Chapter 17.52
LAND USE ENFORCEMENT

Sections:

17.52.010    Purpose.

17.52.020    Scope.

17.52.030    Violations.

17.52.040    Duty to enforce – Right of entry.

17.52.050    Issuance – Contents.

17.52.060    Issuance – Supplemental.

17.52.070    Service and posting.

17.52.080    Administrative conference.

17.52.090    Voluntary compliance agreement – Authority.

17.52.100    Appeals.

17.52.110    Final order – Designated.

17.52.120    Final order – Enforcement.

17.52.130    Civil penalties.

17.52.140    Misdemeanor.

17.52.150    Public nuisance.

17.52.010 Purpose.

The purpose of this chapter is to establish an efficient procedure for civil enforcement of land use code violations. (Ord. 414 § 1 (part), 2011).

17.52.020 Scope.

Except to the extent otherwise provided by state law or town ordinance, the procedures set forth in this chapter shall apply to all violations of Titles 15, 16, and 17, including any permit conditions imposed thereunder, or rules and/or regulations adopted pursuant thereto. Violations of land use regulations that are subject to state mandated criminal penalties shall not be subject to civil enforcement unless authorized by state law. State criminal penalties shall supersede any conflicting IMC penalties as required by RCW 35.27.370. (Ord. 414 § 1 (part), 2011).

17.52.030 Violations.

(A) It is unlawful for any person to initiate, maintain or cause to be initiated or maintained the use of any structure, land or property within the town of Index without first obtaining the permits or authorizations required for such use by the applicable provisions of the Index Municipal Code.

(B) It is unlawful for any person to use, construct, erect, enlarge, alter, repair, move, improve, convert, equip, occupy, maintain, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the town of Index in any manner that is not permitted by the Index Municipal Code or the terms of any permit or authorization issued pursuant thereto.

(C) In addition to the above, it is unlawful to:

(1) Remove or deface any sign, notice, complaint or order required by or posted in accordance with this code;

(2) Misrepresent any material fact in any application, plans or other information submitted to obtain any development authorization;

(3) Fail to comply with any of the requirements of an order to cease activity issued under this chapter; or

(4) Fail to comply with any of the applicable provisions of this code. (Ord. 414 § 1 (part), 2011).

17.52.040 Duty to enforce – Right of entry.

(A) Enforcement Authority. Whenever the mayor or his or her designee has reason to believe that a use or condition exists in violation of any land use regulation, he or she is authorized to initiate enforcement action at his or her option under Section 17.52.140, Section 17.52.150, and/or an administrative notice and order proceeding under this chapter to cause the assessment of a civil penalty pursuant to Section 17.52.130, abatement pursuant to Section 17.52.150, or assessment of a criminal penalty pursuant to Section 17.52.140.

(B) Stop Work. Pending commencement and completion of the notice and order procedure provided for in this chapter, the mayor or his or her designee may cause an order to cease violation to be posted on the subject property or served on persons engaged in any work or activity in violation of a land use regulation. The effect of such an order shall be to require the immediate cessation of such work or activity until authorized by the mayor or his or her designee to proceed.

(C) Right of Entry. The mayor or his or her designee may, with the express or implied consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued warrant, enter at reasonable times any building or premises subject to such consent or warrant in order to enforce the land use regulations imposed by the Index Municipal Code.

(D) Liability. No provision or of any term used in this chapter is intended to impose any duty upon the town or any of its officers or employees which would subject them to damages in a civil action. (Ord. 414 § 1 (part), 2011).

17.52.050 Issuance – Contents.

(A) Whenever the mayor or his or her designee has reason to believe that violation of a land use ordinance or any rules and regulations adopted thereunder will be most promptly and equitably terminated by an administrative notice and order proceeding, he shall issue a written notice and order directed either to the owner or operator of the source of the violation, the person in possession of the property where the violation originates, or the person otherwise causing or responsible for the violation.

(B) The notice and order shall contain:

(1) The street address, when available, and a legal description of real property and/or description of personal property sufficient for identification of where the violation occurred or is located;

(2) A statement that the mayor or his or her designee has found the person to be in violation of a land use ordinance with a brief and concise description of each standard, code provision, or requirement violated and the conditions found to be in violation;

(3) A statement of the corrective action required to be taken. If the mayor or his or her designee has determined that corrective work is required, the order shall require that all required permits be secured, that work physically be commenced and that the work be completed within such times as a he or she determines are reasonable under the circumstances;

(4) A statement specifying the amount of any civil penalty assessed on account of the violation and, if applicable, the conditions on which assessment of such civil penalty is contingent;

(5) Statements advising that:

(a) If any required work is not commenced or completed within the times specified, the mayor or his or her designee may proceed to cause abatement of the violation and cause the work to be done and charge the costs thereof as a lien against the property and as a joint and separate personal obligation of any person in violation, and

(b) If any assessed civil penalty is not paid, the mayor or his or her designee will charge the amount of the penalty as a lien against the property and as a joint and separate personal obligation of any person in violation;

(6) A statement advising that the order shall become final, unless, no later than twenty-one (21) days after the notice and order are served, any person aggrieved by the order requests in writing an appeal. (Ord. 414 § 1 (part), 2011).

17.52.060 Issuance – Supplemental.

At any time other than during the pendency of an appeal, the mayor or his or her designee may add to, rescind in part or otherwise modify a notice and order by issuing a supplemental notice and order. The supplemental notice and order shall be governed by the same procedures applicable to all notices and orders contained in this title. (Ord. 414 § 1 (part), 2011).

17.52.070 Service and posting.

(A) Service. The notice shall be served on the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after a reasonable search and efforts are made to obtain service, the whereabouts of the person(s) is unknown or service cannot be accomplished and the mayor or his or her designee makes an affidavit to that effect, then service of the notice upon such person(s) may be made by:

(1) Publishing the notice once each week for two (2) consecutive weeks in the town’s official newspaper; and

(2) Mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known or, if unknown, to the address of the property involved in the proceedings.

(B) Posting. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible, or the mayor or his or her designee determines other methods of giving notice such as mailing, or personal service will reasonably apprise the property owner and/or other persons responsible for the alleged code violation of the pending code enforcement action. (Ord. 414 § 1 (part), 2011).

17.52.080 Administrative conference.

At any time other than during the pendency of an appeal, an informal administrative conference may be conducted by the mayor or his or her designee for the purposes of bringing communications between concerned parties and providing a forum for efficient resolution of any violation. The mayor or his or her designee may call a conference in response to a request from any person aggrieved by the order. As a result of information developed at the conference, the mayor or his or her designee may affirm, modify or revoke his/her order. During an administrative conference, the mayor or his or her designee may also enter into a voluntary compliance agreement pursuant to Section 17.52.090. The administrative conference is optional, and is not a prerequisite to utilization of any of the enforcement provisions described in this chapter. (Ord. 414 § 1 (part), 2011).

17.52.090 Voluntary compliance agreement – Authority.

(A) Whenever the town determines that a code violation has occurred or is occurring, the town may enter into a voluntary compliance agreement as provided for in this section. A voluntary compliance agreement may be entered into at any time after issuance of a verbal or written warning, a notice and order, or a stop work order and before an appeal is decided. The voluntary compliance agreement is not a settlement agreement. The voluntary compliance agreement is a written, signed commitment by the person(s) responsible for a code violation in which such person(s) agrees to abate the violation, remediate the site, and/or mitigate the impacts of the violation. The voluntary compliance agreement shall include the following:

(1) The name and address of the person responsible for the code violation;

(2) The address or other identification of the location of the violation;

(3) A description of the violation and a reference to the provision(s) of the ordinance, permit condition, resolution or regulation which has been violated;

(4) A description of the necessary corrective action to be taken and identification of the date or time by which compliance must be completed;

(5) The amount of the civil penalty that will be imposed if the voluntary compliance agreement is not satisfied;

(6) An acknowledgement that if the town determines that the terms of the voluntary compliance agreement are not met, the town may, without issuing a notice and order or stop work order, impose any remedy authorized by this chapter, enter the real property and perform abatement of the violation by the town, assess the costs incurred by the town to pursue code compliance and to abate the violation, including reasonable legal fees and costs, and the suspension, revocation or limitation of a development permit obtained or to be sought by the person responsible for the code violation;

(7) An acknowledgement that if a penalty is assessed, and if any assessed penalty, fee or cost is not paid, the town may charge the unpaid amount as a lien against the property where the code violation occurred if owned by the person responsible for the code violation, and that the unpaid amount may be a joint and several personal obligation of all persons responsible for the violation;

(8) An acknowledgement that by entering into the voluntary compliance agreement, the person responsible for the code violation thereby admits that the conditions described in the voluntary compliance agreement existed and constituted a code violation; and

(9) An acknowledgement that the person responsible for the code violation understands that he or she has the right to be served with a notice and order, or stop work order for any violation identified in the voluntary compliance agreement, has the right to administratively appeal any such notice and order or stop work order, and that he or she is knowingly and intelligently waiving those rights.

(B) An extension of the time limit for compliance or a modification of the required corrective action may be granted by the town if the person responsible for the code violation has shown due diligence or substantial progress in correcting the violation, but circumstances render full and timely compliance under the original conditions unattainable. Any such extension or modification must be in writing and signed by the authorized representative of the town and person(s) who signed the original voluntary compliance agreement.

(C) Penalties imposed when a voluntary compliance agreement is not met accrue from the date the voluntary compliance agreement was executed.

(D) The town may issue a notice and order or stop work order for failure to meet the terms of a voluntary compliance agreement. (Ord. 414 § 1 (part), 2011).

17.52.100 Appeals.

(A) Any person aggrieved by the order may, upon payment of a filing fee in accordance with the town’s fee schedule, request in writing within twenty-one (21) days of the service of the notice and order an appeal hearing. The request shall cite the notice and order appealed from and contain a brief statement of the reasons for seeking the appeal hearing.

(B) Such appeals hearing shall be conducted within a reasonable time after receipt of the request for appeal. Written notice of the time and place of the hearing shall be given at least ten (10) days prior to the date of the hearing to each appealing party and to other interested persons who have requested in writing that they be so notified. The mayor or his or her designee whose order is being appealed may submit a report and other evidence indicating the basis for the enforcement order.

(C) Each party shall have the following rights, among others:

(1) To call and examine witnesses on any matter relevant to the issues of the hearing;

(2) To introduce documentary and physical evidence;

(3) To impeach any witness regardless of which party first called him to testify;

(4) To rebut evidence against him;

(5) To represent himself or to be represented by anyone of his choice who is lawfully permitted to do so.

(D) Following review of the evidence submitted, the town council shall make written findings and conclusions, and shall affirm or modify the order previously issued if they find that a violation has occurred. They shall reverse the order if they find that no violation occurred. The written decision shall be mailed by certified mail, postage prepaid, return receipt requested to all the parties. (Ord. 414 § 1 (part), 2011).

17.52.110 Final order – Designated.

(A) Any order duly issued by the mayor or his or her designee pursuant to the procedures contained in this title shall become final twenty-one (21) days after service of the notice and order unless a written request for hearing is received and filed with the town clerk within the twenty-one (21) day period.

(B) An order which is subject to the appeal procedure of Section 17.52.100 shall be final and conclusive upon the date of the town council’s decision. The council’s decision may be appealed to the Snohomish County superior court. If the council’s decision would constitute a final land use decision as defined by Chapter 36.70C RCW, a person with standing to appeal said decision must file and serve a land use petition under Chapter 36.70C RCW within twenty-one (21) calendar days of the issuance of the council’s decision. (Ord. 414 § 1 (part), 2011).

17.52.120 Final order – Enforcement.

(A) If, after any order duly issued by the mayor or his or her designee has become final, the person to whom such order is directed fails, neglects or refuses to obey such order the mayor or his or her designee may:

(1) Cause such person to be prosecuted under the provisions of this title; and/or

(2) Institute any appropriate action to collect a civil penalty assessed under this title; and/or

(3) Abate the land use violation using the procedures of this title; and/or

(4) File in the Snohomish County auditor’s office a certificate describing the property and the violation and stating that the owner has been so notified; and/or

(5) Pursue any other appropriate remedy at law or equity under this title.

(B) Enforcement of any notice and order issued pursuant to this chapter shall be stayed during the pendency of any appeal under this title, except when the mayor or his or her designee determines that the violation will cause immediate and irreparable harm and issues an order pursuant to Section 17.52.040. (Ord. 414 § 1 (part), 2011).

17.52.130 Civil penalties.

(A) Any person violating or failing to comply with any of the land use regulations of the Index Municipal Code shall be subject to a penalty of up to one thousand dollars ($1,000) per day for each violation from the date set for compliance in the final order until compliance with the order is achieved. Continuing penalties may be assessed by the provision of additional notices of violation each day that a penalty continues and an opportunity for hearing. No additional penalties for a continuing violation may be assessed without the provision of notice and the opportunity for a hearing. In addition to the actual penalty imposed, should the violation be affirmed on appeal, the town council shall assess to the appellant an amount for any documented enforcement costs incurred by the town in prosecuting the appeal before the town council. These costs shall include those expenses incurred in preparing the appeal, general clerical expenses, staff and council preparation time, site inspections, town attorney fees, and any other costs incurred by the town.

(B) The mayor or his or designee shall determine the amount of the penalty assessed per day for each violation. Factors the mayor or his or her designee may consider in assessing the penalty include, but are not limited to, the severity of the violation, the person’s attempts to voluntarily comply with the notice and order, the person’s prior history of code violations, and any other factor or circumstance the mayor or his or her designee deems relevant.

(C) The penalty imposed by this section may, in addition to other available remedies, be collected by civil action brought in the name of the town. The mayor shall notify the town attorney of the name of any person subject to the penalty, and the town attorney shall, with the assistance of the mayor, take appropriate action to collect the penalty. The town may alternatively engage a collection agency for the purpose of collecting any such penalty.

(D) The violator may show as full or partial mitigation of liability as determined by the mayor or his or her designee:

(1) That the violation giving rise to the action was caused by the willful act, neglect or abuse of another beyond the violator’s control; 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 of the property or circumstance beyond the control of the violator. (Ord. 414 § 1 (part), 2011).

17.52.140 Misdemeanor.

In addition to any other administrative remedy provided in this chapter or by law or other ordinance, any person who willfully or knowingly violates any land use regulation, or rules and regulations adopted thereunder, or any order issued pursuant to this title, or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished as provided in RCW 9.92.030. Each day such violation continues shall be considered an additional misdemeanor offense. (Ord. 414 § 1 (part), 2011).

17.52.150 Public nuisance.

All violations of land use regulations, permit conditions, or rules and regulations adopted thereunder, are determined to be detrimental to the public health, safety and welfare and are public nuisances. The mayor or his or her designee, at his or her option, may cause all conditions which are determined to be in violation of any land use regulation to be abated pursuant to the procedures of Chapter 7.48 RCW. (Ord. 414 § 1 (part), 2011).