Chapter 1.12
ENFORCEMENT

Sections:

1.12.010    Purpose and intent.

1.12.020    Violations.

1.12.030    Responsibility to enforce.

1.12.040    Investigation and notice of violation.

1.12.050    Extensions.

1.12.060    Stop work orders.

1.12.070    Emergency order.

1.12.080    Appeals.

1.12.090    Appeal hearing.

1.12.100    Civil penalty.

1.12.110    Additional relief.

1.12.120    Penalties for subdivision violations.

1.12.130    Criminal penalties.

1.12.140    Definitions.

1.12.010 Purpose and 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 Ferndale Municipal Code. 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. 2038 § 2 (Exh. 2), 2018; Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.020 Violations.

A.    It is a violation of certain sections of FMC Titles 5, 8, 9, 12, 13, 15, 16, 17, and 18 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 codes.

B.    It is a violation of certain sections of FMC Titles 5, 8, 9, 12, 13, 15, 16, 17, and 18 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 the permit or authorization issued pursuant to the aforementioned titles; provided, that the terms or conditions are explicitly stated on the permit, the approved plans, or other decision by the City containing conditions of approval.

C.    Violations to which this chapter applies are identified in the following sections of the Ferndale Municipal Code: FMC 5.04.120, 5.08.080, 5.32.070(A), 8.04.190, 8.08.120 through 8.08.140, 8.13.160, 9.08.060, 12.16.110, 12.20.150, 12.24.020, 13.04.260, 13.06.170, 13.33.110, 13.33.120, 13.34.150, 13.34.180, 13.34.190, 13.34.200, 13.35.040, 13.35.050, 15.04.230, 15.05.060, 15.05.070, 15.20.100, 15.24.470, 15.60.110, 16.08.150, Chapter 17.44 FMC, FMC 18.12.290, 18.12.300, 18.56.060, 18.64.160, 18.74.160, 18.80.470 and FMC Title 19.

D.    This chapter supersedes and replaces Chapter 2, Enforcement, of the Ferndale Development Standards, which chapter is hereby repealed.

E.    The following code sections include additional enforcement procedures that shall be used in conjunction with this chapter: Chapters 12.16, 13.06, 13.31, 13.33, 13.34, 13.35, 15.24, 16.08, 17.44, 18.54, 18.56, 18.68 and 18.69 FMC. (Ord. 2038 § 2 (Exh. 2), 2018; Ord. 1899 § 2, 2015; Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.030 Responsibility to enforce.

A.    The Community Development Department Director, the Director of Public Works, the City Clerk, and the Finance Director (collectively, Director) shall have the responsibility to enforce this chapter, pursuant to the relevant code section that incorporates these enforcement procedures by reference. A Director may call upon the police, fire, building, or other appropriate City departments or divisions to assist in enforcement. As used in this chapter, “Community Development Department Director,” “Public Works Director,” “City Clerk,” “Finance Director,” and “Director” shall also mean his or her designees.

B.    Upon presentation of proper credentials, a Director may, with the consent of the owner or occupier of a building or premises, unless enforcement procedures are related to publicly accessible portions of a business, 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. 1899 § 3, 2015; Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.040 Investigation and notice of violation.

A.    Investigation. In accordance with FMC 1.12.030(B), a Director is authorized to investigate any structure, use, or practice which he/she reasonably believes is in violation of the standards and requirements of the applicable provisions of the Ferndale Municipal Code.

B.    Notice of Violation. If, after investigation, a Director determines that the standards or requirements of those sections of the Ferndale Municipal Code, as described in FMC 1.12.020, or the provisions of this chapter have been violated, a Director may serve a notice of violation upon the owner, tenant or other person responsible for the condition. Any person who, through an act of commission or omission, aids or abets in the violation shall be considered to have committed a violation for the purpose of the notice of violation. A Director may determine that a violation exists based on reliable information, including but not limited to a site visit authorized by the property owner, access to publicly accessible portions of a business, view from the public right-of-way or publicly owned property, aerial photographs, view from neighboring properties with the consent of the neighboring property owner, publicly available information on the Internet, citizen complaints, and public records. 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 or service on the person to whom it is directed;

4.    The notice of violation may include or reference an order requiring that the violation immediately cease, and/or list steps to correct the violation;

5.    The notice of violation may include or reference an order requiring that the person stop work (stop work order) until correction and/or remediation of the violation within the manner specified in the stop work 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.    The deadline for compliance, which shall be in accordance with the compliance schedule set forth within the notice of violation (or order in the case of stop work and emergency orders);

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 FMC 1.12.130 (or Chapter 17.44 FMC for subdivision violations) or at the discretion of the City Prosecutor;

10.    A statement that if a Director decides that it is appropriate, the violation may be referred to the City Prosecutor for possible criminal prosecution;

11.    A statement that failure to comply with the notice of violation may result in further enforcement actions and civil fines;

12.    A statement that a civil penalty of up to $1,000 has been imposed pursuant to FMC 1.12.100;

a.    The penalty for SWOs issued pursuant to FMC 1.12.060 shall be $250.00, and in addition to any penalties associated with subsequent NOVs.

13.    A statement that on failure to attain compliance pursuant to the compliance schedule contained within the notice of violation (or order in the case of stop work and emergency orders), a supplemental notice of violation may be issued and additional penalties of up to $1,000 per day may accrue during the period of violation;

14.    A statement that if compliance is not achieved within the deadline set forth within the notice of violation (or order in the case of stop work and emergency orders), a Director may obtain a warrant of abatement to abate the conditions on the property;

15.    A statement that a lien may be filed against the property for any costs of abatement, civil penalties imposed, and/or for reasonable attorney’s fees and costs;

16.    If an emergency condition exists, a statement that the emergency condition has resulted from the violation which appears to cause or constitute an imminent or immediate danger to the health and safety of the public, and that if the responsible party cannot be contacted or refuses to immediately abate the same, a Director, upon approval by the Mayor or the City Manager, shall without notice abate the same pursuant to FMC 1.12.070;

17.    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 for both the notice of violation and the imposition of any civil penalties shall be final unless timely appealed as provided in FMC 1.12.080;

18.    A statement that in order to achieve compliance, a responsible party must submit written notice to a Director that he/she has met all necessary requirements for compliance, and the Director must assess and confirm that compliance has been achieved.

C.    Each Day a Separate Violation. Each day after the deadline set for compliance that 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 criminal citation may be issued and/or additional civil penalties may be imposed and may accrue during the period of violation. However, no additional fines for a continuing violation may be assessed without the provision of notice and an opportunity for an appeal hearing in accordance with the provisions of FMC 1.12.080 and 1.12.090.

D.    Service. The Code Enforcement Officer shall serve the notice of violation upon the owner, tenant or other responsible party either personally or by mailing a copy of the notice of violation by certified or registered mail, return receipt requested, to such person at his or her last known address, or by other available mail services. If the person cannot be personally served within Whatcom County, or if an address for mailed service cannot be reasonably ascertained, or the address is a United States Postal Service post office box, a notice shall be served by posting a copy of the notice of civil violation on the violating property.

E.    Other Actions May Be Taken. Nothing in this chapter shall be deemed to limit or preclude any action or proceeding pursuant to FMC 1.12.060 (Stop work orders), 1.12.070 (Emergency order), 1.12.100 (Civil penalty), 1.12.110 (Additional relief), 1.12.120 (Penalties for subdivision violations), or 1.12.130 (Criminal penalties) and in accordance with the International Building and Residential Codes and the International Property Maintenance Code, as adopted by reference in the Ferndale Municipal Code.

F.    Additional Notice to Others. A Director 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.

G.    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 a Director requests that the City Attorney take appropriate enforcement action. A Director 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.

H.    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; or

3.    To add, remove, or modify a civil penalty. (Ord. 2061 § 1, 2018; Ord. 1965 § 1 (Exh. A), 2016; Ord. 1899 § 4, 2015; Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.050 Extensions.

A Director has the discretion to grant a one-time request for an extension of the compliance schedule described in FMC 1.12.040(B)(8) and set forth in a notice of violation, on the basis that the responsible party is making a good faith effort to comply with the requirements of the notice of violation (or order, in the case of a stop work order or emergency order) or if the original time frame is inadequate. When calculating a reasonable time for an extension of the compliance schedule, a Director 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;

E.    Any other circumstances beyond the control of the responsible party. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.060 Stop work orders.

A.    Whenever a violation of applicable code provisions will materially impair a Director’s ability to secure compliance, when the violation threatens the health or safety of the public, when the violation damages or impacts sensitive environmental areas, or if the Director determines that the costs of mitigating the impacts of a violation would otherwise be the responsibility of the City, a Director 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. Any person who, through an act of commission or omission, aids or abets in the violation shall be considered to have committed a violation for the purpose of the stop work order. A notice of a stop work order shall be immediately posted at a conspicuous place on the property where the violation is occurring. The notice of a stop work order shall identify the violation that has been committed and state the specific location where the entire stop work order may be reviewed. Failure to comply with a stop work order shall constitute a violation of this chapter.

B.    A stop work order shall include the information required in FMC 1.12.040(B). The stop work order shall also include a statement that the person to whom the stop work order is directed or the property owner may file an appeal pursuant to FMC 1.12.080, or within 72 hours of service or posting of the stop work order, make a request for an expedited appeal hearing with the Hearing Examiner which hearing is to be held within five business days of such a request.

C.    If no expedited appeal hearing is requested or no regular appeal is filed and compliance is not achieved by the compliance schedule set forth in the order, a Director may ask the City Attorney to seek additional relief under FMC 1.12.110 and/or a Director may file a notice of violation, if one has not already been issued, or a supplemental notice of violation, if one has already been issued, for the violation pursuant to FMC 1.12.040, and impose additional monetary penalties. Nothing in this section should be interpreted to prevent a Director from issuing a notice of violation and imposing monetary penalties simultaneously with the issuance of a stop work order in accordance with FMC 1.12.040(B)(5).

D.    Any expedited appeal of a stop work order shall follow the applicable procedures set forth in this section and those provisions specific to expedited appeals found in FMC 1.12.080.

E.    An expedited appeal hearing for a stop work order or an emergency order is for the sole purpose of determining whether a violation has been committed. Notices of violation and monetary penalties imposed simultaneously with a stop work order and emergency order must be appealed separately in accordance with normal appeal procedures found in FMC 1.12.080.

F.    A request for an expedited appeal hearing on a stop work order or the filing of a regular appeal of a stop work order stays the imposition of additional civil penalties until such time as the Hearing Examiner issues a decision.

G.    The Hearing Examiner shall hold the expedited appeal hearing on a stop work order according to the applicable procedures in this section and in those provisions specific to expedited hearings in FMC 1.12.080 and 1.12.090. The Hearing Examiner has the discretion to issue a short oral or written decision in memorandum form within five business days of the appeal hearing, but in all cases, the Hearing Examiner will issue formal findings of fact and conclusions of law within 10 business days of the appeal hearing. If the Hearing Examiner finds that the violation described in the stop work order occurred or existed, a Director may issue a supplemental notice of violation and impose additional monetary penalties during the period of violation in accordance with FMC 1.12.040. In addition, if the Hearing Examiner finds that the violation described in the stop work order occurred or existed, any condition described in the stop work order which is not corrected within the time specified is hereby declared to be a public nuisance and a Director 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.

H.    In an appeal of a stop work order, a determination by the Hearing Examiner that a violation has been committed is a final decision for the purposes of an appeal.

I.    To the extent that this chapter is inconsistent with the City’s adoption by reference of the International Building Code and International Residential Code or any other adopted Uniform or International Code and those codes’ enforcement procedures related to stop work orders, the provisions of this chapter shall prevail.

J.    Defacing, destroying, or removing a stop work order is a criminal offense and may be referred to the City Prosecutor for criminal prosecution pursuant to FMC 1.12.040(B)(9). (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.070 Emergency order.

A.    Whenever any use or activity in violation of the Ferndale Municipal Code threatens the health and safety of the occupants of the premises or any member of the public, a Director 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. When such emergency conditions exist, a Director, upon approval by the Mayor or the City Manager, shall have authority to summarily and without notice abate the condition in accordance with FMC 1.12.110(D). The emergency order shall be in writing and served upon the person(s) engaged in the use or activity or causing the use or activity to be done. Any person who, through an act of commission or omission, aids or abets in the violation shall be considered to have committed a violation for the purpose of the emergency order. The emergency order shall be immediately posted in a conspicuous place on the property. 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 FMC 1.12.040(B). In addition, the emergency order shall include a statement that the person to whom the emergency order is directed may file an appeal pursuant to FMC 1.12.080, or within 72 hours of service or posting of the emergency order, make a request for an expedited hearing with the Hearing Examiner which hearing is to be held within five business days of such a request.

C.    If no expedited appeal hearing is requested or no regular appeal is filed and compliance is not achieved by the compliance schedule set forth in the emergency order, a Director may ask the City Attorney to seek additional relief under FMC 1.12.110 and/or pursuant to FMC 1.12.040 a Director may issue a notice of violation, if one has not already been issued, or a supplemental notice of violation, if one has already been issued, and impose additional monetary penalties. Nothing in this section should be interpreted to prevent a Director from issuing a notice of violation and imposing monetary penalties simultaneously with the issuance of an emergency order in accordance with FMC 1.12.040(B)(5).

D.    Any expedited appeal of an emergency order shall follow the applicable procedures in this section and those provisions specific to expedited appeals found in FMC 1.12.080.

E.    An expedited appeal hearing is for the sole purpose of determining whether a violation has been committed. Monetary penalties imposed simultaneously with a notice of violation and emergency order must be appealed separately in accordance with normal appeal procedures found in FMC 1.12.080.

F.    A request for an expedited appeal hearing on or an appeal of an emergency order does not stay the accrual of monetary penalties. However, if additional civil penalties are imposed and accrue in addition to the initial penalty during the period of violation, a supplemental notice of violation will be issued.

G.    The Hearing Examiner shall hold the expedited appeal hearing on an emergency order according to the applicable procedures in this section and in those provisions specific to expedited appeal hearings in FMC 1.12.080 and 1.12.090. The Hearing Examiner has the discretion to issue a short oral or written decision in memorandum form within five business days of the appeal hearing, but in all cases, the Hearing Examiner will issue formal findings of fact and conclusions of law within 10 business days of the appeal hearing. If the Hearing Examiner finds that the violation described in the emergency order occurred or existed, a Director may issue a separate notice of violation, if one has not been issued, or a supplemental notice of violation, if one has already been issued, and impose additional monetary penalties during the period of violation in accordance with FMC 1.12.040.

H.    If the Hearing Examiner finds that the violation described in the emergency order occurred or existed, any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and a Director may ask that the City Attorney take action to obtain a warrant of abatement for the property in Superior Court in accordance with FMC 1.12.110(B). The owner or person responsible (or both) shall be responsible for the costs associated with the abatement, in the manner provided by law.

I.    In an appeal of an emergency order, a determination by the Hearing Examiner that a violation has been committed is a final decision for the purposes of an appeal.

J.    Defacing, destroying, or removing an emergency stop work order is a criminal offense and may be referred to the City Prosecutor for criminal prosecution pursuant to FMC 1.12.130. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.080 Appeals.

A.    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 chapter, on an appeal of a stop work or emergency order, regardless of whether the violations described in the stop work order or emergency order could 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 and whether the relief requested is appropriate.

B.    Appeal Hearings on Stop Work and Emergency Orders. If no expedited hearing is requested for a stop work or emergency order, a responsible party may still file an appeal in accordance with FMC 1.12.040. Such an appeal may be filed in conjunction with an associated notice of violation and/or imposition of civil penalties. If no appeal is filed with the Director or no expedited hearing is requested, the stop work or emergency order will become the final order of a Director. The final order, including the collection of penalties, may be enforced by the City Attorney in Whatcom County Superior Court.

C.    Appeal Hearings on Notices of Violations Citing Civil Penalties. Such appeals may include an appeal of a notice of violation, the imposition of civil penalties, or both. Unless an appeal of a notice of violation is filed with a Director in accordance with FMC 1.12.040, or an appeal involving an expedited hearing in accordance with FMC 1.12.040, 1.12.060, and 1.12.070, is filed, the notice of violation shall become the final order of a Director. The final order, including the collection of penalties, may be enforced by the City Attorney in Whatcom County Superior Court.

D.    Procedure for Potential Settlement. The Hearing Examiner shall have the discretion to grant a 60-day extension for the purpose of settlement discussions. The Hearing Examiner may extend that period upon a showing of good cause and upon agreement of all parties. If no settlement can be reached within 120 days of the original grant of extension, the appeal process must immediately commence in accordance with FMC 1.12.080 and 1.12.090.

E.    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 and/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 Clerk or City Administrator.

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.

F.    Time to File Appeal.

1.    Notice of Violation under FMC 1.12.040. The party of record must file an appeal with a Director within 10 calendar days of service of the notice of violation.

2.    Stop Work or Emergency Orders under FMC 1.12.060 or 1.12.070. The property owner or the person responsible for the condition of the property may file an appeal in accordance with subsection (F)(1) of this section, or within 72 hours of service or posting of the stop work order or emergency order, make a request for an expedited hearing with the Hearing Examiner to be held within five business days of such request. A request for an expedited hearing must be made in writing via U.S. mail, fax or email to the Office of the Ferndale City Clerk.

3.    Computing Deadline for Filing Appeal. For purposes of computing the time for filing an appeal, the day the decision is 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 a Director by mail, 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.

G.    Content of Appeal. Appeals shall be in writing, be accompanied by the required appeal fee pursuant to the Ferndale Unified Fee Schedule, and contain the following information:

1.    Appellant’s name, address, phone number, and email address (if available);

2.    A statement describing appellant’s standing to appeal and how the appellant is personally aggrieved by the decision;

3.    Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts, including those alleged in a notice of violation or order;

4.    The specific relief sought;

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

H.    Effect. The timely filing of an appeal shall stay any enforcement action based on a stop work order or notice of violation until the Hearing Examiner’s decision issues. The effect will not lift or remove a stop work order, but merely stay any further enforcement action such as the continued assessment of civil penalties. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.090 Appeal hearing.

A.    The Hearings Examiner shall have the authority to hear all appeals under this chapter in accordance with the authority set forth in FMC 18.12.060. Hearings shall follow those procedures as set forth in FMC 14.05.030 (Procedural Rules for City of Ferndale Hearings Examiner). To the extent that there are any inconsistencies between Chapter 14.05 FMC, this chapter and the Hearings Examiner Procedural Rules, the Hearings Examiner Procedural Rules shall govern.

B.    Expedited appeal hearings for stop work orders and emergency orders will follow the process found in FMC 1.12.060 and 1.12.070 and any procedural requirements in this section, unless otherwise specified or agreed to by the parties and the Hearings Examiner.

C.    The public hearing on an appeal of a notice of violation and/or the imposition of civil penalties shall include the following elements and be conducted as follows:

1.    Except in cases involving an expedited hearing, the Community Development Department, upon agreement with a Director and appellant, will coordinate with the Hearings Examiner to set the time and place of an appeal hearing, and to arrange for the provision of notice of the public hearing as set forth in FMC 14.13.090 and 14.15.050.

a.    Appeals of enforcement actions require a public hearing, and are processed as Type 2 decisions pursuant to FMC 14.09.050.

2.    A party to the hearing may represent him/herself or be represented by a designated agent or an attorney. A party that will be represented by an attorney at an expedited hearing must notify a Director of such legal representation within 24 hours of the hearing. Failure to do so will result in an automatic rescheduling of the hearing to the next available hearing date.

3.    Except for cases involving an expedited hearing, the Hearings 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 (even if a representative is present), the Hearings Examiner may issue a default order of dismissal.

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

6.    The Hearings 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.    Only parties and witnesses called by the parties to the appeal may testify at the hearing. 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.    Communications pertaining to procedural matters may be sent to the Hearings Examiner’s office via mail or email, but such communications must also be sent to the opposing parties.

11.    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 and/or that the legal standard for imposing the penalty has been met. The Hearings Examiner shall decide what weight should be granted to the testimony of witnesses.

12.    After the conclusion of the public hearing, the Hearings Examiner may choose to leave the record open for a specified period of time to allow the parties a designated time for the submission of memorandums, briefs or proposed findings, as long as the Hearings 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 Hearings Examiner may:

a.    Uphold the notice of violation and/or imposition of civil penalties;

b.    Set aside or order the City to withdraw the notice of violation;

c.    Leave the record open at the conclusion of the public hearing and 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;

e.    Modify the civil penalty imposed.

14.    The Hearings Examiner may upon a showing of good cause by either party or at the Hearings Examiner’s discretion exercise the authority granted in subsections (C)(13)(a) through (e) of this section for expedited hearings on stop work orders and emergency orders.

D.    Except with regard to expedited hearings, the Hearings Examiner shall issue written findings of fact and conclusions of law within 10 business days of the date of the closing of the record and the City shall cause the same to be mailed by regular first class mail to the person(s) named on the notice of violation, and 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 in accordance with FMC 1.12.060 and 1.12.070.

E.    The decision of the Hearings Examiner shall be final on a notice of violation, stop work order, emergency order, and the imposition of any civil penalties, and no further administrative appeal may be filed.

F.    If the Hearings Examiner issues a decision in favor of the City, the responsible party is required to pay any civil penalty imposed within 30 calendar days. If the responsible party fails to pay the penalty within the specified time period, the City Attorney may ask that the Whatcom County Superior Court may enter summary judgment against the responsible party for the amount due or for such other relief as allowed by law.

G.    In order to appeal the decision of the Hearings Examiner on a notice of violation, stop work order, emergency order, or the imposition of civil penalties, a person with standing to appeal must file an appeal of the decision to Whatcom County Superior Court within the required statutory time frame, or if subject to the Land Use Petition Act, as provided under Chapter 36.70C RCW within the deadline set forth in RCW 36.70C.040.

H.    Following a finding of the Hearings Examiner of the existence of a violation at an appeal hearing, a Director may issue a supplemental notice of violation and impose additional penalties which may accrue for each day of a continuing violation during the period of violation. The imposition and accrual of per-day penalties for a continuing violation must be accompanied by an initial notice of violation (at the time a Director determines that additional per-day penalties will accrue) with an additional opportunity for an appeal hearing. (Ord. 1899 § 5, 2015; Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.100 Civil penalty.

A.    In addition to any other sanction or remedial procedure which may be available pursuant to this chapter, any person violating or failing to comply with any of the provisions of the code chapters that adopt this chapter by reference shall be subject to an initial civil penalty in the amount of up to $1,000, and additional civil penalties of up to $1,000 may accrue per each day of a continuing violation during the period of violation from the deadline that the City sets for compliance (or the deadline that the Hearings Examiner sets for compliance after an appeal of a violation) until compliance is achieved. After a deadline for compliance has passed, civil penalties of up to $1,000 for each day of a continuing violation during the period of violation may be imposed and may accrue per day in conjunction with a supplemental notice of violation in accordance with FMC 1.12.090(H). In order to achieve compliance, a responsible party must submit written notice to a Director that he/she has met all necessary requirements for compliance, and a Director must assess and confirm that compliance has been achieved.

B.    A Director has the discretion to reduce or eliminate a civil penalty by taking into account certain mitigating factors, including but not limited to the following:

1.    A responsible party’s financial hardship or inability to pay; or

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

3.    A responsible party’s unavailability or inability to respond during the initial penalty phase, if the responsible party undertakes correction of the violation promptly upon receipt of the notice thereof; or

4.    A responsible party’s inability to attain full compliance within the time specified because of an 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 responsible party; or

5.    Any other conditions or circumstances beyond the control of the responsible party that a Director deems sufficient to warrant a reduction or elimination of a civil penalty; or

6.    A responsible party’s timely actions in achieving full compliance within the time frame for corrective action provided by the notice of violation or stop work order.

C.    The penalty imposed by this section, if not timely remitted by the responsible party, shall be collected by civil action brought in the name of the City or pursuant to RCW 7.80.010(5), 35A.21.160, or 35.22.280(3). A Director 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 a Director, take appropriate action to collect the penalty, which action shall be filed in Whatcom County Superior Court. If the City is forced to take action for the collection of penalties, the City is entitled to reasonable attorney’s fees and costs.

D.    Each day of continued noncompliance, subsequent to the compliance deadline, with any of the provisions of the code or with the remedial action set forth in the stop work order, emergency order or notice of violation shall constitute a separate offense for the purpose of assessing civil penalties.

E.    At the discretion of the Director, continued noncompliance may subject a responsible party to additional penalties of up to $1,000 per day during the period of violation imposed in conjunction with the issuance of a supplemental notice of violation in accordance with FMC 1.12.090(G) and subsection (A) of this section.

F.    Penalties shall be paid to the general fund unless a specific utility is identified in the notice of violation, in which case penalties shall be paid to said utility fund. (Ord. 2061 § 1, 2018; Ord. 1899 § 5, 2015; Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.110 Additional relief.

A.    A Director may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of any of the code provisions that incorporate this chapter by reference, when civil or criminal penalties are inadequate to effect compliance.

B.    If the responsible party has not appealed a decision as provided for in FMC 1.12.080, or if the responsible party has appealed but the Hearing Examiner has found the person responsible to have committed the violation and has not authorized a delay and there has been no appeal to Whatcom County Superior Court, and correction has not been made within the compliance deadline, a Director is authorized to file an action in Superior Court to obtain a warrant of abatement pursuant to RCW 7.48.260. Upon obtaining a warrant from the Superior Court a Director may proceed with its own personnel or with a contractor to abate the condition in any reasonable manner.

C.    Notwithstanding the provisions herein, the monetary penalties and the cost of abatement accomplished by the City constitute a personal obligation of the responsible party. Following affirmative review by the Mayor or the City Administrator, and the City Attorney, and in accordance with RCW 4.56.190 or Chapter 35.80 RCW, a Director may impose a lien for any civil penalty and/or for the cost of any work of abatement done pursuant to this chapter, together with interest and reasonable attorney’s fees and costs, against the real property on which the civil penalty was imposed or any of the work of abatement was performed.

The lien shall be subordinate to all existing special assessment liens previously imposed upon the same property and shall be superior to all other liens, except for state and county taxes, with which it shall be on parity.

A Director may cause a claim for lien to be filed for record with the County Auditor within 90 days from the date of completion of the work or abatement performed by the City pursuant to this section. The claim of lien shall contain the following:

1.    The authority for imposing a civil penalty of proceeding to abate the violation, or both;

2.    A brief description of the civil penalty imposed or the abatement work done, or both, including the violations charged and the duration thereof, the time the work is commenced and completed and the name of the responsible party performing the work;

3.    A legal description of the property to be charged with the lien;

4.    The name of the known or reputed owner; and

5.    The amount, including lawful and reasonable costs, for which the lien is claimed.

The lien may be foreclosed in Whatcom County Superior Court.

D.    When a Director concludes that a violation has been committed and that an emergency condition results therefrom or it reasonably appears to cause or constitute an imminent or immediate danger to the health and safety of the public, and the responsible party cannot be contacted or refuses to immediately abate the same, a Director shall have authority to summarily and without notice abate the same. However, a Director shall make all reasonable efforts to contact the responsible party before commencing emergency abatement action. Notice of the abatement action shall be given to the responsible party as soon thereafter as possible and the City shall be entitled to recover the abatement costs as provided in subsection (C) of this section.

E.    A Director has the ability to suspend or revoke any approvals or permits issued to the same property and/or responsible party for a violation of this chapter or any of the code sections that incorporate this chapter by reference. Unless the permit is required as a means to achieve compliance, the Planning Director may also suspend review of any pending permit applications for the same property and/or the property owner subject to a violation and refuse to process any permit applications applied for through the aforementioned code sections until compliance is achieved. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.120 Penalties for subdivision violations.

Violations of any provision of FMC Title 17, Subdivisions, are subject to the enforcement procedures and penalties found in this chapter and those supplemental enforcement procedures and penalties found in Chapter 17.44 FMC. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.130 Criminal penalties.

A.    Any person who has been found to have committed a civil violation pursuant to FMC 1.12.100 within the past five years and upon conviction of a subsequent violation of this chapter will be deemed to have committed a misdemeanor and shall be subject to criminal prosecution and shall be fined in a sum not exceeding $1,000 or be imprisoned for a term not exceeding one year or be both fined and imprisoned. Every day of continued noncompliance with a notice of violation, stop work order, or emergency order enforced in accordance with this chapter and/or any of the code provisions that incorporate this chapter by reference is a separate offense.

B.    The above criminal penalty may also be imposed:

1.    For any other violation of any of the code provisions that incorporate this chapter by reference; and

2.    For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements of any of the code provisions that incorporate this chapter by reference. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)

1.12.140 Definitions.

A.    “Aggrieved party” shall mean a person whose proprietary, pecuniary, or personal rights are substantially affected by a violation of this chapter.

B.    “Emergency order” shall mean an order imposed by the City requiring the immediate halt to all ongoing use or activity in violation of the Ferndale Municipal Code which threatens the health and safety of the occupants of the premises or any member of the public.

C.    “Final decision” shall mean the ultimate conclusion of the appropriate reviewing body or individual.

D.    “Notice of violation” shall mean a document which includes the final decision of a Director, concluding that a violation has occurred, describing the violation as well as penalties and deadlines for compliance.

E.    “Order” includes either a stop work order or an emergency order.

F.    “Party of record” means the property owner and/or the person responsible for the condition of the property on which a violation has been committed; any person who can demonstrate that he/she is aggrieved by a violation and/or a decision on the violation; and the City Clerk or City Administrator.

G.    “Responsible party” means the property owner and/or the person responsible for the condition of the property on which a violation has been committed.

H.    “Stop work order” shall mean an order imposed by the City requiring an immediate halt to all ongoing use or activity in violation of the Ferndale Municipal Code. (Ord. 1841 § 1, 2014; Ord. 1817 § 5, 2013)