Chapter 1.12
CODE ENFORCEMENT

Sections:

1.12.010    Purpose.

1.12.020    Definitions.

1.12.030    Voluntary correction.

1.12.040    Notice of civil violation.

1.12.050    Hearing before the hearing examiner.

1.12.055    Reduction of monetary penalties.

1.12.057    Certificate of noncompliance.

1.12.060    Abatement by the city.

1.12.070    Stop work orders and orders to cease and desist.

1.12.080    Entry to buildings and premises— Warrants.

1.12.090    Additional enforcement procedures.

1.12.100    Special provisions relating to enforcement of tree regulations in Chapter 95 KZC.

1.12.110    Special provisions relating to enforcement of nuisance regulations.

1.12.200    Special provisions relating to enforcement of Chapter 15.52 (Surface Water Management).

1.12.010 Purpose.

The purpose of this chapter is to establish an efficient system to enforce the regulations of the city, to provide an opportunity for a prompt hearing and decision on alleged violations of these regulations, and to establish monetary penalties for violations. (Ord. 4280 § 1 (part), 2011)

1.12.020 Definitions.

As used in this chapter, unless a different meaning is plainly required:

(a)    “Abate” means to repair, replace, remove, destroy or otherwise remedy a condition which constitutes a civil violation by such means, in such a manner and to such an extent as the applicable department director determines is necessary in the interest of the general health, safety and welfare of the community.

(b)    “Act” means doing or performing something.

(c)    “Applicable department director” means the director of the department or his or her designee.

(d)    “Civil violation” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation. Traffic infractions issued pursuant to Title 12 are specifically excluded from the application of this chapter.

(e)    “Development” means the erection, alteration, enlargement, demolition, maintenance or use of any structure or the alteration or use of any land above, at or below ground or water level, and all acts governed by a city regulation.

(f)    “Emergency” means a situation which in the opinion of the applicable department director requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.

(g)    “Hearing examiner” means the Kirkland hearing examiner and the office thereof established pursuant to Chapter 3.34.

(h) “Omission” means a failure to act.

(i)    “Person” means any individual, firm, association, partnership, corporation or any entity, public or private.

(j)    “Person responsible for the violation” means any person who is required by the applicable regulation to comply therewith, or who commits any act or omission which is a civil violation or causes or permits a civil violation to occur or remain upon property in the city, and includes but is not limited to owner(s), lessor(s), tenant(s), vendor(s), contractor(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs. For violations of the city sign regulations, this definition includes, but is not limited to, sign installers/posters, sign owners, and any other persons who cause or participate in the placement of a sign in a manner that constitutes a civil violation. For violations of city tree regulations, this definition includes any person who caused or participated in the removal of a tree in a manner that constitutes a civil violation.

(k)    “Regulation” means and includes the following, as they now exist or are hereafter amended:

(1)    Title 23 (Kirkland Zoning Code);

(2)    Title 21, Buildings and Construction (including codes adopted by reference);

(3)    Chapter 15.52 (Surface Water Management);

(4)    Title 29 (Land Surface Modification);

(5)    Chapter 19.04 (Obstructing Streets or Sidewalks);

(6)    Chapter 11.76 (Junk Vehicles);

(7)    Chapter 11.24 (Nuisances);

(8)    Chapter 11.64 (Littering);

(9)    The terms and conditions of any permit or approval issued by the city, or any concomitant agreement with the city;

(10)    Chapter 7.74 (Fair Housing Regulations);

(11)    Chapter 16.05 (Retail Carryout Bags, including definitions set forth in Chapter 16.04);

(12)    Chapter 16.08 (Garbage Disposal); and

(13)    Chapter 7.02 (Business Licenses and Regulations).

(l)    “Repeat violation” means a violation of the same regulation in any location in the city by the same person or responsible party for which compliance previously has been sought or a notice of civil violation has been issued.

(m)    “Responsible party” means any person who is required by the applicable regulation to comply therewith, or who commits any act or omission which is a civil violation or causes or permits a civil violation to occur or remain upon property in the city, and includes but is not limited to owner(s), lessor(s), tenant(s), vendor(s), contractor(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs.

(n)    “Violation” means an act or omission contrary to a city development regulation including an act or omission at the same or different location by the same person and including a condition resulting from such act or omission. (Ord. 4666* § 1, 2018: Ord. 4651 § 1, 2018; Ord. 4607 § 1, 2017: Ord. 4477 § 1, 2015: Ord. 4451 § 1, 2014: Ord. 4384 § 3, 2013: Ord. 4280 § 1 (part), 2011)

*  Code reviser’s note: Ordinance 4666 inadvertently omitted changes made to this section by Ordinance 4651. The intended changes from Ordinance 4651 have been retained at the direction of the city.

1.12.030 Voluntary correction.

(a)    Applicability. This section applies whenever the applicable department director determines that a violation of a regulation has occurred or is occurring.

(b)    General. The applicable department director shall make a reasonable attempt to secure voluntary correction by contacting the person responsible for the violation, where possible, explaining the violation and requesting correction.

(c)    Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the city, acting through the applicable department director.

(1)    Content. The voluntary correction agreement is a contract between the city and the person responsible for the violation under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:

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

(B)    The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and

(C)    A description of the violation and a reference to the provision(s) of the city ordinance or regulation which has been violated; and

(D)    The necessary corrective action to be taken, and a date or time by which correction must be completed; and

(E)    An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses and assess a monetary penalty pursuant to this chapter from the person responsible for the violation if terms of the voluntary correction agreement are not met; and

(F)    An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to an administrative appeal of the violation and/or the required corrective action.

(2)    Right to a Hearing Waived. The person responsible for the violation waives the right to an administrative appeal of the violation and the required corrective action upon entering into a voluntary correction agreement.

(3)    Extension—Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the applicable department director if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation but unforeseen circumstances render correction under the original conditions unattainable.

(4)    Abatement by the City. The city may abate the violation in accordance with Section 1.12.060 if the terms of the voluntary correction agreement are not met.

(5)    Collection of Costs. If the terms of the voluntary correction agreement are not met, the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with Section 1.12.040, plus all costs and expenses of abatement, as set forth in Section 1.12.060. (Ord. 4280 § 1 (part), 2011)

1.12.040 Notice of civil violation.

(a)    Issuance.

(1)    When the applicable department director determines that a violation has occurred or is occurring, and is unable to secure voluntary correction pursuant to Section 1.12.030, the applicable department director may issue a notice of civil violation to the person responsible for the violation.

(2)    The applicable department director may issue a notice of civil violation without having attempted to secure voluntary correction as provided in Section 1.12.030 under the following circumstances:

(A)    When an emergency exists;

(B)    When a repeat violation occurs;

(C)    When the violation creates a situation or condition which cannot be corrected;

(D)    When the person knows or reasonably should have known that the action is in violation of a city regulation.

(b)    Content. The notice of civil violation shall include the following:

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

(2)    The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and

(3)    A description of the violation and a reference to the provision(s) of the city regulation which has been violated; and

(4)    The required corrective action and a date and time by which the correction must be completed, after which the city may abate the unlawful condition in accordance with Section 1.12.060 and the hearing examiner’s order; and

(5)    The date, time and location of a hearing before the hearing examiner, which will be at least ten days from the date the notice of civil violation has been served; and

(6)    A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the applicable department director approves the completed, required corrective action at least forty-eight hours prior to the hearing, except that this statement need not be included where the violation constitutes a repeat violation or the violation creates a situation or condition which cannot be corrected; and

(7)    A statement that the costs and expenses of abatement incurred by the city pursuant to Section 1.12.060 and a monetary penalty in an amount per day for each violation as specified in subsection (e) of this section may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the hearing examiner.

(c)    Service of Notice. The applicable department director shall serve the notice of civil violation upon the person to whom it is directed, either personally or by mailing a copy of the notice of civil violation to such person at their last known address; provided, however, that service by mail shall be deemed served three days after it has been deposited in regular U.S. mail. If the person to whom it is directed cannot after due diligence be personally served within King County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting the facts showing that due diligence was used in attempting to serve the person personally or by mail.

(d)    Extension. No extension of the time specified in the notice of civil violation for correction of the violation may be granted, except by order of the hearing examiner.

(e)    Monetary Penalty Schedule.

(1)    Amount.

(A)    The penalty for first-time violations is one hundred dollars per day for each violation;

(B)    The per-day penalty for repeat violations shall be double the previous per-day penalty amount. For example, the per-day penalty for second-time violations is two hundred dollars, and the per-day penalty for third-time violations is four hundred dollars.

(2)    Limit. The total monetary penalties for each violation shall not exceed ten thousand dollars per violation, except as provided for in Sections 1.12.050(d)(3) and (4).

(f)    Continued Duty to Correct. Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil violation was issued of the duty to correct the violation.

(g)    Collection of Monetary Penalty.

(1)    The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is directed. Any monetary penalty assessed must be paid to the city as stated in the notice from the city that penalties are due as established in the hearing examiner’s decision.

(2)    The city attorney or his/her designee is authorized to take appropriate action to collect the monetary penalty. The city may contract with a collection agency for this purpose. (Ord. 4556 § 1, 2017: Ord. 4451 § 2, 2014: Ord. 4280 § 1 (part), 2011)

1.12.050 Hearing before the hearing examiner.

(a)    Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the hearing examiner not less than ten calendar days after the notice of civil violation is issued.

(b)    Prior Correction of Violation or Payment of Monetary Penalty. Except in the case of a repeat violation or a violation which creates a situation or condition which cannot be corrected, the hearing will be canceled and no monetary penalty will be assessed if the applicable department director approves the completed required corrective action at least forty-eight hours prior to the scheduled hearing.

(c)    Procedure. The hearing examiner shall conduct a hearing on the civil violation pursuant to the rules of procedure of the hearing examiner. The applicable department director and the person to whom the notice of civil violation was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action, if applicable, is reasonable. The determination of the applicable department director as to the need for the required corrective action shall be accorded substantial weight by the hearing examiner in determining the reasonableness of the required corrective action.

(d)    Decision of the Hearing Examiner.

(1)    The hearing examiner shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable and shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.

(2)    The hearing examiner shall issue an order to the person responsible for the violation which contains the following information:

(A)    The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;

(B)    The required corrective action;

(C)    The date and time by which the correction must be completed;

(D)    The monetary penalties assessed based on the criteria in subsection (d)(3) of this section;

(E)    The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.

(3)    Assessment of Monetary Penalty. The hearing examiner shall have the following options in assessing monetary penalties:

(A)    Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or

(B)    Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the hearing examiner and thereafter.

(4)    Determining Monetary Penalty. Monetary penalties assessed by the hearing examiner shall be in accordance with the monetary penalty schedule in Section 1.12.040; provided, that the hearing examiner may assess no monetary penalties or may assess up to double the monetary penalty schedule. In determining the monetary penalty, the hearing examiner shall consider the following factors:

(A)    Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;

(B)    Whether the person appeared at the hearing;

(C)    Whether the violation was a repeat violation;

(D)    Whether the person showed due diligence and/or substantial progress in correcting the violation;

(E)    Whether a genuine code interpretation issue exists; and

(F)    Any other relevant factors.

(5)    Notice of Decision. The hearing examiner shall mail a copy of the decision to the person responsible for the violation and to the applicable department director within ten working days of the hearing.

(e)    Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear at the scheduled hearing, the examiner will enter an order finding that the violation occurred and assess the appropriate monetary penalty. The city will carry out the hearing examiner’s order and recover all related expenses plus the cost of the hearing and any monetary penalty from that person.

(f)    Appeal to Superior Court. An appeal of the decision of the hearing examiner must be filed with superior court within twenty-one calendar days from the date the hearing examiner’s decision was mailed to the person to whom the notice of civil violation was directed, or is thereafter barred. (Ord. 4451 § 3, 2014: Ord. 4409 § 1, 2013; Ord. 4372 § 2 (Att. B) (part), 2012: Ord. 4280 § 1 (part), 2011)

1.12.055 Reduction of monetary penalties.

(a)    The applicable department director may reduce monetary penalties assessed in Section 1.12.050 if the violation is corrected and the correction is verified by the department.

(b)    For reduction of monetary penalties, the person responsible for the violation shall have the burden of proof that the violation has been corrected. The person must inform the department of the date of correction and request verification by the department.

(c)    The applicable department director may base the decision to reduce a monetary penalty on an evaluation of individual circumstances, including but not limited to the severity of the violation, the impact to neighbors, the duration of the violation, the cost to the city, the public interest being protected, and the cooperation of the person responsible for the violation. The person responsible for the violation must submit a written request for reduction of monetary penalties that includes an explanation of the circumstances surrounding the commission of the violation and acts taken to correct the violation.

(d)    Nothing in this section shall obligate the director to reduce any monetary penalties. (Ord. 4451 § 4, 2014)

1.12.057 Certificate of noncompliance.

(a)    If a property remains out of compliance after a hearing examiner decision verifying the violation, the applicable department director may record a certificate of noncompliance.

(b)    The certificate of noncompliance is a notice recorded on the title of real property. The purpose of the certificate is to give notice to interested parties of outstanding code violations.

(c)    The certificate of noncompliance must include a statement of how it can be removed from the title of the property when the violation(s) have been corrected. (Ord. 4451 § 5, 2014)

1.12.060 Abatement by the city.

(a)    The city may abate a condition which was caused by or continues to be a civil violation when:

(1)    The terms of a voluntary correction agreement pursuant to Section 1.12.030 have not been met; or

(2)    A notice of civil violation has been issued pursuant to Section 1.12.040 and a hearing has been held pursuant to Section 1.12.050 and the required correction has not been completed by the date specified in the hearing examiner’s order; or

(3)    The condition is subject to summary abatement as provided for in subsection (b) of this section.

(b)    Summary Abatement. Whenever any violation of a regulation causes a condition the continued existence of which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.

(c)    Authorized Action by the City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek such judicial process as it deems necessary to effect the removal or correction of such condition.

(d)    Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the city at the permit center within ten calendar days. The term “incidental expenses” includes but shall not be limited to personnel costs, both direct and indirect, including attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing.

(e)    Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns or holds any interest or estate in any property, in performing any tasks necessary to correct the violation. (Ord. 4280 § 1 (part), 2011)

1.12.070 Stop work orders and orders to cease and desist.

(a)    Issuance of Order. Whenever the applicable department director finds any activity is being conducted or work being performed without a permit or in a manner contrary either to the provisions of the Kirkland Zoning Code or Kirkland Municipal Code, including any of the technical codes adopted by reference in Title 21, the applicable department director is authorized to issue a stop work order or order to cease and desist. The order shall be in writing and shall be given to the owner or occupant of the property involved, or to the owner’s agent, or to the person doing the work. Upon issuance of a stop work order or order to cease and desist, the cited work or activity shall immediately cease. The order shall state the reason for the order, and the conditions under which the cited work or activity will be permitted to resume.

(b)    Fees and Penalties. The applicable department director is authorized to assess a special investigation fee for the issuance of a stop work order or order to cease and desist based on the costs to the city of investigation and enforcement of the order. Any person who shall continue any work or activity on the property after having been served with a stop work order or order to cease and desist (except such work as that person is directed to perform to remove a violation or unsafe condition) shall be subject to penalties as provided under this chapter and as otherwise prescribed by law. (Ord. 4451 § 6, 2014: Ord. 4280 § 1 (part), 2011)

1.12.080 Entry to buildings and premises— Warrants.

Whenever necessary to make an inspection to determine whether a civil violation has occurred or is occurring, or to enforce any provision of the Kirkland Zoning Code or Kirkland Municipal Code, or regulation issued thereunder, violation of which is a civil violation under this chapter, the applicable department director or his designee may enter any building or premises at any reasonable time, provided if such building or premises is occupied he shall first present credentials and demand entry, and if such building or premises is not occupied, he shall first make a reasonable effort to locate the owner or other person having charge of the building or premises and demand entry. If such entry is refused, or the owner or other person having charge of the building or premises cannot be located, the applicable department director or his designee shall have recourse to every remedy provided by law to secure entry, including recourse to the district or superior court for issuance of a warrant authorizing such entry and inspection. (Ord. 4280 § 1 (part), 2011)

1.12.090 Additional enforcement procedures.

The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Kirkland Municipal Code except as precluded by law. (Ord. 4280 § 1 (part), 2011)

1.12.100 Special provisions relating to enforcement of tree regulations in Chapter 95 KZC.

(a)    General Requirements. This section applies to all trees in the city, including private property trees, public property trees and street trees. Enforcement shall be conducted in accordance with procedures set forth in this chapter. Special enforcement provisions related to tree conservation are set forth in this section.

(b)    Authority. It shall be the duty of the applicable department director to administer the provisions of this section.

(c)    Fines for Tree Removal.

(1)    Each unlawfully removed or damaged tree shall constitute a separate violation.

(2)    Any person who aids or abets in the violation shall be considered to have committed a violation for purposes of fines.

(3)    Fines shall be assessed in accordance with Table 1.12.100. Fines are due according to the corrective action described in the notice of tree fines and restoration due. The applicable department director may elect not to seek fines if he or she determines that the circumstances do not warrant imposition of fines in addition to restoration.

Table 1.12.100 

Types of Violations

Allowable Fines per Violation

1. Removal of tree(s) approved to be removed, but prior to final tree plan approval or issuance of a city tree removal permit

$100.00 per tree

2. Removal or damage of tree(s) that are or would be shown to be retained on an approved tree plan or any other violation of approved tree protection plan

$1,000 per tree

3. Removal of tree(s) without applying for or obtaining a required city permit

$1,000 per tree

(d)    Tree Restoration.

(1)    Violators of Chapter 95 KZC or of a permit issued thereunder shall be responsible for restoring unlawfully damaged areas in conformance with a restoration plan approved by the applicable department director. The restoration plan shall provide for repair of any environmental and property damage and restoration of the site. The goal of the restoration plan shall be a site condition that, to the greatest extent practical, equals the site condition that would have existed in the absence of the violation. In cases where the violator intentionally or knowingly violated this chapter or has committed previous violations of this chapter, restoration costs may be based on the city-appraised tree value of the subject trees in which the violation occurred, utilizing the industry standard trunk formula method in the current edition of the “Guide for Plant Appraisal.” If diameter of removed tree is unknown, determination of the diameter size shall be made by the applicable department director by comparing size of stump and species to similar trees in similar growing conditions. The amount of costs above the approved restoration plan will be paid into the city forestry account.

(2)    Restoration Plan Standards. The restoration plan shall be in accordance to the following standards:

(A)    The number of trees required to be planted is equal to the number of tree credits of illegally removed trees according to Kirkland Zoning Code Table 95.33.1.

(B)    The minimum size for a tree planted for restoration is twelve-foot-tall conifer and three-inch caliper deciduous or broadleaf evergreen tree. The city may approve smaller restoration tree sizes at a higher restoration ratio, provided the site has capacity for the additional trees and the results of restoration at a higher restoration ratio are as good or better than at the normal ratio. The smallest allowable alternatives to the normal restoration requirements shall be two eight-foot conifers for one twelve-foot conifer or two two-inch caliper deciduous for one three-inch caliper deciduous tree.

(C)    In the event the violators cannot restore the unlawfully removed or damaged trees, the violators shall make payment to the City Forestry Account. Unless otherwise determined to base the restoration costs on appraised value, the amount paid will be the city’s unit cost for a restoration tree multiplied by the number of outstanding tree credits. The city’s unit cost is based on the current market cost of purchase, installation and three-year maintenance for a minimum-sized tree for restoration.

(D)    The restoration plan shall include a maintenance plan and an agreement or security to ensure survival and maintenance of restoration trees for a three-year period unless the violation was on a site with an approved tree plan, in which case the maintenance period is five years.

(e)    Hearing on Violation, Failure to Restore or Failure to Pay Fines. The city may issue a notice of civil violation to the person(s) who violates Chapter 95 KZC or a permit issued thereunder and fails to restore or pay fines according to the procedures set forth in this chapter. The hearing on the notice of civil violation shall be held in accordance with KMC 1.12.050 and shall determine whether the person(s) violated applicable tree regulations or permit conditions and impose any appropriate fine(s) for such violation(s), as well as whether the person(s) failed to restore or pay fines according to the procedures set forth in this chapter. (Ord. 4525 § 1, 2016: Ord. 4451 § 7, 2014: Ord. 4280 § 1 (part), 2011)

1.12.110 Special provisions relating to enforcement of nuisance regulations.

(a)    Upon the discovery of a public nuisance that does not constitute an immediate threat to the public health, welfare or safety (including but not limited to a violation of Chapter 11.24), the applicable department director shall issue an order of abatement to the appropriate responsible parties identifying the nuisance and applicable code section violated, imposing a civil fine of not more than five thousand dollars and the date by which it must be paid, ordering a method of abatement, the date by which abatement must be accomplished, and containing notice of any right of appeal.

(b)    In case of a failure to abate or to appeal, the applicable department director shall notify the appropriate responsible parties that the city will abate the nuisance, the date abatement will occur, and that the city will assess the cost of abatement and any fine levied jointly and severally against the responsible parties, the subject property or both; provided, that in cases of immediate necessity as determined by the applicable department director, prior notification under this subsection may be dispensed with and the applicable department director shall provide the notice after the abatement has occurred. Such notice shall state the date the abatement occurred, the amount due the city for costs incurred in abating the nuisance, and any fines levied.

(c)    An order of abatement or any notice required herein shall be served upon the appropriate responsible parties as determined by the applicable department director in the manner set forth in Section 1.12.040.

(d)    A person may appeal an order of abatement by filing a written notice of appeal with the planning and building department within ten calendar days from the date of service of the notice. Except as otherwise provided in this section, the appeal hearing shall be held in the manner set forth in Section 1.12.050.

(1)    The hearing examiner may sustain the order and fine, modify the order and fine or dismiss the order and fine; provided, that whenever the order is sustained or modified, the hearing examiner shall establish a new date for abatement or affirm the original date. When appropriate, the hearing examiner may also require that the appellant post a bond to secure performance of the abatement by the appellant.

(2)    A sustained or modified abatement order shall also provide that in the event the appellant does not abate the nuisance by the date provided in the order, the applicable department director may abate the nuisance in any reasonable manner without further notice and that any costs and fines may be satisfied by the sale of any property obtained by the abatement or collected directly from the appellant or other responsible parties previously notified of the order of abatement.

(e)    Notwithstanding the foregoing, the applicable department director may summarily abate a public nuisance on private property without prior notice using the procedures set forth in Section 11.24.050 whenever it is of such character as to constitute an imminent threat to the public health, welfare or safety.

(f)    At the applicable department director’s discretion, the costs of abatement and fines shall be a lien against and collected from the sale of the property constituting the nuisance, the responsible parties, who shall be jointly and severally liable for the costs, or both. The city shall maintain an account of all costs incurred in performing an abatement. In addition to other powers given in this chapter to collect abatement costs, the city attorney may bring suit for recovery of the costs of any abatement in any court of competent jurisdiction, in the name of the city, against the subject property or the responsible parties. (Ord. 4491 § 3 (part), 2015; Ord. 4280 § 1 (part), 2011)

1.12.200 Special provisions relating to enforcement of Chapter 15.52 (Surface Water Management).

(a) General Requirements. This section applies to violations of Chapter 15.52, including illicit discharges and connections that discharge into the municipal storm drain system and/or surface and ground waters. Enforcement shall be conducted in accordance with procedures set forth in this chapter. Special enforcement provisions related to illicit discharges and connections are set forth in this section.

(b) Authority. It shall be the duty of the public works director or designee to administer the provisions of this section.

(c) Determining Fines for Illicit Discharges and Connections and Other Violations of Chapter 15.52.

(1)    Each action or omission taken in violation of Chapter 15.52 shall constitute a separate violation.

(2)    Any person who aids or abets the violation shall be considered to have committed a violation for purpose of assessment of fines.

(3)    Fines for a violation shall be determined using the surface water enforcement matrix (Table 1) and administered per violation.

Table 1. Surface Water Enforcement Matrix 

Enforcement Evaluation Criteria

No

(0 points)

Possibly

(1 point)

Definitely

(2 points)

1)

Perceived Public Health Risk?

 

 

 

2)

Environmental Damage?

 

 

 

3)

Impacting Municipal Storm Drain System?

 

 

 

4)

Willful or Knowing Violation?

 

 

 

5)

Unresponsive in Correcting Action?

 

 

 

6)

Improper Operation or Inadequate Maintenance?

 

 

 

7)

Economic Benefit to Noncompliance?

 

 

 

The surface water enforcement matrix (Table 1) is comprised of a set of criteria formulated as questions for the director to evaluate and answer. The director uses the guidelines below to determine the total points to be assessed according to the violation. The surface water fine(s) are determined by the total score of the matrix.

1.    Did the violation result in a public health risk?

a.    Answer “no” if there is no evidence to support a claim of public health risk or adverse health effects.

b.    Answer “possibly” if evidence supports a claim of public health risk and there is a plausible connection between this violation and health effect.

c.    Answer “definitely” if there is direct evidence linking public health risk or adverse effects with the violation.

2.    Did the violation result in environmental (e.g., physical, chemical, or biological) damage?

a.    Answer “no” if there is no evidence to support a claim of environmental damage.

b.    Answer “possibly” if environmental damage can be reasonably inferred from evidence or knowledge of the effects of the violation.

c.    Answer “definitely” if there is direct evidence linking environmental damage with the violation.

3.    Did the violation impact the municipal storm drain system?

a.    Answer “no” if there is no evidence to support a claim of impact to municipal storm drain system.

b.    Answer “possibly” if impact to municipal storm drain system can be reasonably inferred from evidence or knowledge of the effects of the violation.

c.    Answer “definitely” if there is direct evidence linking municipal storm drain system impacts to the violation.

4.    Was the action a willful and knowing violation?

a.    Answer “no” if the violator obviously did not know that the action or inaction constituted a violation.

b.    Answer “possibly” if the violator should have known.

c.    Answer “definitely” if the violator clearly knew or was previously informed of the violation by the city’s inspectors or permit conditions.

5.    Was the responsible party unresponsive in correcting the violation?

a.    Answer “no” if the violation was corrected as soon as the responsible party learned of it.

b.    Answer “possibly” if the violation was corrected in a less timely and cooperative fashion.

c.    Answer “definitely” if the responsible party made no attempt to correct the violation.

6.    Was the violation a result of improper operation or inadequate maintenance?

a.    Answer “no” if the violation was not the result of improper operation or inadequate maintenance.

b.    Answer “possibly” if operation and/or maintenance was completed but a violation still occurred.

c.    Answer “definitely” if the violation was a result of improper operation or inadequate maintenance.

7.    Did anyone benefit economically from noncompliance?

a.    Answer “no” if it is clear that no one gained an economic benefit.

b.    Answer “possibly” if someone might have benefited.

c.    Answer “definitely” if the economic benefit is quantifiable.

Once the total amount of penalty points is determined, a rating and a corresponding surface water fine amount are established (Table 2).

Table 2. Penalty Points Rating and Corresponding Surface Water Fine Amount 

Rating

1—2

3—4

5—6

7—8

9—10

11—12

13—14

Fine

$500

$1,500

$2,500

$4,000

$6,000

$8,000

$10,000

(d)    Self-Reported Violations. The director or designee may reduce or waive the surface water fine for persons who immediately self-report violations to the city at 425-587-3900.

(e)    Assessment of Fines.

(1)    Fines. The director or designee shall assess the surface water fine against any responsible party in a written notice that sets forth the nature of the violation and the determination of the amount of the fine. The director or designee may elect not to seek surface water fines if he or she finds that rare and unique circumstances do not warrant imposition of fines.

(2)    Repeat Violations. Where the city finds a repeat violation of Chapter 15.52 has occurred pursuant to Section 1.12.020(l), the fine for the repeat violation shall be determined by multiplying the surface water fine amount in Table 2 by the number of violations. For example, the fine for second time violators is multiplied by two, and the fine for third time violators is multiplied by three, and so on.

(f)    Corrective Action and Summary Abatement. In addition to surface water fines, the city may require the responsible party to take corrective action to cease violating Chapter 15.52, including, but not limited to, requiring the responsible party to fully remove pollutants from private storm system(s) which enter into the municipal storm system. In the event the responsible party fails to take necessary corrective action in a timely fashion, the city may take summary abatement action in accordance with Section 1.12.060(b).

(g)    Cost Recovery. The director or designee shall assess costs associated with cleaning or restoring the municipal storm drain system against any responsible party in a written notice that sets forth the nature of the violation and the determination of the amount. The director or designee may elect not to seek costs if he or she finds that unique circumstances do not warrant such collection.

(h)    Real Property Owner Liability. Where a violation of Chapter 15.52 has occurred at least in part on private property, and when more than one person is responsible for fines and/or costs under subsection (d), (e) and/or (f) of this section, the director or designee may determine that the owner of the real property where the violation occurred shall be jointly and severally liable for all of the fines and/or costs assessed against each person.

(i)    Notice of Civil Violation and Hearing on Violation. The city may issue a notice of civil violation to any responsible party who violates Chapter 15.52 and who fails to pay surface water fines and/or costs of recovery, and/or costs of abatement, and/or fails to take other necessary corrective action. The hearing on the notice of civil violation shall be held in accordance with Section 1.12.050. (Ord. 4666 § 2, 2018: Ord. 4525 § 2, 2016: Ord. 4518 § 2, 2016)