Chapter 8.08
NUISANCES
Sections:
8.08.010 Intent of chapter.
8.08.020 Definitions.
8.08.030 Nuisances designated.
8.08.040 Unlawful to store junk and listed vehicles.
8.08.050 Closing unoccupied building required.
8.08.060 Illegal dumping.
8.08.070 Fire hazard removal.
8.08.080 Street gangs.
8.08.090 Inspections.
8.08.100 Interference.
8.08.110 Alternative or additional remedies.
8.08.120 Voluntary compliance agreements.
8.08.130 Voluntary correction agreements.
8.08.140 Enforcement.
8.08.150 Appeal.
8.08.160 Abatement by the City.
8.08.170 Lien – Authorized.
8.08.180 Liability for abatement.
8.08.190 No duty created.
8.08.200 Conflicts.
8.08.010 Intent of chapter.
A. The intent of the City Council in enacting this chapter is to provide a fair and efficient method to cause owner(s) and occupant(s) of property or their agent to remove junk, junk vehicles and nuisances from property within the City. The method selected by the City Council in this chapter is first the civil violation and abatement method followed by criminal charges.
B. Criminal penalties shall be sought in cases of repeated violations or when the City finds civil penalties will not be effective. (Ord. C-715 § 3, 2010)
8.08.020 Definitions.
For the purpose of this chapter, certain words used herein are defined as follows:
A. “City official” means Police Officer, Code Enforcement Officer or authorized representative.
B. “Hearing Examiner” means a person appointed to conduct hearings.
C. “Junk vehicle” means a motor vehicle meeting at least three of the following requirements:
1. Is three years old or older;
2. Is extensively damaged, such damage including, but not limited to, any of the following: a buildup of debris that obstructs use, broken window or windshield; missing wheels, tires, tail/headlights, or bumpers; missing or nonfunctional motor or transmission; or body damage;
3. Is apparently inoperable, or is missing major component parts, including but not limited to: engines and short blocks, frames, transmissions or transfer case, cabs, doors, front or rear differentials, front or rear clips, quarter panels or fenders, bumpers, truck beds or boxes, seats, windows, and hoods;
4. Is without a valid, current license or registration; or
5. Has an approximate fair market value equal only to the approximate value of the scrap in it.
6. “Junk vehicle” does not include a vehicle or part thereof that is completely enclosed in a building, is not visible from the street or adjacent property, antique vehicles, race cars or street rods as defined in RCW 46.37.518 that are currently in the process of restoration or use, or a vehicle or part thereof that is stored or parked in a lawful manner on private property, in connection with the business of a licensed dismantler or licensed vehicle dealer and is fenced according to the requirements set forth by the City of Airway Heights.
D. “Nuisances” means doing an unlawful act, or failing to perform a duty, or suffering or permitting any condition or thing to be or exist, which act, omission, condition or thing either:
1. Annoys, injures or endangers the comfort, repose, health or safety of others; or
2. Offends decency; or
3. Is offensive to the senses; or
4. Unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage any stream, public park, parkway, square, street or highway in the City; or
5. In any way renders other persons insecure in life and use of property; or
6. Obstructs the free use of property so as to essentially interfere with comfortable enjoyment of life and property; or
7. Which degrades the City’s scenic attractiveness and livability and its economic development.
E. “Abate” means to prevent, repair, replace, remove, destroy, secure or otherwise remedy a condition which constitutes a nuisance under this chapter by such means, in such a manner and to such an extent as the Director determines is necessary in the interest of the general health, safety and welfare of the community.
F. “Civil violation” means a violation of a provision of this chapter for which a monetary penalty may be imposed under this chapter. Each day in which a violation occurs or continues to exist is a separate violation.
G. “Junk” means all articles such as, but not limited to: trash, litter, garbage, rubbish, bottles, cans, paper, cardboard, tires, old wood, wire and metal articles, cloth material, carpet, boxes, crates, packing cases, packing material, empty barrels, mattresses or other bedding, appliances or furniture and parts thereof, building materials and similar articles, ashes, combustible or flammable waste, bric-a-brac, broken stone or crockery, glass, plaster, excelsior, growing or severed hay, grass, straw or weeds, and all such trash and abandoned materials, or anything whatsoever which may be a fire danger, or that which constitutes a hazardous attraction to children, or in which flies or rodents may breed or multiply, unless they are kept in receptacles as required by City ordinance. As used in this chapter, “junk” refers only to materials left outside of any building and does not apply to materials stored inside a lawfully constructed building so long as such building is wholly enclosed except for doors for ingress and egress and does not create a health hazard.
H. “Director” means the Chief of Police and his/her authorized agents.
I. “Criminal street gang” means any ongoing organization, association, or group of three or more persons, whether formal or informal, having a common name or common identifying sign or symbol, having as one of its primary activities the commission of criminal acts, and whose members or associates individually or collectively engage in or have engaged in a pattern of criminal street gang activity. This definition does not apply to employees engaged in concerted activities for their mutual aid and protection, or to the activities of labor and bona fide nonprofit organizations or their members or agents.
J. “Criminal street gang associate or member” means any person who actively participates in any criminal street gang and who intentionally promotes, furthers, or assists in any criminal act by the criminal street gang.
K. “Criminal street gang-related offense” means any felony or misdemeanor offense, whether in this state or elsewhere, that is committed for the benefit of, at the direction of, or in association with any criminal street gang, or is committed with the intent to promote, further, or assist in any criminal conduct by the gang, or is committed for one or more of the following reasons:
1. To gain admission, prestige, or promotion within the gang;
2. To increase or maintain the gang’s size, membership, prestige, dominance, or control in any geographical area;
3. To exact revenge or retribution for the gang or any member of the gang;
4. To obstruct justice, or intimidate or eliminate any witness against the gang or any member of the gang;
5. To directly or indirectly cause any benefit, aggrandizement, gain, profit, or other advantage for the gang, its reputation, influence, or membership; or
6. To provide the gang with any advantage in, or any control or dominance over, any criminal market sector, including, but not limited to, manufacturing, delivering, or selling any controlled substance (Chapter 69.50 RCW); arson (Chapter 9A.48 RCW); trafficking in stolen property (Chapter 9A.82 RCW); promoting prostitution (Chapter 9A.88 RCW); human trafficking (RCW 9A.40.100); or promoting pornography (Chapter 9.68 RCW).
L. “Pattern of criminal street gang activity” means:
1. The commission, attempt, conspiracy, or solicitation of, or any prior juvenile adjudication of or adult conviction of, two or more of the following criminal street gang-related offenses:
a. Any “serious violent” felony offense as defined in RCW 9.94A.030, excluding homicide by abuse (RCW 9A.32.055) and assault of a child 1 (RCW 9A.36.120);
b. Any “violent” offense as defined by RCW 9.94A.030, excluding assault of a child 2 (RCW 9A.36.130);
c. Delivery of or possession with intent to deliver a controlled substance (Chapter 69.50 RCW);
d. Any violation of the Firearms and Dangerous Weapons Act (Chapter 9.41 RCW);
e. Theft of a firearm (RCW 9A.56.300);
f. Possession of a stolen firearm (RCW 9A.56.310);
g. Malicious harassment (RCW 9A.36.080);
h. Harassment where a subsequent violation or deadly threat is made (RCW 9A.46.020(2)(b));
i. Criminal gang intimidation (RCW 9A.46.120);
j. Any felony conviction by a person 18 years of age or older with a special finding of involving a juvenile in a felony offense under RCW 9.94A.833;
k. Residential burglary (RCW 9A.52.025);
l. Burglary 2 (RCW 9A.52.030);
m. Malicious mischief 1 (RCW 9A.48.070);
n. Malicious mischief 2 (RCW 9A.48.080);
o. Theft of a motor vehicle (RCW 9A.56.065);
p. Possession of a stolen motor vehicle (RCW 9A.56.068);
q. Taking a motor vehicle without permission 1 (RCW 9A.56.070);
r. Taking a motor vehicle without permission 2 (RCW 9A.56.075);
s. Extortion 1 (RCW 9A.56.120);
t. Extortion 2 (RCW 9A.56.130);
u. Intimidating a witness (RCW 9A.72.110);
v. Tampering with a witness (RCW 9A.72.120);
w. Reckless endangerment (RCW 9A.36.050);
x. Coercion (RCW 9A.36.070);
y. Harassment (RCW 9A.46.020); or
z. Malicious mischief 3 (RCW 9A.48.090);
2. That at least one of the offenses listed in subsection (L)(1) of this section shall have occurred after July 1, 2008;
3. That the most recent committed offense listed in subsection (L)(1) of this section occurred within three years of a prior offense listed in subsection (L)(1) of this section; and
4. Of the offenses that were committed in subsection (L)(1) of this section, the offenses occurred on separate occasions or were committed by two or more persons.
M. “Act” means doing or performing something.
N. “Emergency” means a situation which, in the opinion of the Director, requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.
O. “Project vehicles” means any vehicle that is in any stage of being restored, dismantled, assembled, or repaired. (Ord. C-715 § 4, 2010)
8.08.030 Nuisances designated.
The following specific acts, omissions, places and conditions and things including but not limited to these are declared to be nuisances:
A. The erecting, maintaining, using, placing, depositing, leaving or permitting to remain in or upon any private lot, building, structure or premises, or upon any street, avenue, alley, parkway, or other public or private place in the City, of any one or more of the following disordered or disturbing places, conditions or things, such as:
1. The whole or any part of any dead animal, fish, or fowl, butchers’ trimmings and offal, or any putrid, unsound or unwholesome bones, meat, hides, skins or any waste vegetable or animal matter in any quantity; or
2. Privies, vaults, cesspools, sumps, pits, or like places, human excrement or waste in any quantity, or any liquid household waste, which are foul or malodorous or which are not securely protected from flies, rats, etc.; or
3. Filthy, littered or trash-covered cellars, house yards, barnyards, stable yards, factory yards, vacant areas in the rear of stores, vacant lots, houses, buildings or premises; or
4. Animal manure in any quantity which is not securely protected from flies and the elements or which is kept or handled in violation of any ordinance of the City; or
5. Junk, trash, litter, garbage, rubbish, bottles, cans, paper, cardboard, tires, old wood, wire and metal articles, cloth material, carpet, boxes, crates, packing cases, packing material, empty barrels, mattresses or other bedding, appliances or furniture and parts thereof, building materials and similar articles, ashes, combustible or flammable waste, bric-a-brac, broken stone or crockery, glass, plaster, excelsior, growing or severed hay, grass, straw or weeds, and all such trash and abandoned materials, or anything whatsoever which may be a fire danger, or that which constitutes a hazardous attraction to children, or in which flies or rodents may breed or multiply, unless they are kept in receptacles as required by City ordinance. As used in this chapter, “junk” refers only to materials left outside of any building and does not apply to materials stored inside a lawfully constructed building so long as such building is wholly enclosed except for doors for ingress and egress and does not create a health hazard; or
6. Any unsightly building, billboard, or other structure, or any old, abandoned or partially destroyed building or structure, or any building or structure commenced and left unfinished; or
7. All places used or maintained as junkyards, or dumping grounds, or for the wrecking or dismantling of automobiles, trucks, tractors, or machinery of any kind, or for the storing or leaving of any worn out, wrecked or abandoned automobiles, trucks, tractors, or machinery of any kind, or of any of the parts or tires thereof, or for the leaving or storing of any machinery or equipment used by contractors or builders or by other persons; or
8. Any underground or abandoned pit, excavation well, or other uncovered hole into which a person could fall; or
9. Any noise caused by the operation of a machine between the hours of 9:00 p.m. and 7:00 a.m. which unreasonably causes annoyance or disturbs, or may annoy or disturb, other persons; or
10. Any sign, poster or other advertising matter of any nature placed upon any telegraph, telephone pole or other poles, trees, sidewalks, streets, signs, or other traffic control devices or other structures or places within the streets, alleys or other public places or rights-of-way; or
11. Any building, house, room or other structure or vehicle maintained or used for the purpose of lewdness, assignation, prostitution, as a place of resort where disorderly persons are allowed to congregate; or in which drunkenness is carried on or permitted; or structures damaged, dilapidated or deteriorated so as to become a harbor for vagrants, criminals or immoral persons, or so as to enable persons to resort thereto for the purpose of committing unlawful or immoral acts, or acts as an attractive nuisance to minors; or
12. Toxic, radioactive, caustic, flammable, explosive or other dangerous or hazardous substances, except as housed where applicable and stored in accordance with health, environmental, refuse and zoning laws; or
13. Throwing, emptying or depositing or allowing to be thrown, emptied, or deposited into any privately or publicly owned refuse can, dumpster, or other receptacle any substances except those designated with the owner’s written permission; or
14. Maintaining or allowing to grow trees, plants, shrubs, or vegetation, or parts thereof, which overhang any sidewalk or street or which are growing thereon in such a manner as to obstruct or impair the free and full use of the sidewalk or street by the public, or block or impair the reasonable public view of traffic, street, or informational signs; or
15. The growing, permitting, or allowing the growth of any grass, weeds, or uncultivated bushes and/or vines to exceed eight inches in height, or any rank vegetable growth which exudes unpleasant or noxious odors, poison oak, poison ivy, or the like (whether growing or otherwise). When total removal of growth from a piece of property is impractical due to size, or to environmental factors, approved fuel breaks may be established between the land and the endangered property. The width of the fuel break shall be determined by the height, type, and the amount of growth, wind conditions, geographical conditions, and type of exposures threatened; or
16. Any nuisance defined in this chapter which is or has the potential to be detrimental to minors, whether in or on a structure, on the premises of a structure, or upon an unoccupied lot, which is left in any place exposed or accessible to minors including, but not limited to, unused or abandoned refrigerators, freezers, or similar appliances or equipment or any parts thereof capable of maiming or entrapping minors, vehicles, any structurally unsound or unsafe fence or edifice, any unsecured or abandoned swimming pool, excavation, pit, well, cistern, open storage tank or shaft, or any lumber, trash, building materials, debris or vegetation which may prove a hazard or that which constitutes a hazardous attraction to minors. (Ord. C-715 § 5, 2010)
8.08.040 Unlawful to store junk and listed vehicles.
A. It is unlawful and a violation of this chapter for the owner, the owner’s agent, or any occupant of any premises in the City to store, keep or accumulate junk vehicles on such property, or allow anyone else to store, keep or accumulate junk vehicles on such property.
B. It is a public nuisance to store a junk vehicle or part thereof on private property unless:
1. Junk vehicles, or parts thereof, are completely enclosed within a building or behind a sight-obstructed fence where it is not visible from the street or other public or private property. Any vehicles or parts thereof not stored in an enclosed building must be stored in the side or rear yards behind a sight-obstructing fence.
2. Antique vehicles, race cars or street rods as defined in RCW 46.37.518 that are currently in the process of restoration or use. No more than two vehicles may be stored at any one time.
3. Junk vehicles or parts thereof are stored or parked in a lawful manner on private property in connection with the business of a licensed dismantler or licensed vehicle dealer which property is fenced according to the zoning matrix for that land use, as applicable, of the Airway Heights Municipal Code.
C. Upon determination that a vehicle is in violation of this chapter on private property, the Director shall issue an abatement order to the property owner and/or to the last registered and legal owner of the vehicle. Such abatement order shall, if possible, identify the property by street address and by legal description, and shall describe the vehicle or parts which violate this chapter. The abatement order shall be mailed by regular mail and certified mail with return receipt requested to the property owner shown by the records of the County Assessor and to the last registered owner of record of the vehicle, if determinable, or delivered in person.
D. Upon failure of the property owner or last registered owner of record to abate said violation within the timeframe prescribed by the Director or his/her representative, the Director shall dispose of the vehicle or parts, and notify the Department of Licensing that the vehicle has been wrecked. The vehicle shall only be disposed as scrap.
E. The City’s reasonable cost for the enforcement and the cost of disposal hereunder shall become a charge against the property owner and/or the last registered owner of record of the vehicle and shall be recovered by the City.
F. The property owner or registered owner of the vehicle shall be granted a hearing by the Hearing Examiner if so requested within 14 calendar days from the date of service of abatement order, filed with the Clerk-Treasurer on the question of abatement and removal of the vehicle or part thereof as a public nuisance. Upon receipt of written request for an appeal hearing, the Director shall notify the appellant, in writing, of the time, date and the place of the hearing. The notice shall be mailed by certified mail. The owner of the property on which the vehicle is located may appear in person at the hearing or present a written statement in time for consideration at the hearing and deny responsibility for the presence of the vehicle on the land with his/her reasons for denial. If it is determined that the vehicle was placed on the land without the consent of the land owner and that he/she has not subsequently acquiesced in its presence, then the cost of administration or removal of the vehicle shall not be assessed against or otherwise collected from the property owner. (Ord. C-715 § 6, 2010)
8.08.050 Closing unoccupied building required.
It is unlawful for any agent or owner or person in control of any unoccupied building in the City to fail to keep the unoccupied building securely closed at all times against persons who may enter. (Ord. C-715 § 7, 2010)
8.08.060 Illegal dumping.
It is unlawful and a violation of this chapter for any person, company or organization to dump any material within the City limits, except at licensed solid waste disposal facilities. The only exception is dirt or fill and then can only be dumped at a location specified on either a public works permit or written permission from the Director. (Ord. C-715 § 8, 2010)
8.08.070 Fire hazard removal.
Any person served with a notice to remove any fire hazard or hazards as provided in AHMC 2.12.040(A)(5) shall comply therewith and promptly notify the Fire Chief. (Ord. C-715 § 9, 2010)
8.08.080 Street gangs.
Criminal street gangs and any pattern of criminal street gang activity are each declared to be a public nuisance in violation of this chapter and other applicable code provisions, including but not limited to the Uniform Code for the Abatement of Dangerous Buildings and Uniform Housing Code, subject to abatement through all available means. In addition thereto and without limitation, any pattern of criminal street gang activity and presence upon, and use of, property by a criminal street gang, with the owner’s knowledge or consent, constitutes a public nuisance and grounds for revocation of any permit or license regulating or authorizing the use of such property. (Ord. C-715 § 10, 2010)
8.08.090 Inspections.
The City employees may make inspections from the public rights-of-way, public streets or alleys, or they may enter upon private property with the consent of the property owner or occupant therefor to make inspections and also to abate conditions as provided in AHMC 8.08.130 and/or 8.08.160. If entry to the property is refused and the same is necessary to be had, the City may use any lawful means necessary to obtain entry. (Ord. C-715 § 11, 2010)
8.08.100 Interference.
Any person who knowingly hinders, delays or obstructs any City employee or other persons acting on direction of the Director in the discharge of his or her official powers or duties in abating a nuisance under this chapter shall be guilty of a gross misdemeanor. (Ord. C-715 § 12, 2010)
8.08.110 Alternative or additional remedies.
Violations of this chapter are considered a public nuisance. The provisions of this chapter may be used as an addition to or alternative to criminal penalties. This chapter shall be the means of enforcing the prohibition on storage, keeping or accumulation of junk, junk vehicles or the maintaining of a nuisance; provided, that if the City Attorney finds that civil procedures would not be timely or effective, or in the case of a second or subsequent violation, the City Attorney may charge violation of this chapter as a misdemeanor per AHMC 1.16.010. (Ord. C-715 § 13, 2010)
8.08.120 Voluntary compliance agreements.
The Director and/or his/her authorized agents shall investigate and inspect for violations of this chapter, and when a violation is observed, he/she shall attempt to contact the owner of the property or the owner’s agent or resident of the property and make reasonable attempts to seek voluntary compliance with this chapter. (Ord. C-715 § 14, 2010)
8.08.130 Voluntary correction agreements.
A. The Director may enter into a voluntary correction agreement with a person responsible for correcting a violation, which may be the owner, agent or occupant.
B. Any such voluntary correction agreement shall be a contract between the City and the person responsible, and shall follow a form to be approved by the City Attorney. It shall be entirely voluntary and no one shall be required to enter into such agreement.
C. In such contract the person responsible shall:
1. Acknowledge that the violation(s) exist, as shall be briefly there described;
2. Acknowledge that it is his/her responsibility to abate the violation;
3. Agree to do so by a certain date or within a specified time;
4. Agree to do so according to any conditions agreed to;
5. The person responsible also shall agree that if he/she does not accomplish the terms of such agreement the City may proceed without further notice to enter the premises and abate the condition, and to recover expenses and monetary penalties as provided by AHMC 8.08.140 but shall provide that if the person does accomplish the terms of the agreement within the timeframe specified therein, the City shall so acknowledge and then shall take no further actions or attempt to recover public cost already incurred.
D. The Director may agree to extend the time limit for correction set forth in such agreement or may agree to modify the required corrective action. However, the Director shall not agree to extend or modify the agreement unless the person responsible has shown due diligence and/or substantial progress in correcting the violation but has shown unforeseen circumstances which require such extension or modification. (Ord. C-715 § 15, 2010)
8.08.140 Enforcement.
A. Severity. The severity of enforcement of this chapter shall generally correspond to the degree of risk of harm to the public health, safety and welfare. In the absence of an immediate hazard that is threatening to health or public safety, the City shall for first offenses follow the civil penalty procedure.
B. Enforcement Options. When a violation of this chapter occurs, the Director may utilize one or a combination of the following enforcement mechanisms:
1. Civil Penalties. The City Council intends that the civil penalties provided in this chapter shall generally be applied to first violations or other violations when deemed effective. At the time a violation of this chapter has been determined, civil enforcement action may be commenced in accordance with the provisions of this section, and may include one or more of the following:
a. The Director or a member of the Police Department may issue a citation imposing a penalty upon any person who violates this chapter.
b. The Director may, subject to the appeal procedures of this section, suspend or revoke a license, as appropriate, if she/he finds that:
i. The activity is not authorized by a license; or
ii. The licensee is not complying with the terms of the license; and/or
iii. The activity is, in the judgment of the Director or his or her designate, adversely affecting or is a hazard to the public health, safety or welfare.
c. Any person who violates any provision of this chapter or fails to comply with an order to comply issued under this chapter shall be subject to a civil penalty. Each day the violation exists shall constitute a new violation. For each violation, the penalty shall be $250.00. The penalty shall be $500.00 for the second separate violation and $1,000 for the third and subsequent separate violations of the same chapter provision or regulation within any five-year period. Total civil penalty shall not exceed $5,000.
d. The civil citation shall contain the following information:
i. File number;
ii. Name of the person cited;
iii. Name of the property owner;
iv. Section of the ordinance or regulation violated;
v. A brief description of the violation of which the person is charged in such a manner as can be readily understood by a person making a reasonable effort to do so;
vi. The date and place at which the violation occurred and the date on which the citation was issued;
vii. A statement of the action, if any, required to be taken to correct the violation as determined by the Director and the timeframe in which to do so;
viii. A statement that a minimum cumulative civil penalty in the amount of $250.00 per day for each violation shall be assessed against the person to whom the notice is directed;
ix. A statement that the determination of violation may be appealed as prescribed by AHMC 8.08.150 and that the per diem civil penalty shall not accrue when the administrative appeal is pending;
x. A certification, made by a duly authorized enforcement official, to the effect that he/she certifies that he/she has reasonable grounds to believe, and does believe, that the person cited committed the violation.
2. Collection of Civil Penalties.
a. Civil penalties assessed may be enforced and collected in accordance with lien, personal obligation, and other procedures authorized by law.
b. The civil penalty imposed pursuant to this chapter constitutes a personal obligation of the person or persons to whom the citation is directed. The City Attorney on behalf of the City is authorized to collect the civil penalty by use of appropriate legal remedies, the seeking or granting of which shall neither stay nor terminate the accrual of additional per diem penalties so long as the violation continues.
c. Settlement of Suits for Collection of Civil Penalties. The Director and the City Attorney are authorized to enter into negotiations with the parties or their legal representatives named in a lawsuit for the collection of civil penalties to negotiate a settlement, assign claims to collection agencies, and compromise or otherwise dispose of a lawsuit when to do so would be in the best interest of the City.
d. Liability. Nothing in this chapter shall be deemed to impose any liability upon the City or upon any of its officers or employees, or to relieve the owner or occupant of any private property from the duty to keep their property in a safe and healthy condition.
3. Criminal Penalties. A violation of any of the provisions of this chapter shall constitute a gross misdemeanor. It shall be a separate offense for each and every day or portion thereof during which any violation of any provision of this chapter is committed. Any person who violates any provision of this chapter shall be subject, upon conviction in court, to a fine not to exceed $5,000 and/or imprisonment in jail for not to exceed 30 days. The criminal penalty shall be used when, in the opinion of the Director or the City Attorney, the civil penalty will not be effective or timely or when the violation is a second or subsequent violation.
4. Service of Citation. The citation shall be served upon the person or persons to whom it is directed, either personally, or in a manner provided for personal service of notices of complaint in District Court, or by mailing a copy of the citation by certified mail, postage prepaid, return receipt requested, to such person at their last known address. Proof of personal service shall be made at the time of service by written declaration by the person effecting service, declaring time, date and manner by which service was made. Service by mail shall be deemed complete three days after mailing of the citation.
5. Continuing Duty to Correct. Payment of a monetary penalty or criminal penalty pursuant to this chapter does not relieve the property owner of record of the duty to correct the alleged violation or prohibit the City from proceeding with the abatement process described in this chapter.
6. The provisions of this chapter are not exclusive, and may be used in addition to the other enforcement provisions authorized by this chapter, or other City ordinance or applicable regulations. The Director may consider use of enforcement mechanisms included in other chapters of this code in a first attempt to achieve compliance, however is not precluded from initiating the abatement process described in this chapter at any time. (Ord. C-715 § 16, 2010)
8.08.150 Appeal.
A. Appeal Procedure.
1. All appeals shall be filed in writing with the Director or other such agency as the City may designate. All appeals must be filed within 14 calendar days of the date of the issuance of the citation, decision or interpretation.
2. All appeals to the Hearing Examiner shall contain the following:
a. The names of appellants participating in the appeal;
b. A brief statement setting forth the action appealed and a separate and concise statement of the error alleged to have been committed by the Director, and a concise statement of facts upon which the appellant relies to sustain the statement of error;
c. The signature of the appellant(s), telephone numbers and mailing addresses;
d. Verification, by declaration under penalty of perjury, of at least one appellant of the truth of the matter stated in the appeal. Upon receiving the appeal, the Clerk-Treasurer or their designee shall transmit the same to the designated Hearing Examiner as provided herein.
3. Failure of any person to file a timely appeal or failure of any person who has filed an appeal to attend the scheduled hearing shall constitute a waiver of his or her right to an appeal hearing.
4. Costs of Appeal. In cases where the City’s decision is upheld by the Hearing Examiner, said Hearing Examiner shall award the City its reasonable costs of enforcement including those associated with the appeal.
B. Hearing Examiner – Appointment. The City Manager shall appoint one or more Hearing Examiners to hear appeals relating to the interpretation and/or enforcement of this chapter. The Hearing Examiner may not be a City employee and shall not be an employee of the City Attorney’s office. Contracts may be entered into by the person to act as Hearing Examiner, to be compensated as shall be provided therein and paid out of money made available and budgeted therefor.
1. Hearing Examiner – Powers and Duties. A Hearing Examiner shall hear all appeals taken from the administration of this chapter. The Hearing Examiner shall hear evidence presented by the City Attorney and/or the Director. The Hearing Examiner shall likewise hear evidence presented by the person appealing the decision or interpretation. The Hearing Examiner shall give substantial weight to the Director’s decision/interpretation and shall substitute his/her judgment only upon a showing by the appellant that the Director’s decision/interpretation is arbitrary and capricious or clearly erroneous. Formal rules of evidence need not be followed but witnesses shall be sworn by the Hearing Examiner and a written order issued.
2. Hearing Decision. At the conclusion of the hearing on the violation, the Hearing Examiner shall either: (a) affirm the issuance of the notice of abatement if he or she determines by a preponderance of the evidence that the violation exists substantially as stated in the notice of abatement; (b) dismiss the notice of abatement and grant the appeal if he or she determines that the violation does not exist substantially as stated in the notice of abatement; or (c) modify the notice of abatement depending on the specifics of the violation. The hearing examiner’s decision shall be supported by findings of fact and conclusion of law based on the record. The Hearing Examiner’s decision should be entered within 10 working days of the conclusion of the hearing, but the failure to render a decision within such timeframe does not affect the validity of the decision. A copy of the Hearing Examiner’s decision shall be mailed to the property owner of record, the Director, and to any known tenant or occupant of the property where the violation is occurring or alternately personally delivered or posted on the property. A copy of the final order of the Hearing Examiner shall be mailed to the appellant(s) within three working days following the entry of a written order under this section. Unless otherwise stated in the order, such order shall be final and conclusive 14 calendar days from the date of mailing thereof unless any party of record makes application to the Spokane County Superior Court for judicial review and stay of enforcement.
C. Representation by Attorney. A person subject to proceedings under this chapter may appear on his or her own behalf or be represented by counsel. The prosecuting attorney representing the City may, but need not, appear in any proceedings under this chapter. (Ord. C-715 § 17, 2010)
8.08.160 Abatement by the City.
A. The City may abate a condition which constitutes a nuisance under this chapter when:
1. The terms of a voluntary compliance agreement pursuant to AHMC 8.08.120 have not been met;
2. A notice of abatement has been issued and the required compliance has not been completed by the date specified;
3. An appeal has been upheld and complete abatement action has not been completed by the date specified;
4. The condition is subject to summary abatement as provided for in this chapter.
B. Summary Abatement. Whenever any nuisance causes a condition, the continued existence of which constitutes an immediate threat to the public health, safety or welfare or to the environment, the City may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the property owner of record as soon as reasonably possible, and may be given either before or after the abatement. No right of action shall lie against the City or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats, but neither shall the City be entitled to recover any costs incurred for summary abatement, prior to the time that actual notice of same is mailed, to the property owner of record, or personally delivered or posted on the property in accordance with the provisions of this chapter.
C. Authorized Action by the City. Using any lawful means, the City or its authorized agents may enter upon the subject property and may take preventative measures, remove or correct the condition that is subject to abatement. The City may seek such judicial process as it deems necessary to effect taking preventative measures, or cause the removal or correction of such condition. The City may use its own resources to abate a violation.
D. Removal of Junk Motor Vehicle(s) or Parts Thereof. If the property owner of record for a nuisance involving a junk motor vehicle(s), or any parts thereof, fails to correct his/her nuisance within the date specified in the order or notice of summary abatement, the City, upon notification from the Director, may enter the subject property to inspect and certify that a vehicle meets the criteria of a junk motor vehicle as defined in this chapter. The law enforcement officer or City agent making the certification shall record the make and vehicle identification number or license number of the vehicle if available and/or legible, and shall also document in detail the damage or missing equipment to verify whether the approximate value of the vehicle is equivalent only to the approximate value of the scrap in it if that is one of the definitional criteria that was alleged in the notice of abatement issued by the City. The vehicle shall only be disposed of as scrap. The City shall maintain a photographic record of all abated junk motor vehicles for a period of two years following abatement.
E. Recovery of Costs and Expenses. The costs of abating a condition that constitutes a nuisance under this chapter, including all incidental expenses, shall be billed by certified or registered mail, with a five-day return receipt requested, to the property owner of record at their last known address and shall become due and payable to the City within 15 calendar days of the date of mailing the billing for abatement. The term “incidental expenses” includes, but is not limited to, personnel costs, both direct and indirect and including attorney’s fees; costs incurred in documenting the violation, towing/hauling, storage and removal/disposal expenses, and actual expenses and costs of the City in preparing notices, specifications and contracts associated with the abatement, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing. All such costs and expenses shall constitute a lien against the affected property. The City may, in its sole discretion, contract with third parties for the collection of costs and expenses. (Ord. C-715 § 18, 2010)
8.08.170 Lien – Authorized.
The City shall have a lien for the cost of any abatement proceedings under this chapter or for any of the abatement work that was performed as provided for in accordance with any lien provisions authorized by applicable state law. The lien shall run with the land and shall be of equal rank with state, county and municipal taxes.
A. The Director shall cause a claim for lien to be filed for record no sooner than 15 calendar days of the date of mailing the billing for abatement.
B. The claim of lien shall contain sufficient information regarding the notice of abatement, as determined by the Director, a description of the property to be charged with the lien and the owner of record, and the total amount of the lien.
C. Any such claim of lien shall be verified by the Director, and may be amended to reflect changed conditions. (Ord. C-715 § 19, 2010)
8.08.180 Liability for abatement.
Every successive owner of property who neglects to abate a continuing nuisance upon or in the use of such property caused by a former owner is liable therefor in the same manner as the owner who created it. (Ord. C-715 § 20, 2010)
8.08.190 No duty created.
No particular duty, relationship, liability or obligation of the City or any official to any particular individual, group or entity shall be deemed created because of this chapter or because of any action or inaction pursuant to its provisions or authority. (Ord. C-715 § 21, 2010)
8.08.200 Conflicts.
In the event of a conflict between this chapter and any other provision of this code, or other City ordinance providing for a civil penalty, this chapter shall control. (Ord. C-715 § 22, 2010)