Chapter 1.10
CIVIL ENFORCEMENT OF CODE

Sections:

1.10.010    Purpose.

1.10.020    Definitions.

1.10.030    Applicability.

1.10.040    Order.

1.10.060    Voluntary correction agreement.

1.10.070    Appeal to hearing examiner.

1.10.080    Collection of monetary penalty.

1.10.090    Abatement and additional enforcement procedures.

1.10.100    Conflicts.

1.10.120    Civil infractions authorized.

1.10.010 Purpose.

The purpose of this chapter is to establish an efficient, civil administrative system to enforce the regulations of the city, to provide an opportunity for an appeal of determinations of violations and prompt hearings and decisions on any such appeals, to establish monetary penalties for violations, and to provide for the collection of said penalties.

It is the express and specific purpose and intent of this chapter to provide for and promote the health, safety and welfare of the general public and not to create or otherwise establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter.

It is also the express and specific purpose and intent of this chapter that no provision nor any term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers or employees.

Nothing contained in this chapter is intended nor shall be construed to create or form the basis of any liability on the part of the city, its officers, employees or agents, for any injury or damage resulting from any action or inaction on the part of the city, its officers, employees or agents.

(Ord. O2010-014, Added, 06/15/2010)

1.10.020 Definitions.

A.    “Civil penalty” as used in any code, ordinance or regulation of the city shall be deemed to have the same meaning as the term “monetary penalty,” as used in this chapter.

B.    “Civil violation” means a violation of a provision of a city regulation for which a monetary penalty may be imposed under this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation.

C.    “Enforcement official” means the city building official, city code enforcement officers, and all other city officials designated by ordinance or by the city administrator for purposes of enforcing the provisions of this or other chapters and codes designated therein.

D.    “Hearing examiner” means the Tumwater hearing examiner and the office thereof.

E.    “Person” includes any natural person, any corporation or any unincorporated association or partnership.

F.     “Violation” means an act or omission contrary to a city development regulation including an act or omission at the same or different locations by the same person.

(Ord. O2010-014, Added, 06/15/2010)

1.10.030 Applicability.

Civil enforcement of the provisions of this code or the terms and conditions of any permit or approval issued pursuant to the Tumwater Municipal Code shall be governed by this chapter unless other more specific provisions apply. This chapter may be used to enforce the Tumwater Municipal Code against any violation. Each day or portion of a day during which a violation occurs or exists is a separate violation. Aiding or abetting a violation of another is also a violation. Any civil enforcement of the provisions of the Tumwater Municipal Code or the terms and conditions of any permit or approval issued pursuant to the Tumwater Municipal Code is in addition to, and does not preclude or limit, any other forms of enforcement available to the city, including, but not limited to, criminal proceedings or sanctions, nuisance and injunction actions, or other civil or equitable actions to abate, stop or correct unlawful acts in violation of this chapter.

(Ord. O2010-014, Added, 06/15/2010)

1.10.040 Order.

A.    Issuance. Whenever the enforcement official determines a violation has occurred or is occurring, he or she may issue an order directing any person causing, allowing and/or participating in the offending conduct to cease or correct such conduct immediately. An order issued pursuant to this section represents a determination that a violation of this code has been committed. This determination is final and conclusive unless appealed as provided herein.

B.    Content. The enforcement official shall include the following in the order:

1.    The name and address of the property owner and/or other person to whom the order is directed;

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 that provision of a city development regulation which has been violated;

4.    A statement to either stop the conduct or of the action required to be taken to correct the violation as determined by the enforcement official and a date or time by which correction is to be completed;

5.    A statement that the person to whom the order is directed must:

a.    Complete correction of the violation by the date stated in the order; or

b.    Appeal the order as provided in TMC 1.10.070; and

6.    A statement that, if such violation is not stopped or corrected and the order is not appealed, a monetary penalty in an amount per day for each violation as specified in this chapter shall accrue against the person to whom the order is directed for each and every day, or portion of a day, on which the violation continues following the date set to stop or correct the violation. Furthermore, the order shall state that the violation may be abated by the city as set forth in TMC 1.10.090 with costs assessed against the person.

C.    Posting and Service of Order. The enforcement official shall serve the order upon the person to whom it is directed, either by:

1.    Delivering it personally; or

2.    By mailing a copy of the order by certified mail to such person at his/her last known address and by posting a copy of the order to cease activity conspicuously on the affected property or structure, or as near to the affected property or structure as feasible.

3.    Proof of service shall be made at the time of service by a written declaration executed by the person effecting the service, declaring the time and date of service and the manner by which service was made. Any failure of the person to whom the order is directed to observe the posted order, to accept receipt of, or actually receive, the mailed order shall not invalidate service made in compliance with this section, nor shall it invalidate the order.

4.    If service is by personal service, service shall be deemed complete immediately. If service is made by mail, service shall be deemed complete upon the third day following that day upon which the order is placed in the mail. If the third day falls on a Saturday, Sunday, or legal holiday, the service shall be deemed complete on the first day other than a Saturday, Sunday, or legal holiday following the third day. If service is made by posting, service shall be deemed complete on the third day following the day the order is posted.

D.    Extension. Upon written request received prior to the correction date or time, the enforcement official may extend the date set for correction for good cause or to accommodate a violation correction agreement. The enforcement official may consider substantial completion of the necessary correction or unforeseeable circumstances which render completion impossible by the date established as a good cause.

E.    Appeal of Order. An order may be appealed under the procedures described in TMC 1.10.070. During any such appeal, the order to cease activity shall remain in effect.

F.    Effect of Order to Cease Activity. When an order to cease activity has been issued, posted and/or served pursuant to this section, it is unlawful for any person to whom the order is directed or any person with actual or constructive knowledge of the order to conduct the activity or perform the work covered by the order, even if the order to cease activity has been appealed, until the enforcement official has removed the copy of the order, if posted, and issued written authorization for the activity or work to be resumed. Violation of an order to cease activity constitutes a misdemeanor. In addition, a monetary penalty shall accrue for each day or portion thereof that a violation of an order to cease activity occurs, in the same amounts set forth in subsection G of this section. In addition to such criminal or monetary penalties, the city may enforce the order to cease activity in accordance with TMC 1.10.090 and enforce it in superior court.

G.    Monetary Penalty. A monetary penalty shall accrue for each day or portion thereof that each violation continues beyond the date set in the order. The maximum penalty and the default amount shall be $100.00 for the first violation, $200.00 for a second violation of the same nature or continuing violation, $300.00 for a third violation of the same nature or continuing violation, and $500.00 for each additional violation of the same nature or continuing violation in excess of three, not including fees, costs and assessments.

H.    Continued Duty to Correct. Payment of a monetary penalty pursuant to this section does not relieve a person of the duty to stop or correct the violation as ordered by the enforcement official.

I.    Declaration of Compliance. When the violation has been stopped or corrected and the enforcement official has been notified by the property owner and/or other person to whom the order was directed and the penalty paid, the enforcement officer shall issue a letter which states the date upon which the violation was fully corrected, beyond which no further penalty shall accrue.

J.    Other Penalties. If an order is not appealed, each day which the violation continues beyond the date set forth in the order shall constitute a misdemeanor. In addition to criminal and monetary penalties, the city may enforce the order in accordance with TMC 1.10.080 and 1.10.090, or enforce the order in superior court.

(Ord. O2010-014, Added, 06/15/2010)

1.10.060 Voluntary correction agreement.

A.    General. When the city determines that a violation of an ordinance has occurred, the city may enter into a voluntary correction agreement with the person(s) responsible for the violation or the owner(s) of property on which the violation has occurred or is occurring (hereafter called “responsible party”). In a voluntary correction agreement, the responsible party agrees to abate the violation within a specified time period and according to specified conditions. A voluntary correction agreement may be used instead of, in lieu of, or in conjunction with, an order.

B.    Contents. A voluntary correction agreement shall be in writing, signed by the responsible party and an enforcement official, and shall contain substantially the following information:

1.    The name and address of the responsible party;

2.    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;

3.    A description of the violation and a reference to the regulation violated;

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

5.    An agreement by the responsible party that the city may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement;

6.    An agreement by the responsible party that, if the terms of the voluntary correction agreement are not met, the city may abate the violation and recover its costs and expenses as provided in this section;

7.    An agreement by the responsible party that, if the terms of the voluntary correction agreement are not met, the stipulated penalty amount will become immediately due and the responsible party agrees to pay the amount upon demand;

8.    An agreement that by entering into the voluntary correction agreement, the responsible party waives the right to a hearing before the examiner under this section regarding the matter of the violation, penalty and/or required corrective action; and

9.    A statement that failure to comply with the terms of the agreement shall constitute a misdemeanor punishable by a fine of up to $1,000 or imprisonment for up to ninety days, or both, for each day the violation continues.

C.    Modification and Time Extension. An extension of the time limit for correction or a modification of the required corrective action may be granted by the enforcement official 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. All modifications or time extensions shall be in writing, signed by the person(s) responsible for the violation and/or the owner(s) of the property on which the violation has occurred or is occurring and an enforcement official.

D.    Penalty for Noncompliance. Violation of the terms of the agreement shall constitute a misdemeanor. Further, the city may enter the property, abate the violation and recover all costs and expenses of abatement in accordance with the provisions of this chapter.

(Ord. O2010-014, Added, 06/15/2010)

1.10.070 Appeal to hearing examiner.

A.    General. A person may appeal an order to the Tumwater hearing examiner by filing a written notice of appeal with the city clerk within fourteen calendar days from the date of service of the order specifying what issue is being appealed. The person appealing may appeal either the determination that a violation exists, the amount of any monetary penalty imposed, the corrective action ordered, or any combination thereof. The city may also request a hearing before the hearing examiner to assess costs, modify previous orders, or to enter other orders as needed. The appeal must be accompanied by cash or a check, payable to the city of Tumwater, in the amount set forth in the city’s fee resolution, which is refundable in the event the appellant prevails on the appeal. The filing fee is waived in cases where the city requests the hearing.

B.    Effect of Appeal. The timely filing of an appeal in compliance with this section shall stay the requirement for action specified in the order that is the subject of the appeal. The monetary penalty for a continuing violation does not continue to accrue during the pendency of the appeal; however, the hearing examiner may impose a daily monetary penalty from the date of service of the order if he or she finds that the appeal is frivolous or intended solely to delay compliance. An appeal does not lift or stay an order to cease activity.

C.    Notice of and Hearing before the Hearing Examiner.

1.    Date of Hearing. Within ten days of the clerk’s receipt of the appeal, the hearing examiner shall set a public hearing for a date within thirty days of the clerk’s receipt of the appeal.

2.    Notice of Hearing.

a.    Content. The notice shall contain the following:

i.    The file number and a brief description of the matter being appealed;

ii.    A statement of the scope of the appeal, including a summary of the errors alleged and the findings and/or legal conclusions disputed in the appeal;

iii.    The date, time and place of the public hearing on the appeal;

iv.    A statement of who may participate in the appeal; and

v.    A statement of how to participate in the appeal.

b.    Distribution. The clerk shall cause a notice of the appeal hearing to be posted on the property that is the subject of the order, and mailed to the appellant and property owners located within three hundred feet of the property that is the subject of the violation. The notice shall be mailed and posted at least ten calendar days before the hearing on the appeal.

3.    Participation in the Appeal. The city and the appellant may participate as parties in the hearing and each may call witnesses. Any person may participate in the public hearing in either or both of the following ways:

a.    By submitting written comments to the hearing examiner, either by delivering these comments to the clerk prior to the hearing or by giving these directly to the hearing examiner at the hearing; and/or

b.    By appearing in person, or through a representative, at the hearing and making oral comments directly to the hearing examiner. The hearing examiner may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing.

4.    Conduct of Hearing. The hearing examiner shall conduct the hearing on the appeal pursuant to the rules of procedure of the hearing examiner. The appellant shall have the burden of proof by a preponderance of the evidence that a violation has not occurred, that the amount of monetary penalty assessed was not in compliance with the code, or that the corrective action ordered is unnecessary to cure the violation.

5.    Electronic Sound Recording. The hearing examiner shall make a complete electronic sound recording of the public hearing.

6.    Continuation of the Hearing. The hearing examiner may continue the hearing if, for any reason, he or she is unable to hear all of the public comments on the matter or if the hearing examiner determines that he or she needs more information on the matter. If, during the hearing, the hearing examiner announces the time and place of the next hearing on the matter, no further notice of that hearing need be given.

D.    Decision of Hearing Examiner.

1.    Vacation. If the hearing examiner determines that the appellant has proven by a preponderance of the evidence that no violation substantially as stated in the order has occurred, the hearing examiner shall vacate the order, and require the appeal fee to be refunded.

2.    Affirmance. If the hearing examiner determines that the appellant has not proven by a preponderance of the evidence, the hearing examiner shall affirm the order.

3.    Modification. If the hearing examiner determines that the corrective action ordered was unnecessary to cure the violation, the examiner may modify the corrective action required. The hearing examiner may also modify the assessment of penalties and costs if good cause is found. In so ordering, the hearing examiner shall consider the following:

a.    Whether the intent of the appeal was to delay compliance;

b.    Whether the appeal was frivolous;

c.    Whether there was a written contract or agreement with another party which specified the securing by the other party of the applicable permit or approval from the city;

d.    Whether the applicant exercised reasonable and timely effort to comply with the applicable development regulations; or

e.    Any other relevant factors.

In modifying a monetary penalty under this section, the hearing examiner shall impose, at a minimum, the monetary penalty set forth in TMC 1.10.040(G), for each separate section of the Tumwater Municipal Code violated, and as determined by reference to the applicable number of violations (first, second, third) at issue. In modifying the corrective action ordered, the hearing examiner shall require, at a minimum, any action necessary to ensure actual compliance within fourteen days of the date of the examiner’s decision.

E.    Issuance of Decision. The hearing examiner shall issue an oral decision at the time of the hearing unless good cause exists to delay the decision. The hearing examiner shall issue a written decision, including findings of fact, conclusions, and order within fourteen days of the hearing. Compliance with any decision of the hearing examiner whether oral or written is required immediately upon issuance.

F.    Judicial Review. Judicial review of a decision by the hearing examiner relating to any ordinance regulating the improvement, development, modification, maintenance, or use of any real property may be sought by any person aggrieved or adversely affected by the decision, pursuant to the provisions of the Land Use Petition Act, Chapter 36.70C RCW, if applicable, or other applicable authority, if any, if the petition or complaint seeking review is filed and served on all parties within twenty-one days of the date of the decision. For purposes of this section, “aggrieved or adversely affected” shall have the meaning set forth in RCW 36.70C.060(2). Judicial review of all other decisions may only occur subject to Chapter 7.16 RCW.

G.    Effect of Decision. If judicial review is not obtained, the decision of the hearing examiner shall constitute the final decision of the city, and the failure to comply with the decision of the hearing examiner shall constitute a misdemeanor. In addition to criminal punishment pursuant to this subsection, the city may pursue collection and abatement under TMC 1.10.080 and 1.10.090.

(Ord. O2010-014, Added, 06/15/2010)

1.10.080 Collection of monetary penalty.

A.    The monetary penalty imposed under this chapter constitutes a personal obligation of the person in violation. Any monetary penalty assessed must be paid to the city clerk within fourteen calendar days from the date of service of the notice and order or, if an appeal was filed pursuant to TMC 1.10.070, within fourteen calendar days of the hearing examiner’s decision.

B.    The city attorney, on behalf of the city, is authorized to collect the monetary penalty by use of appropriate legal remedies, the seeking a granting of which shall neither stay nor terminate the accrual of additional per diem monetary penalties so long as the violation continues.

1.    The city may authorize the use of collection agencies to recover monetary penalties, in which case the cost of the collection process shall be assessed in addition to the monetary penalty.

2.    The city may incorporate any outstanding penalty into an assessment lien when the city incurs costs of abating the violation pursuant to TMC 1.10.090.

(Ord. O2010-014, Added, 06/15/2010)

1.10.090 Abatement and additional enforcement procedures.

A.    Abatement by Violator. In the absence of an appeal, any required abatement shall be executed in the manner and means specifically set forth in the order and/or the voluntary correction agreement by the person(s) responsible for the violation.

B.    Abatement by City. The city may perform the abatement required upon noncompliance with the terms of:

1.    An unappealed order;

2.    A voluntary correction agreement; or

3.    A final order of the hearing examiner.

The city may utilize city employees or a private contractor under city direction to accomplish the abatement. The city, its employees and agents using lawful means are expressly authorized to enter upon the property of the violator for such purposes.

The city shall bill its costs of abating the violation to the person(s) obligated to perform the work under the order, voluntary correction agreement or hearing examiner decision, which costs shall become due and payable thirty days after the date of the bill. The city’s costs shall include, but not be limited to, personnel costs, both direct and indirect, including attorney’s fees incurred by the city; costs incurred in documenting the violation; the actual expenses and costs to the city to conduct or contract for the work, in the preparation of notices, specifications and contracts, and in inspecting the work; and the cost of any required printing and mailing. The city administrator or designee, or the hearing examiner, may in his or her discretion waive in whole or in part the assessment of any costs of abatement upon a showing that abatement has occurred and is no longer necessary or that the costs would cause significant hardship. The city may authorize the use of collection agencies to recover costs. The city attorney is authorized to collect costs by use of appropriate legal remedies.

C.    Obstruction with Work Prohibited. No person shall obstruct, impede or interfere with the city, its employees or agents, or any person who owns, or holds any interest or estate in any property in the performance of any necessary act, preliminary or incidental to carrying out the requirements of an order, voluntary correction agreement or order of the hearing examiner issued pursuant to this section. A violation of this provision shall constitute a misdemeanor.

D.    Report to City Council and Hearing on Cost of Abatement. In the event the person(s) responsible fails to pay within the thirty-day period set forth in subsection B of this section, the enforcement official shall prepare a written itemized report to the city council showing the cost of abatement, including rehabilitation, demolition, restoration or repair of such property, including such salvage value relating thereto plus the amount of any outstanding penalties.

1.    A copy of the report and a notice of the time and date when the report shall be heard by the city council shall be served on the person responsible for payment at least five days prior to the hearing before the city council.

2.    The city council shall review the report and such other information on the matter as it receives and deems relevant at the hearing. The city council shall confirm or revise the amounts in the report, authorize collection of that amount or, in the case of a debt owed by a property owner, authorize placement of an assessment lien on the property as provided in subsection E of this section.

E.    Assessment Lien. Following the hearing and authorization by the city council, the city clerk shall certify to the county treasurer the confirmed amount. The county treasurer shall enter the amount of such assessment upon the tax rolls against the property for the current year and the same shall become a part of the general taxes for that year to be collected at the same time and with interest at such rates as provided in RCW 84.56.020, as now or hereafter amended, for delinquent taxes, and when collected to be deposited to the credit of the general fund of the city.

The validity of any assessment made under the provisions of this section may not be contested in any action or proceeding commenced more than fifteen calendar days after the assessment is placed upon the assessment roll.

F.    Additional Remedies. Unless otherwise precluded by law, the provisions of this chapter may be used in lieu of, or in addition to, other enforcement provisions, including, but not limited to, other provisions of the Tumwater Municipal Code, the use of collection agencies, or other civil actions including injunctions.

(Ord. O2010-014, Added, 06/15/2010)

1.10.100 Conflicts.

In the event of a conflict between this chapter and any other provision of the Tumwater Municipal Code or city ordinance providing for a civil penalty, the more specific provision shall control.

(Ord. O2010-014, Added, 06/15/2010)

1.10.120 Civil infractions authorized.

A.    Enforcement officials and officers are authorized to issue civil infractions to enforce provisions of the Tumwater Municipal Code except those provisions specifically designated as crimes, specifically identified as not being infractions, or designated as traffic infractions.

B.    Unless otherwise provided, enforcement officials shall follow the provisions of Chapter 7.80 RCW in issuing civil infractions.

C.    Chapter 7.80 RCW is adopted herein by reference.

D.    A person found to have committed a civil infraction shall be assessed a monetary penalty.

1.    The maximum penalty and the default amount for a class 1 civil infraction shall be $250.00, not including statutory assessments;

2.    The maximum penalty and the default amount for a class 2 civil infraction shall be $125.00, not including statutory assessments;

3.    The maximum penalty and the default amount for a class 3 civil infraction shall be $50.00, not including statutory assessments; and

4.    The maximum penalty and the default amount for a class 4 civil infraction shall be $25.00, not including statutory assessments.

E.    The court may also order a person found to have committed a civil infraction to make restitution.

(Ord. O2010-014, Added, 06/15/2010)