Chapter 8.24
ABATEMENT OF PUBLIC NUISANCES*
Sections:
8.24.010 Scope.
8.24.020 Purpose.
8.24.030 Definitions.
8.24.040 Nuisances generally defined.
8.24.050 Types of enumerated nuisances.
8.24.060 Unlawful acts designated.
8.24.065 Transfer of ownership.
8.24.070 Enforcement.
8.24.080 Administrative enforcement—Notice and order.
8.24.090 Service of notice and order.
8.24.100 Method of service.
8.24.110 Proof of service.
8.24.120 Standards for the abatement of nuisances.
8.24.130 Notice to vacate.
8.24.140 Appeal.
8.24.150 Processing of appeal.
8.24.160 Scheduling the appeal hearing.
8.24.170 Failure to appeal.
8.24.180 Scope of hearing on appeal.
8.24.190 Stay of orders pending appeal.
8.24.200 Procedures for conduct of hearing appeals.
8.24.210 Form of notice of hearing.
8.24.220 Subpoenas.
8.24.230 Conduct of hearing.
8.24.240 Official notice.
8.24.250 Method and form of decision.
8.24.260 Enforcement of the order of the building official or the board of appeals.
8.24.270 Extension of time to perform work.
8.24.280 Interference with repair or demolition work prohibited.
8.24.290 Performance of work or repair or demolition.
8.24.300 Repair and demolition fund.
8.24.310 Recovery of cost of repair or demolition—Account of expense, filing of report.
8.24.320 Notice of hearing.
8.24.330 Protests and objections.
8.24.340 Hearing of protests.
8.24.350 Personal obligation or special assessment.
8.24.360 Time period for contesting assessment.
8.24.370 Lien of assessment.
8.24.380 Report to assessor and tax collector—Addition of assessment to tax bill.
8.24.390 Filing copy of report with county auditor.
8.24.400 Collection of assessment—Penalties for foreclosure.
8.24.410 Repayment of repair and demolition fund.
8.24.430 Additional criminal penalty.
8.24.440 Collection of judgments.
8.24.450 Additional relief.
8.24.455 Application with other codes.
8.24.460 Severability.
*Prior legislation: Ordinances 3106 and 3039.
8.24.010 Scope.
The nuisance code is supplemental to all other laws that have been adopted by the city, and shall be used to help enforce elements within other laws; provided, if specific terms of enforcement and penalties are set forth in the other laws, such provisions shall take precedence over the provisions in the nuisance code. The nuisance code also applies to situations and conditions which are not addressed by other laws of the city. (Ord. 3526 § 2, 2003)
8.24.020 Purpose.
The purpose of this chapter is to provide for the protection of the health, safety, and welfare of the citizens of the city by protecting the quality of life of neighborhoods within the city from urban blight and by providing standards for the appearance and condition of properties; to protect the expectations of the citizens of the city to enjoy their dwellings and property without being subjected to unpleasant conditions; and to protect property values and the livability of neighborhoods by providing an abatement process for nuisances as defined within this chapter; and to hold those persons who have, at any time, control over a nuisance, responsible for the abatement thereof. (Ord. 3526 § 2, 2003)
8.24.030 Definitions.
The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:
A. “Abate” means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such a manner and to such an extent as the enforcement officer, in his judgment, determines it necessary in the interest of the general health, safety and welfare of the community. It shall include to stop, discontinue, or do away with a condition on any premises which is in violation of this chapter or any part of the Kelso Municipal Code, which defines a public nuisance.
B. “Building materials” means and includes lumber, plumbing materials, wallboard, sheet metal, plaster, brick, cement, asphalt, concrete block, roofing materials, cans of paint and similar materials.
C. “Enforcement officer” means the nuisance abatement officer under the supervision of the director of community development.
D. “Junk” means and includes all old appliances or furniture or parts thereof, all old iron, or other metal, or machinery of any kind or of any major parts thereof, glass, grass, cardboard, old lumber, old wood, or tires.
E. “Premises” means any building, lot, parcel, real estate or land or portion of land whether improved or unimproved, including adjacent sidewalks, parking strips and street.
F. “Responsible person” means the current owner of the premises constituting a nuisance, one having control over the nuisance at any time, or any person having owned, leased, or controlled the premises constituting a nuisance, or having been an agent for, or a tenant of the premises constituting a nuisance.
G. “Refuse” means and includes all trash, dirt, garbage, discarded food, animal and vegetable matter, cans, bottles, and ashes.
H. “Abandoned structure” means any property, real or personal, which is unattended and either open or unsecured so that admittance may be gained without damaging any portion of the property, or which evidence indicates that no person is presently in possession. Evidence of abandonment may include, but is not limited to, disconnected utilities, accumulated debris, uncleanness, and disrepair. In the case of chattels, location, length of time or any particular state of mind of the owner or person entitled to possession are not conclusive in determining whether the property is abandoned.
I. “Attractive nuisance” means any property, real or personal, constituting or containing a dangerous condition which might reasonably be expected to attract children of tender years, including, but not limited to, abandoned or unoccupied dwellings or structures, abandoned wells, ice boxes or refrigerators with doors and latches, shafts, basements or other excavations, abandoned or inoperative vehicles or other equipment, structurally unsound fences or other fixtures, lumber, fencing, vegetation or other debris, abandoned property either real or personal as interpreted in the definition of abandoned.
J. “Dangerous building” means any structure fitting the definition as contained in Chapter 3, Section 302 of the Uniform Code for the Abatement of Dangerous Buildings.
K. “Director” shall include, but not be limited to, the chiefs of the police department or fire department, or directors of the public works department, finance department, health department, or general services department charged with the enforcement of a particular portion of this chapter. The director of the department may designate an individual to act in his or her stead.
L. “Graffiti” means the writing, painting, or drawing of any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person unless that person has given permission to the perpetrator for such conduct.
M. “Storage area” means any open area of a parcel of land in a residential, commercial, and industrial use district.
N. “Grass” or “uncut grass” means any grass which is more than twelve inches tall.
O. “Illicit discharge” means any unpermitted or unlawful wastewater discharge leading to the city's stormwater drainage system. In addition to the discharge of pollutants, “illicit discharge” shall include, but not be limited to, the discharge resulting from commercial car washing, spray or pressure washing of property or equipment, and other industrial processing or cleaning.
P. “Inoperable vehicle” shall mean, for the purposes of this chapter, a vehicle which cannot be legally operated on roads, highways, rights-of-way, waterways, or public lands as appropriate for the particular vehicle. Inoperable vehicles shall include, but not be limited to, those which appear inoperable due to missing lights, windows, or other critical parts, equipment, or safety elements.
Q. “Person” shall mean an individual or his or her heirs, executors, administrators, or assigns; and also includes a firm, partnership, or corporation or its successors or assigns or the agent of any of the aforesaid.
R. “Plumbing code” shall mean the plumbing code as adopted and amended by the city in Chapter 15.03.
S. “Screening,” for the purposes of this chapter, shall include, but not be limited to, solid wood fencing, chain link fencing with slats, or solid landscaping capable of hiding parked vehicles or other storage from sight by standing individuals at or near the property lines; however, such screening need not exceed six feet in height.
T. “Stored vehicle” shall mean, for the purposes of this chapter, vehicles kept on a single-family residential lot for over six months without substantial movement of said vehicle.
U. “Vehicle,” for the purposes of this chapter, shall include, but not be limited to, automobiles, motorcycles, trucks under twelve thousand pounds gross vehicle weight, motorized recreational vehicles, campers, travel trailers, boats on or off trailers, utility trailers, or other vehicles. Campers, if removed from the pickup and stored separately, shall be counted as a separate vehicle. Any vehicle over twenty-five feet in length shall be considered two vehicles.
V. “Substandard building” means any structure fitting the definition provided in Chapter 10, Section 1001, of the Uniform Housing Code, or as may be modified. (Ord. 3526 § 2, 2003)
8.24.040 Nuisances generally defined.
A nuisance consists of doing an unlawful act, or omitting to perform a duty, or permitting an action or condition to occur or exist which intrudes on the ability of neighbors or citizens to use or enjoy their properties or public property adjacent to where the nuisance occurs. Such nuisances include, but are not limited to, the following:
A. Unsecured attractive nuisances;
B. Conditions or acts which annoy, injure, or endanger the comfort, repose, health, or safety of others;
C. Conditions or acts which are offensive to the senses;
D. Conditions or acts which interfere with, obstruct, or tend to obstruct or render dangerous for passage any stream, public park, parkway, square, sidewalk, street, or highway and other rights-of-way in the city;
E. Illicit discharges into the municipal storm drainage system;
F. Unauthorized interference with, damage to, or polluting of designated habitat areas, publicly owned restoration sites, streams, creeks, lakes, wetlands, or tributaries and similar areas thereto;
G. Conditions or acts which obstruct the free use of property so as to essentially interfere with the comfortable enjoyment of life and property;
H. Conditions or acts which lead to blight and contribute to the deterioration of the neighborhood or adjoining property; and
I. The improper parking or storage of vehicles on any residential lots which impedes the use of yard areas for light, air circulation, recreation, and landscaping. (Ord. 3526 § 2, 2003)
8.24.050 Types of enumerated nuisances.
Each of the following specific acts, omissions, places, conditions, and things are hereby declared to be nuisances, and unless otherwise permitted by law, are declared to constitute a public nuisance, and whenever the enforcement officer determines that any of these conditions exist, the officer may require or provide for the abatement thereof pursuant to this chapter, or as otherwise authorized by law:
The erecting, maintaining, using, placing, depositing, causing, allowing, leaving, or permitting to be or remain in or upon any private lot, building, structure, or premises, or in or upon any street, avenue, alley, park, parkway, or other public or private place in the city, of any one or more of the following places, conditions, things, or acts to the prejudice, danger, or annoyance of others:
A. Excavations or naturally occurring holes, including, but not limited to, privies, vaults, cesspools, sumps, pits, wells, or any other similar conditions, which are not secure and which constitute a concealed danger or other attractive nuisances.
B. The discharge of sewage, human excrement, or other wastes in any location or manner, except through systems approved for the conveyance of such, to approved public or private disposal systems and which are constructed and maintained and authorized by the Kelso Municipal Code.
C. Filthy, littered, trash-covered, or overgrown premises abutting street and alley rights-of-way, to include, but not be limited to:
1. Accumulation, handling, or removal of human or animal waste including bones, meats, hides, skins, or any part of the animal, fish, or fowl, from the premises.
2. Overgrown, uncultivated, or unkempt vegetation of any type, including, but not limited to, shrubs, brush, trees, weeds, blackberries, and grasses over one foot in height. Where erosion control issues or indigenous species are present, an exception or modification may be made to these requirements.
3. Inappropriate disposal or accumulation of vegetation waste, including, but not limited to, grass clippings, cut brush, cut trees, and/or cut weeds.
4. An accumulation of garbage, litter, debris, rubble, hazardous waste, or blight, which includes, but is not limited to, improperly stored bottles, cans, paper, glass, plastic, cardboard, metal auto parts, tires, scrap wood, discarded or broken appliances, furniture, equipment, bicycles or parts thereof, barrels, boxes, crates, pallets, mattresses, clothing, household goods, construction materials, lumber, metal, improperly piled or stored firewood, or anything in which flies may breed or multiply, which provides harborage for rats or other vermin, or which may be a fire hazard.
5. All places used or maintained as dumps, junkyards, or automobiles or machinery disassembly yards or buildings, not licensed and/or located in an improper use zone, or which are operating outside of specific conditions set forth for the operation of such businesses.
6. Inoperable, abandoned, disassembled, or dilapidated appliances, machinery, or vehicles. These provisions shall not apply to lawfully operated storage facilities.
D. Loud, unnecessary or untimely noises, including but not limited to, making, causing or permitting noises to be made by whistles, rattles, bells, gongs, clappers, hammers, drums, sound trucks, loudspeakers or other sound-amplifying devices, radios, stereos, record players, televisions, video machines, horns or other mechanical devices, or by outcry, loud speaking, singing or by any other means of being discordant, and unnecessary noise of any kind.
E. The existence of any fences or other structures which are in a falling, decayed, dilapidated, or unsafe condition.
F. Any unsightly, abandoned, burned out, uninhabited, or deteriorated building or structure; or any building or structure constructed with inappropriate materials, or improperly fastened together or anchored against the forces of nature, or contrary to building standards and duly adopted building codes.
G. Any building or structure where construction was commenced and the building or structure was left unfinished.
H. Burning or disposal of refuse, sawdust, illicit discharge, or other material in such a manner as to cause or permit ashes, sawdust, soot, or cinders to be cast upon the streets or alleys of the city, or to cause or permit the smoke, ashes, soot, or cinders arising from such burning to be come annoying or to injure or endanger the health, comfort, or repose of a reasonable person within the city.
I. The erection or continuance of use or any building, room or other place in the city for exercise of any trade, employment, or manufacture which, by emitting noxious exhausts, particulate matter, offensive odors, or other related annoyances, is discomforting, offensive, or detrimental to the health of individuals or the public.
J. The conduct of a business which, by reason of the participation, encouragement, cooperation, or sufferance of the operator or his or her agent, becomes a place of, haven for, or is commonly the location of, breaches of the peace, lewd behavior, prostitution, or the illegal use or sale of drugs.
K. The existence of any junk as defined herein; provided, junk vehicles may be dealt with by other lawful means as authorized by this code if they qualify under the definitions in that chapter. In addition the retention, parking or storage of any unauthorized vehicle on the public rights-of-way of the city or on private property unless so retained, parked or stored as expressly permitted in Title 17 of this code, Zoning.
For the purposes of this section an “unauthorized vehicle” is as defined in Chapter 46.55 RCW and the procedure set forth therein may be followed without regard to the nuisance abatement procedure provided in this chapter.
L. The accumulation of materials or objects in a storage area when the same endangers property and/or safety or creates unsanitary conditions.
M. The retention of wastes that are not in a covered receptacle which include, but are not limited to, bones, meat, hides, skins, whole or parts of any dead animal, fish, fowl or reptile.
N. The existence of any places which are likely to attract flies, mosquitoes, and vermin, or which are foul or malodorous, including, but not limited to, privies, vaults, cesspools, sumps and pits.
O. The existence of any junk or refuse as defined herein on any premises as defined herein.
P. The existence of any noxious weeds, growing or otherwise, without the proper retention in a covered receptacle, including, but not limited to, poison oak, poison ivy, Russian thistle, or other such weeds.
Q. The growing of blackberry vines that create a visibility obstruction at intersections, alleys, and driveway entrances or that grow onto another person's property, as well as tall grass and/or weeds which become over one foot in height.
R. The existence of items that may become a fire hazard.
S. The storage or keeping on any premises for more than thirty days of any used or unused building materials as defined in this chapter, whose retail cost new would exceed one thousand dollars, without a special permit from the director; provided, the business is permitted under the zoning ordinance and other applicable ordinances of the city. Nothing in this section shall:
1. Prohibit such storage without a permit when done in conjunction with a construction project for which a building permit has been issued and which is being pursued diligently to completion.
2. Prohibit such storage without a permit upon the premises of a bona fide lumber yard, dealer in building materials or other commercial enterprise.
3. Make lawful any such storage or keeping when it is prohibited by other ordinances or laws.
T. The existence of any fence or other structure or thing on private property which is sagging, leaning, fallen, decayed, dilapidated, or in an unsafe condition.
U. Violation of the zoning ordinance (Title 17 of this code); health and safety regulations (Title 8 of this code); and building and construction codes (Title 15 of this code).
V. The existence on any premises, in a place accessible to children, of any attractive nuisance.
W. The existence of any drainage onto or over any sidewalk or public pedestrian way.
X. The existence of any bees, Africanized honey bees, yellow jackets, hornets, or wasps that harbor in colonies, hives, apiaries or nests which are not authorized by ordinance or statute and are not in full compliance with Chapter 15.60 RCW or Chapter 16-602 WAC.
Y. The existence of any graffiti as defined herein.
Z. The existence of any flood or display lighting unless used and constructed so as to not unduly illuminate the surrounding properties and not create a traffic hazard. Lighting maintained by the city on public rights-of-way and lighting of athletic fields are exempt from this provision. (Ord. 3575 § 1, 2005; Ord. 3526 § 2, 2003)
8.24.060 Unlawful acts designated.
A. It is unlawful for any responsible, owner, or tenant person to permit, maintain, suffer, carry on or allow upon any premises or in any lake, river, stream, drainage way or wetlands, any of the acts or things declared by this chapter or any other ordinance of the city to be a public nuisance.
B. Every responsible person, owner or tenant of such premises located in close proximity to an occupied dwelling unit shall keep such premises so as to prevent rodent, insect, or other pest infestation, and to prevent fire hazards. (Ord. 3526 § 2, 2003)
8.24.065 Transfer of ownership.
It shall be unlawful for the owner of any dwelling unit or structure who has received a notice and order or upon whom a notice of violation has been served to sell, transfer, mortgage, lease or otherwise dispose of such dwelling unit or structure to another until the provisions of the notice and order or notice of violation have been complied with, or until such owner shall first furnish the grantee, transferee, mortgagee or lessee a true copy of any notice and order or notice of violation issued by the community development director, his agent or abatement officer and shall furnish to the community development director, his agent or abatement officer a signed and notarized statement from the grantee, transferee, mortgagee or lessee, acknowledging the receipt of such notice and order or notice of violation and fully accepting the responsibility without condition for making the corrections or repairs required by such compliance order of notice of violation. (Ord. 3575 § 1, 2005)
8.24.070 Enforcement.
The director of community development shall be primarily responsible for enforcement of this chapter under the supervision of the city manager. There also shall be a nuisance abatement officer who will serve under the direction of said director. The director of community development or an abatement officer may either refer information to the city attorney concerning violations of this chapter for charging under Section 8.24.080 or 8.24.090, or if after an inspection and having knowledge of any nuisance as defined under this chapter, or any other code adopted by the city council, may commence proceedings as set forth herein, to cause the repair, vacation or demolition of the building or otherwise vacate the nuisance. (Ord. 3575 § 1, 2005; Ord. 3526 § 2, 2003)
8.24.080 Administrative enforcement—Notice and order.
In addition to that set forth herein, the community development director, his agent or the abatement officer may institute an administrative process to achieve a responsible person's abatement upon determination of a nuisance. The community development director, his agent or abatement officer may issue a notice and order directed to any responsible person, which shall contain:
A. The street address or legal description sufficient for identification of the premises upon which the nuisance is located.
B. A statement that the community development director, his agent or the abatement officer has found the site to be a nuisance; a brief and concise description or picture of the nuisance, together with a citation to the ordinance provision which the condition violates.
C. A demand that the nuisance be abated in accordance with the local, state, and federal laws.
D. Statements advising the party issued the citation that they may appeal the order to the board of appeals, if requested in writing within thirty days from the date of service; that such an appeal shall be served upon the department of community development. (Ord. 3575 § 1, 2005; Ord. 3526 § 2, 2003)
8.24.090 Service of notice and order.
The notice and order shall be served upon the last known address of the record owner of the property where the nuisance exists, or upon any responsible person at his or her last known address. (Ord. 3575 § 1, 2005; Ord. 3526 § 2, 2003)
8.24.100 Method of service.
Service of the notice and order shall be made upon all persons entitled thereto pursuant to Civil Court Rules and Chapter 4.28 RCW. Service by mail shall be deemed effective on the date of mailing. (Ord. 3526 § 2, 2003)
8.24.110 Proof of service.
Proof of service of the notice and order shall be certified to at the time of service by a written declaration under the penalty or perjury as authorized by the laws of the state of Washington, or by a showing of mailing via certified mail. (Ord. 3526 § 2, 2003)
8.24.120 Standards for the abatement of nuisances.
The following standards shall be followed by the community development director, his agent, or the abatement officer (and by the board of appeals or their designated hearings examiner if an appeal is taken) in ordering the abatement of nuisances.
A. Any building declared a nuisance under this code shall be made to comply with one of the following:
1. The building shall be repaired in accordance with the current building code or other current code applicable to the type of substandard conditions requiring repair; or
2. The building shall be demolished at the option of the building owner; or
3. If the building does not constitute an immediate danger to the life, limb, property or safety of the public, it may be vacated, secured and maintained against entry.
B. All nuisance abatement shall be conducted in accordance with local, state and federal laws and codes. (Ord. 3526 § 2, 2003)
8.24.130 Notice to vacate.
Every notice to vacate a building constituting a nuisance shall, in addition to being served as provided in this chapter, be posted at or upon each exit of the building, structure, or other nuisance and shall be in substantially the following form:
DO NOT ENTER
UNSAFE TO OCCUPY
It is a misdemeanor to occupy this building or to remove or deface this notice, pursuant to the Kelso Municipal Code Chapter 8.24.
(Ord. 3526 § 2, 2003)
8.24.140 Appeal.
Any person entitled to service under Section 8.24.090 may appeal from any notice and order or any action of the community development director, his agent, or the abatement officer under this code by filing at the office of the building official a written appeal containing:
A. The heading in the words of “Before the Board of Appeals of the City of Kelso.”
B. A caption reading “Appeal of the Nuisance at (address or legal description).”
C. A brief statement setting forth the legal interest of each of the appellants in the building or the land involved in the notice.
D. A brief statement in ordinary and concise language of the relief sought and the reasons why it is claimed the protested order or action should be reversed.
E. The signatures of all appellants named, together with their addresses and telephone numbers. Signatures affixed to this appeal document shall constitute a verification that the appeal is made in good faith and not merely an effort to delay, harass, or annoy in any way that is frivolous or without merit.
The appeal shall be filed within thirty days from the date of the service of the order or action of the community development director, his agent, or the abatement officer; provided, that if the building or structure is in such condition as to make it immediately dangerous to life, limb, property or safety of the public or adjacent property is ordered vacated and is posted in accordance with this chapter, such appeal shall be filed within ten days from the date of service of the notice and order of the building official. Appeals shall include all documents required by this chapter and a fee as established from time to time by resolution of the city council. Failure to do so shall result in a dismissal of the appeal. (Ord. 3588 § 1, 2006; Ord. 3526 § 2, 2003)
8.24.150 Processing of appeal.
Upon receipt of any appeal filed pursuant to this section the building official shall present it at the next regular or special meeting of the board of appeals. (Ord. 3526 § 2, 2003)
8.24.160 Scheduling the appeal hearing.
As soon as practicable after receiving the written appeal, the board of appeals shall fix a date, time and place for the hearing of the appeal by the board. Such date shall not be less than ten days nor more than sixty days from the date of the appeal filing with the community development director, his agent, or the abatement officer. Written notice of the time and place of the hearing shall be given at least ten days prior to the date of the hearing to each appellant by the secretary of the board either by causing a copy of the such notice to be delivered to the appellants personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address showing on the appeal. (Ord. 3526 § 2, 2003)
8.24.170 Failure to appeal.
Failure of any person to file an appeal in accordance with the provisions herein shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or any portion thereof; said failure shall not be deemed an exhaustion of administrative remedies. (Ord. 3526 § 2, 2003)
8.24.180 Scope of hearing on appeal.
Only those matters or issues specifically raised by the appellant shall be considered in the hearing on the appeal. (Ord. 3526 § 2, 2003)
8.24.190 Stay of orders pending appeal.
Except for vacation orders made pursuant to this chapter, enforcement of any notice and order of the building official issued under this code shall be stayed during the tendency of an appeal therefrom which is properly and timely filed. (Ord. 3526 § 2, 2003)
8.24.200 Procedures for conduct of hearing appeals.
A. Hearing Examiners. The board may appoint one or more hearing examiners or designate one or more of its members to serve as hearing examiners to conduct the hearings. The examiner hearing the case shall exercise all powers relating to the conduct of hearings until it is submitted to the board for decision.
B. Record. A record of the entire proceedings shall be made by tape recording or by any other means of permanent recording determined to be appropriate by the board.
C. Reporting. The proceedings at the hearing shall also be recorded by a court reporter if requested by any party thereto. A transcript of the proceedings shall be made available to all parties upon request and upon payment of the prescribed fee. The board may apportion, in equal amounts, the cost of transcription and reporting among the parties.
D. Continuances. The board may grant continuances for good cause shown; however, when a hearing examiner has been assigned to such hearing, no continuances may be granted except by the examiner for good cause shown so long as the matter remains before the examiner.
E. Oaths—Certification. In any proceedings under this chapter, the board, any board member, or the hearing examiner has the power to administer oaths and affirmations and to certify to officials acts.
F. Reasonable Dispatch. The board and its representatives shall proceed with reasonable dispatch to conclude any matter before it. Due regard shall be shown for the convenience and necessity of any parties or their representatives. (Ord. 3526 § 2, 2003)
8.24.210 Form of notice of hearing.
The notice to appellant shall be substantially in the following form, but may include other information:
You are hereby notified that a hearing will be held before (the board of appeals or name of hearing examiner) at _________ on the _________ day of _________, 2___, at the hour _________, upon the notice and order served upon you. You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things by filing an affidavit therefor with (board of appeals or name of hearing examiner).
(Ord. 3526 § 2, 2003)
8.24.220 Subpoenas.
A. Filing of Affidavit. The board or examiner may obtain the issuance and service of a subpoena for the attendance of witnesses or the production of other evidence at a hearing upon the request of a member of the board or upon the written demand of any party. The issuance and service of such subpoena shall be obtained upon the filing of an affidavit therefor which states the name and address of the proposed witness; specifies the exact things sought to be produced and the materiality thereof in detail to the issues involved; and states that the witness has the desired things in his/her possession or under his/her control. A subpoena need not be issued when the affidavit is defective in any particular.
B. Cases Referred to Examiner. In cases where a hearing is referred to an examiner, all subpoenas shall be obtained through the examiner.
C. Penalties. Any person who refuses without lawful excuse to attend any hearing or to produce material evidence which the person possesses or controls as required by any subpoena served upon such person as provided for herein shall be guilty of a misdemeanor. (Ord. 3526 § 2, 2003)
8.24.230 Conduct of hearing.
A. Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.
B. Oral Evidence. Oral evidence shall be taken only on oath or affirmation.
C. Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this state.
D. Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.
E. Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.
F. Rights of Parties. Each party shall have these rights, among others:
1. To call and examine witnesses on any matter relevant to the issues of the hearing;
2. To introduce documentary and physical evidence;
3. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
4. To impeach any witness regardless of which party first called the witness to testify;
5. To rebut the evidence; and
6. To be represented by anyone who is lawfully permitted to do so. (Ord. 3526 § 2, 2003)
8.24.240 Official notice.
A. What May Be Noticed. Official notice may be taken either before or after submission of the case for decision of any fact, which may be judicially noticed by the courts of this state, or of official records of the board or departments and ordinances of the city or rules and regulations of the board.
B. Parties to Be Notified. Parties present at the hearing shall be informed of the matters to be noticed, and these matters shall be noted in the record, referred to therein, or appended thereto.
C. Opportunity to Refute. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the board or hearing examiner.
D. Inspection of the Premises. The board of the hearing examiner may inspect any building or premises involved in the appeal during the course of the hearing; provided, that (1) notice of such inspection shall be given to the parties before the inspection is made, (2) the parties are given an opportunity to be present during the inspection, and (3) the board of the hearing examiner shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom. Each party then shall have a right to rebut or explain the matters so stated by the board or hearing examiner. (Ord. 3526 § 2, 2003)
8.24.250 Method and form of decision.
A. Hearing Before Board Itself. When a contested case is heard before the board itself, a member thereof who did not hear the evidence or has not read the entire record of the proceedings shall not vote on or take part in the decision.
B. Hearing Before Examiner. If a contested case is heard by a hearing examiner alone, the examiner shall within a reasonable time (not to exceed ninety days from the date the hearing is closed) submit a written report to the board. Such report shall contain a brief summary of the evidence considered and state the examiner's findings, conclusions and recommendations. The report also shall contain a proposed decision in such form that it may be adopted by the board as its decision in the case. All examiner's reports filed with the board shall be matters of public record. A copy of each such report and proposed decision shall be mailed to each party on the date they are filed with the board.
C. Consideration of Report by Board—Notice. The board shall fix the time, date and place to consider the examiner's report and proposed decision. Notice thereof shall be mailed to each interested party not less than five days prior to the date fixed, unless it is otherwise stipulated by all of the parties.
D. Exceptions to Report. Not later than two days before the date set to consider the report, any party may file written exceptions to any part or all of the examiner's report and may attach thereto a proposed decision together with written argument in support of such decision. By leave of the board, any party may present oral argument to the board.
E. Disposition by the Board. The board may adopt or reject the proposed decision in its entirety, or may modify the proposed decision.
F. Proposed Decision not Adopted. If the proposed decision is not adopted as provided in subsection E of this section, the board may decide the case upon the entire record before it, with or without taking additional evidence, or may refer the case to the same or another hearing examiner to take additional evidence. If the case is reassigned to a hearing examiner, the examiner shall prepare a report and proposed decision as provided in subsection B of this section hereof after any additional evidence is submitted. Consideration of such proposed decision by the board shall comply with the provisions of this section.
G. Form of Decision. The decision shall be in writing and shall contain findings of fact, a determination of the issues presented, and the requirements to for compliance therewith. A copy of the decision shall be delivered to the appellant personally or sent by certified mail, postage prepaid, return receipt requested.
H. Effective Date of Decision. The effective date of the decision shall be as stated therein. (Ord. 3526 § 2, 2003)
8.24.260 Enforcement of the order of the building official or the board of appeals.
A. General. After any order of the building official or the board of appeals made pursuant to this code shall have become final, no person to whom any such order is directed shall fail, neglect or refuse to obey any such order. Any such person who fails to comply with any such order is guilty of a misdemeanor.
B. Failure to Obey Order. If, after any order of the building official or board of appeals made pursuant to this code has become final, the person to whom such order is directed shall fail, neglect or refuse to obey such order, the building official may (1) cause such person to be prosecuted under subsection A of this section, or (2) institute any appropriate action to abate such building as a public nuisance.
C. Failure to Commence Work. Whenever the required repair or demolition is not commenced within thirty days after any final notice and order issued under this code becomes effective:
1. The building official shall cause the building described in such notice and order to be vacated by posting at each entrance thereto a notice reading:
DANGEROUS BUILDING
DO NOT OCCUPY
It is a misdemeanor to occupy this building, or to remove or deface this notice.
Building Official
__________ of __________
2. No person shall occupy any building which has been posted as specified in this section. No person shall remove or deface any such notice so posted until the repairs, demolition or removal ordered by the building official have been completed and a certificate of occupancy issued pursuant to the provisions of the building code.
3. The director of community development or his agent may, in addition to any other remedy herein provided, cause the building to be repaired to the extent necessary to correct the conditions which render the building dangerous as set forth in the notice and order; or, if the notice and order required demolition, to cause the building to be sold and demolished or demolished and the materials, rubble and debris therefrom removed and the lot cleaned. Any such repair or demolition work shall be accomplished and the cost thereof paid and recovered in the manner hereinafter provided in this code. Any surplus realized from the sale of any such building, or from the demolition thereof, over and above the cost of demolition and of cleaning the lot, shall be paid over to the person or persons lawfully entitled thereto. (Ord. 3526 § 2, 2003)
8.24.270 Extension of time to perform work.
Upon receipt of an application from the person required to conform to the order and by agreement of such person to comply with the order if allowed additional time, the building official may grant an extension of time, not to exceed an additional one hundred twenty days, within which to complete said repair, rehabilitation or demolition, if the building official determines that such an extension of time will not create or perpetuate a situation imminently dangerous to life or property. The building official's authority to extend time is limited to the physical repair, rehabilitation or demolition of the premises and will not in any way affect the time to appeal the notice and order. (Ord. 3526 § 2, 2003)
8.24.280 Interference with repair or demolition work prohibited.
No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of this jurisdiction or with any person who owns or holds any estate or interest in any building which has been ordered repaired, vacated or demolished under the provisions of this code; or with any person to whom such building has been lawfully sold pursuant to the provisions of this code, whenever such officer, employee, contractor or authorized representative of this jurisdiction, person having an interest or estate in such building or structure, or purchaser is engaged in the work of repairing, vacating and repairing, or demolishing any such building, pursuant to the provisions of this code, or in performing any necessary act preliminary to or incidental to such work or authorized or directed pursuant to this code. (Ord. 3526 § 2, 2003)
8.24.290 Performance of work or repair or demolition.
A. Procedure. When any work or repair or demolition is to be done pursuant to Section 8.24.080C of this code, the building official shall issue an order therefor to the director of public works and the work shall be accomplished by personnel of this jurisdiction or by private contract under the direction of said director. Plans and specifications therefor may be prepared by said director, or the director may employ such architectural and engineering assistance on a contract basis as deemed reasonably necessary. If any part of the work is to be accomplished by private contract, standard public works contractual procedures shall be followed.
B. Costs. The cost of such work shall be paid from the city's capital fund, and may be made a special assessment against the property involved, or may be made a personal obligation of the property owner, tenant, or interested party, whichever the legislative body of this jurisdiction shall deem is appropriate. (Ord. 3526 § 2, 2003)
8.24.300 Repair and demolition fund.
A. General. The legislative body of this jurisdiction shall establish a special revolving fund to be designated as the repair and demolition fund. Payments shall be made out of said fund upon the demand of the director of public works to defray the costs and expenses which may be incurred by this jurisdiction in doing or causing to be done the necessary work or repair or demolition of dangerous buildings.
B. Maintenance of Fund. The legislative body may at any time transfer to the repair and demolition fund, out of any money in the general fund of this jurisdiction, such sums as may deem necessary in order to expedite the performance of the work or repair or demolition, and any sum so transferred shall be deemed a loan to the repair and demolition fund and shall be repaid out of the proceeds of the collections hereinafter provided for. All funds collected under the proceedings hereinafter provided for shall be paid to the treasurer of this jurisdiction who shall credit the same to the repair and demolition fund. (Ord. 3526 § 2, 2003)
8.24.310 Recovery of cost of repair or demolition—Account of expense, filing of report.
The director of public works shall keep an itemized account of the expense incurred by this jurisdiction in the repair or demolition of any building done pursuant to the provisions of Section 8.24.080C of this code. Upon the completion of the work of repair or demolition, said director shall prepare and file with the clerk of this jurisdiction a report specifying the work done, the itemized and total cost of the work, a description of the real property upon which the building or structure is or was located, and the names and addresses of the persons entitled to notice pursuant to Section 8.24.240. (Ord. 3526 § 2, 2003)
8.24.320 Notice of hearing.
Upon receipt of said report, the clerk of this jurisdiction shall present it to the legislative body of this jurisdiction for consideration. The legislative body of this jurisdiction shall fix a time, date and place for hearing said report and any protests or objections thereto. The clerk of this jurisdiction shall cause notice of said hearing to be posted upon the property involved, published once in a newspaper of general circulation in this jurisdiction, and served by certified mail, postage prepaid, addressed to the owner of the property as the owner's name and address appears on the last equalized assessment roll of the county, if such so appears, or as known to the clerk. Such notice shall be given at least ten days prior to the date set for the hearing and shall specify the day, hour and place when the legislative body will hear and pass upon the director's report, together with any objections or protests which may be filed as hereinafter provided by any person interested in or affected by the proposed charge. (Ord. 3526 § 2, 2003)
8.24.330 Protests and objections.
Any person interested in or affected by the proposed charge may file written protests or objections with the clerk of this jurisdiction at any time prior to the time set for the hearing on the report of the director. Each such protest or objection must contain a description of the property in which the signer thereof is interested and the grounds of such protest or objection. The clerk of this jurisdiction shall endorse on every such protest or objection the date of receipt. The clerk shall present such protests or objections to the legislative body of this jurisdiction at the time set for the hearing, and no other protests or objections shall be considered. (Ord. 3526 § 2, 2003)
8.24.340 Hearing of protests.
Upon the day and hour fixed for the hearing, the legislative body of this jurisdiction shall hear and pass upon the report of the director together with any such objections or protests. The legislative body may make such revision, correction or modification in the report or the charge(s) as it may deem just; and when the legislative body is satisfied with the correctness of the charge, the report (as submitted or as revised, corrected or modified) together with the charge, shall be confirmed or rejected. The decision of the legislative body of this jurisdiction on the report and the charge, and on all protests or objections, shall be final and conclusive. (Ord. 3526 § 2, 2003)
8.24.350 Personal obligation or special assessment.
A. General. The legislative body of this jurisdiction may thereupon order that said charge shall be made a personal obligation of the owner, tenant, or responsible person, or assess said charge against the property involved.
B. Personal Obligation. If the legislative body of this jurisdiction orders that the charge shall be a personal obligation of the owner, tenant, or responsible person, it shall direct the attorney for this jurisdiction to collect the same on behalf of this jurisdiction by use of all appropriate legal remedies.
C. Special Assessment. If the legislative body of this jurisdiction orders that the charge shall be assessed against the property, it shall confirm the assessment, cause the same to be recorded on the assessment roll, and thereafter said assessment shall constitute a special assessment against and a lien upon the property. (Ord. 3526 § 2, 2003)
8.24.360 Time period for contesting assessment.
The validity of any assessment made under the provisions of this chapter shall not be contested in any action or proceeding unless the same is commenced within thirty days after the assessment is placed upon the assessment roll as provided herein. Any appeal from a final judgment in such action or proceeding must be perfected within thirty days after the entry of such judgment. (Ord. 3526 § 2, 2003)
8.24.370 Lien of assessment.
A. Priority. Immediately upon its being placed on the assessment roll, the assessment shall be deemed to be complete, the several amounts assessed shall be payable, and the assessments shall be liens against the lots or parcels of land assessed, respectively. The lien shall be subordinate to all existing special assessment liens previously imposed upon the same property and shall be paramount to all other liens except for state, county, and property taxes with which it shall be upon a parity. The lien shall continue until the assessment and all interest due and payable thereon are paid.
B. Interest. All such assessments remaining unpaid after thirty days from the date of recording on the assessment roll shall become delinquent and shall bear interest at the rate of seven percent per annum from and after said date. (Ord. 3526 § 2, 2003)
8.24.380 Report to assessor and tax collector—Addition of assessment to tax bill.
After confirmation of the report, certified copies of the assessment shall be given to the assessor and the tax collector for this jurisdiction, who shall add the amount of the assessment to the next regular tax bill levied against the parcel for municipal purposes. (Ord. 3526 § 2, 2003)
8.24.390 Filing copy of report with county auditor.
If the county assessor and the county tax collector assess property and collect taxes for this jurisdiction, a certified copy of the assessment shall be filed with the county auditor on or before August 10th. The descriptions of the parcels reported shall be those used for the same parcels on the county assessor's map books for the current year. (Ord. 3526 § 2, 2003)
8.24.400 Collection of assessment—Penalties for foreclosure.
The amount of the assessment shall be collected at the same time and in the same manner as ordinary property taxes are collected and shall be subject to the same penalties and procedure and sale in case of delinquency as provided for ordinary property taxes. All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to such assessment.
If the legislative body of this jurisdiction has determined that the assessment shall be paid in installments, each installment and any interest thereon shall be collected in the same manner as ordinary property taxes in successive years. If any installment is delinquent, the amount thereof is subject to the same penalties and procedure for sale as provided for ordinary property taxes. (Ord. 3526 § 2, 2003)
8.24.410 Repayment of repair and demolition fund.
All money recovered by payment of the charge or assessment or from the sale of the property at foreclosure sale shall be paid to the treasurer of this jurisdiction, who shall credit the same to the repair and demolition fund. (Ord. 3526 § 2, 2003)
8.24.430 Additional criminal penalty.
In addition to remedies afforded the city herein, and without regard to notice requirements otherwise stated in this chapter, violations of any of the provisions of this chapter or the maintenance or existence of a public or private nuisance shall constitute a gross misdemeanor which may be punishable by up to one year in jail and a five thousand dollar fine, or both, and shall be governed by the Criminal Rules for Courts of Limited Jurisdiction (CrRLJ). Each day such condition is in existence shall constitute a separate and distinct crime for the purposes of charging multiple offenses. This section shall apply to any nuisances declared elsewhere in the Kelso Municipal Code. (Ord. 3668 § 1, 2008: Ord. 3647 § 1, 2007; Ord. 3575 § 1, 2005; Ord. 3526 § 2, 2003)
8.24.440 Collection of judgments.
If the person cited fails to pay a penalty imposed pursuant to this chapter, the penalty or abatement costs may be referred to a collection agency. The cost to the city for the collection services will be assessed as costs, at the rate agreed to between the city and the collection agency, and added to the judgment. Alternatively, the city may pursue collection in any other manner allowed by law. (Ord. 3526 § 2, 2003)
8.24.450 Additional relief.
The director may seek any legal or equitable relief available at any time to mitigate any acts or practices that violate the provisions referenced in Sections 8.24.040 and 8.24.050 or abate any condition that constitutes a nuisance. (Ord. 3526 § 2, 2003)
8.24.455 Application with other codes.
To the extent other codes adopted by reference conflict with the provisions of this chapter, the latter shall control. (Ord. 3647 § 2, 2007)
8.24.460 Severability.
If any provision or section of this chapter shall be held to be void or unconstitutional, all other parts, provisions, and sections of this chapter not expressly so held to be void or unconstitutional shall continue in full force and effect. (Ord. 3526 § 2, 2003)