Chapter 8.04
NUISANCE PROCEDURES

Sections:

8.04.010    Authority.

8.04.020    Purpose.

8.04.030    Definitions.

8.04.040    Nuisances declared.

8.04.050    Voluntary correction.

8.04.060    Notice of civil violation.

8.04.070    Hearing before the city hearing examiner.

8.04.080    Abatement by the city.

8.04.090    Entry to businesses and premises.

8.04.100    Additional enforcement procedures.

8.04.110    Conflicts.

8.04.120    Rules and regulations.

8.04.130    Civil suit authorized.

8.04.140    Violation – Penalty.

8.04.010 Authority.

This chapter is enacted pursuant to authority of the city to declare what shall be deemed nuisances; to impose fines upon parties who may create, continue, or suffer nuisances to exist; to prevent, remove, and abate nuisances at the expense of the parties creating, causing, or committing or maintaining the same; and to levy a special assessment on the land or premises whereon a nuisance is situated to defray the cost or to reimburse the city for the cost of abating the same. (Ord. 2004-14 § 1, 2004).

8.04.020 Purpose.

The purpose of this chapter is to establish an efficient system to enforce certain provisions of this code and regulations of the city, to provide a framework for voluntary correction of problems, to provide an opportunity for a prompt hearing and decision on alleged violations, and to provide financial penalty and abatement for proven violations. (Ord. 2004-14 § 1, 2004).

8.04.030 Definitions.

As used in this chapter, unless a different meaning is plainly required:

A. “Abate” means to repair, replace, remove, destroy or otherwise remedy a condition which constitutes a civil violation by such means, in such a manner and to such an extent necessary in the interest of the general health, safety and welfare of the community;

B. “Act” means doing or performing something;

C. “Enforcement officer” means the director of the department or any designated alternate(s), empowered by the city manager to enforce a city ordinance or regulation;

D. “Civil violation” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation. Traffic infractions pursuant to TMC Title 10 are specifically excluded from the application of this chapter;

E. “Development” means the erection, alteration, enlargement, demolition, maintenance or use of any structure or the alteration or use of any land above, at, or below ground or water level, and all acts authorized by a city regulation;

F. “Emergency” means a situation which in the opinion of the enforcement officer requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property;

G. “City hearing examiner” means the city hearing examiner and the office thereof established pursuant to Chapter 2.50 TMC;

H. “Omission” means a failure to act;

I. “Person” means any individual, firm, association, partnership, corporation or any entity, public or private;

J. “Person responsible for the violation” means any person who is required by the applicable regulation to comply therewith, or who commits any act or omission which is a civil violation or causes or permits a civil violation to occur or remain upon property in the city, and includes but is not limited to: owner(s), lessor(s), tenant(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs. For violations of the sign code, this definition includes, but is not limited to, sign installers/posters, sign owners, and all other persons who cause or participate in the placement of a sign in a manner that constitutes a civil violation;

K. “Regulation” means and includes the following, as now or hereafter amended:

1. TMC Title 6, Chapters 8.06, 8.10, 9.98, 12.12, 15.10, 15.20, 17.56, and 17.68 TMC;

2. The terms and conditions of any development authorization, permit or approval issued by the city, or any concomitant agreement with the city;

L. “Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought within two years or a notice of civil violation has been issued within two years;

M. “Violation” means an act or omission contrary to a regulation including an act or omission at the same or different location by the same person and including a condition resulting from such act or omission. (Ord. 2004-14 § 1, 2004).

8.04.040 Nuisances declared.

Any violation of a regulation is declared to be a nuisance. (Ord. 2004-14 § 1, 2004).

8.04.050 Voluntary correction.

A. Applicability. This section applies whenever the enforcement officer determines that a violation of a regulation has occurred or is occurring.

B. General. The enforcement officer shall pursue a reasonable attempt to secure voluntary correction by contacting the person responsible for the violation where possible, explaining the violation and requesting correction.

C. Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the city, acting through the enforcement officer:

1. Content. The voluntary correction agreement is a contract between 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:

a. The name and address of the person responsible for the violation;

b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring;

c. A description of the violation and a reference to the provision(s) of the city ordinance or regulation which has been violated;

d. The necessary corrective action to be taken, and a date or time by which correction must be completed;

e. An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses and a monetary penalty pursuant to this chapter from the person responsible for the violation if terms of the voluntary correction agreement are not met;

f. An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to an administrative appeal of the violation and/or the required corrective action;

2. Right to a Hearing Waived. The person responsible for the violation waives the right to an administrative appeal of the violation and the required corrective action upon entering into a voluntary correction agreement;

3. Extension – Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the enforcement officer if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation but unforeseen circumstances render correction under the original conditions unattainable;

4. Abatement by the City. The city may abate the violation in accordance with TMC 8.04.080 if the terms of the voluntary correction agreement are not met;

5. 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 TMC 8.04.060(E), plus all costs and expenses of abatement, as set forth in TMC 8.04.080(D). (Ord. 2004-14 § 1, 2004).

8.04.060 Notice of civil violation.

A. Issuance.

1. When the enforcement officer determines that a violation has occurred or is occurring, and is unable to secure voluntary correction, pursuant to TMC 8.04.050, the enforcement officer may issue a notice of civil violation to the person responsible for the violation;

2. The enforcement officer may issue a notice of civil violation without having attempted to secure voluntary correction as provided in TMC 8.04.050 under the following circumstances:

a. When an emergency exists;

b. When a repeat violation occurs;

c. When the violation creates a situation or condition which cannot be corrected;

d. When the violation is of the sign code (Chapter 15.10 TMC); or

e. When the person knows, or reasonably should have known, that the action is in violation of a city regulation.

B. Content. The notice of civil violation shall include the following:

1. The name and address of the person responsible for that violation;

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;

3. A description of the violation and a reference to the provision(s) of the city regulation which has been violated;

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 TMC 8.04.080 and the city hearing examiner’s order:

a. The date, time and location of an appeal hearing before the city hearing examiner which will be 10 calendar days from the date the notice of civil violation is issued;

b. A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the enforcement officer approves the completed, required corrective action at least 48 hours prior to the hearing; except, that this statement need not be included where the violation constitutes a repeat violation, the violation creates a situation or condition which cannot be corrected, or the violation is of the sign code (Chapter 15.10 TMC);

c. In the case of a violation of the sign code, a statement indicating that the hearing will be canceled if corrective action is taken and the monetary penalty recommended by the enforcement officer is paid in full to the city at least 48 hours prior to the scheduled hearing;

5. A statement that the costs and expenses of abatement incurred by the city pursuant to TMC 8.04.080(D) and a monetary penalty in an amount per day for each violation as specified in subsection E of this section may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the city hearing examiner.

C. Service of Notice. The enforcement officer shall serve the notice of civil violation upon the person to whom it is directed, either personally or by mailing a copy of the notice of civil violation to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within Yakima County and if an address for mailed service cannot after due diligence 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 that due diligence was used in attempting to serve the person personally or by mail.

D. Extension. No extension of the time specified in the notice of civil violation for correction of the violation may be granted, except by order of the city hearing examiner.

E. Monetary Penalty.

1. Except for violations of the sign code (Chapter 15.10 TMC), the monetary penalty for each violation per day or portion thereof shall be as follows:

a. First day of each violation, $100.00;

b. Second day of each violation, $200.00;

c. Third day of each violation, $300.00;

d. Fourth day of each violation, $400.00;

e. Each additional day of each violation beyond four calendar days, $500.00 per day.

2. For violations of the sign code (Chapter 15.10 TMC), the monetary penalty for each violation is $100.00 per sign per day or portion thereof.

F. 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.

G. 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 at the finance office within 30 calendar days from the date of mailing of the city hearing examiner’s decision or a notice from the city that penalties are due;

2. The city finance office is authorized to turn over to collection any penalty for which payment becomes past due;

3. The city attorney or his/her designee is authorized to take appropriate action to collect the monetary penalty.

H. Notice as Determination. The notice of civil violation represents a determination that a violation infraction has occurred or is occurring. The determination will be final unless contested as provided in this chapter. (Ord. 2004-14 § 1, 2004).

8.04.070 Hearing before the city hearing examiner.

A. Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the city hearing examiner not less than 10 calendar days after the notice of civil violation is issued.

B. Prior Correction of Violation or Payment of Monetary Penalty. Except in the case of a repeat violation, a violation which creates a situation or condition which cannot be corrected, or a violation of the sign code (Chapter 15.10 TMC), the hearing will be canceled and no monetary penalty will be assessed if the enforcement officer approves the completed required corrective action at least 48 hours prior to the scheduled hearing. In the case of a violation of the sign code, the hearing will be canceled if corrective action is taken and the monetary penalty recommended by the enforcement officer is paid in full to the city at least 48 hours prior to the scheduled hearing.

C. Procedure. The city hearing examiner shall conduct a hearing on the civil violation pursuant to the rules of procedure of the city hearing examiner. The enforcement officer 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 a preponderance of the evidence that a violation has occurred and that the required corrective action, if applicable, is reasonable. The determination of the enforcement officer as to the need for the required corrective action shall be accorded substantial weight by the city hearing examiner in determining the reasonableness of the required corrective action.

D. Decision of the City Hearing Examiner.

1. The city hearing examiner 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 and shall affirm, vacate, or modify the city’s determination(s) regarding the alleged violation and/or the required corrective action, with or without written conditions.

2. The city hearing examiner 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 decision;

b. The required corrective action, or in the case of a violation of the sign code, notification that the illegal signs shall be destroyed by the city;

c. The date and time by which the correction must be completed;

d. The monetary penalties assessed based on the criteria in subsection (D)(3) of this section;

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 city hearing examiner shall be in accordance with the monetary penalty schedule in TMC 8.04.060(E):

a. Violations Other Than Sign Code (Chapter 15.10 TMC) Violations:

i. The city hearing examiner shall have the following options in assessing monetary penalties:

(A) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter;

(B) Assess monetary penalties beginning on the correction date set by the enforcement officer or an alternate correction date set by the city hearing examiner and thereafter;

(C) Assess no monetary penalties.

ii. In determining the monetary penalty assessment, the city hearing examiner shall consider the following factors:

(A) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;

(B) Whether the person failed to appear at the hearing;

(C) Whether the violation was a repeat violation;

(D) Whether the person showed due diligence and/or substantial progress in correcting the violation;

(E) Whether a genuine code interpretation issue exists; and

(F) Any other relevant factors.

b. Sign Code (Chapter 15.10 TMC) Violations. The city hearing examiner shall assess a monetary penalty for each sign cited within a single 24-hour period extending from 12:01 a.m. to 12:00 midnight on a single day.

c. Effect of Repeat Violations.

i. Nonsign Code Violations. Except in the case of violations of the sign code (Chapter 15.10 TMC), the city hearing examiner 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 city hearing examiner shall consider the factors set forth in subsection (D)(3) of this section;

ii. Sign Code Violations (Chapter 15.10 TMC). The city hearing examiner shall double the per sign monetary penalty assessed for each repeat violation.

4. Notice of Decision. The city hearing examiner shall mail a copy of the decision to the appellant and to the enforcement officer within 15 calendar days of the hearing.

E. Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear at the scheduled hearing, the city hearing examiner will enter an order finding that the violation occurred and assessing the appropriate monetary penalty. The city will carry out the city hearing examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person.

F. Appeal to Superior Court. An appeal of the decision of the city hearing examiner must be filed with superior court within 20 calendar days from the date the city hearing examiner’s decision was mailed to the person to whom the notice of civil violation was directed, or is thereafter barred. (Ord. 2004-14 § 1, 2004).

8.04.080 Abatement by the city.

A. The city may abate a condition which was caused by or continues to be a civil violation when:

1. The terms of voluntary correction agreement pursuant to TMC 8.04.050 have not been met;

2. A notice of civil violation has been issued pursuant to TMC 8.04.060 and a hearing has been held pursuant to TMC 8.04.070 and the required correction has not been completed by the date specified in the city hearing examiner’s order;

3. The condition is subject to summary abatement as provided for in subsection B of this section.

B. Summary Abatement. Whenever any violation of a regulation causes a condition the continued existence of which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. A notice of civil violation, together with notice of such summary abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.

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 such 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 occupy the property and shall become due and payable to the city at the office of the city finance department within 10 calendar days after the bill is mailed by the city. The term “incidental expenses” includes but shall not be limited to: personnel costs, both direct and indirect, including attorney’s 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.

E. Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns, or holds any interest or estate in any property, in performing any tasks necessary to correct the violation.

F. Levy of Special Assessment for Costs and Expenses. In addition to any other method of collection authorized by law, all costs and expenses incurred by the city to abate a condition shall be levied as a special assessment on the land or premises whereon the violation was situated upon the filing of a statement of costs and expenses with the city clerk which may be enforced in the manner provided by law. (Ord. 2004-14 § 1, 2004).

8.04.090 Entry to businesses and premises.

Whenever necessary to make an inspection to determine whether a civil violation has occurred or is occurring, or to enforce any provision of the Toppenish Municipal Code, or regulation issued thereunder, violation of which is a civil violation under this chapter, the enforcement officer or his designee may enter any building or premises at any reasonable time, provided if such building or premises is occupied he shall first present credentials and demand entry; and if such building or premises is not occupied, he shall first make a reasonable effort to locate the owner or other person having charge of the building or premises and demand entry. If such entry is refused, or the owner or other person having charge of the building or premises cannot be located, the enforcement officer or his designee shall have recourse to every remedy provided by law to secure entry, including recourse to superior court for issuance of a warrant authorizing such entry and inspection. (Ord. 2004-14 § 1, 2004).

8.04.100 Additional enforcement procedures.

The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by this code or other applicable law. (Ord. 2004-14 § 1, 2004).

8.04.110 Conflicts.

In the event of a conflict between this chapter and any other provision of the Toppenish Municipal Code or city ordinance providing for a civil penalty, this chapter shall control. (Ord. 2004-14 § 1, 2004).

8.04.120 Rules and regulations.

The city manager may adopt and promulgate rules and regulations for administration and enforcement of this chapter which are not inconsistent herewith or with superior law. The purpose of such rules and regulations is to carry out the provisions of this chapter. (Ord. 2004-14 § 1, 2004).

8.04.130 Civil suit authorized.

In addition to whatever other penalties may be available to enforce this chapter, civil suit may be commenced in the name of the city to collect any penalty, cost, or expense due to the city. (Ord. 2004-14 § 1, 2004).

8.04.140 Violation – Penalty.

Failure to perform any act required by this chapter, or the performance of any act prohibited by this chapter, is designated as an infraction and may not be classified as a criminal offense. Any person, firm, or corporation found to have committed an infraction under this chapter shall be assessed a monetary penalty. No penalty may exceed $500.00 for each separate infraction, as more specifically set forth in TMC 8.04.060(E)(1). (Ord. 2004-14 § 1, 2004).