Chapter 15.07
BUILDING CODE ENFORCEMENT

Sections:

15.07.010    Intent.

15.07.020    Violations.

15.07.030    Responsibility to enforce.

15.07.040    Investigation and notice of violation.

15.07.050    Time to comply.

15.07.060    Stop work order.

15.07.070    Emergency order.

15.07.080    Appeals.

15.07.090    Appeal hearing.

15.07.100    Civil penalty.

15.07.110    Criminal penalties.

15.07.120    Additional relief.

15.07.010 Intent.

This chapter shall be enforced 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 or other person responsible for the condition of the land and buildings within the scope of the building code, this title. 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. 17-501 § 21).

15.07.020 Violations.

A. It is a violation of the building code, this title, for any person to initiate, maintain or cause to be initiated or maintained, the use of any structure, land or property within the city, without first obtaining the permits or authorizations required for the use by the aforementioned code.

B. It is a violation of the building code, this title, for any person to use, construct, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the city, in any manner that is not permitted by the terms of any permit or authorization issued pursuant to the aforementioned code; provided, that the terms or conditions are explicitly stated on the permit or the approved plans.

C. In addition to the above, it is a violation of this title:

1. To remove or deface any sign, notice, complaint or order required by or posted in accordance with the aforementioned title; and

2. To misrepresent any material fact in any application, plans or other information submitted to obtain any building or construction authorization. (Ord. 17-501 § 21).

15.07.030 Responsibility to enforce.

A. The building official shall have the responsibility to enforce this chapter. The building official may call upon the police, fire, community development, public works or other appropriate city departments to assist in enforcement. As used in this chapter, “building official” or “code official” shall also mean his or her duly authorized representative.

B. Upon presentation of proper credentials, the building 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. 17-501 § 21).

15.07.040 Investigation and notice of violation.

A. Investigation. The building official is authorized to investigate any structure or use which he/she reasonably believes does not comply with the standards and requirements of the building code, this title.

B. Notice of Violation. If, after investigation, the building official determines that the standards or requirements of the building code, this title, or the provisions of this chapter have been violated, the building official may serve a notice of violation upon the owner, tenant or other person responsible for the condition. The notice of violation shall contain the following information:

1. The name and address of the person to whom it is directed;

2. The location and specific description of the violation;

3. A statement that the notice (or order, in the case of a stop work or emergency order) is effective immediately upon posting at the site and/or receipt by the person to whom it is directed;

4. The notice of violation may include or reference a stop work order or emergency order requiring that the violation immediately cease, or that the potential violation be avoided;

5. The notice of violation may include or reference a stop work or emergency order requiring that the person cease all work on the premises until correction and/or remediation of the violation as specified in the order;

6. A specific identification of each standard, code provision or requirement violated;

7. A specific description of the actions required to correct, remedy or avoid the violation or to comply with the standards, code provision or requirements, including but not limited to replacement, repair, supplementation, revegetation or restoration;

8. A reasonable time for compliance;

9. A statement that the violation may result in the imposition of penalties, and if the violation is not already subject to criminal prosecution, that any subsequent violations may result in criminal prosecution as provided in EMC 15.07.110;

10. A statement that failure to comply with the notice of violation may result in further enforcement actions, including issuance of additional notices of violation, civil fines and/or criminal penalties; and

11. A statement that the notice of violation represents a determination that a violation has been committed by the person named in the notice of violation, and that the determination shall be final unless appealed as provided in EMC 15.07.080, and that the appeal must be timely filed under the procedures set forth in EMC 15.07.080(E) (within 15 calendar days of service of the notice of violation).

C. Each Day a Separate Violation. Each day a person or entity fails to comply with the code provision cited in the notice of violation may be considered a separate violation for which a citation may be issued.

D. Service. The notice of violation shall be served on the owner, tenant or other person responsible for the condition in the manner set forth in RCW 4.28.080 for service of a summons, or personally, as set forth in RCW 4.28.080(15). In lieu of service under RCW 4.28.080(15), where the person cannot with reasonable diligence be served as described, the notice of violation may be served as provided in RCW 4.28.080(16).

E. Posting. A copy of the notice of violation shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.

F. Other Actions May Be Taken. Nothing in this chapter shall be deemed to limit or preclude any action or proceeding pursuant to EMC 15.07.060 (Stop work order), 15.07.070 (Emergency order), 15.07.100 (Civil penalty), 15.07.110 (Criminal penalties), or 15.07.120 (Additional relief).

G. Additional Notice to Others. The building official may mail or cause to be delivered to all residential and/or nonresidential rental units in the structure, or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, stop work order or emergency order and the applicable requirements and procedures.

H. Recording. A copy of the notice of violation may be filed with the county auditor when the responsible party fails to correct the violation and no appeal is filed, or the building official requests that the city attorney take appropriate enforcement action. The building official may choose not to file a copy of the notice or order if the notice or order is directed only to a responsible person other than the owner of the property.

I. Amendment. A notice or order may be amended at any time in order to:

1. Correct clerical errors; or

2. Cite additional authority for a stated violation. (Ord. 17-501 § 21).

15.07.050 Time to comply.

When calculating a reasonable time for compliance in the notice of violation, the building official shall consider the following criteria:

A. The type and degree of violation cited in the notice;

B. The stated intent, if any, of a responsible party to take steps to comply;

C. The procedural requirements for obtaining a permit to carry out corrective action;

D. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and

E. Any other circumstances beyond the control of the responsible party. (Ord. 17-501 § 21).

15.07.060 Stop work order.

A. Whenever a continuing violation of this title will materially impair the building official’s ability to secure compliance, or when the continuing violation threatens the health or safety of the public, the building official has the authority to issue a stop work order prohibiting any work or other activity at the site. The stop work order shall be in writing and served upon persons engaged in doing such work or causing such work to be done. The stop work order shall be immediately posted on the property. Failure to comply with a stop work order shall constitute a violation of this chapter.

B. The stop work order shall include the information in EMC 15.07.040(B)(1) through (8). In addition, the stop work order shall include a statement that the person to whom the stop work order is directed or the property owner may file an appeal and request an expedited hearing with the hearing examiner within seven calendar days after service of the stop work order. If no appeal is filed and compliance is not achieved within the compliance date, the building official may ask the city attorney to seek additional relief under EMC 15.07.120 and/or the building official may file a notice of violation for the violation pursuant to EMC 15.07.040, seeking compliance and describing penalties.

C. Expedited Appeal. The hearing examiner shall hold the expedited appeal hearing on a stop work order according to the applicable procedures in EMC 15.07.090. If the hearing examiner finds that a violation has occurred which has not been corrected by the deadline established for compliance, the building official may ask the city attorney to seek additional relief under EMC 15.07.120 and/or the building official may issue a notice of violation for the violation pursuant to EMC 15.07.040, describing penalties. (Ord. 17-501 § 21).

15.07.070 Emergency order.

A. Whenever any use or activity in violation of this title threatens the health and safety of the occupants of the premises or any member of the public, the building official has the authority to issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall be immediately posted on the property and served on the person(s) responsible. Failure to comply with an emergency order shall constitute a violation of this chapter.

B. The emergency order shall include all of the information in EMC 15.07.040(B)(1) through (8). In addition, the emergency order shall include a statement that the person to whom the emergency order is directed may file an appeal and request an expedited hearing with the hearing examiner within seven calendar days after service or posting of the emergency order. If no appeal is filed and compliance is not achieved, the building official may ask the city attorney to seek additional relief under EMC 15.07.120 and/or the building official may issue a notice of violation pursuant to EMC 15.07.040, seeking compliance and penalties.

C. Expedited Appeal. The hearing examiner shall hold the expedited appeal hearing on an emergency order according to the applicable procedures in EMC 15.07.090. If the hearing examiner finds that the violation described in the emergency order occurred or exists, any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the building official may ask that the city attorney take action to obtain a warrant of abatement for the property in superior court. The owner or person responsible (or both) shall be responsible for the costs associated with the abatement, in the manner provided by law. (Ord. 17-501 § 21).

15.07.080 Appeals.

A. No Appeal of a Notice of Violation or Infraction Citing Criminal Penalties. There is no administrative appeal of a notice of violation issued pursuant to EMC 15.07.040 for violations which would subject the violator to criminal prosecution and/or the imposition of criminal penalties. A notice of violation or citation for a violation that subjects the violator to criminal penalties is enforced in municipal court.

B. Expedited Appeal Hearings on Stop Work and Emergency Orders. An expedited public hearing shall be held by the hearing examiner, according to the procedures in this section, on an appeal of a stop work or emergency order, regardless of whether the violations described in the stop work order or emergency order would eventually subject the violator to civil or criminal prosecution and/or the imposition of civil or criminal penalties. The expedited appeal hearing shall be for the sole purpose of determining whether the stop work or emergency order was correctly issued and/or whether a violation occurred. If a violation occurred, the building official may issue a notice of violation.

C. Appeal Hearings on Notices of Violations Citing Civil Penalties. Unless an appeal of a notice of violation is filed with the building official in accordance with this section, or an appeal involving an expedited hearing is filed, the notice of violation shall become the final order of the building official. The final order, including the collection of penalties, may be enforced by the city attorney in superior court.

D. Standing to File Appeal.

1. Notice of Violation. Only parties of record have standing to file an appeal of a notice of violation. “Parties of record” are defined to mean:

a. The property owner or the person responsible for the condition of the property;

b. Any person who can demonstrate that he/she is aggrieved by the decision; and

c. The city council.

2. Stop Work Order and Emergency Order. Only the property owner or the person responsible for the condition of the property may request an expedited appeal hearing for a stop work order or emergency order.

E. Time to File Appeal.

1. Notice of Violation under EMC 15.07.040. The party of record must file an appeal with the building official within 15 calendar days of service of the notice of violation.

2. Stop Work or Emergency Orders under EMC 15.07.060 or 15.07.070. The property owner or the person responsible for the condition of the property may request an expedited appeal hearing within seven calendar days after service of the stop work or emergency order.

3. Computing Deadline for Filing Appeal. For purposes of computing the time for filing an appeal, the day the decision issued shall not be counted. If the last day of the deadline for filing the appeal is a Saturday, Sunday or holiday designated by RCW 1.16.050 or city ordinance, then the appeal must be filed on the next business day. Appeals shall be delivered to the building official by mail, email, by personal delivery or by fax before 5:00 p.m. on the last business day of the appeal period. Appeals received by mail after 5:00 p.m. on the last day of the appeal period will not be accepted, no matter when such appeals were mailed or postmarked.

E. Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee, and contain the following information:

1. Appellant’s name, address and phone number;

2. A statement describing appellant’s standing to appeal;

3. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts in the record;

4. The specific relief sought;

5. A statement that the appellant has read the appeal and believe the contents to be true, followed by the appellant’s signature.

F. Effect. The timely filing of an appeal shall stay any enforcement action based on a stop work order, emergency order or notice of violation until the hearing examiner’s decision issues unless the building official finds that the violation causes an immediate threat to public health or safety. (Ord. 17-501 § 21).

15.07.090 Appeal hearing.

A. The public hearing on an appeal shall include the following elements and be conducted as follows:

1. The hearing examiner shall set the time and place of the hearing, and arrange for notice of the public hearing to be provided, except in cases involving an expedited hearing. For expedited hearings, notice of the hearing shall be provided to the appellant and every reasonable effort shall be made to schedule the hearing within one week after receipt of the appeal.

2. A party to the hearing may participate personally or by an attorney.

3. The hearing examiner shall, at the appropriate stage in the proceeding, give all parties full opportunity to submit and respond to motions and file briefs and objections.

4. If the person requesting the hearing fails to attend or participate in the hearing (other than filing the timely request for an appeal hearing as provided in this chapter), the hearing examiner may issue a default order of dismissal.

5. To the extent necessary for full disclosure of all relevant facts and issues, the hearing examiner shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination and submit rebuttal evidence.

6. The hearing examiner shall cause the hearing to be recorded by a method chosen by the city, which shall allow preparation of a verbatim transcript.

7. The hearing shall be open to public observation.

8. All testimony of parties and witnesses shall be made under oath or affirmation.

9. Ex parte communications shall be addressed as set forth in Chapter 42.36 RCW.

10. The scope and standard of review shall be de novo. The city shall have the initial burden of proof in cases involving notices of violation, stop work orders, emergency orders or penalties, to demonstrate by a preponderance of the evidence the existence of a violation or that the legal standard for imposing the penalty has been met. The examiner shall grant substantial weight or otherwise accord deference whenever directed by ordinance or statute.

11. The hearing examiner may hear and decide appeals of orders, decisions or determinations made by the building official relative to the application and interpretation of the building code (all incorporated into this title). An appeal of these orders, decisions or determinations shall be based upon a claim that the intent of the code(s) have been incorrectly interpreted, the provisions of the code(s) do not fully apply, or an equivalent method of protection or safety is proposed. The hearing examiner shall not have authority to waive requirements of the codes in this title.

12. After the conclusion of the public hearing, the hearing examiner may allow the parties a designated time for the submission of memos, briefs or proposed findings, as long as the hearing examiner can still issue his/her final decision according to any applicable deadline established by this chapter.

13. At or after the appeal hearing on a notice of violation, the hearing examiner may:

a. Sustain the notice of violation;

b. Withdraw the notice of violation;

c. Continue the review to a date certain for receipt of additional information;

d. Modify the notice of violation, which may include an extension of the compliance date.

D. Except with regard to expedited hearings, the hearing examiner shall issue written findings of fact and conclusions of law within 10 calendar days of the date of the completion of the hearing and shall cause the same to be mailed by regular first class mail to the person(s) named on the notice of violation, mailed to the complainant, if possible. A copy of the final decision may be recorded against the property in the county auditor’s office. The decision on expedited hearings shall issue within five business days after the completion of the hearing.

E. The decision of the hearing examiner on appeal shall be final, and no further administrative appeal may be filed. In order to appeal the decision of the hearing examiner, a person with standing must file an appeal of the decision to superior court as provided under Chapter 36.70C RCW within the deadline set forth in RCW 36.70C.040. (Ord. 17-501 § 21).

15.07.100 Civil penalty.

A. In addition to any other sanction or remedial procedure which may be available, any person violating or failing to comply with any of the provisions of this chapter relating to the International Building Code, the International Residential Code or the Property Maintenance Code shall be subject to a cumulative civil penalty in the amount of $250.00 per day for each violation from the date set for compliance until compliance is achieved. Each day of noncompliance shall constitute a separate offense.

B. The penalty imposed by this section shall be collected by civil action brought in the name of the city. The building official shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the building official, take appropriate action to collect the penalty.

C. The violator may show as full or partial mitigation of liability:

1. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or

2. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the defendant. (Ord. 17-501 § 21).

15.07.110 Criminal penalties.

A. Any person violating or failing to comply with any of the provisions of the International Fire Code, the International Mechanical Code or the Uniform Plumbing Code (all as incorporated into this title) or who has had a judgment entered against him or her pursuant to EMC 15.07.100 or subsection (B) of this section for the same violation within the past five years shall be subject to criminal prosecution and upon conviction shall be fined the amount set forth in EMC 1.10.010. Each day of noncompliance shall constitute a separate offense.

B. The above criminal penalty may also be imposed:

1. For any other violation of this chapter or the building code, this title, for which corrective action is not possible; and

2. For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements of this chapter or the building code, this title. (Ord. 17-501 § 21).

15.07.120 Additional relief.

The building official may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the building code, this title, when civil or criminal penalties are inadequate to effect compliance. (Ord. 17-501 § 21).