Chapter 17.78
NOTICES AND ORDERS TO CORRECT AND/OR ABATE
Sections:
17.78.020 Issuance – Contents.
17.78.030 Issuance – Supplemental.
17.78.060 Suspension of penalties/ compliance action during appeal.
17.78.070 Final order – Designated.
17.78.075 Final order – Violation a misdemeanor.
17.78.080 Final order – Enforcement.
17.78.005 Definitions.
A. For the purposes of this chapter, “development regulation” shall mean any requirement imposed by any provision of MMC Titles 12, 13, and 15 through 18, including any permit conditions imposed thereunder, or rules and/or regulations adopted pursuant thereto. Violations of development 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 MMC penalties as required by RCW 35A.11.020.
B. “Director” shall mean the mayor for the city of Milton or his/her designee. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1741 § 42, 2009; Ord. 1706 § 1, 2007; Ord. 1580 § 3, 2003).
17.78.010 Initiation.
A. Whenever the director has reason to believe that a use, structure or condition exists in violation of a development regulation, he is authorized to commence an administrative notice and order proceeding under this chapter, including the pursuance of remedies specified in MMC 17.78.020(B). The director may not initiate a notice and order for any violation that would constitute a violation of a state criminal statute, to the extent prohibited from doing so by RCW 35A.11.020. Violation of development regulation under Chapter 13.26 MMC relating to storm drainage of surface water may be enforced as provided under said chapter.
B. Pending commencement and completion of the notice and order procedure provided for in this chapter, the director 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 ordinance, if adverse impacts cannot be prevented by the delays in the notice and order process. The effect of such an order shall be to require the immediate cessation of such work or activity until authorized by the director to proceed. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.020 Issuance – Contents.
A. Whenever the director or his/her designee has reason to believe that violation of any development regulation will be most equitably terminated by an administrative notice and order proceeding, he/she shall issue a written notice and order directed to either 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, and the director is authorized to require, the following:
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 director has found the person to be in violation of a development regulation with a brief and concise description of the conditions found to be in violation;
3. A statement of the corrective action required to be taken. If the director 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 the director 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. The director shall have the authority to impose a penalty of up to $1,000 per day per development regulation violation. Each day any structure or use fails to comply with a development regulation shall be deemed a separate violation;
5. Statements advising any of the following to the extent that the director chooses any as a remedy:
a. If any required work is not commenced or completed within the times specified, which may be immediately if circumstances warrant, the director will proceed to cause abatement of the violation as a public nuisance and cause the work to be done and charge the costs thereof as a joint and separate personal obligation of any person in violation to the extent permitted by law; and
b. If any assessed civil penalty is not paid, the director will charge the amount of the penalty as a joint and separate personal obligation of any person in violation; and/or
c. If any required compliance is not commenced or completed within the times specified, which may be immediately if circumstances warrant, the director will proceed with a permit suspension or revocation as authorized in MMC 17.79.010;
6. A statement advising that the order shall become final, unless, no later than 21 days after the notice and order are served, any person aggrieved by the order requests in writing an appeal before the hearing examiner. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.030 Issuance – Supplemental.
At any time other than during the pendency of an appeal, the director 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 notice and orders contained in this title. The director may withdraw a notice and order at any time and also reissue the same notice and order or a modified version so long as reissuance is consistent with any appeal decision. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.040 Service.
Service of the notice and order shall be made upon all persons identified in the notice and order either personally or by mailing a copy of such notice and order by certified mail, postage prepaid, return receipt requested. If the address of any such person cannot reasonably be ascertained, a copy of the notice and order shall be mailed to such person at the address of the location of the violation and/or posted on the subject property. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this chapter. Service by certified mail in the manner provided in this section shall be effective on the date of postmark. The notice and order may be, but is not required to be, posted on the subject property. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.050 Appeals.
A. A person aggrieved by the order of the director may, upon payment of a filing fee in accordance with the city’s fee schedule, request in writing within 21 days of the service of the notice and order an appeal hearing before the hearing examiner. The request shall cite the notice and order appealed from and contain a brief statement of the reasons for seeking the appeal hearing.
B. A record shall be made at the appeal hearing and the hearing examiner shall have such rule-making and other powers necessary for conduct of the hearing. Such appeals hearing shall be conducted within a reasonable time after receipt of the request for appeal, which unless special circumstances dictate otherwise should be within 60 days of receiving the appeal request. Written notice of the time and place of the hearing shall be given at least 10 days prior to the date of the hearing to each appealing party, to the director, and to other interested persons who have requested in writing that they be so notified. The director 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 hearing examiner shall make written findings and conclusions, and shall affirm or modify the order previously issued if the examiner finds that a violation has occurred. The burden of proof is upon the director to establish the commission of the violation by a preponderance of the evidence. The examiner shall have the authority to modify any monetary penalties imposed by the director in the notice and order, including the authority to increase them. The examiner shall reverse the order if the examiner finds that no violation occurred. The written decision of the examiner shall be mailed by certified mail, postage prepaid, return receipt requested to the parties. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.060 Suspension of penalties/ compliance action during appeal.
Any corrective actions or penalties imposed in a notice and order shall be suspended during the pendency of the appeal on the notice and order. Orders to immediately cease activities, as authorized by MMC 17.78.010(B), shall not be suspended during the pendency of an appeal. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.070 Final order – Designated.
A. Any order duly issued by the director pursuant to the procedures contained in this title shall become final 21 days after service of the notice and order unless a written request for hearing is received and filed with the planning department within the 21-day period.
B. An order which is subject to the appeal procedure of MMC 17.78.060 shall be final and conclusive upon the date of the examiner’s decision. The examiner’s decision shall be appealable to superior court pursuant to applicable state statutes. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.075 Final order – Violation a misdemeanor.
The failure of a person or entity to comply with the applicable provisions of an order issued pursuant to MMC 17.78.010(B) or 17.78.070 shall constitute a misdemeanor subject to the penalties of RCW 9A.20.010(2), as now or hereafter amended. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1580 § 3, 2003).
17.78.080 Final order – Enforcement.
If, after any order duly issued by the director has become final, the person to whom such order is directed fails, neglects or refuses to obey such order, including refusal to pay a civil penalty assessed under such order, the director may, as provided in the issued notice and order:
A. Cause such person to be prosecuted for committing a misdemeanor, as provided in MMC 17.78.075; and/or
B. Institute any appropriate action to collect a civil penalty assessed under this title; and/or
C. Suspend or revoke a land use permit as authorized by MMC 17.79.010; and/or
D. Pursue any other appropriate remedy at law or equity under this title. (Ord. 1862 § 1 (Exh. A), 2015; Ord. 1677 § 3, 2006; Ord. 1580 § 3, 2003).