Chapter 19.16
ENFORCEMENT OF LAND USE CODES
Sections:
19.16.010 Purpose.
19.16.020 Applicability.
19.16.030 Violation review criteria.
19.16.040 Stop work order.
19.16.050 Voluntary compliance.
19.16.060 Investigation and notice of violation.
19.16.070 Civil penalty.
19.16.080 Notice of violation and civil penalty appeals.
19.16.085 Collection of civil penalty.
19.16.090 Abatement.
19.16.100 Criminal penalty.
19.16.110 Additional relief.
19.16.010 Purpose.
To ensure that the provisions of the Gig Harbor Municipal Code (“code”) related to all land use codes (GHMC Titles 16, 17 and 18), including but not limited to conditions imposed on land use permits granted by the city, are administered, enforced, and upheld to protect the health, safety and welfare of the general public. (Ord. 1226 § 1, 2011).
19.16.020 Applicability.
This chapter establishes a civil method, where permitted under the law, to enforce violations of the chapters and titles of the code referenced in GHMC 19.16.010, provided an alternate civil method, other than abatement, is not specifically set forth in the code. Where the alternate civil method is abatement, both methods may apply.
A. The city administrator and/or his/her authorized representative (the “administrator”) shall have the authority to enforce the land use codes of the city of Gig Harbor.
B. The code shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.
C. It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, lessee, occupier, or other person responsible for the condition of the land and buildings within the scope of this chapter.
D. No provision of or term used in this chapter is intended to impose upon the city, or any of its officers or employees, any duty that would subject them to damages in a civil action. (Ord. 1226 § 1, 2011).
19.16.030 Violation review criteria.
Each violation requires a review of all relevant facts in order to determine the appropriate enforcement sequence and response. When enforcing the provisions of this chapter, the administrator may, as practical and possible, seek to resolve violations without resorting to formal enforcement measures. When formal enforcement measures are necessary, the administrator may seek to resolve violations administratively prior to imposing civil penalties or seeking other remedies. The administrator may seek to gain compliance via civil penalties prior to pursuing abatement or criminal penalties. Nothing herein shall be interpreted to require the administrator to follow a specific sequence or order of enforcement in circumstances when swifter response by the city may be reasonable or necessary. In addition, the administrator may consider a variety of factors when determining the appropriate enforcement sequence and response, including but not limited to:
A. Severity, duration, and impact of the violation(s), including whether the violation has a probability of placing a person or persons in danger of death or bodily harm, causing significant environmental harm, or causing significant physical damage to the property of another;
B. Compliance history, including any identical or similar violations or notice of violation at the same site or on a different site but caused by the same party;
C. Economic benefit gained by the violation(s);
D. Intent or negligence demonstrated by the person(s) responsible for the violation(s);
E. Responsiveness in correcting the violation(s); and
F. Other circumstances, including any mitigating factors. (Ord. 1226 § 1, 2011).
19.16.040 Stop work order.
A. The administrator shall have the authority to issue a stop work order whenever any activity, work or development is being done in violation of any of the land use codes, or without a permit, review or authorization required by the land use codes, or contrary to any permit, required review, or authorization that may result in violation of the land use codes. The stop work order shall be posted on the site of the violation containing the following information:
1. The street address or a description of the building, structure, premises, or land where the violation has occurred, in terms reasonably sufficient to identify its location;
2. A description of the potential violation and a reference to the provisions of the code that may have been violated;
3. A description of the action required to remedy the potential violation, including but not limited to corrections, repairs, demolition, removal, restoration, time period to comply, after which a notice of violation may be issued, or any other appropriate action as determined by the administrator;
4. The appropriate department and/or division investigating the case and the contact person.
B. With the exception of emergency work determined by the administrator to be necessary to prevent immediate threats to the public health, safety and welfare or stabilize a site or prevent further property or environmental damage, it is unlawful for any work to be done after the posting or service of a stop work order until authorization to proceed is provided by the administrator.
C. Proof of posting shall be made by a written declaration under penalty of perjury executed by the person effecting the posting, declaring the time and date of posting, and the manner by which the posting was made. (Ord. 1226 § 1, 2011).
19.16.050 Voluntary compliance.
The administrator may pursue a reasonable attempt to secure voluntary compliance by contacting the owner or other person responsible for any violation of this code, explaining the violation and requesting compliance. This contact may be in person or in writing or both. (Ord. 1226 § 1, 2011).
19.16.060 Investigation and notice of violation.
A. If the administrator has a reasonable belief based on evidence that a violation of any of the land use codes exists, and the stop work order and/or voluntary compliance measures outlined in GHMC 19.16.040 and 19.16.050 either have already been sought and have been unsuccessful, or are determined not to be appropriate for the circumstances, the administrator may issue a notice of violation containing the following to the owner or, if different and readily identifiable, to the lessee, the person in control of the property where the violation has occurred, or the person committing the violation:
1. The street address or a description of the building, structure, premises, or land where the violation has occurred, in terms reasonably sufficient to identify its location;
2. A description of the violation and a reference to the provisions of the code that have been violated;
3. A description of the action required to remedy the violation, which may include corrections, repairs, demolition, removal, restoration, submittal of a work plan or any other appropriate action as determined by the administrator;
4. A statement that the required action must be taken or work plan submitted within the time period provided as set forth in the notice of violation, after which the city may impose monetary civil penalties and/or abate the violation in accordance with the applicable provisions of this code;
5. The appropriate department and/or division investigating the case and the contact person;
6. A statement that the person to whom a notice of violation is directed may appeal the notice of violation to the hearing examiner, or his or her designee, including the deadline for filing such an appeal. Request for appeal must comply with requirements set forth in GHMC 19.16.080 and must be received by the city clerk’s office no later than 10 days after the notice of violation has been served;
7. A statement that if the person to whom the notice of violation is issued fails to submit a written request for appeal within 10 working days of service or fails to abate the violation within the time period provided as set forth in the notice of violation, the city may assess civil penalty, as outlined in GHMC 19.16.070, against the owner or, if different and readily identifiable, against the lessee, the person in control of the property where the violation has occurred, or the person committing the violation.
B. Time to Comply. When calculating a reasonable time for compliance, the enforcement officer shall consider the following criteria:
1. The type and degree of violation cited in the notice;
2. The stated intent, if any, of a responsible party to take steps to comply;
3. The procedural requirements for obtaining a permit to carry out corrective action;
4. The complexity of the corrective action, including seasonal considerations; and
5. Any other circumstances beyond the control of the responsible party.
C. The notice of violation shall be served by any one or any combination of the following methods:
1. By first-class mail to the last known address of the owner or, if different and readily identifiable, the lessee, the person in control of the property where the violation has occurred, or the person committing the violation as applicable; or
2. By personal service upon the owner or, if different and readily identifiable, upon the lessee, the person in control of the property where the violation has occurred, or the person committing the violation as applicable;
3. The administrator may choose to post notice on the property. However, notice by first-class mail or personal service shall also be provided.
D. The administrator may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter any building or premises subject to the consent or warrant to perform the duties imposed by this chapter.
E. If the violation has been properly corrected by the deadline imposed by the administrator, the case will be closed. If it has not, then civil penalties, abatement, or criminal penalties may be imposed against the person(s) named in the notice of violation as the party(ies) in violation, at the reasonable discretion of the administrator, in accordance with the provisions of this chapter. (Ord. 1226 § 1, 2011).
19.16.070 Civil penalty.
A. Any person who fails to remedy a violation or take the corrective action described by the administrator in a notice of violation within the time period provided may be subject to monetary civil penalties. The civil penalty will be either:
1. Prepared and sent by first-class mail to the last known address(es) of the person(s) named in the notice of violation as the party(ies) in violation; or
2. Personally served upon the person(s) named in the notice of violation as the party(ies) in violation; or
3. The administrator may choose to post notice on the property. However, notice by first class mail or personal service shall also be provided.
B. The civil penalty shall contain the following:
1. A statement indicating that the party(ies) in violation is being issued civil penalties for failing to properly or timely implement the corrective actions outlined by the city in the notice of violation, and that additional civil penalties may be issued until corrective actions are properly and timely implemented and the violation abated;
2. The address of the site and specific details of the violation which is to be corrected;
3. The appropriate department and/or division investigating the case and the contact person;
4. The number of days in violation since service of the notice of violation (in case of first civil penalty) or the most recently issued civil penalty on the same violation (in case of second or subsequent civil penalty) and amount of monetary penalty being assessed as a result;
5. A statement that the person(s) to whom the civil penalty is issued may appeal it to the hearing examiner, or his or her designee, including the deadline for filing such an appeal. Request for appeal must comply with requirements set forth in GHMC 19.16.080 and must be received by the city clerk’s office no later than 10 working days after the civil penalty has been served;
6. A statement that if the person to whom the civil penalty is issued fails to submit a written request for appeal within 10 working days of service or fails to abate the violation, the city may continue to assess monetary penalties against the owner or, if different and readily identifiable, against the lessee, the person in control of the property where the violation has occurred, or the person committing the violation.
C. The monetary civil penalties for violations of this code shall be as follows, unless a different amount/penalty is specifically provided elsewhere in the code for the violation:
The amount of civil penalty per each violation for each day in violation shall be $100.00. At the time a civil penalty is issued, calculation of the amount assessed shall be based on no more than the number of past days during which the violation remained uncorrected since the service of the notice of violation (in case of first civil penalty) or the most recently issued civil penalty on the same violation (in case of second or subsequent civil penalty).
D. Daily penalties will continue to accumulate until the violation is corrected, but the accumulated amount, or part thereof, may only be assessed to party(ies) in violation by issuing and serving a civil penalty.
E. Any person to whom a civil penalty is issued and served may appeal it to the hearing examiner; provided, that any issue whatsoever, including but not limited to nature of violation, amount of penalty, corrective measures, abatement or payment made, that was previously appealed or could have been appealed earlier with the notice of violation or previously issued civil penalty on the same violation, but either was not properly/timely appealed or was sustained by the hearing examiner, shall not be subject to another appeal. (Ord. 1226 § 1, 2011).
19.16.080 Notice of violation and civil penalty appeals.
A. A person to whom a notice of violation or civil penalty is issued and served may appeal the notice of violation or civil penalty by filing a written request for appeal with the city clerk no later than 10 working days after said notice of violation or civil penalty is served. Each request for appeal shall contain the address and telephone number of the person making the request and the name and address of any person who may represent him or her. Each request for appeal shall set out the basis for the appeal. Failure to submit specific grounds for appeal in writing in the request may result in the dismissal of the appeal by the hearing examiner prior to any hearing.
B. If an appeal is submitted, the hearing examiner, or his or her designee, will conduct a hearing at the next available hearing date for the hearing examiner after the city issues a notice of hearing. For good cause, the hearing examiner may, at his or her discretion, change a previously set hearing date.
C. If an appeal is submitted, the city shall mail a hearing notice giving the time, location, and date of the hearing by first-class mail to person(s) to whom the notice of violation or civil penalty was directed and any other parties identified in the appeal request.
D. The hearing examiner, or his or her designee, shall conduct a hearing on the violation or penalty. The administrator, as well as the person(s) to whom the notice of violation or civil penalty was directed, may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to establish, by a preponderance of the evidence, that the violation has occurred and that the required corrective action is reasonable, or that the civil penalty was appropriately assessed for noncompliance with this code.
E. The hearing examiner shall determine whether the city has established, by a preponderance of the evidence, that the violation has occurred and that the required corrective action is reasonable, or that the civil penalty was appropriately assessed and reasonable, and based on that determination shall issue a final order that affirms, modifies, or vacates the notice of violation or civil penalty being appealed. The city’s hearing examiner rules shall apply. The hearing examiner’s final order shall contain the following information:
1. The decision regarding the alleged violation including findings of facts and conclusion of law based thereon;
2. If applicable, a statement that the required corrective actions imposed by the city are affirmed, modified, or waived;
3. If applicable, any additional conditions imposed by the hearing examiner regarding the violation and any corrective action, and the date and time by which the additional condition and/or correction must be met and/or completed; and
4. If applicable, a statement that any associated civil penalties are affirmed, modified, or waived.
F. If the appellant and/or any person(s) to whom the appealed notice of violation or civil penalty was directed fails to appear at the scheduled hearing, the hearing examiner shall proceed with the hearing and issue a final order based on the evidence submitted by the party(ies) in attendance.
G. The final order shall be served in person or by first-class mail on the appellant and any person(s) to whom the appealed notice of violation or civil penalty was directed.
H. A final order of the hearing examiner shall be considered the final administrative decision and may be appealed to a court of competent jurisdiction within 21 calendar days of its issuance or, if applicable, as provided in RCW 36.70C.040. (Ord. 1226 § 1, 2011).
19.16.085 Collection of civil penalty.
A. The civil penalty constitutes an obligation of the person, firm, or corporation to whom the civil penalty is directed. The civil penalty assessed must be paid to the city within 30 calendar days from the date of service of the civil penalty or, if an appeal is filed, the time required in the hearing examiner’s final order (30 days after issuance of order if no time requirement is specified). The civil penalty may also jointly and severally be assessed against the property where the violation occurred when permitted by law.
B. A civil penalty that is not paid within 30 days may be referred to a collection agency, officially approved by the city of Gig Harbor, for collection. (Ord. 1226 § 1, 2011).
19.16.090 Abatement.
A. In the event that compliance is not achieved through the measures outlined in GHMC 19.16.040 through 19.16.080, or that said measures are not, at the reasonable discretion of the administrator, appropriate to remedy the violation, the city may declare the violation a public nuisance, and remove or correct the same through any lawful means of abatement that is determined to be proper by the city attorney.
B. Using any lawful means, the city may enter unsecured property and may remove or correct a violation which is subject to abatement with the consent of the owner and person in control of the premises. If the owner and person in control of the premises do not consent to entry, the city may seek such judicial process in Pierce County superior court as it deems necessary to effect the removal or correction of such condition. (Ord. 1226 § 1, 2011).
19.16.100 Criminal penalty.
In certain instances, where the aforementioned enforcement and penalty provisions outlined in this chapter do not result in compliance or are not appropriate for achieving compliance, the administrator may refer the matter to the police department for criminal investigation and prosecution. Unless a different criminal penalty is provided specifically for the violation, violations of chapters and titles of the code referenced in GHMC 19.16.010 shall constitute a gross misdemeanor as set forth in GHMC 1.16.010. Upon conviction and pursuant to a prosecution motion, the court shall also order immediate action to correct the condition constituting the violation and to maintain the corrected condition in compliance with this code. (Ord. 1226 § 1, 2011).
19.16.110 Additional relief.
Nothing in this chapter shall preclude the city from seeking any other relief as authorized in other provisions of this code, or by state or federal law or regulation. Enforcement of this chapter is supplemental to all other laws adopted by the city. (Ord. 1226 § 1, 2011).