The Code Hearings Officer may postpone, continue, set over, or reschedule any hearing with the consent of all parties or on the motion of any party for good cause shown.

(Ord. 2083, passed 4-26-04)

§ 136.12 Notice of Hearing

(A) The City shall give notice of the hearing, together with a copy of the complaint, to the respondent and all other parties not less than five calendar days prior to the date set for hearing except that the Code Hearings Officer may set a shorter period when it appears that the alleged violation poses an immediate and serious hazard to the public health, safety, or welfare or the life, health, safety, welfare, or property of any person.

(B) The notice of hearing shall specify the time, date, and place set for the hearing.

(C) Notice may be given by any method or combination of methods which, under the circumstances, is reasonably likely to apprise the parties of the hearing. Notice may be given by:

(1) Personally delivering the notice to the party, or

(2) Mailing the notice by United States mail, postage prepaid, and addressed to the residence or business address of the party, or

(3) Any method authorized by the Oregon Rules of Civil Procedure for the service of summons, or

(4) Any other method authorized by the hearings officer, by rule or otherwise. If notice is given by mail, such notice shall be deemed given and received three days (Sundays and holidays not included) after the notice is deposited in the United States mail.

(D) Notice of the hearing and a copy of the complaint shall also be given to:

(1) The tenants, residents, and lessees of any building, property, or structure if the city has requested in the complaint the vacation, closure, or demolition of the building, property, or structure or if the Code Hearings Officer determines that such vacation, closure, or demolition is a reasonably possible outcome of the proceeding.

(2) Any other person who reasonably appears to have an interest in the property involved or who reasonably appears may be adversely affected by any determination, decision, or order of the Code Hearings Officer.

(E) The failure of any person to receive actual notice of the proceeding shall not invalidate the hearing or any determination, decision, or order of the Code Hearings Officer.

(Ord. 2083, passed 4-26-04)

§ 136.13 Notice; Rights; Procedure

(A) Prior to the commencement of a contested hearing, the Code Hearings Officer shall inform each party to the hearing of the following matters:

(1) A general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections may be made to the introduction of evidence and what kind of objections may be made, and an explanation of the burdens of proof or burdens going forward with the evidence.

(2) That a record will be made of the proceedings and the manner of making the record and its availability to the parties.

(3) The function of the record-making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the Code Hearings Officer.

(4) Whether an Attorney will represent the city in the matters to be heard and whether the parties ordinarily and customarily are represented by an Attorney.

(5) The Title and function of the Code Hearings Officer, including the effect and authority of the Code Hearings Officer’s determination.

(6) In the event a party is not represented by an attorney, whether the party may, during the course of proceedings, request a recess if at that point the party determines that representation by an attorney is necessary to the protection of the party’s rights.

(7) Whether there exists an opportunity for an adjournment at the end of the case and the party then determines that additional evidence should be brought to the attention of the Code Hearings Officer and the hearing is reopened.

(8) Whether there exists an opportunity after the hearing and prior to the final determination or order of the Code Hearings Officer to review and object to any proposed findings of fact, conclusions of law, summary of evidence, or order of the Code Hearings Officer.

(9) A description of the appeal or judicial review process from the determination or order of the Code Hearings Officer.

(B) The information required to be given to a party to a hearing under division (A) of this section may be given in writing or orally before commencement of the hearing.

(C) The failure to give notice of any item specified in division (A) of this section shall not invalidate any determination or order of the Code Hearings Officer unless on appeal from or review of the determination or order a court finds that the failure affects the substantive rights of the complaining party. In the event of such a finding, the court shall remand the matter to the Code Hearings Officer for a reopening of the hearing and shall direct the Code Hearings Officer as to what steps shall be taken to remedy the prejudice to the rights of the complaining party.

(Ord. 2083, passed 4-26-04)

§ 136.14 Hearings Procedure

(A) Unless precluded by law, informal disposition of any proceeding may be made, with or without a hearing by stipulation, consent order, agreed settlement, or default. However, after issuance of notice of hearing, no building occupied as a residential structure may be vacated based on an informal disposition unless approved by the Code Hearings Officer.

(B) Parties may elect to be represented by counsel and to respond to and present evidence and argument on all issues involved.

(C) An order adverse to a party may be issued upon default only upon a prima facie case made on the record before the Code Hearings Officer.

(D) Testimony shall be taken upon oath or affirmation of the witness from whom received. The Code Hearings Officer may administer oaths or affirmations to witnesses.

(E) The Code Hearings Officer shall place on the record a statement of the substance of any written or oral ex parte communications made to the Code Hearings Officer on a fact in issue during the pendency of the proceedings. The Code Hearings Officer shall notify the parties of the communication and of their right to rebut such communications.

(F) The record in a proceeding before the Code Hearings Officer shall include:

(1) All pleadings, motions, and intermediate rulings;

(2) Evidence received or considered;

(3) Stipulations;

(4) A statement of matters officially noticed;

(5) Questions and offers of proof, objections, and rulings thereon;

(6) A statement of any ex parte communications on a fact in issue made to the Code Hearings Officer during the pendency of the proceedings;

(7) Proposed findings and exceptions; and

(8) Any proposed, intermediate, or final order prepared by the Code Hearings Officer.

(G) A verbatim, written, mechanical, or electronic record shall be made on all motions, rulings, and testimony. A party may request transcription of the record for the purposes of court review pursuant to § 136.22 upon payment of the reasonable costs of preparing the transcript. If the party prevails on such review, the reasonable costs of preparing the transcript shall be allowed as a part of that party’s costs in such action. The City Council may determine the reasonable costs of preparing a transcript by Council resolution.

(Ord. 2083, passed 4-26-04)

§ 136.15 Subpoenas

(A) The Code Hearings Officer shall issue subpoenas to any party upon showing of general relevance and reasonable scope of the evidence sought. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the city, shall receive fees and mileage as prescribed by law for witnesses in civil actions.

(B) If any person fails to comply with any subpoena so issued or any party or witness refuses to testify on any matters on which he may be lawfully interrogated, the judge of the Circuit Court of any county, on the application of the Code Hearings Officer, or of a designated representative of the Code Hearings Officer or of the party requesting the issuance of the subpoena, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of subpoena issued from such court or a refusal to testify therein.

(Ord. 2083, passed 4-26-04)

§ 136.16 Discovery of Documents and Things

(A) On petition of any party and a showing of the general relevance of the documents or things sought, the Code Hearings Officer may enter an order directing any party to produce and make available to the petitioning party to inspect and copy any documents or to inspect and copy, test, or sample any things which are in the possession of a party.

(B) The order directing a party to produce and make available documents or things may require the petitioning party to pay the party producing documents and things that party’s reasonable costs associated with such production.

(C) The Code Hearings Officer shall not enter an order requiring a party to produce any document or thing which is privileged under the rules of privilege recognized by law or which is exempt from disclosure under the Oregon Public Records Law.

(Ord. 2083, passed 4-26-04)

§ 136.17 Evidence

(A) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. Erroneous rulings on evidence shall not preclude action by the Code Hearings Officer on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible. The Code Hearings Officer shall give effect to the rules of privilege recognized by law. Objections to evidence may be received in written form.

(B) All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in division (D) of this section, no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies of excerpts, or by incorporation by reference.

The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.

(C) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence.

(D) The Code Hearings Officer may take notice of judicially recognizable facts, and the Code Hearings Officer may take official notice of general, technical, or scientific facts within the specialized knowledge of city employees. Parties shall be notified at any time during the proceeding, but in any event prior to the final decision, of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed.

(E) No sanction shall be imposed or order be issued except upon consideration of the whole record as supported by, and in accordance with reliable, probative, and substantial evidence.

(Ord. 2083, passed 4-26-04)

§ 136.18 Continuance of Tenancy

After issuance of a notice of hearing, and until such time as the Code Hearings Officer issues a final decision, neither the respondent nor the city shall take any action that results in the vacation of a building used for residential occupancy without the permission of the Code Hearings Officer, except that in cases where buildings are found to be imminently hazardous, the building official or Chief Fire Marshal may order the building vacated if no other means are available to eliminate the imminent hazard.

(Ord. 2083, passed 4-26-04)

§ 136.19 Proposed and Final Orders

The Code Hearings Officer shall prepare and mail to all parties, a proposed order including findings of fact and conclusions of law. The proposed order shall become final on the date specified in the order, which date shall not be less than 14 days after such mailing, unless the Code Hearings Officer finds that an existing violation is imminently dangerous to the health, safety, or property of any person or of the public, in which case the order may specify an earlier date.

(Ord. 2083, passed 4-26-04)

§ 136.20 Orders

(A) Every order adverse to a party to the proceeding shall be in writing or stated in the record and may be accompanied by an opinion.

(B) Unless otherwise stipulated, a final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the Code Hearings Officer’s order.

(C) The Code Hearings Officer shall notify the parties to a proceeding of a final order by delivering or mailing a copy of the order and any accompanying findings and conclusions to each party or, if applicable, the party’s attorney of record.

(D) Every final order shall include a citation of the ordinances under which the order may be judicially reviewed.

(Ord. 2083, passed 4-26-04)

§ 136.21 Petitions for Reconsideration, Rehearing

(A) A party may file a petition for reconsideration or rehearing on a final order with the Code Hearings Officer within 30 days after the order is mailed.

(B) The petition shall set forth the specific ground or grounds for requesting the reconsideration or rehearing. The petition may be supported by written argument.

(C) The Code Hearings Officer may grant a request for reconsideration if good and sufficient reason therefor appears. If the petition is granted, an amended order shall be issued.

(D) The Code Hearing Officer may grant a rehearing petition if good and sufficient reason therefor appears. The rehearing may be limited by the Code Hearings Officer to specific matters. If a rehearing is held, an amended order may be issued.

(E) The Code Hearings Officer, at any time, and upon a showing of due diligence, may set aside, modify, vacate, or stay any final order, or re-open any proceeding for additional hearing when necessary to prevent a clear and manifest injustice to a party or other person adversely affected by such order.

(Ord. 2083, passed 4-26-04)

§ 136.22 Judicial Review

Review of the final order of a Code Hearings Officer under this chapter by any aggrieved party, including the city, shall be by writ of review to the Circuit Court of Umatilla County, Oregon, as provided in ORS 34.010 through 34.100.

(Ord. 2083, passed 4-26-04)

§ 136.23 Order to Comply; Abatement, and Repair

(A) The Code Hearings Officer may order a party found in violation of the code of the city or any applicable rule or regulation issued thereunder to comply with the provisions of the code or the applicable rule or regulation within such time as the Code Hearings Officer may by order allow. The order may require such party to do any and all of the following:

(1) Make any and all necessary repairs, modifications, and/or improvements to the structure, real property, or equipment involved;

(2) Abate or remove any nuisance;

(3) Change the use of the building, structure, or real property involved;

(4) Install any equipment necessary to achieve compliance;

(5) Pay to the city a civil penalty of up to $1,000 per day or such greater amount as may be authorized by this code or any resolutions adopted thereunder.

(6) Undertake any other action reasonably necessary to correct the violation or mitigate the effects thereof.

(B) In the event any party fails to comply with any provision of an order of the Code Hearings Officer, except a provision requiring the payment of a civil penalty only, the Code Hearings Officer may authorize the city to undertake such actions as the Code Hearings Officer may determine are reasonably necessary to correct the violation and/or eliminate or mitigate the effects thereof. The city’s reasonable costs of such actions may be made a lien against the affected real property pursuant to § 136.24.

(C) Where the Code Hearings Officer finds that there is a violation of any of the provisions of Chapters 134 or135, the Code Hearings Officer, in addition to the powers set out in divisions (A) and (B) above, may:

(1) Authorize the Code Enforcement Officer to act pursuant to §§ 135.050 to 135.053;

(2) Provided notice has been given to tenants, residents, and lessees as required by § 136.12(D), order a building or structure vacated or demolished when it reasonably appears that such measures are reasonably required to protect the health, safety, or property of the general public, the residents of the structure, or that of adjacent landowners and residents. Where vacation or demolition is ordered, the Code Hearings Officer may direct that the person found in violation of the code undertake any and all interim measures as may be necessary;

(3) Act as the Building Code Board of Appeals in a case already before him and which requires interpretation of Chapter 135;

(4) Require the party found in violation of this code to prepare a cost estimate of the repairs made necessary to achieve compliance with the code and the impact of these repairs will have on the cost of doing business and, if applicable, future rent levels. In assessing the cost estimate under this section the Code Hearings Officer may require the person found in violation to contact public and private agencies, institutions, and other sources of property improvement funds to determine the availability of funds needed for repairs.

(Ord. 2083, passed 4-26-04)

§ 136.24 Assessments

(A) Costs incurred by the city for any actions authorized by the Code Hearings Officer pursuant to § 136.23(B) and (C) and any civil penalty imposed as a result of an order of the Code Hearings Officer shall be an assessment lien upon the property subject to the order.

(B) If a residential structure is ordered vacated pursuant to §§ 136.23(C)(2) or 135.076 and the city relocates the tenants of such property, then the cost incurred by the city for relocating the tenants as provided by ORS 90.450 shall be an assessment lien upon the property vacated and from which the tenants are relocated.

(C) The city shall furnish a statement of such costs on the owner, in person or by United States Mail, postage prepaid and addressed to the owner at the owner residence or place of business, and shall file a copy of such statement for the Code Hearings Officer with proof of service attached. If no objection to such statement is filed with the office of the Code Hearings Officer within 15 days from the date of service or mailing, the Code Hearings Officer shall certify such statement and forward the same to the City Recorder/Finance Officer who shall forthwith enter the same in the city lien docket.

(1) If an objection to the statement is received within the 15-day period, the Code Hearings Officer shall schedule and hold an appeal hearing pursuant to §§ 136.32 to 136.35. After the hearing, the Code Hearing Officer shall certify such statement, or so much of it as he determines is correct and proper, and forward it to the City Recorder/Finance Officer who shall enter it into the city lien docket.

(2) The Code Hearings Officer shall certify to the City Recorder/Finance Officer the amount of any civil penalty imposed under any order of the Code Hearings Officer, and the City Recorder/Finance Officer shall enter it into the city lien docket. The lien imposed for the civil penalty shall be in addition to any lien imposed for costs actually incurred by the city.

(3) The city may file separate statements for the costs and services furnished as each is incurred or provided.

(4) Liens imposed pursuant to this chapter shall be collected in all respects as provided by law.

(D) In addition to the lien imposed under this section, any person found to be in violation of the code shall be personally liable for costs incurred by the city pursuant to § 136.23(B) and (C) and for any civil penalty imposed by order of the Code Hearings Officer. In cases of person found to be in violation of the code as owners of property, the persons shall be personally liable hereunder only if they have control of the property, the legal authority to correct the violation, and knowingly have committed the violation.

(Ord. 2083, passed 4-26-04)

§ 136.30 Definitions

For the purpose of this chapter, the following definition will apply unless the context clearly indicates a different meaning:

• Decision or Determination.  Any decision, determination, order, or other action of the city.

(Ord. 2083, passed 4-26-04)

§ 136.31 Jurisdiction

(A) Whenever, pursuant to any portion of this code, a person has the right of appeal to the Code Hearings Officer from any city decision or determination, such appeal shall be in accordance with the procedures and under the conditions set forth in this chapter.

(B) No person shall have a right of appeal to the Code Hearings Officer unless the right of appeal is expressly provided for in this code.

(Ord. 2083, passed 4-26-04)

§ 136.32 Initiation of Appeal

(A) Unless otherwise specified in this code, a request for an appeal hearing shall be filed within ten days after the date of the decision or determination. The Code Hearings Officer may waive this requirement for good cause shown.

(B) The request for an appeal hearing shall be in writing and shall contain either a copy of, or a full and complete description of, the decision or determination appealed from and a statement of grounds upon which it is contended that the decision or determination is invalid, unauthorized, or otherwise improper, together with such other information as the Code Hearings Officer may by rule require. The Code Hearings Officer may specify and provide hearing request forms to be used by persons requesting hearings.

(Ord. 2083, passed 4-26-04)

§ 136.33 Hearings

(A) Upon receipt of a request for hearing, the Code Hearings Officer shall schedule and hold an appeal hearing within 30 days after the receipt of such request.

(B) Notice of the time, date, and place of hearing shall be given to the person requesting the hearing and to the city whose decision or determination is being appealed. Notice shall also be given to any person who reasonably appears may be adversely affected should the decision or determination not be sustained after hearing. The Code Hearings Officer may provide by rule for the manner of providing notice to such persons.

(C) The time for hearing may be extended by the Code Hearings Officer for good cause shown, upon such terms and conditions as the Code Hearings Officer shall deem just and appropriate.

(Ord. 2083, passed 4-26-04)

§ 136.34 Hearings Procedure

(A) Hearings shall be conducted in accordance with the procedures set forth in §§ 136.13 through 136.21.

(B) With the consent of all parties, the Code Hearings Officer may determine the matter without hearing upon the record.

(C) The Code Hearings Officer may sustain, modify, reverse, or annul the decision or determination appealed from or the Code Hearings Officer may remand the decision or determination to the city for such reconsideration, additional consideration, or further action as the Code Hearings Officer may direct.

(D) The decision or determination appealed from shall be reviewed de novo by the Code Hearings Officer.

(Ord. 2083, passed 4-26-04)

§ 136.35 Nature of Determination

The determination of the Code Hearings Officer is a quasi-judicial decision and is not appealable to Council; appeals from any determination by the Code Hearings Officer shall be by writ of review to the Circuit Court of Umatilla County, Oregon, as provided in ORS 34.010 through 34.100.

(Ord. 2083, passed 4-26-04)

§151.01 Short Title

This chapter shall be known and may be cited as the Hermiston Municipal Airport Hazard Zoning Ordinance.

(Ord. 1411, passed 4-27-82)

§151.02 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Airport. The Hermiston Municipal Airport.
• Airport Elevation. The highest point of an airport's usable landing area measured in feet from mean sea level.
• Airport Hazard. Any man-made structure or object of natural growth located on or in the vicinity of the airport, or any use of land near an airport which obstructs the airspace required for the flight of aircraft in landing or takeoff at an airport or is otherwise hazardous to the landing or takeoff of aircraft.
• Approach, Transitional, Horizontal, and Conical Zones. These zones apply to the area under the approach, transitional, horizontal and conical surfaces defined in FAR Part 77 and reproduced in 151.15 through 151.21 of this chapter.
• Clear Zone. A fan-shaped area which can extend up to one-half mile from the ends of airport runways. Clear Zones retain the same height restrictions as the approach zone but because of the high incidence of air crashes in this area, land use controls are more stringent.
• Height. For the purpose of determining the height limits in all zones set forth in this chapter and shown on the zoning map, the datum shall be mean sea level elevation unless otherwise specified.
• Nonconforming Use. Any pre-existing structure, tree or use of land which is inconsistent with the provisions of this chapter or an amendment thereto.
• Non-Precision Instrument Runway. A runway having an existing instrument approach procedure utilizing air navigation facilities with only horizontal guidance or utilizing area type navigation equipment, for which a straight-in non-precision instrument approach procedure has been approved or planned and for which no precision approach facilities are planned or indicated on a FAA planning document or military service's military airport planning document.
• Person. An individual, firm, partnership, corporation, company, association, joint stock association or governmental entity. Person includes a trustee, receiver, assignee or similar representative of any of them.
• Primary Surface:

(1) A surface longitudinally centered on a runway. When the runway has a specially prepared hard surface, the Primary Surface extends 200 feet beyond each end of that runway.

(2) The width of the Primary Surface of a runway will be 500 feet, which is that width prescribed in Part 77 of the Federal Aviation Regulations (FAR) for the most precise approach existing or planned for either end of that runway.

(3) The elevation of any point on the Primary Surface is the same as the elevation of the nearest point on the runway centerline.

• Runway. A defined area on an airport prepared for landing and takeoff of aircraft along its length.
• Structure. An object constructed or installed by man including but not limited to buildings, towers, smokestacks, earth formation and overhead transmission lines.
• Tree. Any object of natural growth.
• Utility Runway. A runway that is constructed for and intended to be used by propeller-driven aircraft of 12,500 pounds maximum gross weight and less.

(Ord. 1411, passed 4-27-82)

§151.03 Use Restrictions

Not withstanding any other provisions of this chapter, no use may be made of land or water within any zone established by this chapter in such a manner as to:

(A) Create electrical interference with navigational signals or radio communication between the airport and aircraft;

(B) Make it difficult for pilots to distinguish between airport lights and others;

(C) Result in glare in the eyes of pilots using the airport;

(D) Impair visibility in the vicinity of the airport; or

(E) Otherwise in any way create a hazard or endanger the landing, takeoff or maneuvering of aircraft intending to use the airport.

(Ord. 1411, passed 4-27-82) Penalty, see 151.99

§151.15 Establishment of Zones

(A) In order to carry out the provisions of this chapter, there are hereby created and established certain zones which include all of the land lying within the approach zones, transitional zones, horizontal zones and conical zones as they apply to the airport.

(B) The zones are shown on the Hermiston Airport Hazard Zoning Map consisting of one sheet, prepared by the Umatilla County Planning Commission and dated September 24, 1975, which is hereby made a part of this chapter. An area located in more than one of the following zones is considered to be only in the zone with the more restrictive height limitation.

(C) Except as otherwise approved in this chapter, no structure or tree shall be erected, altered, allowed to grow or be maintained in any zone created by this chapter to a height in excess of the applicable height limit herein established for the zone.

(Ord. 1411, passed 4-27-82) Penalty, see 151.99

§151.16 Approach Zone

(A) The inner edge of the Approach Zone coincides with the width of the primary surface and is 500 feet wide.

(B) The Approach Zone expands outward uniformly to a width of 3,500 feet at a horizontal distance of 10,000 feet from the primary surface, its centerline being the continuation of the centerline of the runway. The slope of the Approach Zone is 34 feet horizontal for each foot vertical beginning at the end of and at the same elevation as the primary surface and extending to a horizontal distance of 10,000 feet along the extended runway centerline.

(Ord. 1411, passed 4-27-82)

§151.17 Clear Zone

The inner edge of this zone coincides with the width of the primary surface and is 500 feet wide. The Clear Zone expands uniformly to a width of 1,010 feet at a horizontal distance of 1,700 feet from the primary surface, its centerline being the continuation of the centerline of the runway. The slope of the Clear Zone is 34 feet horizontal for each foot vertical beginning at the end of and at the same elevation as the primary surface and extending to a horizontal distance of 1,700 feet along the extended runway centerline.

(Ord. 1411, passed 4-27-82)

§151.18 Transitional Zones

(A) These zones are hereby established as the area beneath the transitional surfaces. These surfaces extend outward and upward at 90 degree angles to the runway centerline and the runway centerline extended.

(B) The slope of the Transitional Zones is seven feet horizontally for each foot vertically beginning at the sides of and at the same elevation as the primary surface and the Approach Zones, and extending to a height of 150 feet above the airport elevation, that is to a height of 789 feet above mean sea level.

(Ord. 1411, passed 4-27-82)

§151.19 Horizontal Zone

The Horizontal Zone is hereby established by swinging arcs of 10,000 feet radii from the center of each end of the primary surface of each runway and connecting the adjacent arcs by drawing lines tangent to those arcs. The Horizontal Zone does not include the Approach and Transitional zones. The height of the Horizontal Zone is 150 feet above the airport elevation, or 789 feet above mean sea level.

(Ord. 1411, passed 4-27-82)

§151.20 Conical Zone

The Conical Zone is hereby established as the area that commences at the periphery of the Horizontal Zone and extends outward there from a horizontal distance of 4,000 feet. The slope of the Conical Zone is 20 feet horizontally for each foot vertically beginning at the periphery of the Horizontal Zone and at 150 feet above the airport elevation and extending to a height of 350 feet above the airport elevation.

(Ord. 1411, passed 4-27-82)

§151.21 Excepted Height Limits

(A) Nothing in this chapter shall be construed as prohibiting the growth, construction or maintenance of any tree or structure to a height up to 35 feet above the surface of the land.

(B) Where an area is covered by more than one height limitation, the more restrictive limitation shall prevail.

(Ord. 1411, passed 4-27-82)

§151.35 Regulations Not Retroactive

The regulations prescribed by this chapter shall not be construed to require the removal, lowering or other changes or alteration of any structure or tree not conforming to the regulations as of the effective date of this chapter, or otherwise interfere with the continuance of a nonconforming use. Nothing contained herein shall require any change in the construction, alteration or intended use of any structure, the construction or alteration of which was begun prior to the effective date of this chapter, and is diligently prosecuted.

(Ord. 1411, passed 4-27-82)

§151.36 Marking and Lighting

Notwithstanding the preceding provision of this chapter, the owner of any existing nonconforming structure or tree is hereby required to permit the installation, operation and maintenance thereon of markers and lights as shall be deemed necessary by the city to indicate to the operators of aircraft in the vicinity of the airport, the presence of airport hazards. Markers and lights shall be installed, operated and maintained at the expense of the city.

(Ord. 1411, passed 4-27-82) Penalty, see 151.99

§151.37 Abandoned or Destroyed Uses

Whenever the Building Inspector determines that a nonconforming tree or structure has been abandoned or more than 80% torn down, physically deteriorated or decayed, no permit shall be granted that would allow a structure or tree to exceed the applicable height limit or otherwise deviate from the zoning regulations.

(Ord. 1411, passed 4-27-82) Penalty, see 151.99

§151.50 Permit Procedure

(A) Future uses. No material change shall be made in the use of land and no structure or tree shall be erected, altered, planted or otherwise established in any zone hereby created unless a permit therefor shall have been applied for and approved by the Building Inspector.

(1) However, a permit for a tree of less than 75 feet of vertical height above the ground shall not be required in the horizontal and conical zones or in any approach and transitional zones beyond a horizontal distance of 4,200 feet from each end of the runway except when the tree, because of terrain, land contour or topographic features, would extend above the height limit prescribed for the respective zone.

(2) Each application for a permit shall indicate the purpose for which the permit is desired with sufficient particulars to determine whether the resulting use, structure or tree would conform to the regulations herein prescribed. If the determination is in the affirmative, the permit shall be granted.

(3) A permit shall be void after one year unless construction has commenced.

(B) Existing uses. No permit shall be granted that would allow the establishment or creation of an airport hazard or permit a nonconforming use, structure or tree to become a greater hazard to air navigation than it was on the effective date of this chapter or any amendments thereto or than it is when the application for a permit is made.

(C) Hazard marking and lighting. Any permit or variance granted may, if an action is deemed advisable to effectuate the purpose of this chapter and be reasonable in the circumstances, be so conditioned as to require the owner of the structure or tree in question, at owner's expense, to install, operate, and maintain markers and lights as may be necessary to indicate to pilots the presence of an airport hazard.

(D) Conditional use permit. Any use allowed under any other zoning chapter provision which will be located in an approach or clear zone shall be treated as a conditional use under that provision and shall be subject to all procedures required for conditional uses under that ordinance.

(E) Places of public assembly. Places of public assembly proposing to locate in an approach or clear zone shall be discouraged and influenced to locate elsewhere. Most urban structures proposing to locate in a clear zone also shall be discouraged due to the danger of air crashes.

(Ord. 1411, passed 4-27-82) Penalty, see 151.99

§151.51 Variances

(A) Authorization to grant or deny variances.

(1) The Planning Commission may grant a variance to any person desiring to erect or increase the height of any structure, or permit the growth of any tree or use property not in accordance with the regulations prescribed in this chapter, where it is duly found that a literal application or enforcement of the regulations would result in practical difficulty to the public interest and the granting of the variance will do substantial justice and be in accordance with the spirit of this chapter.

(2) In granting a variance, the Planning Commission may attach conditions which it finds necessary to protect the best interests of the surrounding property or vicinity or otherwise achieve the purposes of this chapter.

(B) Procedure for taking action on a variance application. The procedure for taking action on an application for a variance shall be as follows:

(1) A property owner or the Planning Commission may initiate a request for a variance by filing an application with the City Manager, using forms prescribed.

(2) Within 40 days of receipt of the application, the Planning Commission shall hold a hearing and render a decision thereon. The applicant shall be given written notice of the decision by the City Manager within five days of the decision.

(3) A variance shall be void after one year unless the variance has been substantially completed. However, the Planning Commission may extend authorization for an additional period not to exceed one year, on request.

(4) No application for a variance shall be considered by the Planning Commission within one year of the denial of a request unless, in the opinion of the Planning Commission, new evidence of a change of circumstances warrants it.

(Ord. 1411, passed 4-27-82)

§151.52 Amendments

(A) Authorization to initiate amendments. An amendment to the text of this chapter or to the map may be initiated by the City Council, the Planning Commission or by application of a property owner. The request by a property owner for an amendment shall be accomplished by filing an application with the City Manager, using forms prescribed.

(B) Public hearings on amendments. The Planning Commission shall conduct a public hearing on the proposed amendment according to the procedures of 151.56 of this chapter at its earliest practicable meeting after it is proposed and shall, within 40 days after the hearing, recommend to the City Council approval, disapproval or modification of the proposed amendment. After receiving the recommendation of the Planning Commission, the City Council shall hold a public hearing on the proposed amendments.

(C) Record of amendments. The Finance Director/Recorder shall maintain records of amendments to the text and map of this chapter.

(Ord. 1411, passed 4-27-82)

§151.53 Enforcement

It shall be the duty of the City Manager to administer and enforce the regulations prescribed herein. The city staff shall have the duty to administer and approve permits. The Planning Commission shall conduct hearings on applications for variances.

(Ord. 1411, passed 4-27-82)

§151.54 Appeals

(A) An appeal from a ruling of the City Manager or city staff regarding a requirement of the chapter may be made only to the Planning Commission.

(B) An action or ruling of the Planning Commission pursuant to this chapter may be appealed to the City Council within ten days after the Planning Commission has rendered its decision. Written notice of the appeal shall be filed with the City Manager. If the appeal is not filed within the ten-day period, the decision of the Planning Commission shall be final. If the appeal is filed, the City Council shall receive a report and recommendation thereon from the Planning Commission and shall hold a public hearing on the appeal.

(C) The City Council may amend, rescind or affirm the action of the Planning Commission.

(Ord. 1411, passed 4-27-82)

§151.55 Filing Fees

An application required by this chapter shall be accompanied by a fee as established by the City Council.

(Ord. 1411, passed 4-27-82)

§151.56 Public Hearings

(A) The procedures to be followed for each notice of hearing authorized by this chapter shall be substantially the same as those provided in Chapter 157, the city's Zoning Code.

(B) The Planning Commission and the City Council may recess a hearing in order to obtain additional information or to serve further notice upon other property owners or persons they decide may be interested in the proposal being considered. Upon recessing, the time and date when the hearing is to be resumed shall be announced.

(Ord. 1411, passed 4-27-82)

§151.57 Conflicting Regulations

Where there exists a conflict between any of the regulations or limitations prescribed in this chapter and any other regulations applicable to the same area, whether the conflict be with respect to the height of structures or trees, the use of land, or any other matter, the more stringent limitation or requirement shall govern and prevail.

(Ord. 1411, passed 4-27-82)

§151.99 Penalty

Each violation of this chapter or of any regulation, order or ruling promulgated hereunder shall constitute a misdemeanor and be punishable by a fine of not more than $100 for each day a violation is a continuing offense but the fine may not exceed $1,000. A fine may not exceed $500 where the offense is not a continuing offense.

(Ord. 1411, passed 4-27-82)

§152.01 Administration

Building inspection shall be under the administrative and operational control of the Building Official. The Building Official shall attend to all aspects of code enforcement, including the issuance of all building permits. The Building Official shall have the power to render written and oral interpretations of the state codes and to adopt and enforce administrative procedures in order to clarify the application of their provisions. The interpretations, rules and regulations shall be in conformance with the intent and purposes of the state codes. Under ORS 153.005(f), the Building Official is hereby authorized to issue citations for the commission of city code violations.

(Ord. 2036, passed 52101; Am. Ord. 2061, passed 11402)

§152.02 Board of Appeals

(A) There shall be and is hereby created a Board of Appeals consisting of five members who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the city.

(B) The Building Official shall be an ex officio member of and shall act as secretary to the Board, but shall have no vote on any matter before the Board. The Board of Appeals shall be appointed by the Mayor and shall hold office at his or her pleasure.

(C) The Board shall adopt rules of procedure for conducting its business and shall render all decisions and findings to the appellant with a duplicate copy to the Building Official.

(D) The Board of Appeals shall have no authority relative to interpretation of the administrative provisions, nor shall the Board be empowered to waive requirements of the state codes.

(Ord. 2036, passed 52101)

§152.03 Adoption of Codes by Resolution

The codes which are to be administered and enforced as part of the city's building inspection program shall be adopted by resolution of the council. Codes may be adopted by reference. A copy of the resolutions adopting the code(s) and the code(s) adopted thereby will be kept on file in the Building Department.

(Ord. 2036, passed 52101; Am. Ord. 2061, passed 11402)

§152.04 Fees for Permits Issued by the Building Official

Fees for permits issued by the Building Official shall be set by resolution of the Council.

(Ord. 2042, passed 92401; Am. Ord. 2060, passed 81202; Am. Ord. 2061, passed 11402)

§152.25 Moving Permit Required

(A) No person, firm, or corporation shall move any building or a part of any building within the city without first obtaining a moving permit therefor; provided however, that this section will not apply when moving a building within the confines of a lot or contiguous lots when not necessary to move the same over public property, public streets or alleys, or property belonging to another person firm, or corporation.

(B) In addition to the permit to move the building, the applicant contractor, or owner shall be required to obtain a building permit for any construction required to relocate the building within the city limits, and to bring the construction of the building up to the requirements for a new building in the same location within 60 days from the time that the permit is issued.

(C) The applicant shall at the time of applying for each moving permit, submit to the Building Inspector a letter or other written notification from the public utilities companies and/or others stating that they have been informed and have approved the proposed route. The Building Inspector shall personally examine the route proposed and the application for the permit shall be made at least 48 hours before the proposed moving date, holidays, Saturdays and Sundays excluded.

(Ord. 615, passed 22868) Penalty, see 152.99

§152.26 Permit Procedure

Any person desiring a permit required by the preceding section shall file a written application with the Building Inspector, which application shall set forth the size and dimensions of the building to be moved, the time when the applicant desires to move the building, the location of the building, the location to which it will be moved, and shall designate the streets, avenues, or alleys through, over, and along which the building shall be moved and other information as the Building Inspector may require. An inspection fee in an amount established by resolution of the City Council shall be paid at the time of the application on each permit. All permits shall be issued only upon the personal application of the permittee.

(Ord. 615, passed 22868)

§152.27 Inspection

The Building Inspector shall inspect the building to be moved, and if he or she finds that the building is of substantial construction and in a condition that it may be moved without collapsing or falling apart and further finds that the building is designed and adaptable for the purpose, use or occupancy to which it is proposed to put the same at the new location, and that it conforms to the requirements of the Building and Zoning codes at the new location, then he or she shall approve the permit application. He or she shall further determine that the applicant has safe and sufficient equipment and facilities for moving the building. In addition the Building Inspector shall require compliance with all provisions of this sub-chapter which are prerequisite to the granting of a moving permit.

(Ord. 615, passed 22868)

§152.28 Insurance Required

(A) Before the permit is issued, the applicant shall file for insurance with an acceptable insurance company with minimum liability insurance, as follows:

• Public Liability $250,000 each person
• $500,000 each occurrence
• Property Damage $100,000 each accident
• Or Public Liability $300,000 each occurrence combined single limit

(B) The applicant shall post a surety bond in the amount of $10,000 executed by a corporate surety authorized to transact surety business in the state conditioned among other things that the applicant will conform to all requirements relating thereto; that he will promptly repair or pay any and all damages or injury which may result from his moving operations within the city; and to hold the city harmless from any claim or liability by or because of the issuance of a permit.

(Ord. 615, passed 22868) Penalty, see 152.99

§152.29 Moving Wires, Trees and the Like Prohibited

The issuing of a moving permit shall not be construed to authorize the holder thereof to move or remove any utility poles, wires, trees, traffic signals or signs or other public or private property without first obtaining permission from the owner thereof. If, in moving a building, damage is inflicted upon any public or private property, repairs or restitution shall be promptly made to the satisfaction of the owner.

(Ord. 615, passed 22868) Penalty, see 152.99

§152.30 Obstructions Prohibited

While moving a building, sufficient passage way for vehicles upon one or both sides of the building shall be maintained upon any street, avenue, or alley, or provide a detour which is adequate to handle the existing traffic, and that the detour shall be approved by the Police Department. Movements shall not be permitted during peak traffic hours, during hours of darkness, storm, or unsafe driving conditions.

(Ord. 615, passed 22868) Penalty, see 152.99

§152.31 Cancellation of Permits

Any permit granted hereunder may be cancelled at any time by the granting authority upon proof satisfactory to it that the permittee has violated any of the terms of the permit, or that the permit was obtained through misrepresentation in the application therefor, or when in the judgment of the granting authority the public interest requires cancellation.

(Ord. 615, passed 22868)

§152.99 Penalty

(A) Any person who violates any provision of a code administered by the Building Official or any interpretation of such provision by the Building Official commits a Class A violation. In the case of a continuing offense each day's violation constitutes a separate offense.

(B) Any officer, director, shareholder or agent of a corporation or member or agent of a partnership association or limited liability company, who personally participates in or is an accessory to any violation by the partnership association or limited liability company of a provision of a code administered by the Building Official or interpretation issued for the administration and enforcement of those provisions is subject to the penalties prescribed in this section.

(Ord. 615, passed 22868; Am. Ord. 1632, passed 62287; Am. Ord. 2061, passed 11402)

§153.01 Purpose

It is the purpose of this chapter to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas by methods and provisions designed for:

(A) Restricting or prohibiting uses which are dangerous to health, safety and property due to water or erosion hazards, or which result in damaging increases in erosion or in flood heights or velocities;

(B) Requiring that uses vulnerable to floods, including facilities which serve the uses, be protected against flood damage at the time of initial construction;

(C) Controlling the alteration of natural flood plains, stream channels and natural protective barriers which help accommodate or channel flood waters;

(D) Controlling filling, grading, dredging and other development which may increase flood damage; and

(E) Preventing or regulating the construction of flood barriers which will unnaturally divert flood waters or which may increase flood hazards in other areas.

(Ord. 2167, passed 8-23-10)

§153.02 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• APPEAL.  A request for review of the Floodplain Administrator's interpretation of provisions of this chapter or request for a variance.
• AREA OF SPECIAL FLOOD HAZARD.  The land in the flood plain within a community subject to a 1% or greater chance of flooding in any given year. Designation on maps always includes the letter "A."
• BASEMENT.  The portion of a structure with its floor sub grade (below ground level) on all sides.
• BASE FLOOD.  The flood having a 1% chance of being equaled or exceeded in any given year also referred as the "100-year flood."  Designation on maps always includes the letter "A."
• CRITICAL FACILITY.  A facility that is critical for the health and welfare of the population and is especially important following hazard events. Critical facilities include essential and occupancy structures, special occupancy structures, essential facilities, transportation systems, lifeline utility systems, high potential loss facilities and hazardous material storage facilities.
• DEVELOPMENT.  Any man-made change to improved or unimproved real estate, including but not limited to buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations or storage of equipment or materials located within the area of special flood hazard.
• ELEVATED BUILDING.  A non-basement building which has its lowest elevated floor raised above ground level by foundation walls, shear walls, post, piers, pilings or columns.
• EXISTING MANUFACTURED HOME PARK OR SUBDIVISION.  A manufactured home park subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed before the effective date of the adopted floodplain management regulations
• EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION.  The preparation of additional sites by the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads).
• FLOOD or FLOODING.  A general and temporary condition of partial or complete inundation of normally dry land areas from:
  

  (1) The overflow of inland or tidal waters; and/or

  (2) The unusual and rapid accumulation of runoff or surface waters from any source.

• FLOOD INSURANCE RATE MAP (FIRMS). The official map on which the Federal Insurance Administration has delineated both the areas of special flood hazards and the risk premium zones applicable to the community.
• FLOOD INSURANCE STUDY.  The official report provided by the Federal Insurance Administration that includes flood profiles, the flood boundary‑floodway map and the water surface elevation of the base flood.
• FLOODWAY.  The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.
• LOWEST FLOOR.  The LOWEST FLOOR of the lowest enclosed area (including basement). An unfinished or flood resistant enclosure, usable solely for parking of vehicles, building access or storage, in an area other than a basement area, is not considered a building's LOWEST FLOOR, provided that the enclosure is not built so as to render the structure in violation of the applicable non‑elevation design requirements of this chapter found at ' 153.21.
• MANUFACTURED HOME.  A structure, transportable in one or more sections, built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities.  The term MANUFACTURED HOME does not include a recreational vehicle.
• MANUFACTURED HOME PARK OR SUBDIVISION.  A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
• NEW CONSTRUCTION.  Structures for which the start of construction commenced on or after the effective date of this chapter.
• NEW MANUFACTURED HOME PARK OR SUBDIVISION.  A manufactured home park or subdivision for which the construction of facilities for servicing the lots on which the manufactured homes are to be affixed (including at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads) is completed on or after the effective date of adopted floodplain management regulations.
• START OF CONSTRUCTION.  Substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparations such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundation or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.
• STRUCTURE.  A walled and roofed building or mobile home including a gas or liquid storage tank that is principally above ground.
• SUBSTANTIAL DAMAGE.  Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before‑damaged condition would equal or exceed 50% of its market value before the damage occurred.
• SUBSTANTIAL IMPROVEMENT.  Any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure either:
  

  (1) Before the improvement or repair is started; or

  (2) If the structure has been damaged and is being restored before the damage occurred. For the purpose of this chapter, SUBSTANTIAL IMPROVEMENT is considered to occur when the first alteration of any wall, ceiling, floor or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

• VARIANCE.  A grant of relief by the governing body from a requirement of this chapter.

(Ord. 2167, passed 8-23-10)

§153.03 Lands to Which Chapter Applies

This chapter shall apply to all areas of special flood hazards within the jurisdiction of the city.

(Ord. 2167, passed 8-23-10)

§153.04 Establishing Areas of Special Flood Hazard

The areas of special flood hazard identified by the Federal Insurance Administration in a scientific and engineering report entitled The Flood Insurance Study (FIS) for Umatilla County, Oregon and Incorporated Areas, dated September 3, 2010, with accompanying Flood Insurance Rate Maps are hereby adopted by reference and declared to be a part of this chapter. The Flood Insurance Study is on file at the Hermiston City Hall, 180 N.E. 2nd Street, Hermiston, Oregon 97838.

(Ord. 2167, passed 8-23-10)

§153.05 Abrogation and Greater Restrictions

This chapter is not intended to repeal, abrogate or impair any existing easements, covenant, or deed restrictions.  However, where this chapter and another ordinance, easement, covenant, deed restriction or code provision conflict or overlap, whichever imposes the more stringent restrictions shall prevail.

(Ord. 2167, passed 8-23-10)

§153.06 Interpretation

In the interpretation and application of this chapter, all provisions shall be:

(A) Considered as minimum requirements;

(B) Liberally construed in favor of the governing body; and

(C) Deemed neither to limit nor repeal any other powers granted under state statutes.

(Ord. 2167, passed 8-23-10)

§153.07 Disclaimer of Liability

The degree of flood protection required by this chapter is considered reasonable for regulatory purposes and is based on scientific and engineering considerations.  Larger floods can and will occur on rare occasions.  Flood heights may be increased by man-made or natural causes.  This chapter does not imply that land outside the areas of special flood hazards or uses permitted within areas will be free from flooding or flood damages.  This chapter shall not create liability on the part of the city, any officer or employee thereof, or the Federal Insurance Administration for any flood damages that result from reliance on this chapter or any administrative decision lawfully made hereunder.

(Ord. 2167, passed 8-23-10)

§153.20 General Standards

In all areas of special flood hazards, the following standards are required:

(A) Anchoring.

(1) All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure.

(2) All manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement, and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over‑the‑top or frame ties to ground anchors (Reference FEMA's Manufactured Home Installation in Flood Hazard Areas guidebook for additional techniques).

(B) Construction material and methods.

(1) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage.

(2) All new construction and substantial improvements shall be constructed using methods and practices that minimize flood damage.

(3) Electrical, heating, ventilation, plumbing, and air conditioning equipment and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding.

(C) Utilities.

(1) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the systems;

(2) New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharge from the systems into flood waters; and

(3) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding.

(D) Subdivision proposals.

(1) All subdivision proposals shall be consistent with the need to minimize flood damage;

(2) All subdivision proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage;

(3) All subdivision proposals shall have adequate drainage provided to reduce exposure to flood damage; and

(4) Where base flood elevation data has not been provided or is not available from another authoritative source, it shall be generated for subdivision proposals and other proposed developments which contain at least 50 lots or five acres (whichever is less).

(E) Review of building permits.  Where elevation data is not available either through the flood insurance study or from another authoritative source, as described in ' 153.35, applications for building permits shall be reviewed to assure that proposed construction will be reasonably safe from flooding. The test of reasonableness is a local judgment and includes use of historical data, high water marks, photographs of past flooding, etc., where available. Failure to elevate at least two feet above grade in these zones may result in higher insurance rates.

(Ord. 2167, passed 8-23-10)  Penalty, see ' 153.99

§153.21 Specific Standards

In all areas of special flood hazards where base flood elevations data has been provided as set forth in '' 153.04 or 153.35, the following provisions are required:

(A) Residential construction.

(1) New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated to one foot above base flood elevation.

(2) Fully enclosed areas below the lowest floor that are subject to flooding are prohibited, or shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria:

(a) A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided.

(b) The bottom of all openings shall be no higher than one foot above grade.

(c) Openings may be equipped with screens, louvers, or other coverings or devices provided that they permit the automatic entry and exit of floodwaters.

(B) Nonresidential construction.  New construction and substantial improvement of any commercial, industrial or other nonresidential structure shall either have the lowest floor, including basement, elevated to the level of the base flood elevation or, together with attendant utility and sanitary facilities, shall:

(1) Be floodproofed so that below the base flood level the structure is watertight with walls substantially impermeable to the passage of water;

(2) Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and

(3) Be certified by a registered engineer or architect that the design and methods of construction are in accordance with accepted standards or practices for meeting provisions of this division based on their development and/or review of the structural design, specifications and plans. Certifications shall be provided to the official as set forth in ' 153.35(C)(2);

(4) Nonresidential structures that are elevated, not floodproofed, must meet the same standards for space below the lowest floor as described in division (A)(2) of this section;

(5) Applicants floodproofing nonresidential buildings shall be notified that flood insurance premiums will be based on rates that are one foot below the floodproofed level (e.g. a building constructed to the base flood level will be rated as one foot below that level).

(C) Manufactured homes.  All manufactured homes to be placed or substantially improved with Zones A1‑30, AH, and AE shall be elevated on a permanent foundation that the lowest floor of the manufactured home is one foot above the base flood elevation and be securely anchored to an adequately anchored foundation system in accordance with the provisions of ' 153.20(A)(2).

(D) Recreational vehicles.  Recreational vehicles placed on sites are required to either:

(1) Be on the site for fewer than 180 consecutive days,

(2) Be fully licensed and ready for highway use, on its wheels or jacking system, is attached to the site only by quick disconnect type utilities and security devices, and has no permanently attached additions;

(3) Meet the requirements of division (C) of this section and the elevation and anchoring requirements for manufactured homes; or

(4) Meet all requirements of ' 72.09 of this Code of Ordinances regarding the parking of recreational vehicles outside of recreational vehicle parks.

(E) Critical facilities.  Construction of new critical facilities shall be, to the extent possible, located outside the limits of the special flood hazard area (SFHA) (100‑year floodplain). Construction of new critical facilities shall be permissible within the SFHA if no feasible alternative site is available. Critical facilities constructed within the SFHA shall have the lowest floor elevated three feet or to the height of the 500‑year flood, whichever is higher. Access to and from the critical facility should also be protected to the height utilized above. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into floodwaters.  Access routes elevated to or above the level of the base flood elevation shall be provided to all critical facilities to the extent possible.

(Ord. 2167, passed 8-23-10)  Penalty, see ' 153.99

§153.22 Floodways

Located within areas of special flood hazard established in ' 153.04 are areas designated as floodways.  Since the floodway is an extremely hazardous area due to the velocity of flood waters which carry debris, potential projectiles and erosion potential, the following provisions apply:

(A) Encroachments, including fill, new construction, substantial improvements and other development are prohibited unless certification by a registered professional engineer or architect is provided demonstrating that encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.

(B) If division (A) above is satisfied, all new construction and substantial improvements shall comply with all applicable flood hazard reduction provisions of '' 153.20 through 153.22.

(Ord. 2167, passed 8-23-10)  Penalty, see ' 153.99

§153.35 Enforcement by City Manager; Duty

(A) Designation.  The City Manager or his or her designee is hereby appointed to administer and implement floodplain administration and the other standards of this chapter by granting or denying development permit applications in accordance with its provisions.

(B) Duties and responsibilities.  Duties of the City Manager or his or her designee shall include but not be limited to:

(1) Permit review.

(a) Review all development permits to determine that the permit requirements of this chapter have been satisfied.

(b) Review all development permits to determine that all necessary permits have been obtained from those federal, state or local governmental agencies from which prior approval is required.

(c) Review all development permits to determine if the proposed development is located in the floodway.  If located in the floodway, assure that the encroachment provisions of ' 153.22(A) are met.

(2) Use of other base flood data.  When base flood elevation data has not been provided in accordance with ' 153.04, the city shall obtain, review and reasonably utilize any base flood elevation data available from a federal, state or other source, in order to administer the provisions of ' 153.21.

(3) Information to be obtained and maintained.

(a) Where base flood elevation data is provided through the flood insurance study or required as in division (B)(2) above, obtain and record the actual elevation (in relation to mean sea level) of

the lowest habitable floor (including basement) of all new or substantially improved structures and whether or not the structure contains a basement.

(b) For all new or substantially improved floodproofed structures:

•  Verify and record the actual elevation (in relation to mean sea level);
•  Maintain the floodproofing certifications required in ' 153.21(B)(3); and
• Maintain for public inspection all records pertaining to the provisions of this chapter.

(4) Alteration of watercourses.

(a) Notify adjacent communities and the Department of Land Conservation and Development prior to any alteration or relocation of a watercourse and submit evidence of notification to the Federal Insurance Administration.

(b) Require that maintenance is provided within the altered or relocated portion of the watercourse so that the flood carrying capacity is not diminished.

(5) Interpretation of FIRM boundaries. Make interpretations where needed, as to exact location of the boundaries of the areas of special flood hazards (for example, where there appears to be a conflict between a mapped boundary and actual field conditions). The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation. Such appeals shall be granted consistent with the standards of Section 60.6 of the Rules and Regulations of the National Flood Insurance Program (44 CFR 59-76).

(Ord. 2167, passed 8-23-10)

§153.36 Development Permit Required

A development permit shall be obtained before construction or development begins within any area of special flood hazard established in ' 153.04. The permit shall be for all structures including manufactured homes, as set forth in the definitions, and for all other development including fill and other activities, also as set forth in the definitions. Prior to issuance of a development permit the following information is required:

(A) Elevation in relation to mean sea level, of the lowest floor (including basement) of all structures;

(B) Elevation in relation to mean sea level to which any structure has been floodproofed;

(C) Certification by a registered professional engineer or architect that the floodproofing methods for any nonresidential structure meet the floodproofing criteria in ' 153.21(B); and

(D) Description of the extent to which a watercourse will be altered or relocated as a result of proposed development.

(Ord. 2167, passed 8-23-10)  Penalty, see ' 153.99

§153.99 Penalty

(A) No structure or land shall hereafter be constructed, located, extended, converted, or altered without full compliance with the terms of this chapter and other applicable regulations. Violation of the provisions of this chapter by failure to comply with any of its requirements (including violations of conditions and safeguards established in connection with conditions) shall constitute a misdemeanor.

(B) Any person who violates this chapter or fails to comply with any of its requirements commits a Class A violation for each violation, and in addition shall pay all costs and expenses involved in the case. Nothing herein contained shall prevent the city from taking other lawful action as is necessary to prevent or remedy any violation.

(Ord. 2167, passed 8-23-10)

§154.01 Purpose

In their interpretation and application, the provisions of this chapter shall be held to be the minimum requirements adopted for the protection of the public health, safety and welfare. These regulations are to provide for the harmonious development of the city and its environs; for the coordination of streets within subdivisions with other existing or planned streets or with other features of the city for adequate open spaces for traffic, recreation, light and air and for a distribution of population and traffic which will tend to create conditions favorable to health, safety, convenience or property.

(Ord. 858, passed 4-14-75)

§154.02 Preliminary Actions

Each subdivider of land shall confer with the city staff before preparing a preliminary subdivision plat or map in order to become thoroughly familiar with the subdivision requirements and with the proposals of the Comprehensive Plan affecting the territory in which the proposed subdivision lies.

(Ord. 858, passed 4-14-75)

§154.03 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Lot. A unit of land that is created by a subdivision of land. A lot line, boundary line adjustment is a minor modification to a boundary line between two individual lots or parcels of land. No new lots or parcels are created in a boundary line adjustment. The revised lots or parcels meet the requirements of the city zoning code. The procedure for a lot line or boundary line adjustment is an administrative one through the city staff.
• Major Partition. A partition which includes the creation of a road or street.
• Map. A final diagram, drawing or other writing concerning a major partition.
• Minor Partition. A partition that does not include the creation of a road or street but is subject to approval by the city.
• Parcel. A unit of land that is created by a partitioning of land.
• Partition. Either an act of partitioning land or an area or tract of land partitioned as defined in this section.
• Partition Land. To divide land into two or three parcels of land within a calendar year but does not include:

(1) A division of land resulting from a lien foreclosure, foreclosure of a recorded contract for the sale of real property or the creation of cemetery lots;

(2) An adjustment of a property line by the relocation of a common boundary where an additional unit of land is not created and where the existing unit of land reduced in size by the adjustment complies with any applicable zoning provision; or

(3) A sale or grant by a person to a public agency or public body for state highway, county road, city street or other right-of-way purposes provided that the road or right-of-way complies with the Comprehensive Plan and ORS 215.213 (2)(q) through (s).

• Partition Plat. A final map, other writing containing all descriptions, locations, specifications, revisions, and information concerning a major or minor partition.
• Plat. A final subdivision plat, replat or partition plat.
• Replat. A final map of reconfiguration of lots and easements of a recorded subdivision or recorded plat and other writings containing all the descriptions, locations, specifications, dedications, and provisions and information concerning a recorded subdivision.
• Street or Alley. A public way that is created to provide ingress or egress for persons to one or more lots, parcels, areas or tracts of land.
• Subdivide Land. To divide an area or tract of land into four or more lots within a calendar year when an area or tract of land exists as a unit or contiguous units of land under a single ownership at the beginning of the year.
• Subdivision. Either an act of subdividing land or an area or a tract of land subdivided as defined in this section.
• Subdivision. A final map and other writings containing all descriptions, locations, specifications, dedications, provisions and information concerning a subdivision.

(Ord. 858, passed 4-14-75; Am. Ord. 1769, passed 9-28-92)

§154.04 Jurisdiction and Procedure

(A) It shall be unlawful for any person being the owner, agent or person having control of any land within the city to divide land by a major or minor partition not in accordance with the laws of the state and the regulations contained herein. The proposed partition shall first be submitted to the Planning Commission for approval or disapproval. After report and approval of the Planning Commission is made and filed, all minor partitions shall be permitted, but all major partitions shall be submitted to the City Council for its approval or disapproval. No plat or map shall be recorded and no lots shall be sold from a plant or map until approved by the City Council and recorded with the county.

(B) The design and layout of all subdivisions shall conform with the requirements of 154.15 through 154.21. The subdivider shall submit a preliminary plat or map in accordance with the specifications of 154.35 hereof. The final plat or map shall be submitted in accordance with the provisions of 154.45 and 154.46 hereof.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.15 Relation to Adjoining Street System

(A) The function, location, width, and grade of streets shall be considered in relation to existing and planned streets, to topographical conditions, to public convenience and safety, and to the proposed use of land to be served by the streets.

(B) The street system shall assure an adequate and safe traffic circulation system with intersection angles, grades, tangents, and curves appropriated for the traffic to be carried, considering the terrain.

(C) Off-set streets should be avoided.

(D) The angle of intersection between minor streets and major streets should not vary by more than 10 degrees from a right angle unless special intersection design is provided.

(E) Streets obviously in alignment with existing streets shall bear the names of the existing streets. All proposed street names should be checked to avoid duplication of other street names.

(F) If the subdivision abuts a present or proposed major arterial street, marginal interceptor streets running parallel to the arterial street may be required.

(G) Streets shall be interconnected and provide for continuation or appropriate extension to surrounding properties. Cul-de-sac streets shall be allowed only when one or more of the following conditions exist:

(1) Physical or topographic conditions make a street connection impracticable. Such conditions include but are not limited to freeways, railroads, steep slopes, wetlands, or other bodies of water where a connection could not reasonably be provided.

(2) Buildings or other existing development on adjacent lands physically precludes a connection now or in the future, considering the potential for redevelopment.

(3) Where street connection would violate provisions of leases, easements, covenants, restrictions or other agreements existing as of the date of adoption of the TSP which preclude a required street connection.

(4) Where cul-de-sacs are planned, multi-use paths connection the end of the cul-de-sac to other streets or neighborhood activity centers shall be provided if feasible.

(5) Cul-de-sac streets shall be as short as possible and should not exceed a length of 400 feet. A cul-de-sac shall terminate with a turn-around

(Ord. 858, passed 4-14-75; Am. Ord. 2004, passed 12-13-99)

§154.16 Street and Alley Width

(A) The width of streets and alleys shall be adequate to fulfill city standards as provided for in the Transportation System Plan (TSP). The standard cross-sections provide some flexibility in the right-of-way and paved width, depending on factors such as whether on-street parking and bike lanes are provided. Standards for streets and alleys are adopted in the TSP and incorporated into this section by reference:

• Table 1: Urban Arterial Cross Sections
• Table 2: Urban Collector Cross Sections
• Table 3: Urban Local Street Cross Sections
• Table 4: Rural Arterial/Collector/Local Road Cross Sections

(B) Where alleys are provided in residential blocks, a minimum width of 20 feet shall be required. Alleys are required in the rear of all business lots and shall be at least 25 feet wide. A five-foot cutoff shall be made at all acute angle alley intersections.

(Ord. 858, passed 4-14-75; Am. Ord. 2004, passed 12-13-99) Penalty, see 154.99

§154.17 Easements

(A) Width requirements. Easements of at least six feet in width shall be provided on each side of all rear lot lines and along side lot lines, where necessary, for poles, wires, conduits, storm and sanitary sewers, gas, water or other mains. Easements of greater width may be required along or across lots where necessary for the extension of main sewers or other utilities or where both water and sewer lines are located in the same easement.

(B) Along streams. Whenever any stream or important surface drainage course is located in an area which is being subdivided, the subdivider shall provide an adequate easement along each side of the stream for the purpose of widening, deepening, sloping, improving or protecting the stream or for drainage, parkway or recreational use.

(C) For irrigation. Whenever any irrigation system is located and/or proposed to be created in an area which is being subdivided, the subdivider shall provide an adequate easement as approved by the Planning Commission and the Hermiston Irrigation District.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.18 Blocks

(A) In residential zones, block lengths shall not exceed 600 feet in length between intersecting through streets, except where topography or existing development creates conditions requiring longer blocks.

(B) Where block lengths exceed 600 feet, the Planning Commission may required a six to ten-foot wide paved bicycle/pedestrian access way through the block to enhance bicycle and pedestrian circulation by providing short, direct connections between destinations.

(Ord. 858, passed 4-14-75; Am. Ord. 2004, passed 12-13-99)) Penalty, see 154.99

§154.19 Lots

(A) The lot arrangement and design shall be such that all lots will provide satisfactory and desirable building sites, properly related to topography and the character of surrounding development.

(B) All side lines of lots shall be at right angles to straight street lines and radial to curved street lines, except where a variation to this rule will provide a better street and lot layout. Lots with double frontage shall be avoided.

(C) The minimum width of residential lots shall be 60 feet at the building lines. No lot shall have a depth in excess of three times its width. Minimum sizes of lots shall conform to the standards established by the zoning code of the city for the zone in which the lots are located.

(D) Where corner lots rear upon lots facing the side street, the corner lots shall have extra width sufficient to permit the establishment of front building lines on both the front and side of the lots adjoining the streets.

(E) Corner lots at street intersections which, in the opinion of the Planning Commission, are likely to be dangerous to traffic movement shall have the corner of the lot cut off either by a chord or circular arc sufficient to allow a minimum of six feet between the curb line and the lot corner when and if the streets are curbed with the curb installed on a radius of 20 feet.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.20 Character of Development

(A) The Planning Commission shall confer with the subdivider regarding the type and character of development that will be permitted in the subdivision and may agree with the subdivider as to certain minimum restrictions to be placed upon the property to prevent the construction of substandard buildings, control the type of structures or the use of the lots which, unless so controlled, would clearly depreciate the character and value of the proposed subdivision and of adjoining property. Deed restrictions or covenants should be included to provide for the proper protection and maintenance of the development in the future; provided, however, that the deed restrictions or covenants shall not contain (reversionary) clauses wherein any lot shall return to the subdivider because of violation thereon of the terms of the restrictions or covenants.

(B) Where the subdivision contains sewers, sewage treatment plants, water supply systems, park areas, streets, trees or other physical facilities necessary or desirable for the welfare of the area and which are of common use or benefit and are not or cannot be satisfactorily maintained by an existing public agency, provision shall be made by trust agreements made a part of the deed restrictions, acceptable to any agency having jurisdiction over the location and improvement of such facilities, for the proper and continuous maintenance and supervision of the facilities.

(Ord. 858, passed 4-14-75)

§154.21 Parks, School Sites and the Like

In subdividing property, consideration shall be given to suitable sites for schools, parks, playgrounds and other common areas for public use so as to conform to any recommendation of the City Comprehensive Plan. Any provision for schools, parks and playgrounds should be indicated on the preliminary plan in order that it may be determined when and in what manner such areas will be provided or acquired by the appropriate taxing agency.

(Ord. 858, passed 4-14-75)

§154.22 Access Management

Access spacing policies set forth in the City Transportation System Plan and the Oregon Highway Plan will apply to an proposals for new access or change of existing access.

(Ord. 2004, passed 12-13-99)

§154.35 Preliminary Plat Requirements

(A) Whenever any person desires to subdivide land into building lots and to dedicate streets, alleys or land for public use, the person shall submit four copies of the preliminary sketch plat conforming to the requirements of 154.15 through 154.21 to the Planning Commission before submission of the final plat.

(B) The preliminary plat must be filed with the City Planner at least 30 days prior to the meeting of the Planning Commission. Minor partitions containing three lots or less may be exempted from the provisions of this section.

(C) The preliminary plat shall show:

(1) The location of present property lines, section lines and the lines of incorporated areas, streets, buildings, water courses, tree masses and other existing features within the area to be subdivided and similar information regarding existing conditions on land immediately adjacent thereto;

(2) The proposed location and width of streets, alleys, lots, building and setback lines and easements;

(3) Existing sanitary and storm sewers, water mains, culverts and other underground structures within the tract or immediately adjacent thereto. The location and size of the nearest water main and sewer or outlet are to be indicated in a general way upon the plat;

(4) The title under which the proposed subdivision is to be recorded and the name of the subdivider platting the tract;

(5) The names and adjoining boundaries of all adjoining subdivisions and the names of recorded owners of adjoining parcels of unsubdivided land;

(6) Contours referred to a City Engineer's bench mark with intervals sufficient to determine the character and topography of the land to be subdivided, but in no case shall the intervals be more than one foot;

(7) North point, scale and date;

(8) Grades and profiles of streets and plans or written and signed statements regarding the grades of proposed streets; and the width and type of pavement, location, size and type of sanitary sewer or other sewage disposal facilities; water mains and other utilities; facilities for storm water drainage and other proposed improvements such as sidewalks, planting and parks, and any grading of individual lots; and

(9) All the above information unless waived by the Planning Commission.

(D) After the preliminary plat has been submitted to the Planning Commission in accordance with these regulations, a final plat, together with copies of any deed restrictions, shall be prepared and submitted to the City Planner. The plat shall be filed in the office of the City Planner at least 14 days prior to the meeting of the Planning Commission at which approval thereof is asked. This final plat shall be submitted and prepared in accordance with the provisions of 154.45 through 154.46 hereof.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.45 Submission to City Council

The final plat shall be submitted to the City Council in a form as prescribed by the statutes of the state and as acceptable to the city. In addition to the requirements of the law, the subdivider shall provide the city with three prints on transparencies acceptable to the City Planner, and three prints thereof, together with copies of any deed restrictions where such restrictions are too lengthy to be shown on the plat; provided, however, that these transparencies need not be submitted until the final plat has been approved by the City Council.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.46 Final Plat Requirements

The final plat shall show:

(A) The boundary lines of the area being subdivided, with accurate distances and bearings;

(B) The lines of all proposed streets and alleys with their width and names;

(C) The accurate outline of any portions of the property intended to be dedicated or granted for public use;

(D) The line of departure of one street from another;

(E) The lines of all adjoining property and the lines of adjoining streets and alleys with their widths and names;

(F) All lot lines together with an identification system for all lots and blocks;

(G) The location of all building lines and easements provided for public use, services or utilities;

(H) All dimensions, both linear and angular, necessary for locating the boundaries of the subdivision, lots, streets, alleys, easements, and other areas for public or private use. Linear dimensions are to be given to the nearest 1/10 of a foot;

(I) All necessary curve data;

(J) The location of all survey monuments and bench marks together with their descriptions;

(K) The name of the subdivision, the scale of the plat, points of the compass, and the name of owners or subdivider;

(L) The certificate of the surveyor attesting to the accuracy of the survey and the correct location of all monuments shown;

(M) Private restrictions and trusteeships and their periods of existence. Should these restrictions or trusteeships be of such length as to make their lettering on the plat impracticable and thus necessitate the preparation of a separate instrument, reference to such instrument shall be made on the plat;

(N) Acknowledgement of the owner or owners to the plat and restrictions, including dedication to public use of all streets, alleys, parks or other open spaces shown thereon, and the granting of easements required; and

(O) Certificates of approval for endorsement by the City Council and certificate indicating its submission to the Planning Commission, together with approval for endorsement by other local, county and/or state authority as required by Oregon statutes.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.60 Permanent Markers

All subdivisions, major partitions and minor partitions are required to be surveyed in accordance with ORS 92.050 through 92.080.

(Ord. 858, passed 4-14-75; Am. Ord. 1769, passed 9-28-92) Penalty, see 154.99

§154.61 General Improvements

As a condition to the approval of the final plat, the city shall require installation of certain grading, drainage, curb and gutter, sidewalk and street paving and all service utilities. A developer’s agreement shall be drafted guaranteeing installation of said improvements to standard city specifications. In lieu of completion of the work, the city may accept a bond, a letter of credit or other securities in an amount and under conditions to be specified. In case of forfeiture of securities, the city will do the work and will be reimbursed in the amount of the securities.

(Ord. 858, passed 4-14-75; Am. Ord. 1041, passed 3-14-77) Penalty, see 154.99

§154.62 Water Lines

Where the city public water supply is reasonably accessible or procurable, each lot within the subdivided area shall be planned for connection to the water supply. In all other areas a private water supply shall be provided in accordance with regulations and recommendations of the State Department of Environmental Quality and under the supervision of and approval by same. Fire hydrants shall also be installed in all subdivisions within the city.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.63 Sanitary Sewers

Within the city limits, and in all areas beyond the city limits, but lying within the potential sewerage limits as shown by the Comprehensive Plan, the preliminary plat shall show the sanitary sewer layout for the area being subdivided. This layout shall comply with regulations of the State Department of Environmental Quality and shall be approved by the City Engineer.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.64 Drainage

(A) All necessary facilities shall be installed sufficient to prevent the collection of surface water in any low spot and to maintain any natural water course.

(B) All major and minor partitions of land shall meet the requirements of the National Flood Insurance Act of 1968 and as amended, as applied to lands within the city.

(Ord. 858, passed 4-14-75) Penalty, see 154.99

§154.65 Sidewalks

(A) All development for which land use applications are required must include sidewalks adjacent to public streets. This requirement also applies to new single-family homes and duplexes if there is an existing sidewalk within 500 feet on the same side of the street.

(B) In the case of arterial or collector streets, sidewalks shall be built during their construction and considered during their reconstruction.

(C) If an interim street standard is being constructed which does not include bike lanes or sidewalks, a paved shoulder at least six feet wide shall be provided as an interim walkway.

(D) The provisions of sidewalks may be waived where the street serves fewer than 50 trips per day (based on ITE standards) and cannot be continued or extended to other properties.

(E) Standards for the design, width, and location of sidewalks are set forth in the Transportation System Plan and are adopted by reference.

(Ord. 2004, passed 12-13-99) Penalty, see 154.99

§154.66 Bikeways

(A) The city’s adopted Bicycle Plan is included in the Transportation System Plan, and adopted as part of the Comprehensive Plan by reference.

(B) In the case of arterial or collector streets, bike lanes shall be built during their construction, and considered during their reconstruction.

(C) Standards for the design, width, and location of bike lanes are set forth in the Transportation System Plan and are adopted by reference.

(Ord. 2004, passed 12-13-99) Penalty, see 154.99

§154.75 Variations and Exceptions

Whenever the tract to be subdivided is of such unusual size or shape or is surrounded by development or unusual conditions that the strict application of the requirements contained in these regulations would result in real difficulties or substantial hardship or injustice, the City Council may vary or modify requirements so that the subdivider may develop the property in a reasonable manner but so that, at the same time, the public welfare and interests of the city and surrounding area are protected and the general intent and spirit of these regulations preserved.

(Ord. 858, passed 4-14-75)

§154.76 Appeals

An action or ruling of the Planning Commission authorized by this chapter may be appealed to the City Council, within ten days after the Planning Commission has rendered its decision, by filing written notice with the City Planner. If no appeal is taken within the ten-day period, the decision of the Planning Commission shall be final.

(Ord. 858, passed 4-14-75)

§154.99 Penalty

Any person, firm or corporation violating any of the provisions of this chapter commits a Class A violation. Each day a violation is committed or permitted to continue shall constitute a separate offense and shall be punished.

(Ord. 858, passed 4-14-75; Am. Ord. 1632, passed 6-22-87)

§155.01 Purpose

This Comprehensive Sign Code has been prepared by and for the citizens of the city in order to provide a safe, consistent, equitable and legal system of signing. The regulations of such factors as size, location, construction, etc., will encourage the communication of information and orientation for both visitors and citizens, provide for the effective identification and advertisement of business establishments, eliminate visual blight and provide standards to safeguard life, health, property and public welfare.

(Ord. 1689, passed 1-8-90)

§155.02 Definitions

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

• Building Frontage. The linear frontage of a building measured along a street or alley between two lines projecting perpendicular from the street to the corners of the building.
• Canopy. A structure made of cloth, metal or other material with frames affixed to a building.
• Construction Sign. Any informational sign which identifies the architect, engineers, contractors and other individuals or firms involved with the construction of a building, or announcing the character of the building or enterprise, which is erected during the building construction period.
• Electronic Changing Sign. An electronic sign upon which the entire copy or message may appear or change from time to time, upon a lamp bank, such as time and temperature displays, which by its nature and intensity is not a flashing sign.
• Flashing or Moving Sign. Any sign which contains or is illuminated by a light source which produces a brilliant flash and darkness on an alternating basis, which results in a pulsating effect designed primarily to attract attention, or any sign which produces apparent motion of the visual image, including but not limited to illusion of moving objects, moving patterns or bands of light, expanding or contracting shapes, rotation or any similar effect of animation which is designed or operated in a manner primarily to attract attention.
• Free-Standing Sign. Any sign set apart with no structural attachments to a building structure and is meant to include ground-mounted or pole signs for the purpose of these regulations.
• Grade. The relative ground level in the immediate vicinity of the sign.
• Ground Sign. A sign which is mounted on the ground and supported by one or more uprights, poles, or braces in or upon the ground other than a pole sign as defined. The bottom of such signs shall be no higher than three feet, and they shall extend no higher than eight feet.
• Height or Height of Sign. The vertical distance from the average grade within 20 feet of the structure to the highest point of a sign or any vertical projection thereof, including its supporting columns.
• Incidental Sign. Small signs, less than two square feet in surface area, of noncommercial nature, intended primarily for the convenience of the public. Included are signs designating restrooms, address numbers, hours of operation, entrances to buildings, directions, help wanted, public telephone, etc. Also included in this group of signs are those designed to guide or direct pedestrians or vehicular traffic to an area or place on the premises of a business, building or development by means of a directory designating names and addresses only.
• Lighting, Indirect or Internal. Any illuminated sign constructed so that the immediate source of illumination is not visible when the sign is lighted and which does not exceed ten candle power per square foot measured at ten feet from the sign.
• Plaza. Two or more commercial or industrial uses that share common accesses and common private off-street parking.
• Pole Sign. A single- or multiple-faced sign eight or more feet above grade, supported by one or more uprights in the ground and detached from any building or structure.
• Political Sign. A sign advertising a candidate or candidates for public elective office, or a political party, or a sign urging a particular vote on a public issue decided by ballot.
• Portable Sign. Any sign not meeting the anchorage requirements of the Uniform Sign Code.
• Projecting Sign. A single- or multiple- faced sign which is designed, and constructed to be mounted to the a building and which will extend more than 12 inches wall.
• Property Line. The line denoting the limits of ownership of property.
• Readerboard. A sign or part of a sign on which the letters are readily replaceable so that the copy is changed from time to time at will.
• Roof Sign. Any sign erected upon, against, or directly above a roof or on top of or above the parapet of a building, including a sign affixed to any equipment attached to the building.
• Sandwich (“A”) Board. A double-faced sign hinged or connected at the top which is spread for stabilization and set upon the ground.
• Sign. Any medium, including its structure and component parts, other than paint on a building, which is used or intended to be used to attract attention to the subject matter for communication purposes. Sign Area. The surface contained within a continuous perimeter which encloses the entire sign cabinet but excluding any support or framing structure that does not convey a message. Where signs are of a three-dimensional, round or other solid shape, the largest section cross-viewed as a flat projection shall be used for the purpose of determining the Sign Area. Signs visible from more than one direction or without clearly defined sign shall be considered as having two faces and each face calculated in the total allowable area.
• Street Frontage. Street(s), alley(s) or right(s)-of-way parallel to the property line used to compute the area of sign(s) intended to be located in such a manner as to have primary exposure on that street or right-of-way.
• Temporary Sign.Any sign, banner, pendant, valance or advertising display constructed of cloth, canvas light fabric, cardboard, wallboard or other light material intended to be displayed for a period of less than 60 days in any calendar year.
• Vision Clearance Area. A triangular area on at the intersection of two public rights-of-way, a street and a railroad, or point of vehicular access and a right-of-way, two sides of which are lines measured from the corner intersection to a distance of 30 feet in residential districts, 15 feet in commercial districts and ten feet at all alleys. The third side of a triangle is a line across the corner of the lot connecting the lines of the other two sides. The Vision Clearance Area contains no signs higher than 2½ feet or lower than eight feet measured from the grade of the street centerline, though a single pole having a diameter of 18 inches or less is permitted.
• Wall Sign. A single-face sign which does not extend more than 12 inches from the wall and the copy of which runs parallel to the wall to which it is attached.
• Window Sign. A sign which is applied to or located within three feet of the interior of a window, which sign may be seen through the window from the exterior of the structure.

(Ord. 1689, passed 1-8-90; Am. Ord. 1930, passed 6-9-97)

§155.15 General Regulations

No signs governed by the provisions of this chapter, shall be erected, structurally altered or relocated without first receiving a sign permit from the city.

(Ord. 1689, passed 1-8-90) Penalty, see 155.99

§155.16 Installation Requirements

All signs shall comply with the following requirements and those specified by zoning district:

(A) Construction shall satisfy the requirements of the Uniform Sign Code.

(B) Electrical requirements for signs shall be governed by the National Electrical Code and Oregon Electrical Specialty Code Amendments.

(C) Except for exempt signs, all signs shall be permanently attached to a building or the ground.

(D) All signs shall conform to all vision clearance requirements.

(E) All signs together with their supports, braces and guys shall be maintained in a safe and secure manner.

(F) All illuminated signs shall be internally or indirectly illuminated.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.17 Exempt Signs

The following signs shall be exempt from the application, permit and fee requirements of this chapter:

(A) Impermanent construction and subdivision signs not exceeding 32 square feet in area;

(B) Directional, warning or information signs or structures required or authorized by law, or by federal, state, county or city authority;

(C) Historical site plaques;

(D) Incidental signs;

(E) Official and legal notices issued by any court, public body, person or officer in performance of a public duty or in giving any legal notice;

(F) Official flags of the United States of America, states of the United States, counties, municipalities, official flags of foreign nations and flags of internationally and nationally recognized organizations;

(G) On-premise signs not readable from the public right-of-way, i.e., menu boards, etc.;

(H) Political signs, provided the signs shall not exceed four square feet in area;

(I) Real estate signs not exceeding four square feet in area in residential districts or 32 square feet in commercial or industrial districts;

(J) Residential identification signs;

(K) Structures intended for a separate use such as phone booths, Goodwill containers, etc.;

(L) Temporary signs;

(M) Wall signs less than one inch deep with no electrical permits required; and

(N) Window signs.

(Ord. 1689, passed 1-8-90)

§155.18 Prohibited Signs

The following signs are prohibited:

(A) Flashing and moving signs, except time and temperature;

(B) Portable signs;

(C) Sandwich (“A”) board;

(D) Signs attached to utility, streetlight, or traffic control standard poles or otherwise located in the public right-of-way without a permit;

(E) Signs in a dilapidated or hazardous condition;

(F) Signs on doors, windows or fire escapes that restrict free ingress or egress;

(G) Signs which purport to be, are an imitation of or resemble an official traffic sign or signal, could cause confusion with any official sign, or which obstruct the visibility of any traffic sign or signal; and

(H) Swinging projecting signs.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.19 Free-Standing Signs

All free-standing signs shall comply with the following provisions:

(A) One free-standing sign shall be permitted along each street frontage, or each 300 feet of street frontage, with one additional free-standing sign allowed on the property.

(B) A free-standing sign shall be placed behind the property line and no closer than ten feet to any adjacent private property line.

(C) Free-standing signs may project over the public property line provided they conform to the standards established for projecting signs.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.20 Projection Signs

All projecting signs shall comply with the following provisions:

(A) No projecting sign shall extend above the highest structural component of the building to which it is attached.

(B) Signs over the public right-of-way, including free-standing signs, shall conform to the following standards:

• Clearance Maximum Projection
  • Less than 8 ft. Not permitted
  • 8 ft. 1 ftt
  • 8 ft. to 16 ft. 1 ft. plus 6 in. for each foot of clearance in excess of 8 ft.
  • Over 16 ft. 5 ft.

(C) No sign shall project within two feet of a curb line.

(D) In addition, no sign or sign structure shall project into any public alley below a height of 14 feet above grade, nor project more than 12 inches where the sign structure is located 14 feet to 16 feet above grade. The sign or sign structure may project not more than 36 inches into the public alley where the sign or sign structure is located more than 16 feet above grade.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.21 Roof Signs

All roof signs shall comply with the following provisions:

(A) All roof signs shall be installed or erected in such a manner that no support structure is visible from any abutting public right-of-way.

(B) Roof signs may be erected so as to appear from all sides as a wall sign applied to an existing penthouse which appears to be a part of the building itself.

(C) Roof signs shall not exceed the maximum allowable height of the building within the zone in which it is located.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.22 Wall Signs

All wall signs shall conform to the following provisions:

(A) Wall signs may be attached flat to, or pinned away from the wall, but shall not project more than 12 inches from the wall.

(B) For proposes of this chapter, wall signs shall be exempt from the area limitations in calculating allowable sign area.

(C) Wall signs shall not extend above the height of the wall to which it is attached.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.23 Nonconforming Signs

(A) Alteration, relocation or replacement. Nonconforming signs which are structurally altered, relocated or replaced shall comply immediately with all provisions of this chapter.

(B) Destruction of a nonconforming sign. If a nonconforming sign is destroyed by any cause to the extent of more than 60% of its value, then and without further action by the Planning Commission, the sign shall be subject to all applicable regulations of the chapter. For the purpose of this chapter, the value of any sign shall be the estimated cost to replace the sign in kind, as determined by the Building Inspector.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.24 Grandfather Clause

If, at the time of passage of this chapter, a sign does not conform to the provisions of this chapter, the sign may be continued and maintained in reasonable repair. This “grandfather status,” however, shall not prevent the city from taking action under §155.51 where a clear and immediate threat to the public safety and welfare exist.

(Ord. 1689, passed 1-8-90)

§155.25 Fees and Charges

A fee as established by resolution of the City Council shall be charged for all regulated signs erected within the city. The fee may be changed or reset by resolution of the City Council.

(Ord. 1689, passed 1-8-90)

§155.35 Residential; Low and Medium

(A) Application. This section shall apply to all residential districts designated as Low Density Residential (R-1) and Medium Density Residential (R-2).

(B) Size and height. One nameplate or identification sign with a maximum of two faces not exceeding two square feet per face per dwelling unit is permitted. Uses allowed conditionally may be allowed to erect one sign per street frontage not to exceed 32 square feet.

(C) Location. Signs permitted outright in the R-1 and R-2 districts may be located anywhere on the premises; however, no free-standing sign may exceed eight feet in height or project beyond a property line. Building-mounted signs shall be wall-mounted and shall not be erected on any building roof.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.36 Residential; Multi-Family and Multi-Structure

(A) Application. This section shall apply to all residential districts designated as Multi-Family Residential (R-3) and Multi-Structure Residential (R-4).

(B) Size and height. Signs permitted in the R-1 and R-2 districts are permitted in the R-3 and R-4 zones. For multiple-family dwellings, permitted mobile home parks and conditional uses in the R-3 and R-4 zones, one identification sign totaling 32 square feet in area shall be permitted for each street frontage.

(C) Location. Signs permitted in these residential districts may be located anywhere on the premises; however, no free-standing sign shall exceed eight feet in height or extend beyond a property line. Building-mounted signs shall be wall-mounted and shall not be erected on any building roof.

(Ord. 1689, passed 1-8-90) Penalty, see §155.99

§155.37 Commercial and Industrial; Airport

(A) Application. This section shall apply to all commercial, industrial and airport districts.

(B) Size. The size of allowable area of signs shall be as follows:

(1) A total sign area of 1½ square feet for each lineal foot of building frontage or one square foot for each lineal foot of lot frontage, whichever results in the larger sign area.

(2) Free-standing or projecting signs shall be limited to 150 square feet per face. The signs shall not exceed 30 feet in height from grade to the highest element of the signs unless otherwise restricted.

(C) Location.

(1) Except as provided in division (2) below, permitted signs may be located anywhere on the premises.

(2) Where frontage is on more than one street, only the sign computed with the frontage of that street shall be located on that street. Free-standing or projecting signs shall be turned no more than 44 degrees from the street for which it is calculated.

(D) Plaza concept. So long as two or more commercial or industrial uses share common accesses and common private off-street parking, they may be considered as a “plaza” concept. As such, one free-standing sign meeting all chapter requirements may be permitted to identify individual uses.

(Ord. 1689, passed 1-8-90; Am. Ord. 1930, passed 6-9-97) Penalty, see 155.99

§155.38 Individual Businesses

Within neighborhood and regional shopping centers, each individual business shall be allowed a total sign area as calculated in accordance with §155.37(B).

(Ord. 1689, passed 1-8-90)

§155.39 Shopping Center Signs

In addition to the sign area allowed for individual businesses, shopping centers with more than 100,000 square feet of floor area shall be allowed one double-faced indirectly lighted sign on each street right-of-way such signs shall neither extend beyond the property line nor be placed in the right-of-way and shall be used solely to identify the shopping center, shopping area, or business or activities conducted therein. These signs shall not exceed 300 square feet per face and shall not exceed 30 feet in height from grade to the highest element of the sign.

(Ord. 1689, passed 1-8-90)

§155.50 Variances

The Planning Commission may authorize variances from the requirements of this chapter where it can be shown that, owing to special and unusual circumstances related to a specific piece of property, the literal interpretation of this chapter would cause an undue or unnecessary hardship. In granting a variance, the Planning Commission may attach conditions which it finds necessary to protect the best interest of the surrounding property or neighborhood and to otherwise achieve the purpose of this chapter.

(A) Granting of variances. No variance shall be granted unless it can be shown that all of the following conditions exist:

(1) Exceptional or extraordinary conditions apply to the property that do not apply generally to other properties in the same zone or vicinity, which conditions are a result of lot size, shape, topography or other circumstances over which the applicant has no control.

(2) The variance is necessary for the preservation of a property right of the applicant substantially the same as is possessed by owners of other property in the same zone or vicinity.

(3) The authorization of the variance shall not be materially detrimental to the purposes of this chapter, be injurious to property in the zone or vicinity in which the property is located, or be otherwise detrimental to the objectives of any development pattern or policy.

(4) The variance requested is the minimum variance from the provisions and standards of this chapter which will alleviate the hardship.

(B) Application for a variance. A proper