Chapter 9.48
NUISANCE ABATEMENT
Sections:
9.48.020 Liability for continuing nuisance.
9.48.030 Money collected for abatement – Disposition.
9.48.005 Definition of terms.
All definitions in Chapter 9.44 YMC shall apply to this chapter unless the context otherwise clearly indicates. (Ord. 415 § 5, 1991).
9.48.010 Abatement procedure.
A. Upon receipt of information or upon personal observation that a nuisance exists as defined in Chapter 9.44 YMC, the enforcement officer shall cause an investigation of the matter and premises involved. If the enforcement officer determines that a nuisance exists he or she shall file a written finding to that effect with the city clerk/treasurer.
B. After having filed a finding that a nuisance exists, the enforcement officer shall require the owner of the premises involved to abate the nuisance at his or her own cost and expense, in whole or in part. The enforcement officer shall give written notice to the owner as prescribed in this section, describing the property involved, the condition to be corrected, and a specified reasonable time within which the owner must correct the condition, which shall be not less than five days, or 10 days from the date of service by mail as evidenced by the postmark on the notice. The notice must further specify that:
1. If the owner fails to abate the nuisance within the specified period of time, the city shall cause the work to be performed and shall assess all or any portion of the cost thereof against the owner;
2. The owner may be liable for civil penalties for each day or part of day that the condition continues to exist following the notice;
3. The owner alternatively may be liable to criminal prosecution, as provided in this chapter; and
4. The owner has a right to appeal the notice as provided in subsection E of this section.
The required notice shall be in substantially the following form:
NOTICE TO ABATE UNSAFE OR UNLAWFUL CONDITION (NUISANCE)
(Name and address of person notified)
As owner, agent, lessee or other person occupying or having charge or control of the building, lot or premises at ________________________________, you are hereby notified that the enforcement officer of the city of Yelm has determined, pursuant to Chapter 9.48 of the Yelm Municipal Code, that there exists upon or adjoining said premises the following condition contrary to the provisions of Chapter 9.44 of the Yelm Municipal Code.
You are hereby further notified to abate that condition to the satisfaction of the city within ____ days of the date of this notice. If you do not abate the condition within ____ days the city will abate the condition at your expense. In addition, your failure to abate the condition will be considered a violation for which you may incur monetary penalties as provided in Sections 9.44.015 and 9.48.040, Yelm Municipal Code, for each day or part of day that the condition continues to exist.
Alternatively, failure to abate a nuisance may be prosecuted as a misdemeanor under Section 9.48.050 Yelm Municipal Code.
You have the right to appeal this notice within five days as provided in Section 9.48.010(E), Yelm Municipal Code, or within ten days from the date of service by mail, as evidenced by the postmark on the notice.
Thank you for your immediate attention to this matter.
____________________ __________
Enforcement Officer Date
C. The notice given by the enforcement officer to the owner shall be deposited in the United States mail with a return receipt requested or shall be personally served by delivering a copy thereof to the owner or by leaving the same with a person of suitable age and discretion at the owner’s place of residence. If the owner is not a resident of city, the notice shall be served by leaving the same with the tenant in possession of the property or, if there is no such tenant, by posting a copy of the notice in a conspicuous place on the property involved and by mailing a copy thereof to the owner at his or her last known address if any. Service by mail will be deemed complete at the end of the third full day following its deposit in the U.S. mail, postage prepaid.
D. Upon serving the notice prescribed in this chapter, the enforcement officer shall file with the city clerk/treasurer a certificate of service, in the following form:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the attached Notice to Abate Unsafe or Unlawful Condition was served upon the person (or persons) to whom it was addressed by (check one or more of the following):
☐ Delivering the copy to each of the addressees personally;
☐ Leaving the city at the owner’s place of residence with a person of suitable age and discretion; or
☐ Leaving the copy with the tenant in possession of the property; or
☐ Mailing a copy, certified mail with return receipt requested, to the owner at his (her) last known address, postage prepaid; or
☐ Leaving a copy posted on the vacant premises and mailing a copy, certified mail with return receipt requested, to the owner (who is not a city resident) at his (her) last known residence, postage prepaid.
__________ _____________________
Date Signature
E. A person to whom a notice of abatement has been issued may appeal the issuance of the notice by filing a written notice of appeal with the hearing board within five calendar days from the date of service of the notice by mail, as evidenced by the postmark on the notice. The notice of appeal need not be in a particular form but must clearly state that the person identified in the notice of appeal is the person to whom a notice of abatement was given, the date of the notice of abatement and the notice of appeal, and the reason or reasons why the person believes the notice to be in error. The board shall review the appeal and shall make a determination, after considering all pertinent facts, within 10 days. The procedure for review by the board including rules of evidence shall follow the rules prescribed for hearings before that board, insofar as is reasonably possible and appropriate. If no such rules exist, the board shall formally adopt as its rules, insofar as appropriate, the hearing procedures of the Yelm civil service commission relating to contested cases. The board’s decision shall be in writing, and shall be filed with the city clerk/treasurer. A copy of the decision shall be mailed promptly to the property owner, and, if the decision finds that the nuisance exists, the decision shall notify the property owner of the amount of time within which the nuisance must be abated.
F. If the notice is not timely or correctly appealed or if the appeal fails, and if the nuisance has not been abated within the time prescribed in the notice, the city shall cause the nuisance to be abated and shall charge the cost thereof against the property owner. The charges shall be considered as a personal obligation of the owner to the city, and shall be enforceable by the city in the same manner as other monetary claims.
G. The costs of abatement, when borne by the city, may be assessed against the real property upon which the costs were incurred unless paid. The enforcement officer shall forward such costs to the city treasurer, who shall certify them to the county treasurer for assessment on the tax rolls. (Ord. 415 § 6, 1991; Ord. 213 § 10(C)(1), 1977).
9.48.020 Liability for continuing nuisance.
Every successive owner or occupant of property who neglects to abate a continuing nuisance upon or in the use of such property caused by a former owner, is liable in the same manner as the owner who created it. (Ord. 415 § 7, 1991; Ord. 213 § 10(C)(3), 1977).
9.48.030 Money collected for abatement – Disposition.
All money collected for abatement purposes as provided in this chapter shall be paid to the city treasurer, shall be separately stated and itemized by the treasurer, and shall be credited by the treasurer to the departments or divisions of the city government which have incurred the abatement costs. (Ord. 415 § 8, 1991; Ord. 213 § 10(C)(2), 1977).
9.48.040 Civil penalties.
A. Violation as Civil Infractions. A violation of Chapter 9.44 or 9.48 YMC is a civil infraction for which civil penalties may be assessed for each day or part of day that the violation continues.
B. Notice of Civil Infraction. In addition to other civil remedies, the enforcement officer may issue a notice of civil infraction to an owner who fails to abate the nuisance within the amount of time specified in the notice of abatement. The notice shall be filed with the city clerk/treasurer and served in the same manner as that provided in this chapter for the service of a notice of abatement. The notice shall state that a civil infraction was directed and shall accrue for each and every day or portion thereof during which the violation of the notice of abatement continues, and shall notify the person of a right to appeal. The amount of the penalty shall be measured daily for each violation as specified in subsection C of this section.
The notice shall be in substantially the following form:
NOTICE OF CIVIL INFRACTION FOR FAILURE TO ABATE NUISANCE
(Name and address of person notified)
You are hereby notified that your failure to comply with the Notice to Abate Unsafe or Unlawful Condition (Nuisance) is a violation of Section 9.44.015 of the Yelm Municipal Code, and constitutes a civil infraction. As provided in Section 9.48.040 of the Yelm Municipal Code, a civil penalty has been assessed against you in the amount of _________, and a separate civil penalty in that amount may be assessed against you for each day or part of day that this violation continues, commencing ____________________, and until the condition specified in the said notice has been corrected to the city’s satisfaction.
Civil penalties must be paid within thirty days after they have been incurred. Your failure to pay the assessed penalties when due may result in a civil suit against you for the amount of those penalties in addition to court costs and abatement costs incurred by the city in correcting the condition in question.
You have the right to appeal this notice to the Yelm Municipal Court as provided in Section 9.48.040(D), Yelm Municipal Code, within ten (10) days, or within thirteen (13) days if served by mail, as evidenced by the postmark on said notice.
Thank you for your immediate attention to this matter.
____________________ Date: _______
Enforcement Officer
C. Civil Penalties Assessed. The amount of civil penalty that is assessed for each violation per day or portion of day is as follows:
1. First violation: $150.00;
2. Second violation: $250.00;
3. Third violation: $350.00;
4. Additional violations in excess of three: $500.00.
D. Appeal. A person to whom a notice of civil infraction has been directed may file an appeal with the Yelm municipal court to contest the issuance of such notice or the amount of any civil penalty imposed, not later than 10 days following the service of the notice or 13 days following date of service by mail as evidenced by the postmark on the notice.
E. Accrual of Penalty Pending Appeal. The civil penalty for a continuing violation does not accrue during the pendency of a timely appeal; however, the enforcement officer may impose a daily civil penalty from the date of service of the notice of civil infraction if he or she finds that the appeal is frivolous or is solely intended to delay compliance, or if the appeal is not timely.
F. Continuing Duty to Correct. Payment of a civil penalty pursuant to this chapter does not relieve a person of the duty to abate a nuisance that was ordered by the enforcement officer.
G. Collection of Civil Penalty.
1. The civil penalty constitutes a personal obligation of the person to whom the notice of civil infraction is directed. Any civil penalty assessed must be paid to the city treasurer within seven calendar days from the date of service of notice of civil infraction or, if an appeal was filed pursuant to subsection D of this section, within seven calendar days of the decision of the municipal court.
2. The city attorney, on behalf of the city, is authorized to collect the civil penalty by using appropriate legal remedies, the seeking or granting of which shall neither stay nor terminate the accrual of additional per diem civil penalties as long as the violation continues.
H. Other Remedies Preserved.
1. The provisions of this chapter are not exclusive of other rights and remedies of the city under other provisions of this code.
2. In addition to the city’s right to assess costs and penalties against owners as provided in its ordinances, the city shall retain all rights of lien and other rights against the property in question for costs that remain unpaid, in the manner and form provided by state law and city ordinances. (Ord. 415 § 9, 1991).
9.48.050 Criminal penalties.
A. As an alternative to any other penalty provided in this chapter or by law, any person who knowingly violates any provision of this chapter or Chapter 9.44 YMC shall be guilty of a misdemeanor.
B. Any person who knowingly obstructs or hinders or provides false information to any officer or agent of the city or other governmental unit in the enforcement of this chapter is guilty of a gross misdemeanor.
C. Any violation that is required by state law to be prosecuted as a criminal offense shall not be prosecuted as a civil infraction under this code. (Ord. 415 § 10, 1991).
9.48.060 Emergencies.
Nothing in this chapter or Chapter 9.44 YMC shall prevent the enforcement officer or any other officer of the city or other governmental unit from taking any other action, summary or otherwise, necessary to eliminate or minimize an imminent danger to the health or safety of any person or property, or the unlawful obstruction of any public way or easement. The city’s costs of abating any such nuisance, summarily or otherwise, shall be recoverable in the same manner and to the same extent as costs of abating nuisances under any other provisions of this chapter, in addition to or as an alternative to any other rights or remedies the city may possess. (Ord. 415 § 11, 1991).
9.48.070 Safeguards.
In any case where a nuisance is abated the enforcement officer or other officer, agent or employee shall proceed with due care and without unnecessary destruction of property. In all cases the enforcement officer shall be authorized to employ such assistance and adopt such means as may be necessary to effect the entire abatement of the nuisance. (Ord. 415 § 12, 1991).