Chapter 1.32
CODE ENFORCEMENT
Sections:
1.32.050 Notice of violation and order of corrective action.
1.32.060 Voluntary correction agreement.
1.32.070 Response to notice of violation and order of corrective action.
1.32.100 Authority and action of decision maker.
1.32.110 Distribution and effect of the decision maker’s decision.
1.32.140 Authority of city attorney.
1.32.150 Additional abatement authority.
1.32.010 Definitions.
Words, terms and phrases defined in a title of the Brier Municipal Code shall apply to enforcement of that title by the city. In addition, 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 violation of this code, in such a manner and to such an extent as the department director determines is necessary in the interest of the general health, safety and welfare of the community.
B. “Code enforcement officer” means a nonpolice city employee commissioned and sworn to take enforcement action as provided in this chapter.
C. “Department director” means the police chief, the city clerk/treasurer, the building official or the city planner, as applicable, who is identified by a code enforcement section of this chapter or this code as being generally responsible for code enforcement of that section. If the applicable code enforcement section of this chapter or this code does not identify the city employee who is generally responsible for code enforcement of that section, or identifies a person who serves the city as a consultant by contract, the mayor shall designate the city officer or employee who is responsible for such code enforcement.
D. “Enforcement action” means the use of administrative and/or judicial process to achieve compliance with code provisions, including but not limited to nuisance abatement, notice of violation and corrective order, imposition of penalties, citation for an infraction or citation for a criminal offense.
E. “Emergency” means a situation which, in the determination of the department director, requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.
F. “Nuisance” means:
1. A violation of any city development, land use or public health ordinance;
2. Nuisance as designated in BMC Title 6; or
3. Nuisance as designated in BMC Title 8.
G. “Person” means any individual, firm, association, partnership, corporation, company or any other entity, public or private.
H. “Repeat offender” means a person who has previously received a notice of violation or other enforcement action within the last twenty-four months for the same or similar code violation.
I. “Responsible party” means any person who has committed or permitted a violation of this code or a person who has an interest in or resides on property that is the location of a violation of this code, whether as owner, lessee, tenant, occupant or otherwise, or who by act of commission or omission procures, aids or abets a violation of this code.
J. “Voluntary compliance” means the time allowed for the responsible party to correct violations before penalties are assessed. The allowed time is stated within the notice of violation and order of correction, if required. The date for compliance is established by the code enforcement officer. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011)
1.32.020 Enforcement.
A. Whenever the city has cause to believe that a violation of BMC Title 3, 4, 5, 8, 12, 13, 14, 15, 16, 17, 18 or 19 has been or is being committed, the department director responsible for administering such title or chapter may cause it to be enforced pursuant to this chapter. Unless provided otherwise in this chapter, the department directors shall act through code enforcement officers.
B. Whenever necessary to make an inspection to enforce or determine compliance with provisions of the chapters and titles set forth in subsection A of this section, or whenever the city has cause to believe that a violation of any section of such chapters and titles has been or is being committed, the department director or code enforcement officer shall, if such building, structure or property is occupied, present identification credentials, state the reason for the inspection and request entry. If consent to enter is not given or the building, structure, or property is unoccupied, the department director or code enforcement officer may commence an enforcement action.
C. Each day, or portion thereof, in which a violation continues constitutes a separate offense for which separate notices of violation or other enforcement actions may be issued.
D. Responsibility for violations of the codes enforced under this chapter is joint and several, and the city is not prohibited from taking action against a person where other persons may also be potentially responsible for a violation; nor is the city required to take action against all persons potentially responsible for a violation. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 430 § 2(Exh. B)(part), 2016: Ord. 387 § 1(part), 2011)
1.32.030 Enforcement actions.
A. Enforcement actions may, but are not required to, be taken according to the following order of precedence:
1. Voluntary compliance.
2. Notice of violation and order of corrective action according to BMC 1.32.050.
B. Where a code section designates a violation as a civil infraction, a civil infraction citation may be issued without regard to the order of precedence in subsection A of this section.
C. Where a code section designates a violation as a misdemeanor or gross misdemeanor the city may issue a criminal citation without regard to the order of precedence in subsection A of this section.
D. Where a code section provides for issuance of a stop work order or the right of the city to stop work or activity, the city may issue such stop work order or stop work or activity without regard to the order of precedence in subsection A of this section.
E. In addition to, or in lieu of, any other enforcement action, any animal-related nuisance may be abated as prescribed in BMC Title 6, and any general nuisance may be abated as prescribed in BMC Title 8.
F. A code enforcement officer may take any enforcement action without regard to the order of precedence in subsection A of this section, or any available legal recourse provided by law, to eliminate or end an emergency. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011)
1.32.040 Civil penalty.
A. In addition to any other enforcement action, code enforcement officers are authorized to order assessment of civil penalties under this chapter; provided, that if a section of this code provides for assessment of civil penalties, code enforcement officers are authorized to order assessment of civil penalties pursuant to that section of the code.
B. Civil penalties shall be cumulative and assessed as follows:
1. First day of each violation: one hundred dollars per violation.
2. Second day of each violation: one hundred twenty-five dollars per violation.
3. Third day of each violation: one hundred fifty dollars per violation.
4. Fourth day of each violation: one hundred seventy-five dollars per violation.
5. Each additional day: two hundred dollars per violation.
C. Civil penalties shall accrue daily until the required corrective action is taken. Civil penalties shall constitute a personal obligation of the person against whom the penalties were imposed. An assessed civil penalty must be paid to the office of the city clerk/treasurer, city of Brier. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011)
1.32.050 Notice of violation and order of corrective action.
A. Whenever a code violation has occurred or is occurring, a code enforcement officer may attempt to achieve voluntary correction of that violation by sending to the responsible party a written notice of violation and order of corrective action.
B. The notice of violation and order of corrective action shall contain:
1. The name and address of the responsible party;
2. The street address or other description sufficient to identify the premises or property where the violation has occurred or is occurring;
3. A description of the violation and citation to the applicable code provision(s);
4. The necessary corrective action to be taken, and the date by which the corrective action must be completed;
5. Notice that if voluntary correction cannot be secured and/or if the responsible party does not respond within ten city business days following service of the notice and order, the city may, as applicable, impose civil penalties, issue a civil infraction, issue a criminal citation, or commence abatement proceedings; and
6. The signature and commission number of the code enforcement officer issuing the notice of violation and order of corrective action and contact information for that officer.
C. The notice of violation and order of corrective action shall be served upon the responsible party either by personal service or by mailing a copy of the notice and order by regular U.S. first class mail to the person’s last known address. If the responsible party cannot be personally served within Snohomish County and if the address of the responsible party cannot be reasonably ascertained, notice shall be served by posting a copy of the notice of violation and order of corrective action conspicuously on the subject property or a structure located thereon. Service shall be deemed effective upon personal service, or three city business days following placement of the notice and order in the U.S. mail, postage prepaid, or upon posting of the notice upon the property. Proof of service shall be made by a written statement under penalty of perjury executed by the person making the service, declaring the time and date of service, the manner by which the service was made, and, if by posting, the facts showing the attempts to serve the responsible party personally and/or by mail.
D. The code enforcement officer may grant an extension of the deadline for the required corrective action if the person responsible for the violation has demonstrated due diligence or made substantial progress in correcting the violations, but unforeseen circumstances render correction unattainable within the deadline stated in the order of corrective action.
E. The original deadline for corrective action or other compliance may be revoked or amended, or immediate corrective action required, where in the opinion of the code enforcement officer immediate corrective action is necessary to avoid an imminent risk of injury to persons or property. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011)
1.32.060 Voluntary correction agreement.
A. When the code enforcement officer deems it appropriate, and the responsible party has contacted the city before the date stated on the notice of violation and corrective order, the city and the responsible party may agree to enter into a written voluntary correction agreement, which shall include a date by which the corrective action must be completed.
B. The voluntary correction agreement shall be a contract between the city and the responsible party under which such person agrees to correct and abate the violation within a specified time, according to specified conditions. The voluntary correction agreement may provide for:
1. Correction and abatement of the violation by a date certain;
2. A safe harbor provision if the violation cannot be corrected and abated because of unforeseen circumstances not within the control of the responsible party as determined by the code enforcement officer;
3. A grant to the city of the right to enter the property and to abate the violation, and to recover its costs and expenses (including attorney fees, expert witness fees and court costs), including the right to lien the property for the same, if the agreement is breached;
4. Other terms deemed appropriate by the department director; and
5. A waiver of the right to appeal the code enforcement officer’s determination of violation and/or the required corrective action.
C. Upon execution of a voluntary correction agreement by the responsible party and the city, the city’s enforcement action relating to the violation shall be tolled for the term of the agreement. If the responsible party fully satisfies the terms of the voluntary correction agreement and corrects and abates the violation as required by the agreement, no civil penalties shall accrue to the responsible party.
D. Upon execution of a voluntary correction agreement, the responsible party shall be deemed to have waived the right to appeal the determination of violation and/or order of corrective action.
E. If the responsible party breaches the voluntary correction agreement and/or fails to fully satisfy its terms by the deadlines set forth in the agreement, the civil penalties set forth in the agreement shall begin to accrue as of the date of execution of the agreement, and shall continue to accrue until such violation is fully corrected and abated. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011)
1.32.070 Response to notice of violation and order of corrective action.
The responsible party shall either respond to or appeal the notice of violation and order of corrective action within fourteen calendar days following service of the notice and order. A response shall contain the address and telephone number of the responsible party and advise the city whether the responsible party will perform the corrective action required by the notice and order and enter into any proposed voluntary correction agreement. The response shall be addressed to the person who issued the notice and order and shall be served on the city by personal delivery or by placing the response in the U.S. mail, postage prepaid, on or before the expiration of ten city business days following service of the notice and order. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011)
1.32.080 Right of appeal.
A. Except for the code enforcement officer’s decisions concerning the content of a voluntary correction agreement, a notice of violation and order of corrective action may be appealed in writing to the city council within fourteen calendar days of the issuance of notice of violation and order of corrective action or the order assessing civil penalties; otherwise, the decision is the final decision of the city and the city council, or hearing examiner appointed by the city council as provided for herein, shall be without jurisdiction to hear an appeal. The person, entity or firm appealing the decision shall do so in writing to the city clerk on forms provided by the city clerk. The notice of appeal shall be accompanied by the fee for filing an appeal established in Chapter 3.04 BMC. The appeal shall be governed by this chapter and not by Chapter 1.20 BMC.
B. At the next regular meeting following the filing of the appeal, the city council may by motion appoint a hearing examiner to hear and decide the appeal.
C. Upon timely appeal and after consultation with the decision maker, the code enforcement officer shall prepare a written notice setting the date, time and location of the hearing.
D. The code enforcement officer shall prepare the record of appeal.
E. The code enforcement officer shall cause notice of hearing to be sent to the appellant, at the address given in the appellant’s notice of appeal, by certified mail, return receipt requested, and by first class U.S. mail, postage prepaid. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.090)
1.32.090 Appeal hearing.
A. The appellant, city staff, any witnesses called by the appellant or city staff, and any other person, as deemed appropriate by the decision maker, may participate in an appeal hearing.
B. The appellant must prove by a preponderance of the evidence that the department director’s decision is erroneous.
C. An electronic sound recording of each hearing shall be made. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.100)
1.32.100 Authority and action of decision maker.
A. The decision maker shall conduct a hearing according to rules adopted by the decision maker for the specific hearing or adopted by the decision maker for all appeals, if any. Within fourteen calendar days following the conclusion of all testimony and hearings, the decision maker shall issue a written decision affirming or affirm with modifications or overruling the code enforcement officer, with supporting findings of fact and conclusions of law, and notice of the right to appeal.
B. Whenever the decision maker affirms the decision of the code enforcement officer, the city attorney shall file any necessary legal proceedings to enforce the notice of violation and corrective action. If legal action to enforce the order is required, the city shall be entitled to recover all expenses incurred by the city in such enforcement action, including but not limited to the city’s attorney fees, court filing fees and related court costs. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.110)
1.32.110 Distribution and effect of the decision maker’s decision.
A. Within three city business days of issuance of the written decision, the decision maker shall distribute the decision to the appellant and any other interested party who appeared at the hearing.
B. A decision maker’s decision on the appeal is the final decision of the city. Within ten calendar days of issuance of the written decision, the appellant or the code enforcement officer may file with the city clerk/treasurer a request for reconsideration of such decision. The request shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the hearing, which is the basis of the request. An appellant or the code enforcement officer may file only one request for reconsideration, even if the reconsidered decision modifies the decision maker’s initial decision. Within fourteen calendar days from the filing of a request for reconsideration, the decision maker shall issue a written decision on the request. If the decision maker decides to reconsider, the decision to reconsider shall be mailed to the appellant, the code enforcement officer and any other interested party who appeared at the hearing no later than three city business days after the decision. The decision maker shall determine whether to hold additional hearings on the matter. Notice of any additional hearings shall be mailed to all who participated in the prior hearings no later than fourteen calendar days prior to the hearing. Within three city business days of issuance of the reconsidered decision, the decision maker shall distribute the reconsidered decision to the appellant, the code enforcement officer and any other interested party who participated in the original hearings or the additional hearings on reconsideration, if any. The filing of a request for reconsideration does not stay the period for filing an appeal to the courts or to an administrative agency. However, if the request for reconsideration is granted, such appeal period is stayed pending reconsideration. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.120)
1.32.120 Civil infractions.
Where a violation is punishable as a civil infraction under the provisions of the titles and chapters identified in BMC 1.32.020, the code enforcement officer may issue a citation for civil infraction in accordance with the Infraction Rules for Courts of Limited Jurisdiction, and file and prosecute the citation in the South Division of the Snohomish County District Court. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.130)
1.32.130 Limited commission.
A. The chief of police is authorized, upon prior approval of the mayor, to commission the building official, the city planner and the city clerk/treasurer as code enforcement officers for purposes of performing enforcement duties under this chapter.
B. Before commencing any duties, the prospective code enforcement officer shall take an oath of office before the judge of the municipal court, as follows:
I, ________________, do solemnly swear (or affirm) that I will perform the duties of code enforcement officer of the city of Brier to the best of my ability according to city ordinances, the law of the State of Washington, and the Constitutions of the State of Washington and the United States of America.
C. The chief of police shall issue to all code enforcement officers a numbered limited commission card, specifying the enforcement and citation authority of the code enforcement officer.
D. A limited commission may be revoked at any time by the chief of police and shall automatically and permanently terminate upon termination of employment as city of Brier code enforcement officer for any reason. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.140)
1.32.140 Authority of city attorney.
At the direction of the mayor, the city attorney or the city prosecutor shall represent the city in all administrative code enforcement proceedings, and shall take appropriate legal actions to collect fines imposed under this chapter or to abate nuisances. (Ord. 435 § 1 (Exh. A) (part), 2016: Ord. 387 § 1(part), 2011. Formerly 1.32.150)
1.32.150 Additional abatement authority.
A. Other Abatement Proceedings Not Precluded. Nothing in this chapter shall prohibit the city from pursuing abatement of a violation in accordance with any applicable law or at equity.
B. Costs of Abatement. The costs of any abatement action taken by the city shall become a charge to the person responsible for the violation. These charges may be assessed against the person responsible for the violation or the property upon which the violation occurred, or both. The city may use any lawful means to collect these charges. (Ord. 435 § 1 (Exh. A) (part), 2016)