Chapter 14.12
ENFORCEMENT AND PENALTIES
Sections:
14.12.020 Compliance required.
14.12.040 Enforcing official liability.
14.12.060 Responsibilities defined.
14.12.070 Voluntary correction agreements.
14.12.080 Notice of violation and order.
14.12.090 Violation – Civil enforcement and penalties.
14.12.100 Violation – Criminal penalties.
14.12.110 Approval revocation, suspension and modification.
14.12.010 Purpose.
The purpose of this chapter is to ensure compliance, abate noncompliance and punish violations of the city’s development regulations, including without limitation the zoning, subdivision, resource lands and critical areas, and road design and construction standards. The provisions of this chapter may also be used to supplement enforcement actions described within the city’s other codes, regulations, rules and ordinances, and shall be applied and interpreted to accomplish this purpose. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.020 Compliance required.
(1) No person, corporation, partnership, association or other legal entity shall fail or refuse to comply with, or interfere with or resist the enforcement of, the provisions of the city’s development regulations as defined herein, and/or any condition of approval imposed by the Entiat city council, planning commission, hearing examiner or other city official, or a land use order, directive or decision of a city official. Any such act or failure to act shall constitute a violation under this chapter.
(2) Actions under this chapter may be taken in any order deemed necessary or desirable by the city to achieve the purpose of this chapter and the development code.
(3) Proof of a violation of a development permit or approval shall constitute prima facie evidence that the violation is that of the applicant and/or owner of the property upon which the violation exists. An enforcement action under this chapter shall not relieve or prevent enforcement against any other responsible person. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.030 Enforcing official.
The mayor and/or his/her designee shall be responsible for enforcing the city’s development regulations, and may adopt administrative rules to meet that responsibility. The mayor may delegate enforcement responsibility as appropriate. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.040 Enforcing official liability.
The mayor and/or his/her designee, charged with the enforcement of this chapter, acting in good faith and without malice in the discharge of the duties required by this title or other applicable laws, shall not thereby be rendered personally liable for damages that may accrue to persons or property as a result of an act or by reason of an act or omission in the discharge of such duties. A suit brought against the mayor or designee because of such act or omission performed by the mayor or designee in the enforcement of any provision of such codes or other pertinent laws or regulations implemented through the enforcement of this chapter shall be defended by the city until final termination of such proceedings, and any judgment resulting therefrom shall be assumed by the city. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.050 Right of entry.
When it is necessary to make an inspection to enforce the provisions of this chapter, or when the mayor or designee has reasonable cause to believe that there exists in a building or upon a premises a condition which is contrary to or in violation of the city’s development regulations which makes the building or premises unsafe, dangerous or hazardous, the mayor or designee may enter the building or premises at reasonable times to inspect or to perform the duties imposed by this chapter; provided, that if such building or premises be occupied, that credentials be presented to the occupant and entry requested. If such building or premises be unoccupied, the mayor or designee shall first make a reasonable effort to locate the owner or other person having charge or control of the building or premises and request entry. If entry is refused, the mayor or designee shall have recourse to the remedies provided by law to secure entry. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.060 Responsibilities defined.
Owners remain liable for violations of duties imposed by the city’s development regulations, even though an obligation is also imposed on the occupants of the building and/or premises, and even though the owner has, by agreement, imposed on the occupant the duty of complying with all or portions of the city’s rules, regulations, codes, ordinances, etc. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.070 Voluntary correction agreements.
(1) The mayor or designee, prior to filing any notice of violation and order, may enter into a voluntary correction agreement with a person responsible for correcting the condition, which may be the owner, agent or occupant.
(2) Any such voluntary correction agreement shall be a contract between the city and the person responsible, and shall follow a form to be approved by the city attorney. It shall be entirely voluntary and no one shall be required to enter into such an agreement.
(3) In such contract the person responsible shall agree to the following:
(a) Acknowledge a violation exists as shall be briefly there described;
(b) Acknowledge it is his/her responsibility to abate the violation;
(c) Agree to abate the violation by a certain date or within a specified time;
(d) Agree that if he/she does not accomplish the terms of such agreement the city may proceed without further notice to enforce the applicable provisions of the city’s development regulations as described within this chapter, including entering the premises, rectifying the violation, and recovering the expenses and monetary penalties provided for herein.
(4) The agreement shall provide that if the person does accomplish the terms of the agreement, as determined by the city, within the timeframe specified therein, the city shall so acknowledge and then shall take no further actions about it or attempt to recover public costs already incurred.
(5) The mayor or designee may agree to extend the time limit for correction set forth in such agreement or may agree to modify the required corrective action. However, the mayor or designee shall not agree to extend or modify the agreement unless the person responsible has shown due diligence and/or substantial progress in correcting the violation but has shown unforeseen circumstances which require such extension or modification. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.080 Notice of violation and order.
Upon the enforcing official’s determination that one or more violations have been committed, the enforcing official shall issue a notice of violation and order.
(1) The notice of violation and order shall, at a minimum, contain the following:
(a) The name and address of each record owner, taxpayer and occupier of the property which is the subject of the violation(s) and, when applicable, the contractor(s);
(b) The street address or a legal description sufficient for identification of the property;
(c) The tax parcel number(s) of the property;
(d) A description of each violation, including applicable sections of the city’s development regulations and/or conditions of approval;
(e) An order that the use, acts or omissions which constitute violation(s) must cease;
(f) A statement of the corrective action required for each violation, with a date by which such action must be completed;
(g) A warning: “The failure or refusal to complete corrective action by the date required may result in enforcement action, civil penalties and/or criminal penalties as provided in Entiat’s Permit Review Procedures, EMC Title 14”; and
(h) A statement of the right to appeal to the hearing examiner.
(2) The notice of violation and order shall be served upon each record owner, taxpayer and occupier and, when applicable, the contractor(s). Service of the notice of violation and order shall be by personal service or by both regular first class mail and certified mail, return receipt requested, addressed to each person’s last known address. Service by mail shall be deemed completed three calendar days after mailing.
(3) The appeal of a notice of violation and order shall be filed with the hearing examiner within 10 calendar days after service on the appellant. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.090 Violation – Civil enforcement and penalties.
The failure or refusal to complete corrective action by the date set forth in a notice of violation and order shall subject the person(s) to whom the notice of violation and order was directed to the following enforcement actions and penalties:
(1) The enforcing official may revoke, modify or suspend any permit, variance, subdivision or other land use approval issued for the subject property.
(2) A civil penalty of $250.00 per day, or portion thereof, per violation until corrective action is completed. Each separate day, event, action or occurrence shall constitute a separate violation.
(3) The city, through its authorized agents, may initiate abatement or injunction proceedings or other appropriate action in the municipal court, or the courts of this state, to prevent, enjoin, abate or terminate violations of this chapter. The city may obtain temporary, preliminary and permanent injunctive relief from the Chelan County superior court.
(4) The city may enter upon the subject property and complete all corrective action. The actual costs of labor, materials and equipment, together with all direct and indirect administrative costs, incurred by the city to complete corrective action shall be paid by record owner(s) and shall constitute a lien against the subject property until paid. A notice of claim of lien shall be recorded with the Chelan County auditor. Interest shall accrue on the amount due at the rate of 12 percent per annum. In any action to foreclose the lien against the subject property, all filing fees, title search fees, service fees, other court costs and reasonable attorneys’ fees incurred by the city shall be awarded as a judgment against the record owner(s) and shall be foreclosed upon the subject property together with the principal and accrued interest.
(5) Subsections (1) through (4) of this section are cumulative remedies and the taking of action under one subsection does not constitute an election of remedies by the city.
(6) In any action brought by the city to enforce this chapter or in any action brought by any other person in which the city is joined as a party challenging this chapter, in the event the city is a prevailing party, then the nonprevailing party challenging the provisions of this chapter, or the party against whom this chapter is enforced in such action, shall pay, in addition to the city’s costs, a reasonable attorney fee at trial and in any appeal thereof. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.100 Violation – Criminal penalties.
Any person, officer, agent or partner of a corporation, partnership, association or other legal entity, who willfully fails or refuses to complete corrective action to correct a violation by the date set forth in a notice of violation and order shall be guilty of a gross misdemeanor and shall be punished by not more than 90 days in jail or a $1,000 fine, or both. Failure or refusal to complete corrective action shall be a separate offense as to each violation in the notice of violation and order. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)
14.12.110 Approval revocation, suspension and modification.
(1) A permit, variance, subdivision or other land use approval may be revoked, suspended or modified on one or more of the following grounds:
(a) Failure to complete corrective action as required pursuant to a notice of violation and order.
(b) The approval was obtained through fraud.
(c) The approval was obtained through inadequate or inaccurate information.
(d) The approval was issued contrary to law.
(e) The approval was issued under a procedural error which prevented consideration of the interests of persons directly affected by the approval.
(f) The approval is being exercised or implemented contrary to the terms or conditions of the approval or contrary to law.
(g) The use for which the approval was issued is being exercised in a manner which is detrimental to public health, safety or welfare.
(h) Interference with the performance of federal, state, county or city official duties.
(2) Action to revoke, suspend or modify a permit, subdivision, or other land use approval shall be taken by the enforcing official through issuance of a notice of violation and order as described in EMC 14.12.080.
(3) If a permit or approval is revoked for fraud or deception, no similar application shall be accepted for a period of one year from the date of final action and appeal, if any. If a permit or approval is revoked for any other reason, another application may be submitted subject to all of the requirements of the development code. (Ord. 701 § 1 (Exh. A), 2009; Ord. 579 § 1, 2001)