Chapter 8.09
CHRONIC NUISANCE PROPERTIES
Sections:
8.09.010 Authority, purpose and intent.
8.09.030 Responsibility of landowner.
8.09.040 Successive owners liable.
8.09.050 Responsibility to enforce.
8.09.060 Chronic nuisance property – Notice.
8.09.070 Requirement to respond – Abatement agreement.
8.09.110 Commencement of abatement action.
8.09.130 Superior court – Remedies.
8.09.140 Civil infraction penalties – Chronic nuisance.
8.09.010 Authority, purpose and intent.
A. Authority. The city has the authority to declare what shall be a nuisance, to abate the same and to impose fines upon parties who may create, continue or suffer nuisances to exist.
B. Purpose.
1. The city is committed to protecting its citizens from the dangers of properties that are abandoned, where unsafe conditions exist, or where crime repeatedly occurs. Such properties are known as “nuisance properties” because of their adverse impact on the quality of life of the city’s citizens. Additionally, when owners, financial institutions and persons in charge fail to take responsible action to secure and care for these properties, they deteriorate and become “chronic nuisance properties.” Chronic nuisance properties create a substantial financial burden, pose a significant strain on city services, interfere with others’ use and enjoyment of their lands, and are a prohibited public nuisance. Persons in charge of such properties have a duty to take all reasonable measures to prevent and abate nuisance activity.
2. It is the purpose of this chapter to hold legally and financially accountable the owners and persons in charge of nuisance and chronic nuisance properties, and to provide for the restoration and abatement of such properties.
C. Public Benefit. This chapter has been adopted for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons. It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, occupier, tenant or other person responsible for the condition of the property within the scope of this chapter. No provision of or any term used in this chapter is intended to impose any duty to enforce or any other duty upon the city or any of its officers or employees which would subject them to damages in a civil action. (Ord. 19-541 § 1 (Exh. A)).
8.09.020 Definitions.
“Abandoned property,” for purposes of defining a chronic nuisance, means a property over which the person in charge no longer asserts control due to death, incarceration, or any other reason, and which is either unsecured or subject to occupation by unauthorized individuals.
“Abate” means to act to stop an activity and/or to repair, replace, remove, or otherwise remedy a condition where such activity or condition constitutes a violation of this chapter.
“Abatement agreement” means a contract between the city and the person in charge of the chronic nuisance property in which such person agrees to promptly take all lawful and reasonable actions, which shall be set forth in the agreement, to abate the nuisance within a specified time and according to specified conditions.
“Building” includes, but is not limited to, any structure or any separate part or portion thereof, whether permanent or not, or the ground itself.
“Chronic nuisance property” means:
1. A property on which nuisance is observed on three or more occasions during any 60-day period or on which nuisance activity is observed on seven or more occasions during any 12-month period; or
2. A property where, pursuant to a valid search warrant, evidence of drug-related activity has been identified two or more times within the previous two years; or
3. Any abandoned property where nuisance activity exists.
“City” means the city of Edgewood.
“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, use, 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. The production, distribution, and possession of marijuana that is legal under state law shall not result in enforcement action under this chapter.
“General nuisance” means any act or omission, including performing an unlawful act, or omitting to perform a duty, or permitting an action or condition to occur, exist or continue as provided in Chapter 7.48 or 9.66 RCW.
“Landlord” means the landowner, lessor or sub-lessor of the dwelling unit or the property of which it is a part, and in addition means any person designated as a representative of the landlord.
“Nuisance” or “nuisance activity” means and includes:
1. Any general or specific nuisance.
2. Any civil code violation as defined by state law or local ordinance occurring around or near the property including, but not limited to, the following activities, conditions or behaviors:
a. Litter and rubbish;
b. Fire hazard from vegetation and debris;
c. Violations of the fire code as adopted in EMC Title 15.
3. Any criminal conduct, including the attempt and/or conspiracy to commit any criminal conduct, as defined by state or local ordinance occurring on, around, near or having a nexus to a property including, but not limited to:
a. Reckless endangerment: RCW 9A.36.050;
b. Prostitution: RCW 9A.88.030;
c. Patronizing a prostitute: RCW 9A.88.110;
d. Disorderly house, as defined by: RCW 9A.88.090;
e. Indecent exposure: RCW 9A.88.010;
f. Lewd conduct: RCW 7.48.050;
g. Any firearms or dangerous weapons violations listed in: Chapter 9.41 RCW;
h. Drug-related activity: Chapter 69.50 RCW;
i. Gang-related activity: RCW 9.94A.030;
j. Warrant arrests, or any instance in which a Department of Corrections (DOC) offender is located at a property while in violation of DOC supervision: Chapter 10.31 RCW; RCW 10.88.370;
k. Possession of stolen property: RCW 9A.56.140 through 9A.56.170;
l. Trafficking in stolen property and/or criminal profiteering: Chapter 9A.82 RCW;
m. Theft, trafficking, or unlawful possession of commercial metal property: Chapter 19.290 RCW;
n. Identity theft: RCW 9.35.020.
“Owner” is broadly defined to include a person(s) who legally owns real property and/or the person(s) shown on the last equalized assessment roll as the taxpayer for real property and/or any person in possession or control of property including an occupant, a builder or business operator who is developing, building, or operating a business on the property, or a person who has responsibility for maintaining the property.
“Person” means a natural person, financial institution, bank, joint venture, partnership, association, club, company, corporation, business trust, or organization, or the manager, lessee, agent, officer, or employee of any of them.
“Person in charge” of a property means any person in actual or constructive possession or control of a property including, but not limited to, an owner, occupant, agent or property manager of a property under his control, and any bank or financial institution in actual or constructive possession or which possesses any sort of lien or interest in the property. There may be at any one time multiple persons in charge of a property all of which may be jointly and severally liable under this chapter.
“Premises and property” may be used by this chapter interchangeably and means any building, lot, parcel, dwelling, rental unit, real estate or land or portion thereof including property used for residential, commercial, or other purposes, and including abandoned or unused property.
“Public official” means any person(s) designated by the mayor to carry out the purposes of this chapter, and any law enforcement officer.
“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.
“Solid waste” includes all putrescible and nonputrescible solid and semisolid wastes, including, but not limited to, garbage (bagged or loose), rubbish, ashes, industrial wastes, swill, sewage sludge, demolition and construction wastes, parts of abandoned vehicles, recyclable materials, containers of household liquids or hazardous wastes, old or unused furniture, furniture parts, machinery or appliances, household fixtures, tires, batteries, mattresses, rotting or scrap lumber, paper and/or cardboard, rubber debris, scrap metal, vehicle parts, hardware, cut brush or wood, dead or decaying plant materials, animal carcasses or animal waste. “Solid waste” also includes but is not limited to: yard debris (including plant material commonly created in the course of maintaining yards and gardens and through horticulture, gardening, landscaping or similar activities; grass clippings, leaves, branches, brush, weeds, flowers, roots, windfall fruit, vegetable garden debris, holiday trees, and tree branches four inches or less in diameter); any material or item kept, placed, stored, stockpiled or managed in a manner that does not preserve its value; any material or item for which a landowner would need to pay for its removal, recycling and disposal; any material or item stockpiled for recycling but the market for the material or item is unavailable or insufficient; and any such solid waste kept, placed, stored, stockpiled or managed on property not zoned for such use.
“Specific nuisance” means maintaining or permitting upon any land:
1. Sewage Discharge.
a. The discharge of sewage, human excrement or other wastes in any location or manner, except through approved means of sewage disposal which are constructed and maintained either in accordance with the regulations of the city, the Tacoma-Pierce County Health Department and/or as required by any other local agency with jurisdiction.
b. Any residence, business, building or place where people congregate, reside or work that is not serviced by a fully functional sewage disposal system that is either constructed or maintained in accordance with the regulations of the city, any other agency with jurisdiction or the Tacoma-Pierce County Health Department.
2. Potable Water. Any residence, business, building or place where people congregate, reside or work that does not have an adequate and lawful source of potable water as required by state or local regulations.
3. Solid Waste. Property where solid waste has accumulated or is handled, stored, treated, processed or buried except for properly permitted solid waste handling sites or facilities that are operated and maintained in full compliance with the terms of any permit, license, statute, regulation or ordinance regulating such activity and solid waste securely stored in receptacles or containers designed to prevent threats to human health or safety or to the environment until such solid waste enters a solid waste handling system.
4. Unfit for Use. Any property or vehicle that has been found contaminated and declared unfit for use by a local health officer pursuant to RCW 64.44.030.
5. Junk Storage/Dismantling. Any property used or maintained for the purpose of dismantling, salvaging, storing or repairing of machinery metals or vehicles, except where the landowner has obtained all licenses, permits and approvals necessary to conduct such activity and is conducting the activity in compliance with such permits.
6. Attractive Nuisances.
a. Any poisonous material or poisonous thing on any property accessible to any animal or person;
b. Unsecured hazards accessible to and posing a danger to minor children, animals, and any person with, or regarded as having, a sensory, physical or mental impairment which substantially limits one or more major life activities, which include, but are not limited to: unused, abandoned, or discarded refrigerators, freezers or large appliances, or any unsecured or abandoned excavation, pit, mine, cistern, storage tank, or shaft.
7. Buildings/Structures.
a. Any building or structure where construction was commenced and then ceased and the building or structure was left unfinished, or any building or structure that has been constructed or modified without required permits;
b. Any property or vehicle that has been found contaminated and declared unfit for use by a local health officer pursuant to RCW 64.44.030; and
c. Property maintained in violation of the terms of a written order issued by the city community development or public works department, the Tacoma-Pierce County Health Department, or the Pierce County Fire Prevention Bureau. (Ord. 24-660 § 5 (Exh. B); Ord. 22-633 § 3 (Exh. B); Ord. 19-541 § 1 (Exh. A)).
8.09.030 Responsibility of landowner.
Every landowner has a duty to maintain his/her property in a lawful manner and free of nuisances, to exercise reasonable diligence to ensure that his/her property remains free of nuisances, and to ensure that no other person causes or contributes to a nuisance on the landowner’s property. It is not a defense to the enforcement of this chapter that other persons may have caused or contributed to the nuisance. (Ord. 19-541 § 1 (Exh. A)).
8.09.040 Successive owners liable.
The owner of property and every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of such property caused by a former owner, is liable therefor in the same manner as the one who first created it. No lapse of time can legalize a nuisance. (Ord. 19-541 § 1 (Exh. A)).
8.09.050 Responsibility to enforce.
A. The mayor and/or the police chief and their designees (collectively referred to as the “public official” in this chapter) shall have the responsibility to enforce this chapter. The mayor/police chief may call upon the city’s building, community development, public works or other appropriate department to assist in enforcement.
B. Upon presentation of proper credentials, the public official may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any building or premises subject to the consent or warrant, in order to perform the responsibilities imposed by this chapter. (Ord. 19-541 § 1 (Exh. A)).
8.09.060 Chronic nuisance property – Notice.
A. Whenever a public official has documentation which confirms that there is nuisance activity meeting the definition of chronic nuisance, general nuisance or specific nuisance, the public official may serve a written notice on the person in charge of the property, that the property is being declared a chronic nuisance property.
B. The notice shall be served upon all of the persons in charge of the property (as provided in subsection (C) of this section), and shall include all of the following:
1. The name and address of the person to whom it is directed;
2. The street address or a legal description of the property sufficient for identification;
3. A concise description of the nuisance activities that have occurred on the property and whether the property is abandoned, together with an identification of the code or requirement of this chapter which supports the nuisance declaration;
4. A demand that the person in charge respond to the public official within 10 days of service of the notice to discuss the nuisance activities and create a plan to abate the nuisance;
5. A statement that the person in charge shall have an opportunity to abate the nuisance;
6. A warning that if the person in charge does not respond as required, or if the matter is not voluntarily corrected to the satisfaction of the public official, the city may file an action to abate the property as a chronic nuisance property pursuant to this chapter and/or take other action against the property or the person in charge; and
7. A warning that the person in charge of the property may be subject to penalties as set forth in this chapter.
C. The notice shall be sent to the person in charge by first class mail or personally served and a copy shall be sent by certified mail. When a notice is issued to a person in charge who is not the owner or the owner’s agent, who has permitted a property to become a chronic nuisance property, a copy of such notice shall also be sent by first class mail or personally served on the owner of the property, and a copy shall be sent by first class mail. (Ord. 19-541 § 1 (Exh. A)).
8.09.070 Requirement to respond – Abatement agreement.
A. A person in charge who receives a notice pursuant to this chapter must, within 10 days of service, contact the officer who issued the notice to establish a plan of action to eliminate the conditions, behaviors or activities which constitute a nuisance at the property. Failure to respond as required shall subject the person in charge to the civil penalties set forth in EMC 8.09.140.
B. If the owner or person in charge responds as required by the notice and agrees to a course of action to abate the nuisance activities, a written abatement agreement conforming to the requirements of EMC 8.09.090 shall be executed. (Ord. 19-541 § 1 (Exh. A)).
8.09.080 Owner cooperation.
An owner who receives a copy of a notice pursuant to EMC 8.09.060 describing a chronic nuisance property permitted by a person in charge other than the owner or the owner’s agent shall promptly take all reasonable steps requested in writing by the public official to assist in abatement of the nuisance property. Such reasonable steps may include the owner taking all acts and pursuing all remedies, including pursuing eviction of the person in charge, that are (A) available to the owner pursuant to any lease or other agreement, and (B) consistent with state and local laws, including RCW 59.18.580, the Victim Protection Limitation on Landlord’s Rental Decisions. (Ord. 19-541 § 1 (Exh. A)).
8.09.090 Abatement agreement.
A. An abatement agreement is a contract between the city and the person in charge of the chronic nuisance property in which such person agrees to promptly take all lawful and reasonable actions, which shall be set forth in the agreement, to abate the nuisance activities within a specified time and according to specified conditions. The agreement shall be signed by the person in charge and, if different, the owner. The agreement shall include the following:
1. The name and address of the person(s) in charge of the property;
2. The street address or a description sufficient for identification of the property, building, structure or land upon or within which the nuisance is occurring;
3. A description of the nuisance activities;
4. The necessary corrective action to be taken, and a date or time by which correction or abatement must be completed;
5. An agreement by the person in charge that the city may inspect the property as may be necessary to determine compliance with the abatement agreement;
6. An agreement by the person in charge that the city may abate the nuisance and recover its costs and expenses and monetary penalties pursuant to this chapter from the person in charge for the nuisance, if the terms of the abatement agreement are not met;
7. When a person in charge, other than an owner or an owner’s agent, has permitted a property to be a chronic nuisance property, an agreement by the owner to promptly take all acts and pursue all remedies requested by the public official, pursuant to EMC 8.09.080. (Ord. 19-541 § 1 (Exh. A)).
8.09.100 Corrective action.
A. Once the person in charge has entered into an abatement agreement or otherwise produced an approved plan to abate the nuisance, he or she must abide by the approved plan and promptly take corrective action to eliminate the nuisance.
B. Corrective action may include, but is not limited to:
1. Effective tenant screening, leasing and rule enforcement;
2. Implementing physical improvements for crime prevention such as removal of sight obscuring grass, blackberries and Scotch broom where such removal is otherwise permitted by law;
3. Providing security for the property;
4. Evicting persons responsible for the nuisance activity; and
5. Pursuing other remedies available to the owner pursuant to any lease or other agreement.
C. The city may offer services to persons in charge with known mental or physical disabilities in order to facilitate such persons taking all lawful and reasonable corrective action necessary to abate the nuisance.
D. All corrective action must conform to state and local laws including, but not limited to, development regulations and RCW 59.18.580, the Victim Protection Limitation on Landlord’s Rental Decisions. (Ord. 19-541 § 1 (Exh. A)).
8.09.110 Commencement of abatement action.
The matter may be referred to the city attorney for review and a determination whether to initiate legal action if:
A. The agreed upon course of action in the abatement agreement does not result in the abatement of nuisance activities to the satisfaction of the public official within the deadline(s) established in the abatement agreement or within such longer period as agreed upon by the public official in writing; or
B. The person in charge fails to respond as required in the notice of chronic nuisance property. (Ord. 19-541 § 1 (Exh. A)).
8.09.120 Burden of proof.
In any action filed, the city shall have the burden of showing by a preponderance of the evidence that the property is a chronic nuisance property. In an action against an owner to recover penalties authorized by EMC 8.09.140, the city shall have the additional burden to prove that the owner failed to comply with EMC 8.09.080 (Owner cooperation). Police reports, official city reports, and affidavits may be offered as evidence of chronic nuisance. 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. Additionally, evidence of a property’s general reputation and the reputation of persons residing in or frequenting the property shall be admissible in such actions. (Ord. 19-541 § 1 (Exh. A)).
8.09.130 Superior court – Remedies.
If the superior court determines the property to be a chronic nuisance under this chapter, the court may:
A. Issue a warrant of abatement as provided in RCW 7.48.260, which may include but is not limited to an order requiring that:
1. The person in charge (or owner) abate the nuisance activity from occurring on the property and establish a deadline for the same;
2. That the premises be vacated, closed and secured from entry;
3. That the police chief shall have the right to inspect the property to determine compliance with the court’s order and that a safety inspection may be performed by the city’s police chief, code enforcement officer, building code official, fire code official, or any other government agency;
4. That a penalty be imposed of up to $500.00 per day against the person in charge for each day from the date of the notice was issued until the public official confirms that the property is no longer a chronic nuisance;
5. That the person in charge or owner may post a bond as allowed by RCW 7.48.270 for the performance of the abatement activities within an established time period not to exceed six months. Such bond shall be in an amount established by the court and upon the default of the person in charge (or the owner), such bond amount shall be forfeit.
6. That the court may issue an order allowing the city to take action to abate the nuisance activities on the property; provided, that the costs of such city action are to be paid for by the person in charge of the property or owner;
7. That the property shall be placed into receivership in accordance with Chapter 7.60 RCW to allow recovery from the property the reasonable, necessary expenses of abating the nuisance and returning the property to productive use;
8. Order the person in charge to pay relocation assistance to any tenant who must relocate because of the order of abatement, and who the court finds not to have caused or participated in nuisance activities at the property; and
9. Any other further relief deemed appropriate by the court.
B. In assessing the penalties and remedies, the court may consider the following factors:
1. The actions taken by the person in charge to mitigate or correct the nuisance activity;
2. The financial condition of the person in charge;
3. Any known mental or physical disabilities of the person in charge;
4. The repeated or continuous nature of the nuisance activity;
5. The statements of the neighbors or those affected by the nuisance activity; and
6. Any other factor deemed relevant by the court.
C. Any fine, civil penalty and/or expense awarded to the city may be filed with the assessor-treasurer who shall cause the same to be filed as a lien on the property. Expenses shall be submitted to the court for review and may be collected on execution.
D. The city shall file a formal lis pendens notice when an action for abatement is filed in the superior court.
E. The superior court shall retain jurisdiction during any period of closure or abatement of the property.
F. The district court shall have jurisdiction of all civil infractions issued pursuant to this chapter. (Ord. 24-660 § 6 (Exh. B); Ord. 19-541 § 1 (Exh. A)).
8.09.140 Civil infraction penalties – Chronic nuisance.
The city may pursue penalties in district court for the following violations under the procedure established in Chapter 7.80 RCW:
A. It is a class 1 civil infraction for any person in charge to fail to respond to the public official or their designee within 10 days of service of the chronic nuisance notice.
B. It is a class 1 civil infraction for any person in charge to fail to enter into an abatement agreement or otherwise produce an approved plan to abate the nuisance within 15 days of the issuance of the chronic nuisance notice.
C. After the issuance of the chronic nuisance notice, and after the time to enter into an abatement agreement or otherwise produce an approved plan has passed, every subsequent nuisance activity is a class 1 civil infraction.
D. The penalties and remedies of this chapter are not exclusive and do not affect any other enforcement actions taken by the city under this chapter or any other section of the Edgewood Municipal Code or law or enforcement actions taken by a different jurisdiction. (Ord. 19-541 § 1 (Exh. A)).
8.09.150 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. The city may take summary action to close the property without complying with the notification provisions of EMC 8.09.060, but shall provide such notice as is reasonable under the circumstances. (Ord. 19-541 § 1 (Exh. A)).
8.09.160 Appeals.
A notice of infraction under EMC 8.09.140 may be contested as provided in Chapter 7.80 RCW. (Ord. 19-541 § 1 (Exh. A)).