Chapter 8.16
NUISANCES*
Sections:
8.16.020 Public nuisance declared.
8.16.045 Enforcement action--Superior court.
8.16.070 Abatement by the city.
8.16.080 Abatement by owner or other responsible person.
8.16.090 Immediate danger--Summary abatement.
8.16.110 Remedies nonexclusive.
* For statutory provisions regarding nuisances, see RCW Ch. 7.48; for criminal provisions regarding nuisances, see RCW Ch. 9.66; for provisions authorizing first class cities to declare what shall be a nuisance, to abate the same, and to impose fines upon parties who create, continue, or suffer nuisances to exist, see RCW 35.22.280(31); for provisions granting to code cities all of the powers of any city of any class, see RCW 35A.21.160.
8.16.010 Definitions.
For purposes of this chapter, the following words or phrases shall have the meaning prescribed below:
"Abate" means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable city department director or designee(s) determines is necessary in the interest of the general health, safety and welfare of the community;
"Authorized official" shall mean the chief of the Elma police department or the city of Elma’s building official or their respective designees;
"Chronic nuisance property" means property on which any combination of three or more nuisance activities, as defined in the provisions of the municipal code, occur or exist during any sixty-day period;
"Control" means the ability to regulate, restrain, dominate, counteract, or govern property, or conduct that occurs on a property;
"Drug-related activity" means any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, or giving away of any controlled substance as defined in Chapter 69.50 RCW, legend drug as defined in Chapter 69.41 RCW, or imitation controlled substances as defined in Chapter 69.52 RCW, each as now existing or hereafter amended or succeeded;
"Nuisance activity" for purposes of this chapter means and includes:
1. Any nuisance as defined by state law or local ordinance, including the provisions of this chapter, occurring on, around or near a property, including, but not limited to, violations of the following laws and regulations:
a. Junk vehicles;
b. Fire code;
c. Health and sanitation;
2. Any criminal conduct as defined by state law or local ordinance occurring on, around or near a property, including, but not limited to, the following activities or behaviors:
a. Stalking;
b. Harassment;
c Failure to disperse;
d. Disorderly conduct;
e. Assault;
f. Any domestic violence crimes;
g. Reckless endangerment;
h. Prostitution;
i. Patronizing a prostitute;
j. Public disturbance noises;
k. Lewd conduct;
l. Any firearms/dangerous weapons violations;
m. Drug-related loitering;
n. Any dangerous animal violations;
o. Any drug-related activity;
3. For purposes of this chapter, "nuisance activity" shall not include conduct where the person responsible is the victim of a crime and had no control over the criminal act;
"Person" means natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them;
"Person responsible for property" or "person responsible" means, unless otherwise defined, any person who has titled ownership of the property or structure which is subject to this chapter, an occupant in control of the property or structure which is subject to this chapter, a developer, builder, or business operator or owner who is developing, building, or operating a business on the property or in a structure which is subject to this chapter, the person who caused to come into existence and/or any person who has control over the property and allows a violation of this chapter to continue;
"Premises" or "property" may be used by this chapter interchangeably. The terms shall mean any public or private building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used as residential or commercial property;
"Public nuisance" shall mean the existence of the conditions set out in Section 8.16.020, as now existing or hereafter amended or succeeded;
"Rental unit" means any structure or that part of a structure, including but not limited to single-family home, room or apartment, which is rented to another and used as a home, residence, or sleeping place by one or more persons. (Ord. 1151 §1, 2016).
8.16.020 Public nuisance declared.
Each of the following conditions, unless otherwise permitted by law, is declared to constitute a public nuisance, and whenever the enforcement officer determines that any of these conditions exist upon any premises, the officer may require or provide for the abatement thereof pursuant to this chapter:
The construction, maintaining, using, placing, depositing, causing, allowing, leaving or permitting to be or remain in or upon any private or public lot, building, structure, or premises, on, in or upon any street, avenue, alley, park, parkway or other public or private place in the city, any one or more of the following places, conditions, things, or acts to the prejudice, danger or annoyance of others:
1. Accumulations of manure, rubbish or other solid waste; provided, that a compost pile so covered or concealed as not to affect the health, safety or value of adjacent property shall not be so deemed;
2. Pollution of a body of water, spring, stream or drainage ditch by sewage, industrial wastes, or other substances that cause harmful material to pollute the water;
3. All limbs or trees overhanging a public sidewalk or alley which are less than nine feet above the surface of said sidewalk or overhanging a city street which are less than fourteen feet above the surface of said street;
4. Premises or residences:
a. Which are in such a state of decay as to cause an offensive odor;
b. Which are in an unsanitary condition; or
c. Which create or constitute an unreasonable risk of fire or public safety hazard for adjoining property owners, whether public or private;
5. Ponds or pools of stagnant water, except those areas of wetlands as designated by city, federal or state laws, rules or regulations;
6. Privies, vaults, cesspools, sumps, pits, or like places which are not securely protected from flies and rats or which are foul or malodorous;
7. All unused, abandoned or discarded refrigerators, iceboxes, or like containers which are left in any place exposed or accessible to children; or any water closet, bathtub or other appliance;
8. All places not properly fenced which are used or maintained as junkyards or dumping grounds, or for the wrecking, disassembling, repair or rebuilding of automobiles, trucks, tractors or machinery of any kind, or for the storing or leaving of worn out, wrecked or abandoned automobiles, trucks, tractors, or machinery of any kind or of any of the parts thereof, or for the storing or leaving of any machinery or equipment used by contractors or builders or by other persons, which said places are kept or maintained so as to essentially interfere with the comfortable enjoyment of life or property by others;
9. Deposit, keep or leave or to permit to be deposited, kept or left in any place accessible to children, or in any place viewable from a public street or alley, any abandoned, unused, unlicensed, non-running, or discarded automobile, trailer, truck or other such vehicle, or any vehicle hulk or any part thereof. For the purposes of this subsection, "abandoned, unused, non-running" refers to a vehicle which is not movable under its own power and which has been in a stationary position for more than fourteen days.
This section shall not apply to junk kept in a duly licensed junkyard, automobile wrecking yard, automobile sales lots, or automobile repair shop.
The term "junk" as used in this section includes all motor vehicles not currently licensed, old, or unusual motorized or nonmotorized vehicle or vehicle parts, abandoned automobiles, old machinery, old machinery parts, old appliances, or parts thereof, old iron or other metal, glass, paper, lumber, wood or other waste or discarded material;
10. An open pit, quarry, cistern, or other excavation without safeguards or barriers to prevent such places from being accessed or used by children.
This section shall not apply to authorized construction projects with reasonable safeguards to prevent injury or death to playing children;
11. The depositing or burning of or causing to be deposited or burned in any street, alley, sidewalk, park, parkway, or other public place which is open to travel, any hay, straw, grass, grass clippings, papers, wood, boards, boxes, leaves, manure, or other rubbish or material except by permission of the fire marshal;
12. The existence of any dead, diseased, infested or dying tree that may constitute a danger to property or persons. No tree on property which abuts upon a street or public sidewalk shall interfere with street or sidewalk traffic;
13. All shrubs, bushes, trees or vegetation which have grown and are in such a condition, whether as the result of size, flammability, or state of decay, constitute a fire hazard;
14. Any tin cans, bottles, glass, cans, ashes, small pieces of scrap iron, wire, pipe, metal articles, plaster, and all other trash or abandoned material, unless the same, is kept in covered bins or metal receptacles approved by the director of public works and further except for recyclables kept in approved containers;
15. Any trash, litter, rags, accumulations of empty barrels, boxes, crates, packing cases, mattresses, bedding accessories, packing hay, straw, or other packing material, scrap iron, tin, pipe and other metal not neatly piled;
16. Lumber, roofing or siding materials, logs, or pilings not so stacked, piled or arranged as to be free from being dangerous to or/and accessible to children;
17. Any of the following not properly secured from access by the public; provided, that the building official shall have concurrent jurisdiction in relation to any covered structures:
a. Any unsightly or dangerous building, billboard or other structure,
b. Any abandoned, or partially destroyed building or structure,
c. Any building or structure commenced and left unfinished for a period of more than six months from the date of the last completed work pursuant to the authority of an applicable valid building permit,
d. Storage of vehicles, materials or other objects contrary to the provision of any applicable section of this code;
18. Repair upon the public streets, alleys or other public property of the city, of any automobile, truck or other motor vehicle or any other device required to possess a license issued by the Department of Motor Vehicle/Licenses of this state or the state of its registration except for emergency repairs not to exceed forty-eight hours in any seven-day period and only so long as it is so located as to not constitute a hazard or unreasonable interference to pedestrian or motor vehicle travel or the placement or storage upon these sights of vehicles, materials, or other objects contrary to the provision of any applicable section of this code;
19. Any putrid, unsound or unwholesome bones, meat, hides, skins, skeletons or other whole or part of any dead animal, fish or fowl, butcher’s trimmings and offal, or any waste, vegetable or animal matter, in any quantity, garbage, human excreta, or other offensive substance, provided nothing contained in this chapter shall prevent the temporary retention of waste in receptacles in the manner approved by the director of public works of the city or the local disposal company;
20. Except to the extent allowed by the lawful terms of a permit issued by the governmental authority having jurisdiction thereof, burning or disposal of refuse, sawdust, or other material in such a manner to cause or permit ashes, sawdust, soot, or cinders to be cast upon the streets or alleys of the city, or to cause or permit dense smoke, noxious fumes, ashes, soot, or gases arising from such burning to become annoying or injurious to the health, comfort, or repose of the general public;
21. The existence of any vines, plants growing into or over any street, sidewalk, public hydrant, pole or electrolier, or the existence of any shrub, vine or plant, growing on, around, or in front of any hydrant, stand pipe, sprinkler system connection, or any other appliance or facility provided for fire protection purposes in such a way as to obscure the view thereof or impair the access thereto, or obstruct or interfere with the proper diffusion from the light from any street lamp, or obstruct the vision of vehicle or pedestrian traffic;
22. Any poisonous or harmful substance which is reasonably accessible to persons or to animals;
23. The existence of any fence or other structure or thing on private property abutting or fronting upon any public street, alley, sidewalk, or place which is in a sagging, leaning, fallen, decayed, or other dilapidated or unsafe condition;
24. Poultry which creates a nuisance;
25. To dispose of animals within the city;
26. All trees, hedges, billboards, fences or other obstructions which prevent persons from having a clear view of traffic approaching an intersection from cross streets in sufficient time to bring a motor vehicle driven at a reasonable speed to a full stop before the intersection is reached;
27. All explosives, inflammable liquids, and other dangerous substances stored in any manner or in any amount other than that provided by ordinance;
28. For any person to obstruct or encroach upon public highway, streets, private ways, alleys, and ways open to the public, including cemeteries, or to unlawfully obstruct or impede the flow of municipal transit vehicles, as defined in RCW 46.04.355, as now existing or hereafter amended or succeeded, or passenger traffic, or to otherwise interfere with the provision or use of public transportation services, or obstruct or impede a municipal transit driver, operator, employee, or supervisor in the performance of that individual’s duties;
29. For any person to erect, continue or use any building or other structure or place for the exercise of any trade, activity, employment or manufacture, which, by occasioning obnoxious, hazardous or toxic exhausts or emissions, offensive smells, or otherwise, is offensive or dangerous to the health of individuals or the public;
30. For any person to cause or allow the obstruction of or impeding, without legal authority, of the passage or flow of any stream, canal or body of water;
31. Any place wherein intoxicating liquors or controlled substances are kept for unlawful use, sale or distribution. (Ord. 942 §2, 1995).
8.16.025 Violation defined.
A. Any property within the city of Elma which is a chronic nuisance property, as defined in this chapter, is in violation of this chapter and subject to its remedies.
B. Any person responsible for property who permits or allows a property to be a chronic nuisance property, as defined in this chapter, shall be in violation of this chapter and subject to its remedies. (Ord. 1151 §2, 2016).
8.16.035 Procedure.
A. When the authorized official develops or receives information or documentation confirming the occurrence of three or more nuisance activities within a sixty-day period on any property, the authorized official may review such documentation to determine whether it describes the nuisance activities enumerated in Section 8.16.010 or a nuisance activity set out in any other section of the municipal code. Upon a finding in the affirmative, the authorized official may notify the person responsible for such property that the property is in danger of being declared a chronic nuisance property.
B. The warning shall be in writing and contain at least the following information:
1. The street address or a legal description sufficient for identification of the property;
2. A concise description of the nuisance activities that exist or that have occurred on the property;
3. Notification of a requirement that the person responsible for such property respond to the authorized official within ten days of service of the notice to discuss the nuisance activities and create a plan to abate the chronic nuisance;
4. Offer the person responsible an opportunity to abate the nuisance activities giving rise to the violation so long as there is compliance with the provisions of the notice;
5. Notification that if legal action is sought as a result of the failure to timely correct the violation, the property may be subject to closure and civil penalties and/or costs assessed up to one hundred dollars per day if the property is declared a chronic nuisance property; and
6. The right to file an appeal pursuant to the provisions of Section 8.16.060, as now existing or hereafter amended or succeeded.
C. The authorized official shall serve, cause to be served, or provide such notification upon or to the person responsible in accordance with the procedures set forth in Section 8.16.050, as now existing or hereafter amended or succeeded.
D. If the person responsible fails to respond to the warning within the time prescribed, the authorized official shall issue a notice declaring the property to be a chronic nuisance property and post such notice at the property and issue the person responsible a notice of civil infraction, punishable by imposition of a maximum penalty of one thousand dollars. If the person responsible fails to respond to the issued infraction and/or continues to violate the provisions of this chapter, the matter shall be referred to the office of the city attorney for further action.
E. If the person responsible responds as required by the notice and agrees to abate the nuisance activity, the authorized official and the person responsible may work out an agreed upon course of action which would abate the nuisance activity. If an agreed course of action does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the matter shall be forwarded to the office of the city attorney for enforcement action; provided, that in the event the authorized official or the city attorney determines that the person responsible has taken reasonable steps to abate the nuisance activity, the city attorney shall not commence an enforcement action under this chapter, notwithstanding the continuance of the nuisance activity.
F. It is a defense to an action for chronic nuisance property that the person responsible, at all material times, could not, in the exercise of reasonable care or diligence, determine that the property had become a chronic nuisance property, or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that the property is chronic nuisance property.
G. The Elma municipal court shall have jurisdiction of all civil infractions issued pursuant to this chapter and shall retain such jurisdiction regardless of whether an action is filed in superior court pursuant to Section 8.16.045. (Ord. 1151 §3, 2016).
8.16.040 Prohibited conduct.
It is unlawful for any responsible person or owner to create, permit, maintain, suffer, carry on, or allow upon any premises any of the acts or things declared by this chapter to be a public nuisance. (Ord. 942 §3, 1995).
8.16.045 Enforcement action--Superior court.
A. If a matter is referred to the city attorney under the provisions of Section 8.16.035, the city attorney shall review and make a determination as to whether to initiate legal action authorized under this chapter or state statute or seek alternative forms of abatement of the nuisance activity. In addition to any filing made in the city’s municipal court, the city attorney may initiate legal action on the chronic nuisance property and seek civil penalties and costs in superior court for the abatement of the nuisance.
B. In determining whether a property shall be deemed a chronic nuisance property and subject to the superior court’s jurisdiction, the city shall have the initial burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property. The city may submit official reports prepared by the responsible officials or their departments and other affidavits outlining the information that led to official action, including one or more arrests and other chronic nuisance activity occurring or existing at the property. The failure to prosecute an individual, or the fact no one has been convicted of a crime, is not a defense to a chronic nuisance action.
C. If after such hearing as it determines appropriate the superior court determines the property to be a chronic nuisance under this chapter, the court may impose a civil penalty against any or all of the persons responsible for the property and may order any other relief deemed appropriate. A civil penalty may be assessed for up to one hundred dollars per day for each day the nuisance activity continues to occur following the date of the original warning by the authorized official, as described in Section 8.16.035. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable:
1. The actions taken by the person responsible to mitigate or correct the nuisance activity;
2. The repeated or continuous nature of the nuisance activity;
3. The statements of the neighbors or those affected by the nuisance activity; and
4. Any other factor deemed relevant by the court.
D. The superior court which determined the property to be a chronic nuisance property shall also assess costs against the person responsible in the amount determined by it to have been reasonably expended by the city to abate, or attempt to abate, the nuisance activity.
E. If the superior court determines the property to be a chronic nuisance property, the superior court may order the property closed and secured against all unauthorized access, use and occupancy for the lesser of a period up to one year or until the city notifies the court that the matter has been resolved, and may impose a civil penalty and costs.
F. Once a determination has been made by the superior court that the chronic nuisance property shall be subject to closure, the court may authorize the city to physically secure the premises and initiate such closure. Costs for such closure shall be submitted to the court for review. Any civil penalty and/or costs awarded to the city may be filed with the city treasurer who shall cause the same to be filed as a lien on the property with the county treasurer. The city shall file a formal lis pendens notice when an action for abatement is filed in the superior court.
G. The superior court shall retain jurisdiction during any period of closure or abatement of the property. (Ord. 1151 §4, 2016).
8.16.050 Enforcement--Notice.
A. The enforcement officer, upon receiving a written complaint from any neighbor, person, citizen, or other source, or becoming aware that a nuisance may exist, shall investigate the complaint or information with all reasonable dispatch.
B. The enforcement officer, upon finding any condition in violation of this chapter, shall cause any owner or other responsible person to be notified in writing of the existence of the public nuisance, including posting of a notice on the premises where the nuisance exists, directing the owner or person in charge of the property to abate the condition within ten calendar days after notice or other reasonable period. If not personally served, the written notice shall be mailed to the last known address of the owner or other responsible person, with copies being transmitted by first class post and certified mail.
1. At the time of posting, if in the determination by the enforcement office said property appears abandoned, a copy of such notice shall be forwarded by certified mail to the legal owner or designated guardian, postage paid, and if known or disclosed from official public records of the tax assessor’s office, to the holder of any other legal interest in the building or land created by contract, deed of trust, mortgage or deed.
2. The notice shall be substantially in the following form and may contain such other information as may be deemed appropriate by the issuing official:
NOTICE TO ABATE UNSAFE OR UNLAWFUL CONDITION
(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 ___________ you are hereby notified that the undersigned, pursuant to Ordinance Number/Code Section ____ of the City of Elma has determined that there exists upon or adjoining said premises the following condition contrary to the provisions of subsection ____ of Ordinance Number/Code Section _______.
You are hereby notified to abate or correct said condition to the satisfaction of the undersigned within
ten (10) days of the date of this notice. If you do not abate, correct or appeal such condition within ten (10) days, the City may without further notice to you abate the condition at your expense.
Dated: ______________.
By (Name of Enforcement Officer) (Ord. 942 §4, 1995).
8.16.060 Appeal.
Within the time allowed after posting and mailing of such notice, as provided in Section 8.16.050, the person responsible shall remove the nuisance or within the same ten-day time period show that no nuisance exists unless an appeal/protest is taken as provided in this section.
A. An owner or person responsible protesting that no nuisance exists shall file with the public works director a written statement which shall specify the basis for so protesting within the ten-day period allowed for removal pursuant to Section 8.16.050. The statement shall set out with reasonable specificity the factual matters which are the basis of the protest.
B. The statement shall be referred to the mayor for administrative review. In undertaking such a review, the mayor may consider such materials as are within the file, including those submitted by the party protesting the decision. The mayor may also undertake a personal view of the site or condition at issue. If determined necessary and appropriate by the mayor, an informal conference may be held at which the protestor and all other interested parties and persons may present such factual and legal information as is determined relevant by the mayor. Following such administrative review, the mayor shall thereupon determine whether or not a nuisance in fact exists, and the determination shall be entered in the official records of the city. An administrative review shall be required only in those instances where a written statement has been filed as provided within this section.
C. 1. If the administrative review determines that a nuisance does in fact exist, the person responsible shall, within the time specified after the administrative determination, abate the nuisance.
2. If more than one person is a person responsible, they shall be jointly and severally liable for abating the nuisance, and for the costs incurred by the city in abating the nuisance.
3. If, within the time allowed, the nuisance has not been abated by the person or persons responsible, the city may cause the nuisance to be abated. (Ord. 942 §5, 1995).
8.16.070 Abatement by the city.
In all cases where the mayor has determined to proceed with abatement, the city shall acquire jurisdiction to abate the condition at the person’s expense as provided in this chapter. Upon the abatement of the condition or any portion thereof by the city, all the expenses thereof shall constitute a civil debt owing to the city jointly and severally by such persons who have been given notice as herein provided. The debt shall be collectible in the same manner as any other civil debt owing to the city. To the extent allowed by law, whether statute, ordinance, rule or regulation, including, but not limited to, the provisions of the building code, fire code, or uniform code relating to the abatement of abandoned or dangerous buildings, it shall become a lien against the property and may be collected in such manner as may be allowed by law. (Ord. 942 §6, 1995).
8.16.080 Abatement by owner or other responsible person.
If and when an owner or other responsible person shall undertake to abate any condition described in this chapter, whether by order of the enforcement officer or otherwise, all necessary and legal conditions pertinent to the abatement may be imposed by the enforcement officer.
It is unlawful for the owner or other responsible person to fail to comply with such conditions. Nothing in this chapter shall relieve any owner or other responsible person of the obligation of obtaining any required permit to do any work incidental to the abatement. (Ord. 942 §7, 1995).
8.16.090 Immediate danger--Summary abatement.
Whenever any condition on or use of property causes or constitutes or reasonably appears to cause or constitute an imminent or immediate danger to the health or safety of the public or a significant portion thereof, the enforcement officer shall have the authority to summarily and without notice abate the same to the extent and subject to the provisions of applicable law, including by way of representation, RCW 35A.12.100, as now existing, amended or succeeded. The expenses of such abatement shall become a civil debt against the owner or other responsible party and be collected as provided in Section 8.16.070. (Ord. 942 §8, 1995).
8.16.095 Summary closure.
Nothing in this chapter prohibits the city from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety as provided by Section 8.16.090, as now existing of hereafter amended or succeeded. In such event, the city may take summary action to close the property without complying with the notification provisions of Section 8.16.035, but shall make such attempts as are reasonable under the circumstances to provide such notice. (Ord. 1151 §5, 2016).
8.16.100 Violation--Penalty.
A. Any person violating any of the provisions of this chapter shall be subject to the following penalty or punishments:
1. In the event of a first violation within any six-month period, be issued a notice of infraction and, upon a finding of committed, be subject to a penalty of up to two hundred fifty dollars;
2. In the event of a second violation within any six-month period, be issued a notice of infraction and, upon a finding of committed, be subject to a penalty of up to five hundred dollars, one hundred fifty dollars of which may be neither suspended nor deferred;
3. In the event of a third and subsequent violation within any six-month period, be subject to issuance of a criminal citation, and upon conviction, be guilty of a misdemeanor and, subject to punishment by a fine not to exceed one thousand dollars, two hundred fifty dollars of which shall be neither suspended nor deferred, by imprisonment in jail not to exceed ninety days, or by both such fine and imprisonment.
B. In addition to any other penalty, fine or imprisonment which may be imposed, the court may direct the correction or elimination of the nuisance and in the event the party fails to timely correct, order such correction to be carried out and require the party to pay the costs related to such correction or elimination. In the event that summary abatement has been carried out pursuant to the authority within in Section 8.16.090, the costs incurred by the city in so acting may be imposed. (Ord. 942 §9, 1995).
8.16.110 Remedies nonexclusive.
The remedies prescribed in this chapter are in addition to all other remedies provided or authorized by law, whether ordinance, statute or regulation. (Ord. 942 §10, 1995).