Chapter 8.41


8.41.010    Intent.

8.41.020    Definitions.

8.41.030    Unlawful to store junk.

8.41.040    Voluntary compliance agreements.

8.41.050    Notice of civil violation.

8.41.060    Service of notice of civil violation.

8.41.070    Right of appeal.

8.41.080    Conduct of appeal hearing.

8.41.090    Decision by examiner.

8.41.100    Abatement by city.

8.41.110    Civil monetary penalties.

8.41.120    Voluntary correction agreements.

8.41.130    Summary abatement.

8.41.140    Inspections.

8.41.150    Alternative or additional remedies.

8.41.010 Intent.

A. The intent of the city council in enacting this chapter is to provide a fair and efficient method to cause owners and occupants of property or their agents to cause the removal of junk from such property. The method selected by the city council in this chapter is the civil violation and abatement method. A notice of civil violation can be issued to the owner or occupant which shall order abatement of the condition. If compliance is not achieved, civil penalties will accrue against the owner and/or occupant as provided in this chapter, and the city may itself abate the condition. Provision is made for appeals by such owners or occupants. Methods of achieving voluntary compliance are also provided for.

B. Criminal penalties shall be sought in case of repeated violations or when the city finds civil penalties will not be effective.

C. This chapter is to protect the public health, safety and welfare and is not enacted to benefit or protect any individual person or any group or class of persons. [Ord. 1138 § 1, 2000.]

8.41.020 Definitions.

For the purposes of this chapter, the following terms are defined:

“Abate” means to remove, destroy or to otherwise remedy an unlawful condition, by such means and in such manner as is necessary in the interests of the general health, safety and welfare of the community.

“Civil violation” means a violation of a provision of this chapter, for which a monetary penalty may be imposed under this chapter. Each day in which a violation occurs or continues to exist is a separate violation.

“Department director” means the director of community development and his/her authorized agents.

“Junk” means all articles such as old appliances and furniture, parts thereof, boxes, cardboard, paper, glass, old wood, tires, mattresses, growing or severed hay, grass, straw or weeds, litter or combustible or flammable waste or rubbish, building materials and similar articles and materials, and also includes all trash and debris other than that which has been collected to await arrival of the city’s garbage collector. As used in this chapter, “junk” refers only to materials left outside of any building and does not apply to materials stored inside a lawfully constructed building so long as such building is wholly enclosed except for doors for ingress and egress.

“Premises” means any parcel of land, whether improved or not. [Ord. 1138 § 1, 2000.]

8.41.030 Unlawful to store junk.

It is unlawful and a violation of this chapter for the owner of any premises in the city or the owner’s agent or the occupant of any premises in the city to store, keep or accumulate junk on such property, or to allow anyone else to store, keep or accumulate junk on such property. [Ord. 1138 § 1, 2000.]

8.41.040 Voluntary compliance agreements.

The department of community development shall investigate and inspect for violations of this chapter, and when its employee or agent observes a violation, or what the employee or agent believes to be a violation, he/she shall attempt to contact the owner of the property or the owner’s agent or a resident of the property and make reasonable attempts to get the owner or resident voluntarily to remove such junk. [Ord. 1138 § 1, 2000.]

8.41.050 Notice of civil violation.

A. The department director shall issue a notice of civil violation to any person responsible for a violation of this chapter and/or who is responsible for maintenance of the property upon which a violation is found.

B. The notice of civil violation shall be on a form to be approved by the city attorney which shall include: (1) name and address of the person found to be the owner, or the owner’s agent or the occupant responsible for correcting the violation, (2) address or sufficient description of the property at which the condition exists, (3) reference to the definition of junk in LMC 8.41.020 and a brief description of the violation, (4) statement of the required corrective action and (5) statement of the time by which correction must be completed, which shall not be less than 20 days unless the director has found that an imminent hazard exists to the health or safety of the public, and (6) a statement of office address and office number of the director or his/her agents. It shall also contain a statement that if the person responsible does not complete correction of the violation by the date required that the city may abate the condition and recover costs and penalties in accordance with LMC 8.41.110.

C. Such notice of violation shall also advise that the person responsible may appeal the order in such notice by filing a written appeal with the department of community development. Such notice shall be so filed within seven calendar days of the date of the personal service or mailing of the notice and such notice of appeal shall specify what portion of the notice and order are being challenged and grounds for such challenge. [Ord. 1138 § 1, 2000.]

8.41.060 Service of notice of civil violation.

The director or his/her agent shall serve the notice, either personally upon the person responsible or by mailing it to him or her by regular and certified mail at his/her last known address. Service by mail shall be deemed effective the third day following the day the notice was placed in the mail, excluding Sundays and holidays. If neither personal nor mailed service can be accomplished, a copy of the notice shall be posted conspicuously on the affected property or structure. [Ord. 1138 § 1, 2000.]

8.41.070 Right of appeal.

A. If a notice of appeal is filed under LMC 8.41.050, the matter shall be promptly set for a hearing to be held in not more than 14 days. The hearing shall be before the city’s hearing examiner.

B. The appeal hearing shall be canceled and no monetary penalty assessed if the director finds and advises the examiner not less than 24 hours before the scheduled hearing that the violation has been corrected.

C. While the appeal hearing is pending on such appeal no penalties will accrue except as provided in LMC 8.41.110. [Ord. 1138 § 1, 2000.]

8.41.080 Conduct of appeal hearing.

A. At the hearing the person appealing may introduce evidence to show that there is no violation of this chapter, or that the city’s conditions or timeline as to compliance are not reasonable, or that he/she is not responsible under the terms of this chapter to remove such junk. The department may introduce evidence that there is a violation and that the timeline is reasonable and to rebut evidence. Each party may call witnesses and all witnesses shall be sworn and shall be subject to cross-examination. Technical rules of evidence need not be followed. The appellant may choose to be represented by an attorney or by himself/herself, or by a friend or relative.

B. The burden of proof shall be upon the department to show by a preponderance of the evidence that there is a violation as claimed and that the time given for correction and the method or extent of correction required are reasonable. [Ord. 1138 § 1, 2000.]

8.41.090 Decision by examiner.

A. After receiving evidence and argument the examiner shall either (1) authorize the city to proceed to abate the violation, unless the person responsible does so within the next five days, or (2) if the examiner finds there is not a violation of this chapter, or that the city has not proceeded according to this chapter, he/she shall direct the city not to proceed under such notice. The examiner may approve the city’s order and authorize it to proceed but may order a delay of not more than 10 additional days; provided, such delay shall not be allowed by the examiner except where the examiner has found that the property owner can remove such junk and the 10-day delay will not have any adverse effect upon other property or upon safety of any person. The examiner shall also compute and assess the monetary penalty, if any, under LMC 8.41.110.

B. No one but the examiner shall have any authority to approve any delay once notice of appeal has been filed under LMC 8.41.070.

C. The examiner in each case shall enter a written decision and shall mail a copy to the appellant as well as to the city no later than three working days after the hearing. The appellant shall have seven days from the date of mailing of the written decision to seek a review in superior court. [Ord. 1138 § 1, 2000.]

8.41.100 Abatement by city.

If the person responsible has not appealed the notice of violation as provided for in this chapter, or if the property owner has appealed but the examiner has found for the department and has not authorized a delay, or if the examiner has authorized a delay but correction still has not been made after such delay, or if the city and person responsible have entered into a voluntary correction agreement under LMC 8.41.120, then, in any case in which correction has not been completely made, the city is authorized by this chapter to proceed with its own personnel or with a contractor to remove such junk and to dispose of it in an approved disposal or recycle material site. [Ord. 1138 § 1, 2000.]

8.41.110 Civil monetary penalties.

A. Civil monetary penalties shall accrue as follows: the penalty for failure to correct the violation by the deadline set in the notice of civil violation shall be $25.00 for each day in the first seven days after the deadline, shall be $50.00 for each day of violation in the second seven days after the deadline, and shall be $100.00 for each day of violation thereafter until the violation has been corrected. In addition, the person responsible shall be assessed for the city’s documented and reasonable costs not to exceed costs of abatement. In any case of appeal, the examiner, even if affirming the department’s action, may assess lesser penalties after considering whether the person showed diligence in trying to correct the violation and whether good faith questions of code interpretation existed. There shall be no penalties accruing while the appeal is pending unless the examiner finds the appeal was frivolous or was for delay only.

B. Payment of a monetary penalty shall not relieve the person to whom the notice of civil violation was issued of the duty to correct the violation.

C. The monetary penalty and assessed costs constitute personal obligation of the person to whom the notice of civil violation was directed. Any monetary penalty assessed must be paid to the department of community development within 10 calendar days from notice of the assessment from the examiner or city. The city attorney or his/her designate is authorized to collect the monetary penalty by use of appropriate legal remedies and/or to retain collection agencies for such purpose and if necessary to file suit to recover such penalty, and interest and reasonable attorney’s fees and to enter into compromises. [Ord. 1138 § 1, 2000.]

8.41.120 Voluntary correction agreements.

A. The director of the department prior to filing any notice of violation may enter into a voluntary correction agreement with a person responsible for correcting the condition, which may be either the owner, agent or occupant.

B. Any such voluntary correction agreement shall be a contract between the city and the person responsible, and shall follow a form to be approved by the city attorney. It shall be entirely voluntary, and no one shall be required to enter into such an agreement.

C. In such contract the person responsible shall (1) acknowledge that a violation exists, as shall be briefly there described, (2) shall acknowledge that it is his/her responsibility to abate the violation, (3) shall agree to do so by a certain date or within a specified time, (4) shall agree to do so according to any conditions there agreed to, and (5) the person responsible also shall agree that if he/she does not accomplish the terms of such agreement the city may proceed without further notice to enter the premises and by removal of such junk abate the condition, and to recover expenses and monetary penalties as provided in LMC 8.41.110, but shall provide that if the person does accomplish the terms of the agreement within the time frame specified therein, the city shall so acknowledge and then shall take no further actions about it or attempt to recover public costs already incurred.

D. The department director may agree to extend the time limit for correction set forth in such agreement or may agree to modify the required collective action. However, the director shall not agree to extend or modify the agreement unless the person responsible has shown due diligence and/or substantial progress in correcting the violation but has shown unforeseen circumstances which require such extension or modification. [Ord. 1138 § 1, 2000.]

8.41.130 Summary abatement.

Whenever the director finds an emergency condition results from an unlawful condition under this chapter which threatens the safety of any person or results from refusal of anyone to observe a lawful order under this chapter he/she shall consult with the city attorney and then the city may summarily and without notice proceed to abate the condition. Notice of the city’s action shall be given to the person responsible for the condition as soon thereafter as possible. [Ord. 1138 § 1, 2000.]

8.41.140 Inspections.

City employees may make inspections from public streets or alleys, or they may enter upon private property with the consent of the owner or occupant thereof to make inspections and also to abate conditions as provided in LMC 8.41.100 and/or 8.41.120. If entry to property is refused and the same is necessary to be had the city may use any lawful means necessary to obtain entry, and the inspector shall consult with the city law department as to any necessary procedures to follow. [Ord. 1138 § 1, 2000.]

8.41.150 Alternative or additional remedies.

Violations of this chapter are considered a public nuisance per se, and the provisions of this chapter may be used as an addition or alternative to criminal penalties. This chapter shall be the means of enforcing the prohibition on the storage, keeping or accumulation of junk; provided, that if the city attorney finds that civil procedures would not be timely or effective, or in the case of a second or subsequent violation the city attorney may charge violation of this chapter as a misdemeanor. [Ord. 1138 § 1, 2000.]