Chapter 1.40
CODE ENFORCEMENT

Sections:

1.40.010    Definitions.

1.40.020    Enforcement.

1.40.030    Enforcement actions.

1.40.040    Civil penalty.

1.40.050    Notice of violation and order of corrective action.

1.40.060    Voluntary correction agreement.

1.40.070    Repealed.

1.40.080    Order assessing civil penalties.

1.40.090    Right of appeal.

1.40.100    Appeal hearing.

1.40.110    Authority and action of hearing examiner.

1.40.120    Distribution and effect of examiner’s decision.

1.40.125    Civil infractions.

1.40.130    Criminal offenses.

1.40.135    Abatement.

1.40.137    Recovery of penalties and costs.

1.40.140    Limited commission.

1.40.150    Authority of city attorney.

1.40.010 Definitions.

Words, terms and phrases defined in a title of the Lynnwood Municipal Code shall apply to enforcement of that title by the city. In addition, 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 violation of the Lynnwood Municipal Code, in such a manner and to such an extent as the department director determines is necessary in the interest of the general health, safety and welfare of the community.

B. “Code enforcement officer” means a non-police city employee commissioned and sworn to take enforcement action as provided in this chapter.

C. “Department director” means the mayor, the department director or the director’s designee, who is generally responsible for enforcement of the Lynnwood Municipal Code provision which is the subject of a violation.

D. “Enforcement action” means the use of administrative and/or judicial process to achieve compliance with code provisions, including but not limited to nuisance abatement, notice of violation and corrective order, imposition of penalties, citation for an infraction or citation for a criminal offense.

E. “Emergency” means a situation which, in the determination of the department director, requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.

F. “Nuisance” means:

1. A violation of any city development, land use or public health ordinance; or

2. Nuisance as defined in Chapter 10.08 LMC.

G. “Person” means any individual, firm, association, partnership, corporation, company or any other entity, public or private.

H. “Repeat offender” means the responsible party who has previously received a notice of violation within the last 24 months for a violation of the same or similar code provision.

I. “Responsible party” means any person who has committed or permitted a violation of this code or a person who has an interest in or resides on property that is the location of a violation of this code, whether as owner, lessee, tenant, occupant or otherwise, or who by act of commission or omission procures, aids or abets a violation of this code.

J. “Voluntary compliance” means the time allowed for the responsible party to correct violations before penalties are assessed. The allowed time stated within a notice of violation and order of correction is established by the department director. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.020 Enforcement.

A. Whenever the city has cause to believe that a violation of LMC Titles 5, 6, 7, 9, 10, 12, 15, 16, 17, 18, and 21 has been or is being committed, this code shall be enforced, according to applicable law, by the department director responsible for administering that title, as provided herein. Unless provided otherwise in this chapter, department directors may act through code enforcement officers.

B. Entry. Whenever necessary to make an inspection to enforce or determine compliance with provisions of LMC Titles 5, 6, 7, 9, 10, 12, 15, 16, 17, 18, and 21, or whenever the city has cause to believe that a violation of any provision of the above-referenced titles has been or is being committed, the department director may, if such building, structure, or property is occupied, present identification credentials, state the reason for the inspection and request entry. If consent to enter is not given or the building, structure, or property is unoccupied, the department director may commence an enforcement action.

C. Each day, or portion thereof, in which a violation continues constitutes a separate offense for which separate notices of violation may be issued or other enforcement actions taken, including criminal citations.

D. Responsibility for violations of the codes enforced under this chapter is joint and several, and the city is not prohibited from taking action against a person where other persons may also be potentially responsible for a violation; nor is the city required to take action against all persons potentially responsible for a violation. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.030 Enforcement actions.

A. Enforcement actions may, but are not required to, be taken according to the following order of precedence:

1. Voluntary compliance.

2. Notice of violation and order of corrective action according to LMC 1.40.050.

3. Citation for a civil infraction.

4. Citation for a criminal violation whenever the violator fails to meet the deadline of the notice of violation, the violator is a repeat offender, the violation poses an immediate or serious threat to the public health and safety, or the department director determines that the violation is sufficiently egregious to warrant a criminal citation.

B. In addition to or as an alternative to any of the enforcement actions listed above, civil penalties may be imposed against a responsible party.

C. Where a code section designates a violation as a civil infraction, a civil infraction citation may be issued without regard to the order of precedence in subsection (A) of this section.

D. Where a code section designates a violation as a misdemeanor or gross misdemeanor the city may issue a criminal citation without regard to the order of precedence in subsection (A) of this section.

E. Where a code section provides for issuance of a stop work order or the right of the city to stop work or activity, the city may issue such stop work order or stop work or activity without regard to the order of precedence in subsection (A) of this section.

F. In addition to, or in lieu of, any other enforcement action, any nuisance may be abated as prescribed in LMC Title 10.

G. A department director may take any enforcement action without regard to precedence, or any available legal recourse provided by law, to eliminate or end an emergency. (Ord. 3274 § 3, 2017; Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.040 Civil penalty.

A. In addition to any other enforcement action, department directors are authorized to order assessment of civil penalties under this chapter or under any other provision of the city code authorizing the assessment of civil penalties.

B. Civil penalties shall be cumulative and assessed as follows:

1. First day of each violation: $100.00 per violation;

2. Second day of each violation: $200.00 per violation;

3. Third day of each violation: $300.00 per violation;

4. Fourth day of each violation: $400.00 per violation;

5. Each additional day: $500.00 per violation.

C. Civil penalties shall accrue daily until the required corrective action is completed and verified by the city after a request for inspection has been made. Civil penalties shall constitute a personal obligation of the property owner where the violation exists and any other responsible party. An assessed civil penalty must be paid to the office of the finance director, city of Lynnwood within 30 calendar days of the date of issuance of the order assessing the civil penalty or by such other date stated in the order. If an assessed civil penalty is not paid in full by the due date, the city shall have the right to file a lien against the real property on which the violation occurred or is occurring, in the amount of the assessed and unpaid civil penalty, in accordance with LMC 1.40.137. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.050 Notice of violation and order of corrective action.

A. Whenever a code violation has occurred or is occurring, a department director may, but is not required to, attempt to achieve voluntary correction of that violation by sending to the responsible party a written notice of violation and order of corrective action; provided, that an attempt to achieve voluntary correction shall not be required whenever:

1. The violation creates conditions that cannot be corrected;

2. The responsible party is a repeat violator for the same and/or similar issue(s); or

3. The responsible party cannot be contacted or refuses to communicate or cooperate with the city.

B. The notice of violation and order of corrective action shall contain:

1. The name and address of the responsible party;

2. The street address or other description sufficient to identify the premises or property where the violation has occurred or is occurring;

3. A description of the violation and citation to the applicable code provision(s);

4. The necessary corrective action to be taken, and the date by which the corrective action must be completed;

5. A copy of any voluntary correction agreement proposed by the city in accordance with this chapter;

6. Notice that if voluntary correction is not achieved within the deadline, the city may impose civil penalties, issue a civil infraction, issue a criminal citation, or commence abatement proceedings;

7. A statement indicating that the city may seek to recover from the person to whom the notice of violation is issued the costs to the city of any abatement action taken;

8. The signature of the code enforcement officer issuing the notice of violation and order of corrective action and contact information for that officer.

C. The notice of violation and order of corrective action shall be served upon the responsible party either by personal service or by mailing a copy of the notice and order by regular U.S. first class mail to the person’s last known address. If the responsible party cannot be personally served within Snohomish County and if the address of the responsible party cannot be reasonably ascertained, notice shall be served by posting a copy of the notice of violation and order of corrective order conspicuously on the subject property or a structure located thereon, or in the right-of-way on which the property abuts. Service shall be deemed effective upon personal service, or three business days following placement of the notice and order in the U.S. mail, postage prepaid, or upon posting of the notice upon the property. Proof of service shall be made by a written statement under penalty of perjury executed by the person making the service, declaring the time and date of service, the manner by which the service was made, and, if by posting, the facts showing the attempts to serve the responsible party personally and/or by mail.

D. The department director may grant an extension of the deadline for the required corrective action if the department director determines that (1) the responsible party has demonstrated due diligence or made substantial progress in correcting the violations, or (2) unforeseen circumstances, approved by the department director, render correction unattainable within the deadline stated in the order of corrective action.

E. The original deadline for corrective action or other compliance may be revoked or amended, or immediate corrective action required, where in the opinion of the department director immediate corrective action is necessary to avoid an imminent risk of injury to person or property. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.060 Voluntary correction agreement.

A. When the department director deems it appropriate, the notice of violation and corrective order may include a proposed voluntary correction agreement and the date by which the agreement must be signed.

B. The voluntary correction agreement shall be a contract between the city and the responsible party under which such person agrees to correct and abate the violation within a specified time, according to specified conditions. The voluntary correction agreement may provide for:

1. Correction and abatement of the violation by a date certain;

2. Accrual of the applicable civil penalties from the date of the agreement and continuation of penalties until the violation is corrected and abated, if the responsible party breaches the agreement;

3. A safe harbor provision if the violation cannot be corrected and abated because of unforeseen circumstances not within the control of the responsible party;

4. City abatement of the violation and recovery of its costs and expenses (including attorney fees, expert witness fees and court costs) if the agreement is breached;

5. Other terms deemed appropriate by the department director; and

6. A waiver of the right to appeal the department director’s determination of violation and/or the required corrective action.

C. Upon execution of a voluntary correction agreement by the responsible party and the department director, the city’s enforcement action relating to the violation shall be tolled for the term of the agreement. If the responsible party fully satisfies the terms of the voluntary correction agreement and corrects and abates the violation as required by the agreement, no civil penalties shall accrue to the responsible party, and no further enforcement proceedings on the subject violation shall be pursued by the city against the responsible party.

D. Upon execution of a voluntary correction agreement, the responsible party shall be deemed to have waived the right to appeal the determination of violation and/or order of corrective action.

E. If the responsible party breaches the voluntary correction agreement and/or fails to fully satisfy its terms by the deadlines set forth in the agreement, the civil penalties set forth in the agreement shall begin to accrue as of the date of execution of the agreement, and shall continue to accrue until such violation is fully corrected and abated. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.070 Response to notice of violation and order of corrective action.

Repealed by Ord. 3197. (Ord. 2796 § 6, 2009)

1.40.080 Order assessing civil penalties.

A. The department director may issue an order assessing civil penalties against a responsible party in accordance with LMC 1.40.040, either as part of a notice of violation and order of corrective action, or as a separate enforcement action.

B. The order assessing civil penalties shall contain:

1. The name and address of the responsible party;

2. The street address or other description sufficient to identify the premises or property where the violation has occurred or is occurring;

3. A description of the violation and citation to the applicable code provision(s);

4. Notice of the civil penalty assessed for such violation and that each day the violation continues or is permitted to continue shall result in the assessment of daily civil penalties;

5. Notice of the right to appeal the department director’s determination;

6. A statement that payment of a monetary penalty does not relieve the person named in the notice and order of the duty to abate a violation, and that failure to abate may result in the issuance of additional notices of violation and/or criminal citations, with additional civil and/or criminal penalties;

7. The date and the signature of the department director;

C. The order assessing civil penalties shall be served as provided in LMC 1.40.050(C). (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.090 Right of appeal.

A. A notice of violation and order of corrective action or an order assessing civil penalties may be appealed in writing to the city’s hearing examiner within 14 calendar days of the issuance of notice of violation and order of corrective action or the order assessing civil penalties; otherwise, the decision is the final decision of the city and the hearing examiner shall be without jurisdiction to hear an appeal. The appeal shall identify the appellant, provide appellant’s address and telephone number, and state the grounds of appeal. The notice of appeal shall be accompanied by the fee for filing an appeal established in Chapter 3.104 LMC.

B. Civil penalties shall continue to accrue during the pendency of an appeal, unless the appellant posts with the city a supersedeas bond in an amount set by the hearing examiner sufficient to protect the interests of the city.

C. Upon timely appeal and after consultation with the hearing examiner, the department director shall prepare a written notice setting the date, time and location of the hearing.

D. The department director shall prepare the record of appeal as provided in the rules of the city’s hearing examiner.

E. The notice of hearing shall be sent to the appellant, at the address given in the appellant’s notice of appeal, by certified mail, return receipt requested, and by first class U.S. mail, postage pre-paid. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.100 Appeal hearing.

A. The appellant, city staff, any witnesses called by the appellant or city staff, and any other person, as deemed appropriate by the hearing examiner, may participate in an appeal hearing.

B. The appellant must prove by a preponderance of the evidence that the department director’s decision is erroneous.

C. An electronic sound recording of each hearing shall be made. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.110 Authority and action of hearing examiner.

A. The hearing examiner shall conduct a hearing according to the rules of procedure adopted for administrative appeals. Within 14 calendar days following the conclusion of all testimony and hearings, the hearing examiner shall issue a written decision affirming or overruling the department director, with supporting findings of fact and conclusions of law, and notice of the right to appeal.

B. Whenever the hearing examiner affirms the decision of the department director, the city attorney shall file any necessary legal proceedings to enforce the notice of violation and corrective action and to collect assessed civil penalties. If legal action to enforce the order is required, the city shall be entitled to recover all expenses incurred by the city in such enforcement action, including but not limited to the city’s attorney fees, court filing fees and related court costs, and costs of abatement. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.120 Distribution and effect of examiner’s decision.

A. The hearing examiner’s decision shall be distributed by the department director to the appellant and any other interested party who appeared at the hearing within three city working days of its issue.

B. A hearing examiner’s decision on the appeal is the final decision of the city. The appellant or the department director may submit a request for reconsideration of such decision in accordance with LMC 1.35.255 or appeal such decision to the superior court in accordance with LMC 1.35.260. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.125 Civil infractions.

A. A limited commission city code enforcement officer may issue a citation for a civil infraction and, in accordance with the Infraction Rules for Courts of Limited Jurisdiction, file and prosecute the citation in the Lynnwood municipal court.

B. As an alternate to any other enforcement provision or penalty stated in the city code, a violation of the following provisions of the Lynnwood Municipal Code shall be a civil infraction: LMC Titles 5, 6, 7, 9, 12, 15, 16, 17, 18 and 21, and Chapters 10.08, 10.12, 10.16 and 10.17 LMC.

C. Unless stated otherwise in this code, the penalty for a civil infraction shall be as follows:

1. First offense: $250.00 per violation; and

2. Second offense: $500.00 per violation.

D. A responsible party charged with a third violation of the same code provision that would otherwise be a civil infraction shall be charged with a misdemeanor and shall be referred to the city prosecutor for prosecution.

E. The Infraction Rules for Courts of Limited Jurisdiction shall apply to the prosecution of a civil infraction established by this chapter. (Ord. 3274 § 1, 2017)

1.40.130 Criminal offenses.

A. If another section of the city code provides that a violation of a provision of the code is a misdemeanor, nothing in this chapter prevents the city from citing and prosecuting a violation of that provision as a misdemeanor, as an alternative to any civil or other penalty authorized by the city code. The city shall have authority to enforce a violation as either a civil violation, as a civil infraction, or as a criminal misdemeanor.

B. A limited commission city code enforcement officer may issue a citation for criminal violation, and cause the citation to be filed and prosecuted in the Lynnwood municipal court.

C. Unless another misdemeanor penalty is designated for a violation in another section of this code, each misdemeanor violation shall be punishable by imprisonment in the county jail for a maximum term fixed by the court of not more than 90 days, or by a fine in an amount fixed by the court of not more than $1,000, or both such imprisonment and fine. (Ord. 3274 § 2, 2017; Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.135 Abatement.

A. Abatement by City. The city may perform the abatement required upon noncompliance with the terms of an unappealed notice of violation, a voluntary correction agreement, a final order of the hearing examiner, or a final order of a court requiring corrective action and authorizing the city to abate the same; provided, that nothing in this chapter shall prohibit the city from pursuing abatement of a violation pursuant to any other laws of the state of Washington or the city. The city may utilize city employees or a private contractor under city direction to accomplish the abatement. The city, its employees and agents using lawful means are expressly authorized to enter upon the property of the violator for such purposes.

B. Summary Abatement. Whenever any violation causes a condition the continued existence of which constitutes an immediate 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. No right of action shall lie against the city or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats, but neither shall the city be entitled to recover any costs incurred for summary abatement, before the time that notice thereof is served on the responsible party as stated in LMC 1.40.050.

C. Obstruction of Work Prohibited. No person shall obstruct, impede or interfere with the city, its employees or agents, or any responsible party, in the performance of any necessary act preliminary or incidental to carrying out the requirements of a notice of violation, voluntary correction agreement, or order of the hearing examiner issued pursuant to this chapter. (Ord. 3197 § 1, 2016)

1.40.137 Recovery of penalties and costs.

A. Payment of Monetary Penalties and Costs. Any monetary penalties or costs assessed pursuant to this chapter constitute a personal obligation of the responsible party. In addition, the monetary penalties or costs assessed pursuant to this chapter may be assessed against the property that is the subject of the enforcement action. The city attorney is authorized to collect the monetary penalty or costs by use of appropriate legal remedies, the seeking or granting of which shall neither stay nor terminate the accrual of additional per diem monetary penalties so long as the violation continues. The city may incorporate any outstanding penalty or cost into an assessment lien, if the city incurs costs of abating the violation.

B. Recovery of Costs. The city shall bill its costs, including incidental expenses, of pursuing code compliance and/or of abating a violation to the responsible party and/or against the subject property. Such costs shall become due and payable 30 calendar days after the date of the bill. The term “incidental expenses” shall include, but not be limited to, personnel costs, both direct and indirect, including attorneys’ fees incurred by the city; costs incurred in documenting the violation; the actual expenses and costs to the city in the preparation of notices, specifications and contracts, and in inspecting the work; hauling, storage and disposal expenses; the cost of any required printing and mailing; and interest. The department director, or the hearing examiner, may in his or her discretion waive in whole or part the assessment of any costs upon a showing that abatement has occurred or is no longer necessary.

C. Lien. If penalties or costs assessed against a property are not paid within 30 calendar days, the city shall have the right to file a lien against the real property on which the violation occurred or is occurring, in the amount of the assessed and unpaid civil penalties and costs. (Ord. 3197 § 1, 2016)

1.40.140 Limited commission.

A. The chief of police is authorized, upon prior approval of the mayor, to commission nonpolice city employees as code enforcement officers for purposes of performing enforcement duties under this chapter.

B. Before commencing any duties, the prospective code enforcement officer shall take an oath of office before the judge of the municipal court or other person authorized by law to administer oaths, in substantially the following form:

I, ________________, do solemnly swear (or affirm) that I will support the Constitution of the United States of America, and the Constitution and laws of the State of Washington, the ordinances of the City of Lynnwood and all other local laws, that I will abide by the Lynnwood Police Department code of ethics, and that I will faithfully, honestly and impartially perform the duties of a Code Enforcement Officer for the City of Lynnwood, according to the best of my ability.

C. The chief of police shall issue to all code enforcement officers a numbered limited commission card, specifying the enforcement and citation authority of the code enforcement officer.

D. A limited commission may be revoked at any time by the chief of police and shall automatically and permanently terminate upon termination of employment as city of Lynnwood code enforcement officer for any reason. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)

1.40.150 Authority of city attorney.

At the direction of the mayor, the city attorney shall represent the city in all administrative code enforcement proceedings, and shall take appropriate legal actions to collect fines imposed under this chapter or to abate nuisances. (Ord. 3197 § 1, 2016; Ord. 2796 § 6, 2009)