Chapter 21.13
ENFORCEMENT AND PENALTIES1
Sections:
21.13.020 Compliance required.
21.13.040 Enforcing official liability.
21.13.060 Responsibilities defined.
21.13.070 Voluntary correction agreements.
21.13.080 Notice of violation and order.
21.13.090 Violation – Civil enforcement and penalties.
21.13.110 Joint and several responsibility and liability.
21.13.120 Interference with code enforcement unlawful– Misdemeanor.
21.13.130 Approval and permit revocation, suspension and modification.
21.13.140 Repeat violation or failure to abate – Misdemeanor.
21.13.010 Purpose.
The purpose of this chapter is to provide an alternative process that ensures compliance and abate noncompliance with provisions in LMC Titles 12, Streets, Sidewalks and Public Property; 14, Development Standards; 15, Buildings and Construction; 16, Environment; 17, Subdivisions; 18, Zoning; and this title, Development Code Administration. This chapter shall apply as an alternate enforcement process to all regulations as set out in LMC Titles 12, Streets, Sidewalks and Public Property; 14, Development Standards; 15, Buildings and Construction; 16, Environment; 17, Subdivisions; 18, Zoning; and this title, Development Code Administration. If a particular provision in any of said titles provides for a civil infraction or criminal penalties in addition to or as an alternative to enforcement under this chapter, then, at the discretion of the city, a civil infraction may be issued or prosecution as a criminal violation may be undertaken. This chapter shall not apply to enforcement by the city of Chapter 15.10 LMC, Abatement of Dangerous Buildings. This chapter shall apply to all other codes, regulations, programs, permits, approvals and plans referenced in the said chapters, or submitted under or approved under the authority of the said chapters.
The provisions contained in this chapter shall be applied and interpreted to accomplish these purposes. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.020 Compliance required.
A. No person, corporation, partnership, association or other legal entity shall fail or refuse to comply with, interfere with or resist the enforcement of the provisions of this code, LMC Titles 12, 14, 15, 16, 17 and 18 and this title, other laws, ordinances, regulations, plans, permits and approvals as outlined in LMC 21.13.010, and/or any condition of approval imposed by the Leavenworth city council, planning commission, hearing examiner or enforcing official, or a land use order, directive or decision of any other city official. Any such act or failure to act shall constitute a violation under this chapter.
B. Actions under this chapter or other chapters may be taken in any order deemed necessary or desirable by the city to achieve the purpose of this chapter and the applicable development standards.
C. Proof of a violation of a development permit or approval shall constitute prima facie evidence that the violation is that of the applicant and/or owner of the property upon which the violation exists. An enforcement action under this chapter shall not relieve or prevent enforcement against any other responsible person. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.030 Enforcing official.
The city’s code enforcement officers/officials; building officials; building inspectors; construction inspectors; the fire marshal, or his or her designee; fire inspectors; the Chelan County sheriff, or his or her designee; the community development director, or his or her designee; the director of the public works department, or his or her designee; or any other person or persons assigned or directed by the city administrator or his or her designee, to enforce the regulations subject to the enforcement provisions of this chapter shall be responsible for enforcing LMC Titles 12, 14, 15, 16, 17 and 18 and this title, and other pertinent laws, ordinances, and regulations as outlined in LMC 21.13.010, and may adopt administrative rules to meet that responsibility. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.040 Enforcing official liability.
The enforcing official charged with the enforcement of this chapter, acting in good faith and without malice in the discharge of the duties required by this title or other applicable laws, shall not thereby be rendered personally liable for damages that may accrue to persons or property as a result of an act or by reason of an act or omission in the discharge of such duties. A suit brought against the enforcing official or designee because of such act or omission performed by the enforcing official or designee in the enforcement of any provision of such codes or other pertinent laws or regulations implemented through the enforcement of this chapter shall be defended by the city until final termination of such proceedings. Any judgment resulting therefrom shall be assumed by the city. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.050 Right of entry.
When the enforcing official has reasonable cause to believe that there exists in a building or upon a premises a condition which is contrary to or in violation of this code and is an immediate threat to health and safety which makes the building or premises unsafe, dangerous or hazardous, the enforcing official may enter the building or premises at reasonable times to inspect or to perform the duties imposed by this chapter; provided, that if such building or premises is occupied, credentials be presented to the occupant and entry requested. If such building or premises is unoccupied, the enforcing official shall first make a reasonable effort to locate the owner or other person having charge or control of the building or premises and request entry. If entry is refused, the enforcing official shall have recourse to the remedies provided by law to secure entry. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.060 Responsibilities defined.
The owners are liable for violations of duties imposed by this code and other pertinent laws and regulations as outlined in LMC 21.13.010, even though an obligation is also imposed on the occupants of the building and/or premises. In addition, the owners are also liable when the owner has, by agreement, imposed on the occupant the duty of complying with all or portions of this code and other pertinent laws and regulations as outlined in LMC 21.13.010. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.070 Voluntary correction agreements.
A. At the sole discretion of the city, a voluntary correction agreement may be entered with a person responsible for correcting the violation(s), which may be the owner, agent or occupant.
B. Any such voluntary correction agreement shall be a contract between the city and the person responsible, and shall follow a form to be approved by the city attorney. The agreement shall be entirely voluntary and no one shall be required to enter into such an agreement.
C. In the contract, the person responsible shall agree to the following:
1. Acknowledge a violation(s) exists as shall be briefly there described;
2. Acknowledge it is his/her responsibility to abate the violation(s);
3. Agree to abate the violation(s) by a certain date or within a specified time; and
4. Agree that if he/she does not accomplish the terms of such agreement, the city may proceed without further notice to enforce the applicable provisions of this code and other pertinent laws and regulations as described within this chapter, including entering the premises, rectifying the violation(s), and recovering the expenses and monetary penalties provided for herein.
D. The agreement shall provide that if the person does accomplish the terms of the agreement, as determined by the city, and within the time frame specified therein, the city shall so acknowledge and shall take no further enforcement action or attempt to recover public costs already incurred.
E. The enforcing official may agree to extend the time limit for correction set forth in such agreement or may agree to modify the required corrective action. However, the enforcing official shall not agree to extend or modify the agreement unless the person responsible has shown due diligence and/or substantial progress in correcting the violation, and can show unforeseen circumstances which would require such extension or modification. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.080 Notice of violation and order.
Upon the enforcing official’s determination that one or more violations have been committed, except as provided for in LMC 21.13.070, the enforcing official, if enforcement occurs under this chapter, shall issue a notice of violation and order.
A. The notice of violation and order shall, at a minimum, contain the following:
1. The name and address of each property owner of record and any other person the city has determined is responsible for correcting the violation(s);
2. The street address or a legal description sufficient for identification of the property;
3. The assessor tax parcel number(s) of the property;
4. A description of each violation;
5. An order that the use, acts or omissions which constitute violation(s) must cease;
6. A statement of the corrective action required for each violation, with the date by which such action must be completed (the “deadline”);
7. A warning: “the failure or refusal to complete corrective action by the deadline will result in enforcement action, civil penalties, a civil infraction and/or criminal penalties as provided in Chapter 21.13 LMC”; and
8. A statement of the right to appeal to the hearing examiner. The appeal is for the sole purpose of the violation. Separate appeal for other actions may be necessary, but shall not be combined with the violation and order appeal. The city will charge no appeal fee for an initial appeal of a notice of violation issued under this section.
B. The notice of violation and order shall be served upon those persons identified in subsection (A)(1) of this section. Service of the notice of violation and order shall be by personal service or by both regular first class mail and certified mail, return receipt requested, addressed to each person’s last known address. Service by mail shall be deemed completed three days after mailing.
C. Proof of service shall be made by written affidavit or declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which service was made, and if service was made by personal service or by both regular first class mail and certified mail, return receipt requested, facts showing that due diligence was used in attempting to locate a mailing address for the person at whom the notice of violation is directed. Additional proof of service not necessary.
D. The appeal of a notice of violation and order shall be filed with the hearing examiner within 10 calendar days after service of the notice. The appeal is for the sole purpose of the violation. Separate appeal for other actions may be necessary, but shall not be combined with the appeal of the notice of violation and order. Each notice of violation and order and any subsequent letter of assessment shall be appealed separately. Each appeal shall be timely filed. Upon the timely filing of an appeal, the matter shall be scheduled to be heard at the next available appearance by the hearing examiner that is a minimum of 21 but no later than 60 calendar days after the date the appeal was received by the city. Notice of the hearing date and time shall be served by certified mail, return receipt requested, to the address of the party who filed the appeal and requested the hearing. The date and time for any hearing may be rescheduled by the hearing examiner for good cause upon the motion of a party or the hearing examiner.
E. Each day or portion thereof in which the violation continues constitutes a separate offense for which separate notices of violation may be issued. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.090 Violation – Civil enforcement and penalties.
If the person to whom the notice of violation is issued fails to respond as required in this chapter, the violation(s) shall be deemed committed without requiring further action by the city or the city’s hearing examiner. In addition, the failure or refusal to complete corrective action by the date set forth in a notice of violation and order (the “deadline”) shall subject the person(s) to whom the notice of violation and order was directed to the following enforcement actions and penalties:
A. The enforcing official may revoke, modify or suspend any permit, variance, subdivision or other land use approval issued for the subject property:
1. A person who has been served with a notice of violation must respond to the notice within 14 days of the date the notice is served;
2. That person must comply with the terms and conditions of the notice of violation and order; or
3. Appealing the notice of violation and order as set forth in this chapter. An appeal shall not relieve the person responsible for the violation from the duty to correct or abate the violation. Additional notices of violation may be issued if the violation goes uncorrected;
B. Civil penalties and notices shall be applied as follows:
1. A civil penalty of $250.00 shall be assessed. If there has not been compliance with the notice of violation and order, and there is no appeal, or the appeal is denied, dismissed or withdrawn, a first new letter of assessment, stating the assessment of the $250.00 civil penalty, at the option of the city, shall then be sent in the same manner as the original notice of violation and order as set forth in LMC 21.13.080. The first new letter of assessment shall state that in the event of the further failure or refusal to complete the corrective action within 15 days of the date of service of the first new letter of assessment, a second and additional civil penalty shall be assessed in the amount of $1,000. The first new letter shall include a statement of the right to appeal to the hearing examiner as set forth in LMC 21.13.080;
2. In the event of further failure or refusal to complete the corrective action within 15 days of the date of service of the first new letter of assessment, a second new letter of assessment, stating the assessment of a $1,000 additional civil penalty, at the option of the city, shall be sent in the same manner as the original notice set forth in LMC 21.13.080. The second new letter of assessment shall (a) state the assessment of the first letter of assessment; (b) state the additional second civil penalties; and (c) shall include a statement of the right to appeal to the hearing examiner as set forth in LMC 21.13.080;
3. In the event of the further failure or refusal to complete the corrective action within 15 days of the date of service of the second new letter of assessment, a third new letter of assessment, stating the assessment of a $1,500 additional civil penalty, at the option of the city, shall then be sent in the same manner as the original notice set forth in LMC 21.13.080. The third new letter shall state the assessment of the first, second, and third civil penalties and shall include a statement of the right to appeal to the hearing examiner as set forth in LMC 21.13.080;
4. Upon the expiration of the appeal period stated in the third new letter of assessment, the city, in addition to any other remedy authorized by law or the Leavenworth Municipal Code, may commence an action in the Chelan County superior court to collect the civil penalties assessed and, in addition, the city may exercise any remedy set forth in subsections (C), (D), (E), and (F) of this section;
C. The city, through its authorized agents, may, in addition to any other remedy provided herein, initiate abatement or injunction proceedings or other appropriate action in the municipal court, or the courts of this state, to prevent, enjoin, abate or terminate violations of this chapter. The city may obtain temporary, preliminary, and permanent injunctive relief from the Chelan County superior court;
D. The city may enter the subject property and complete all corrective action. The actual costs of labor, materials and equipment, together with all direct and indirect administrative costs, incurred by the city to complete the corrective action shall be paid by property owner(s) of record, and shall constitute a lien against the subject property until paid. A notice of claim of lien shall be recorded with the Chelan County auditor. Interest shall accrue on the amount due at the rate of 12 percent per annum. In any action to foreclose the lien against the subject property, all filing fees, title search fees, service fees, other court costs and reasonable attorneys’ fees incurred by the city shall be awarded as a judgment against the property owner(s) of record, and shall be foreclosed upon the subject property together with the principal and accrued interest;
E. The remedies provided in subsections (A) through (D) of this section are cumulative remedies and not alternative remedies and are in addition to any other remedy to which the city may be entitled by law;
F. In any action brought by the city to enforce this chapter or in any action brought by any other person in which the city is joined as a party challenging this chapter, in the event the city is a prevailing party, then the nonprevailing party challenging the provisions of this chapter, or the party against whom this chapter is enforced in such action shall pay, in addition to the city’s costs, a reasonable attorney’s fee at trial and in any appeal thereof. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001.]
21.13.110 Joint and several responsibility and liability.
A. Responsibility for violations of the codes enforced under this chapter is joint and several, and the city is not prohibited from taking action against a party where other persons may also be potentially responsible for a violation, nor is the city required to take action against all persons potentially responsible for a violation.
B. Where a person or entity has been found to have committed a violation under this chapter, regardless of whether the violation was resolved without penalty, the failure to abate the violation, or the commission of a subsequent violation, or the violation of a written order of the hearing examiner after having received notice of the order as provided in this chapter, shall each constitute a repeat violation and shall each be a misdemeanor subject to the penalties and provisions of this chapter. The city attorney, or the city attorney’s designee, shall, at his or her discretion, have authority to file a repeat violation as either a civil violation or as a misdemeanor. [Ord. 1437 § 1 (Att. A), 2013.]
21.13.120 Interference with code enforcement unlawful – Misdemeanor.
Any person who intentionally obstructs, impedes, or interferes with any lawful attempt to serve notice of a violation, stop work or stop use order, or an emergency order, or intentionally obstructs, impedes, or interferes with lawful attempts to correct a violation shall be guilty of a misdemeanor punishable by imprisonment in jail for a maximum term fixed by the court of not more than 90 days or by a fine in an amount fixed by the court of not more than $1,000, or by both such imprisonment and fine. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001. Formerly 21.13.100]
21.13.130 Approval and permit revocation, suspension and modification.
A. A permit, variance, subdivision or other land use approval may be revoked, suspended or modified on one or more of the following grounds:
1. Failure to complete corrective action as required pursuant to a notice of violation and order;
2. The approval was obtained through fraud;
3. The approval was obtained through inadequate or inaccurate information;
4. The approval was issued contrary to law;
5. The approval was issued under a procedural error that prevented consideration of the interests of persons directly affected by the approval;
6. The approval is being exercised or implemented contrary to the terms or conditions of the approval or contrary to law;
7. The use for which the approval was issued is being exercised in a manner that is detrimental to public health, safety or welfare;
8. Interference with the performance of federal, state, county or city official duties.
B. Action to revoke, suspend or modify a permit, subdivision, or other land use approval shall be taken by the enforcing official through issuance of a notice of violation and order as described in LMC 21.13.080.
C. If a permit or approval is revoked for fraud or deception, no similar application shall be accepted for a period of one year from the date of final action and appeal, if any. If a permit or approval is revoked for any other reason, another application may be submitted subject to all applicable requirements contained in this code and other pertinent laws, ordinances, and regulations. [Ord. 1437 § 1 (Att. A), 2013; Ord. 1375 § 1 (Att. A), 2010; Ord. 1158 § 3, 2001. Formerly 21.13.110]
21.13.140 Repeat violation or failure to abate – Misdemeanor.
Where a person or entity has been found to have committed a violation under this chapter, regardless of whether the violation was resolved without penalty, the failure to abate the violation, or the commission of a subsequent violation, or the violation of a written order of the hearing examiner after having received notice of the order as provided in this chapter, shall each constitute a repeat violation and shall each be a misdemeanor subject to the penalties and provisions of LMC 21.13.120. The city attorney, or the city attorney’s designee, shall, at his or her discretion, have authority to file a repeat violation as either a civil violation or as a misdemeanor.
For the purpose of this chapter, “repeat violation” means, as evidenced by the prior issuance of a correction notice or a notice of violation, that a violation has occurred on the same property within a two-year period, or a person responsible for a violation who has committed a violation elsewhere within the city of Leavenworth within a two-year period. To constitute a repeat violation, the violation need not be the same violation as the prior violation. [Ord. 1437 § 1 (Att. A), 2013.]
Prior ordinance history: Ord. 1088.