Chapter 10.28


10.28.010    Definitions.

10.28.020    Nuisances declared.

10.28.030    Enforcement – Notice to abate – Violations.

10.28.035    Civil abatement appeal.

10.28.040    Immediate dangers – Summary abatement authorized.

10.28.050    Violation – Penalty.

10.28.060    Nonexclusivity of chapter.

10.28.070    Voluntary compliance.

10.28.010 Definitions.

The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:

“Enforcement officer” means any police officer or the city code enforcement officer. It also means the fire chief, the directors of the departments of public works and planning and community development, and the director of the Bellingham and Whatcom County district department of health, or their respective delegated representatives.

“Nuisance” means any act, condition, omission, thing, or use of property which does the following:

A. Annoys, injures, or endangers the safety, health, comfort, or repose of the public;

B. Offends public decency;

C. Unlawfully interferes with, obstructs, or renders dangerous for passage a waterway, public park, street, sidewalk, alley, or highway; or

D. In any way renders the public insecure in life or in the use of property. [Ord. 2006-06-057; Ord. 9402 § 3, 1984; Ord. 8573 § 7(A), 1977].

10.28.020 Nuisances declared.

Each of the following, unless otherwise permitted by law, is declared to be a nuisance.

A. The existence of any dead, diseased, infested, or dying tree that may constitute a danger to street trees, streets, or portions thereof;

B. The existence of any natural or manmade obstruction, such as, by way of example and not limitation, signs, billboards, fencing, buildings, improvements, or landscaping, which includes trees, shrubs, hedges, or foliage, unless by written consent or permit of the city, which is apt to destroy, impair, interfere or otherwise restrict the following:

1. Streets, sidewalks, sewers, utilities, or other public improvements;

2. Free use of, or access to, streets, sidewalks, sewers, utilities, or other public improvements;

C. The existence of any vines or climbing plants growing into or over any street tree or any utility pole, or the existence of any shrub, vine, or plant growing on, around, or in front of any hydrant, standpipe, sprinkler system connection, or any other appliance or facility provided for fire protection purposes in such a way as to obscure the view thereof or impair the access thereto;

D. Exterior storage, or the permitting or allowing of such storage, of any partially dismantled, wrecked, junked, discharged, or otherwise nonoperating motor vehicle, unless the same is stored in a location so as not to be visible from any public place or readily visible from any surrounding private property, or incidental to a lawful business;

E. The existence of any fence or other structure or thing on private property abutting or fronting upon any public street, sidewalk, or place which is in a sagging, leaning, falling, decayed, or other dilapidated or unsafe condition;

F. All barbed-wire fences which are located within two feet of any highway, alley, or way regularly used by the public for pedestrian, bicycle, or vehicular travel; and all electrified fences;

G. All trees which are growing on property adjacent to public sidewalks whose limbs are less than eight feet above the surface of the sidewalk or public pedestrian way; or trees, regardless of their location, whose limbs are less than 15 feet above the surface of any street or alley;

H. All wires which are strung less than 15 feet above the surface of a street, roadway, or alley, or eight feet above a sidewalk; except electric power wires, which must be not less than 10 feet above any sidewalk;

I. The existence of any drainage onto or over any sidewalk, public pedestrian way, or street or other public property other than through an approved drainage channel or recognized natural watercourse;

J. All trees, hedges, billboards, or other natural or manmade obstructions, such as fences, buildings, improvements, and landscaping, which prevent or otherwise impair or interfere with persons having visibility of traffic approaching an intersection from cross streets in sufficient time to bring a motor vehicle driven at a reasonable speed to a full stop before the intersection is reached. “Visibility” means, for purposes of this subsection, a clear and unobstructed view of an intersection and traffic control device(s) plus a sufficient length along the intersecting streets for motor vehicle operators to anticipate and minimize potential conflicts. Intersections include all cases where two streets intersect. Clear and unobstructed vision on streets is measured pursuant to Figures 10.28.020(A) (Sight Clearance Distances – Arterial Streets), and 10.28.020(B) (Sight Clearance Distances – Residential Streets);

K. All vacant, unused, or unoccupied buildings and structures within the city, which are allowed to become or remain open to entrance by unauthorized persons or the general public, because of broken, missing, or open doors, windows, or other openings, so that the same may be used by vagrants or other persons in a manner detrimental to the health and welfare of the inhabitants of the city;

L. Graffito or graffiti visible from any public place;

M. The existence on any premises, in a place accessible to children, of any unattended and/or discarded icebox, freezer, refrigerator, or other large container which has an airtight door or lid, snap lock, or other automatic locking device which may not be released from the inside, without first removing said door or lid, snap lock, or other locking device;

N. The closing of any street or alley or the partial obstruction thereof;

O. The repairing of automobiles or vehicles of any kind upon the public streets or in the alleys of the city;

P. Leaving open any unguarded or abandoned excavation, pit, well, or hole which is dangerous to life and limb unless there are adequate barriers and devices to warn the public day or night;

Q. The existence of any obstruction to a street, alley, or sidewalk; and any excavation in or under any street, alley, crossing, or sidewalk which is prohibited by ordinance or which is made without lawful permission, or which, having been made by lawful permission, is kept and maintained after the purpose thereof has been accomplished, or for an unreasonable length of time, which time shall not in any event be longer than the period specified in any permit issued therefor;

R. The maintenance of property in such a manner that silt, earth, or waste materials are allowed to run off of said property in such volume as to cause drainage ditches or drainage systems in the proximity of said property to become wholly or partially obstructed;

S. The use of property abutting on a public street or sidewalk which causes large crowds of people to gather, obstructing traffic and the free use of the streets or sidewalks;

T. Riding or leading horses upon the sidewalks or parking strips anywhere in the city;

U. The release of offensive odors, noises, or substances, except those which are permitted by law, which unreasonably disturb, or which are detrimental to the health or safety of, the persons residing or working nearby, or the public;

V. The existence of any cellar, vault, sewer or septic tank which has become, from any cause, noxious, foul, offensive or injurious to public health.

Figure 10.28.020(A) – Site Clearance Distances – Arterial Streets

Figure 10.28.020(B) – Site Clearance Distances – Residential Streets

[Ord. 2006-06-057; Ord. 2001-04-024; Ord. 2001-04-023; Ord. 2001-04-022; Ord. 1998-06-035 § 1; Ord. 8573 § 7(B), 1977].

10.28.030 Enforcement – Notice to abate – Violations.

A. Before any person is charged with a violation of BMC 10.28.020(A) through (L), an attempt shall be made to give such person a written notice either by personal service or by certified mail, return receipt requested, stating the existence of a nuisance and that a criminal complaint is contemplated and that such person shall have seven days to remove or abate the nuisance from the date of notice or attempted notification. A true and correct copy of such notice, together with proof of service or attempted service thereof, shall be kept and filed in court with any complaint filed. If after the notice or attempted notice provided for in this subsection, the nuisance has not been abated or removed, the city may remove or abate the same at the person’s expense. Upon abatement or removal of the condition or any portion thereof by the city, all expenses thereof shall constitute a civil debt owing to the city jointly and severally by such of the persons who have been given notice or upon whom service of notice was attempted. The debt shall be collectible in the same manner as any other civil debt owing to the city.

B. Before a person is cited for a violation of BMC 10.28.020(M) through (V), the enforcement officer shall give such responsible person a notice to remove or abate such nuisance within 24 hours in substantially the same form as provided in subsection (A) of this section for other nuisances. If within 24 hours the nuisance is not removed or abated, such officer shall take such a course of action as will cause the person to be summoned into the municipal court of the city. The enforcement officer may also cause the nuisance to be abated or removed by the city as provided in subsection (A) of this section in the case of other nuisances. Any expense incurred shall be chargeable to the responsible person or persons and shall be collectible in the same manner as provided in subsection (A) of this section for other nuisances.

C. Nothing in this section shall relieve any responsible person of the obligation of obtaining any required permit to do any work incidental to the abatement or removal.

D. Any person committing or maintaining a public nuisance other than those declared subject to abatement shall be cited for a violation in the manner prescribed in the rules for justice court for misdemeanor offenses. In the sound discretion of the enforcement officer, said persons may be allowed a period not to exceed seven days in which to abate the same prior to the issuance of a complaint. Thereafter, the nuisance may be abated or removed by the city at the expense of the responsible person or persons in the same manner as provided in this section for the abatement of other nuisances. [Ord. 1998-06-035 § 2; Ord. 8573 § 7(C), 1977].

10.28.035 Civil abatement appeal.

Any person who has been notified by the city to remove or abate a nuisance under this chapter may, within the time period for abatement stated on the notice, appeal the abatement order to the hearing examiner by filing with the hearing examiner a written notice of appeal stating the grounds for the appeal and attaching thereto a copy of the abatement order. Civil abatement proceedings by the city shall be held in abeyance until the hearing examiner has heard and determined the appeal. The decision of the hearing examiner shall be final. If no timely appeal is filed, the decision of the administrative officer issuing the notice to abate shall be final. An appeal filed pursuant to this section shall not affect or delay any criminal proceedings.

An action seeking to modify, reverse, set aside or enjoin an action of the city under this chapter shall be filed in a court of competent jurisdiction within 14 days of the date of the final decision of the hearing examiner. [Ord. 2002-10-069 § 16; Ord. 1998-06-035 § 3].

10.28.040 Immediate dangers – Summary abatement authorized.

Whenever any condition on or use of property causes or constitutes or reasonably appears to cause or constitute an imminent or immediate danger to the health and safety of the public, the enforcement officer shall have the authority to summarily and without notice cause the same to be abated. The expenses incurred in any summary abatement shall become a civil debt against the responsible person or persons and shall be collected in the same manner as any other civil debt owing to the city. [Ord. 8573 § 7(D), 1977].

10.28.050 Violation – Penalty.

A. It is unlawful for any owner, occupant, or agent of the owner or occupant to permit, maintain, suffer, carry on, or allow upon any premises or waterway a public nuisance as declared by this chapter.

B. It is unlawful for any person to create, maintain, carry on, or do any of the acts or things declared by this chapter to be a public nuisance.

C. It is unlawful for any person to willfully omit or refuse to perform any legal duty relating to the removal of such nuisance as provided in this chapter.

D. Any person convicted of violating any provision of this chapter shall be guilty of a misdemeanor. Any person convicted of violating the provisions of this chapter may, in the sound discretion of the court in which he was convicted, be directed by the court to abate or remove any public nuisance prior to the date of the execution of the sentence or any part thereof.

E. The abatement of any nuisance by the city or by any person or persons shall not preclude the charging of a violation of any provision of this chapter on account of which such nuisance was abated. [Ord. 2001-11-079; Ord. 8573 § 7(E), 1977].

10.28.060 Nonexclusivity of chapter.

The acts declared to be a nuisance by this chapter shall not be construed as being exhaustive; and nothing in this chapter is intended to limit the city from pursuing actions of a civil or criminal nature involving a nuisance from time to time when otherwise permitted by law. [Ord. 8573 § 7(F), 1977].

10.28.070 Voluntary compliance.

A. General. Enforcement officers may negotiate with a property owner responsible for a nuisance or other code violation to secure the owner’s voluntary compliance with the Municipal Code in lieu of engaging in a contested enforcement action.

B. Limitation. Enforcement officers shall not attempt to secure voluntary compliance where the identified nuisance or code violation creates an imminent risk of harm to public health or safety, where the nuisance or code violation is a repeat violation, or where the property owner has previously violated the terms of a voluntary compliance agreement.

C. Use of Written Voluntary Correction Agreement.

1. The city may at its sole discretion enter into a voluntary compliance agreement with the property owner responsible for a nuisance or other code violation.

2. Contents of Voluntary Compliance Agreement. A voluntary compliance agreement is a written contract between the city and the property owner where a property owner agrees to remove or abate a nuisance or other code violation within a specified time. The voluntary compliance agreement shall include the following minimum terms and conditions:

a. The name and address of the property owner responsible for the nuisance or violation; and

b. The street address or legal description of the property upon which the nuisance or code violation has occurred or is occurring; and

c. A concise description of the nuisance or code violation including a reference to the section or sections of the Municipal Code that are being violated; and

d. An acknowledgement by the property owner that the nuisance or code violation described in the agreement exists; and

e. An express waiver of the property owner’s right to a hearing to contest the existence of the nuisance or code violation or to seek any action in any court to contest the existence of the nuisance or code violation; and

f. An express waiver of the property owner’s right to a hearing to mitigate the penalties for the nuisance or code violation; and

g. An agreement by the property owner to defend the city, hold it harmless, and indemnify it as to all claims, suits, costs, fees and liability arising from the nuisance or code violation; and

h. A description of the corrective action to be taken, the date or time by which the action must be completed, and an acknowledgement by the property owner that he or she will correct the code violation within the time specified in the voluntary correction agreement; and

i. Acknowledgement by the property owner that the city may enter the property and inspect the premises as may be necessary to determine compliance with the voluntary correction agreement; and

j. Acknowledgement by the property owner that if the nuisance or code violation is not corrected by the deadline in the agreement, then the city may enter the property to abate the nuisance or code violation, post a “Do Not Occupy” notice until the property owner corrects the violation, or take other necessary steps to ensure compliance; and

k. Acknowledgment by the property owner that any costs and expenses of abatement incurred by the city shall constitute a debt recoverable from the property owner; and

l. An acknowledgment by the property owner that the agreement constitutes a covenant running with the land, will be recorded with the Whatcom County auditor, and shall be enforceable against the property owner and any successors-in-interest; and

m. The signature or official mark of the property owner.

D. The voluntary correction agreement shall be approved as to form and legality by the city attorney, and executed in the name of the city by the mayor, and attested by the finance director, and when necessary, shall be acknowledged by such officers in accordance with the City Charter.

E. Extension of Voluntary Correction Period or Modification of Required Actions. A property owner may request an extension of the deadline for voluntary correction, or a modification of any required corrective action noted in the agreement. The enforcement officer shall evaluate the request to determine whether the property owner has shown due diligence or made substantial progress in correcting the violations but unforeseen circumstances render correction unattainable within the original deadline. The monetary cost of the corrective action shall not constitute an unforeseen change in circumstances justifying an extension or modification. If an extension is granted, then the parties shall execute a written modification to the original voluntary compliance agreement stating the date or time by which the corrective action must be completed.

F. Revocation of Deadline for Compliance. The contractual deadline for compliance, or any extension for compliance previously granted, shall not prevent the enforcement officer or other city employee from taking steps necessary to ensure immediate compliance where the circumstances create an imminent risk of injury to persons or property.

G. Failure to Comply with Voluntary Correction Agreement.

1. Abatement by the City. In addition to any other remedy provided for in this chapter, the city may abate the violation in accordance with the procedures identified in Chapter 10.28 BMC or other chapter as applicable if the property owner fails to satisfy the terms of the voluntary compliance agreement.

2. Penalties and Costs. The city may also assess a monetary penalty in accordance with the applicable provisions of the Municipal Code, plus all costs and expenses of abatement, or take other corrective action necessary to secure compliance with the Municipal Code if the property owner fails to satisfy the terms of a voluntary compliance agreement. [Ord. 2015-05-018 § 1].