Chapter 20.10
LAND USE VIOLATIONS
Sections:
20.10.010 Purpose.
20.10.020 Applicability.
20.10.030 Violations.
20.10.100 Procedures.
20.10.110 First contact.
20.10.120 Voluntary correction agreement.
20.10.130 Notice of civil violation.
20.10.140 Hearing before the court.
20.10.150 Abatement by the city.
20.10.160 Civil infraction citation.
20.10.170 Stop work orders.
20.10.180 Emergency orders.
20.10.200 Monetary penalty.
20.10.210 Each day separate offense.
20.10.220 Additional enforcement procedures.
20.10.230 Criminal penalty authorized.
20.10.010 Purpose.
The purpose of this chapter is to provide city staff and the general public with notice of the procedure to be followed in the event of a violation of the statutes referenced in this chapter. (Ord. 1088 § 1 (part), 1999).
20.10.020 Applicability.
Where a violation of the following sections of the NBMC occurs, the procedures as set forth in NBMC 20.10.100 through 20.10.180 shall be followed as a first course of action. (Ord. 1088 § 1 (part), 1999).
20.10.030 Violations.
Violations of the following titles and chapters of the NBMC shall be remedied in accordance with NBMC 20.10.100: Chapter 8.08, Nuisances; Chapter 8.12 – excluding 8.12.010 through 8.12.030 – Garbage; Chapter 8.26 Noise Abatement and Control; Chapter 12.08, Overhead Utility Lines; Chapter 12.12, Numbering Streets and Buildings; Chapter 13.36, Sewer Regulations; Chapters 14.05 through 14.12, critical areas; Title 15, Building and Construction; Title 16, Mobile Homes; Title 17, Land Segregation; Title 18, Zoning; and Title 19, Development Standards. (Ord. 1088 § 1 (part), 1999).
20.10.100 Procedures.
The following procedures apply whenever the applicable department director or his designee determines that a violation has occurred or is occurring. (Ord. 1088 § 1 (part), 1999).
20.10.110 First contact.
The applicable department director shall attempt to secure correction of the violation by contacting the person and/or property owner responsible for the violation, in person or in writing, and, where possible, explaining the violation and requesting correction within a reasonable time on the basis of a mutual agreement. (Ord. 1088 § 1 (part), 1999).
20.10.120 Voluntary correction agreement.
A voluntary correction agreement may be entered into between the person responsible and the department director for the violation under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:
A. Content. The voluntary correction agreement is a written contract prepared by the city and the person responsible for the violation under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:
1. The name and address of the person responsible for the violation; and
2. The street address or other description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
3. A description of the violation and a reference to the regulation which has been violated; and
4. The necessary corrective action to be taken, and a date or time by which correction must be completed; and
5. An agreement by the person responsible for the violation that the city may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement; and
6. An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses (including attorney fees, expert witness fees, and court costs) and/or a monetary penalty pursuant to this chapter from the person responsible for the violation if the terms of the voluntary correction agreement are not satisfied.
B. Right to a Hearing Waived. Upon entering into a voluntary correction agreement, the person responsible for the violation shall have no right to an administrative hearing, under this chapter or otherwise, regarding the matter of the violation and/or the required corrective action.
C. Extension and Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the applicable department director if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions and the responsible person provides the request in writing clearly establishing the need for such an extension.
D. Abatement by the City. The city may abate the violation in accordance with NBMC 20.10.150 if the terms of the voluntary correction agreement are not met.
E. Collection of Costs. If the terms of the voluntary correction agreement are not met the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with NBMC 20.10.130(F), plus all costs and expenses of abatement, as set forth in NBMC 20.10.150(D). (Ord. 1088 § 1 (part), 1999).
20.10.130 Notice of civil violation.
A. Issuance.
1. When the applicable department director determines that a violation has occurred or is occurring, and is unable to secure voluntary correction or execution of a voluntary correction agreement within 30 days from the date of first contact, pursuant to NBMC 20.10.120, the applicable department director may issue a notice of civil violation to the person responsible for the violation.
2. The applicable department director may issue a notice of civil violation without having attempted to secure voluntary correction as provided in NBMC 20.10.120 under the following circumstances:
a. When an emergency exists; or
b. When a repeated violation occurs; or
c. When the violation creates a situation or condition which cannot be corrected; or
d. When the person knows or reasonably should have known that the action is in violation of a city regulation; or
e. The person cannot be contacted or refuses to communicate or cooperate with the city in correcting the violation.
B. Content. The notice of civil violation shall include the following:
1. The name and address of the person responsible for that violation; and
2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
3. A description of the violation and a reference to the provision(s) of the city regulation(s) which has been violated; and
4. The required corrective action and a date and time by which the correction must be completed, after which the city may abate the unlawful condition in accordance with NBMC 20.10.150; and
5. The date, time, and location of an appeal hearing before a judge, judge pro tem, or commissioner of the district court which will be at least 20 days but no more than 60 days from the date the notice of civil violation is issued, unless such date is continued by the court for good cause shown; and
6. A statement indicating that the hearing will be canceled and no monetary pen-
alty will be assessed, other than the court filing fee, if the applicable department director approves the completed, required corrective action prior to the hearing; and
7. A statement that the costs and expenses of abatement incurred by the city pursuant to NBMC 20.10.150, and a monetary penalty in an amount per day for each violation as specified in NBMC 20.10.130(F), may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the court.
C. Service of Notice. The applicable department director shall serve the notice of civil violation upon the person responsible for the violation, either personally or by mailing a copy of the notice of civil violation by certified or registered mail, return receipt requested, to such person at their last known address. If the person responsible for the violation cannot be personally served within King County and if an address for mailed service cannot be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made and, if by posting, the facts showing the attempts to serve the person personally or by mail.
D. Optional Recording Procedure. The city may, at its discretion, record a notice of civil violation against the subject property.
E. Extension. Extensions of the time specified in the notice of civil violation for the correction of the violation may be granted at the discretion of the applicable department director or by order of the court.
F. Monetary Penalty. The monetary penalty for each violation per day or portion thereof shall not exceed $1,000.
G. Continued Duty to Correct. Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil violation was issued of the duty to correct the violation.
H. Collection of Monetary Penalty.
1. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is directed. Any monetary penalty assessed must be paid to the city within 10 calendar days from the date of mailing of the courts decision or a notice from the city that penalties are due. Any such monetary penalty shall further constitute a lien against the affected real property, in the manner as set forth in NBMC 20.10.150(F) and subsections (C) and (D) of this section.
2. The city attorney is authorized to take all actions available at law to collect the monetary penalty. (Ord. 1218 § 1, 2004; Ord. 1088 § 1 (part), 1999).
20.10.140 Hearing before the court.
A. Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the court not less than 20 calendar days nor more than 60 calendar days after the notice of civil violation is issued. Continuances may be granted at the discretion of the applicable department director, or by the court for good cause shown.
B. Prior Correction of Violation. The hearing will be canceled and no monetary penalty will be assessed, other than the court filing fee, if the applicable department director approves the completed required corrective action prior to the scheduled hearing.
C. Procedure. The court shall conduct a hearing on the civil violation pursuant to the then-current applicable rules of civil procedure for courts of limited jurisdiction. The applicable department director and the person to whom the notice of civil violation was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable under the circumstances. The determination of the applicable department director as to the need for and method of the required corrective action shall be accorded substantial weight by the court in determining the reasonableness of the required corrective action.
D. Decision of the Court.
1. The court shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable under the circumstances, and shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.
2. The court shall issue an order to the person responsible for the violation which contains the following information:
a. The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decisions;
b. The required corrective action;
c. The date and time by which the correction must be completed;
d. The monetary penalties assessed based on the criteria in NBMC 20.10.130(F); and
e. The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.
3. Assessment of Monetary Penalty. Monetary penalties assessed by the court shall be in accordance with the monetary penalty in NBMC 20.10.130(F).
a. The court shall have the following options in assessing monetary penalties:
(i) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or
(ii) Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the court and thereafter; or
(iii) Assess less than the established monetary penalty set forth in NBMC 20.10.130(F), based on the court’s discretion; or
(iv) Assess no monetary penalties.
b. In determining the monetary penalty assessment, the court shall consider the following factors:
(i) Whether the person responded to staff attempts to contact the person, and cooperated to correct the violation;
(ii) Whether the person failed to appear at the hearing;
(iii) Whether the violation was a repeat violation;
(iv) Whether the person showed due diligence and/or substantial progress in correcting the violation;
(v) Whether a genuine, factual code interpretation issue exists; and
(vi) Any other relevant factors.
c. The court may double the monetary penalty schedule if the violation was a repeat violation. In determining the amount of the monetary penalty for repeat violations the court shall consider the factors set forth in NBMC 20.10.140(D)(3).
d. Nothing in this section shall preclude the use of any relevant damages multipliers as provided for by state law.
E. Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear without lawful excuse at the scheduled hearing, the court will enter an order with findings pursuant to NBMC 20.10.140 (D)(2) and assess the appropriate monetary penalty pursuant to NBMC 20.10.140(D)(3). The city may enforce the court’s order and recover all related expenses, including attorney fees, plus the costs of the hearing and monetary penalty from that person.
F. Appeal to Superior Court. Any appeal of the decision of the court shall be prosecuted pursuant to the then-current Rules of Appeal from Courts of Limited Jurisdiction (RALJ). (Ord. 1088 § 1 (part), 1999).
20.10.150 Abatement by the city.
A. The city may abate a condition which was caused by or continues to be a civil violation or is a violation of a citation when:
1. The terms of voluntary correction agreement pursuant to NBMC 20.10.120 have not been met; or
2. A notice of civil violation has been issued pursuant to NBMC 20.10.130 and a hearing has been held pursuant to NBMC 20.10.140 and the required correction has not been completed by the date specified in the court’s order; or
3. A citation has been issued pursuant to NBMC 20.10.160; or
4. The condition is subject to summary abatement as provided for in NBMC 20.10.150(B).
B. Summary Abatement. Whenever any nuisance causes a condition, the continued existence of which constitutes an immediate threat to the public health, safety, or welfare, or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it shall be given to the person responsible for the violation as soon as reasonably possible after the abatement. No right of action shall lie against the city or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats, but neither shall the city be entitled to recover any costs incurred for summary abatement, prior to the time that actual notice of same is provided to the person responsible for the violation.
C. Authorized Action by the City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek judicial process as it deems necessary to effect the removal or correction of such condition.
D. Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant, or other person entitled to control, use, and/or control of the property, and shall become due and payable to the city within 10 calendar days. The term “incidental expenses” includes but is not limited to personnel costs, both direct and indirect, and including attorney fees; costs incurred in documenting the violation; hauling, storage, and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing. All such costs and expenses shall constitute a lien against the affected property, as set forth in NBMC 20.10.150(F).
E. Interference. Any person who knowingly obstructs, impedes, or interferes with the city or its agents, or with the person responsible for the violation in the performance of duties imposed by this chapter, shall be guilty of a misdemeanor punishable by imprisonment not exceeding 90 days and a fine not exceeding $1,000.
F. Lien – Authorized. The city of North Bend shall have a lien for any monetary penalty imposed, the cost of any abatement proceedings under this chapter, and all the related costs including attorney and expert witness fees, against the real property on which the monetary penalty was imposed or any of the work of abatement was performed. The lien shall be subordinate to all previously existing special assessment liens imposed on the same property and shall be superior to all other liens, except for state and county taxes, with which it shall be on a parity.
1. The applicable department director shall cause a claim for lien to be filed for record within 90 days from the later of the date that the monetary penalty is due or the date the work is completed or the nuisance abated.
2. The claim of lien shall contain sufficient information regarding the notice of civil violation, as determined by the applicable department director, a description of the property to be charged with the lien and the owner of record, and the total amount of the lien.
3. Any such claim of lien shall be verified by the applicable department director, and may be amended from time to time to reflect changed conditions.
4. No such liens shall bind the affected property for a period longer than five years, without foreclosure or extension agreed to by the property owner. (Ord. 1088 § 1 (part), 1999).
20.10.160 Civil infraction citation.
If after investigation, or after the complaint of residents or others, the department director has probable cause to believe that the applicable standards or requirements of the North Bend Municipal Code have been violated, the department director may issue a civil infraction citation in accordance with Chapter 7.80 RCW, which is incorporated herein by this reference, upon the owner, tenant, occupier, manager, agent, or other person responsible for the condition. (Ord. 1088 § 1 (part), 1999).
20.10.170 Stop work orders.
Whenever a continuing violation of this code will materially impair the department director’s ability to secure compliance with this code, or when the continuing violation threatens the health or safety of the public, the department director may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. Any violation of a stop work order is hereby declared to be a nuisance and the department director is authorized to enjoin or abate such nuisance summarily by any legal or equitable means as may be available. The costs for the injunction or abatement shall be recovered by the city from the owner, tenant, occupant, manager, agent, or other responsible person in the manner provided by law. (Ord. 1088 § 1 (part), 1999).
20.10.180 Emergency orders.
Whenever any use or activity in violation of the North Bend Municipal Code threatens the health and safety of the occupants of the premises or any member of the public, the department director may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible. Any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the department director is authorized to enjoin or abate such nuisance summarily by any legal or equitable means as may be available. The cost of such abatement shall be recovered from the owner, tenant, occupant, manager, agent, or other person responsible in the manner provided by law. (Ord. 1088 § 1 (part), 1999).
20.10.200 Monetary penalty.
Any person violating any of the provisions or failing to comply with any of the mandatory requirements of the city code shall be punished by a fine up to a maximum of $1,000 for each violation. (Ord. 1088 § 2 (part), 1999).
20.10.210 Each day separate offense.
Each person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the city code is committed, continued or permitted by any such person, and he shall be punished accordingly. (Ord. 1088 § 2 (part), 1999).
20.10.220 Additional enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the North Bend Municipal Code except as precluded by law. (Ord. 1088 § 2 (part), 1999).
20.10.230 Criminal penalty authorized.
A. When a violation is contrary to an issued stop work order or emergency order it shall be a misdemeanor, and the applicable department director may request a police officer to take criminal enforcement as authorized by law without having attempted to secure voluntary correction as provided in NBMC 20.10.120 or issuance of a notice of civil violation as provided in NBMC 20.10.130.
B. The penalty for any violation of NBMC 20.10.030 shall be a fine not to exceed $1,000, and/or by imprisonment in a county jail for not more than 90 days. (Ord. 1218 § 2, 2004).