Chapter 9.49
VEGETATION NUISANCES
Sections:
9.49.020 Applicability—Authority.
9.49.030 Declaration of public nuisance.
9.49.040 Violation—Notice of violation.
9.49.070 Collection of civil penalty.
9.49.010 Purpose.
Vegetation left uncut and/or in an unkempt stage may cause safety hazards, fire hazards, and/or pest harborages, and may interfere with, annoy, injure or endanger the comfort, repose, health or safety of others, or unlawfully interfere with, obstruct or tend to obstruct, or render dangerous for passage a street or highway, or may in any other way render other persons insecure in life, or in the use and enjoyment of property, and thus constitutes a public nuisance. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.020 Applicability—Authority.
A. This chapter establishes a civil method to enforce violations of this chapter. This chapter does not apply to violations that constitute state crimes.
B. The public works director and/or his or her authorized representative (the “director”) shall have the authority to enforce the regulations of this chapter.
C. This chapter shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.
D. It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, lessee, occupier, or other person responsible for the condition of the land within the scope of this chapter.
E. No provision of or term used in this chapter is intended to impose upon the city or any of its officers or employees any duty that would subject them to damages in a civil action. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.030 Declaration of public nuisance.
The following are declared to be a public nuisance:
A. Trees, plants, bushes, shrubs, vines, other vegetation, alive or dead (such as leaves and needles) or parts thereof, which cover, lay on, grow under or overhang any sidewalk, street, alley or other public way or which are growing in such a manner as to cause a sight distance hazard (as defined in Section 17B.20.050) or to obstruct or impair the full use of the sidewalk, street, alley or other public way.
B. Root damage or obstruction to any sidewalk, curb, gutter, pedestrian or bicycle path or street.
C. Trees, plants, bushes, shrubs, grasses, vines, other vegetation or parts thereof that are growing and/or grown and died and are now causing a fire hazard or menace to public health and safety, or are degrading or causing a decline of the character of the neighborhood.
D. Grasses (lawn) within the yards of occupied residential properties which are not maintained at a height of eight inches or less.
E. Grasses, ground cover, and/or vines on vacant lots that are within or adjacent to developed areas which are not used for agricultural purposes, and are not part of a wetland or other sensitive environmental system, which are not maintained at a height of twelve inches or less.
F. Trees, shrubs, ground cover, or grass of any landscaped area that was required by the city to be planted as part of any city development approval, that are not maintained in a healthy, living condition. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.040 Violation—Notice of violation.
A. It is a violation of this chapter for any person to permit, create, maintain or allow upon any premises, any of the acts or things declared to be public nuisances in this chapter.
B. Notice of Violation. If after investigation the director determines that the standards or requirements of this chapter have been violated, the enforcement officer shall serve a notice of violation upon the property owner, or, if different and readily identifiable, to the lessee, the person in control of the property where the violation has occurred, or other person responsible for the condition. The notice of violation shall contain the following information:
1. Name and address of the person(s) to whom the notice is issued;
2. The location of the subject property by address or other description sufficient for identification of the subject property;
3. A description of the public nuisance(s) present on the subject property;
4. A separate statement of each standard, code provision or requirement violated and the reasons for which the city deems the condition of the property to constitute a public nuisance in violation of this chapter;
5. What corrective action, if any, is necessary to comply with the standards, code provisions or requirements;
6. A reasonable time for compliance;
7. A statement that the person to whom a notice of violation is directed may appeal the notice of violation to the hearing examiner, including the deadline for filing such an appeal. Request for appeal must comply with requirements set forth in Section 9.49.060 and must be received by the city clerk’s office no later than ten days after the notice of violation has been served;
8. A statement that if the person to whom the notice of violation is issued fails to submit a written request for appeal within ten calendar days of service or fails to abate the violation within the time period provided in the notice of violation, the city may assess monetary penalties, as outlined in Section 9.49.050, against the owner, and if different and readily identifiable, against the lessee, the person in control of the property where the violation has occurred, or any other person responsible for the violation.
C. Service. The notice of violation shall be served by any one or any combination of the following methods:
1. By first-class mail, postage prepaid, to the last known address of the owner, and if different and readily identifiable, of the lessee, the person in control of the property where the violation has occurred, and the person committing the violation. The notice shall be deemed delivered forty-eight hours after depositing the notice in the mail; or
2. By posting the notice of violation in a prominent location on the premises in a conspicuous manner that is reasonably likely to be discovered; or
3. By personal service upon the owner, and if different and readily identifiable, upon the lessee, the person in control of the property where the violation has occurred, and any other person responsible for the violation.
D. If the violation has been properly corrected by the deadline imposed by the administrator, the case will be closed. If it has not, then civil penalties or abatement may be imposed or pursued against the person(s) named in the notice of violation as the party(ies) in violation, at the reasonable discretion of the director, in accordance with the provisions of this chapter.
E. Amendment. A notice may be amended at any time in order to correct clerical errors or cite additional authority for a stated violation.
F. Withdrawal. The city may choose to withdraw a notice of violation at any time without prejudice to the city’s ability to reissue it. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.050 Civil penalty.
A. Any person who fails to remedy a violation or take the corrective action described by the administrator in a notice of violation within the time period provided may be subject to monetary civil penalties. The civil penalty will be either:
1. Prepared and sent by first-class mail to the last known address(es) of the person(s) named in the notice of violation as the party(ies) in violation; or
2. Personally served upon the person(s) named in the notice of violation as the party(ies) in violation.
B. The civil penalty shall contain the following:
1. A statement indicating that the party(ies) in violation is being issued civil penalties for failing to properly or timely implement the corrective actions outlined by the city in the notice of violation, and that additional civil penalties may be issued until corrective actions are properly and timely implemented and the violation abated;
2. The address of the site and specific details of the violation which is to be corrected;
3. The appropriate department and/or division investigating the case and the contact person;
4. The number of days in violation since service of the notice of violation (in case of first civil penalty) or the most recently issued civil penalty on the same violation (in case of second or subsequent civil penalty) and amount of monetary penalty being assessed as a result;
5. A statement that the person(s) to whom the civil penalty is issued may appeal it to the hearing examiner, including the deadline for filing such an appeal. Request for appeal must comply with requirements set forth in Section 9.49.060 and must be received by the city clerk’s office no later than ten days after the civil penalty has been served;
6. A statement that if the person to whom the civil penalty is issued fails to submit a written request for appeal within ten calendar days of service or fails to abate the violation, the city may continue to assess monetary penalties, against the owner, and if different and readily identifiable, against the lessee, the person in control of the property where the violation has occurred, and the person committing the violation.
C. Unless a different amount/penalty is specifically provided elsewhere in the Mukilteo Municipal Code for the violation, the amount of civil penalty per each violation for each day in violation shall be one hundred dollars. At the time a civil penalty is issued, calculation of the amount assessed shall be based on no more than the number of past days during which the violation remained uncorrected since the service of the notice of violation (in case of first civil penalty) or the most recently issued civil penalty on the same violation (in case of second or subsequent civil penalty).
D. Daily penalties will continue to accumulate until the violation is corrected, but the accumulated amount, or part thereof, may only be assessed to party(ies) in violation by issuing and serving a civil penalty.
E. Any person to whom a civil penalty is issued and served may appeal it to the hearing examiner; provided, that any issue whatsoever, including but not limited to nature of violation, amount of penalty, corrective measures, abatement or payment made, that was previously appealed or could have been appealed earlier with the notice of violation or previously issued civil penalty on the same violation, but either was not properly/timely appealed or was sustained by the hearing examiner, shall not be subject to another appeal. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.060 Appeals.
A. A person to whom a notice of violation or civil penalty is issued and served may appeal the notice of violation or civil penalty by filing a written request for appeal with the city clerk no later than ten calendar days after said notice of violation or civil penalty is served. Each request for appeal shall contain the address and telephone number of the person making the request and the name and address of any person who may represent him or her. Each request for appeal shall set out the basis for the appeal. Failure to submit specific grounds for appeal in writing in the request may result in the dismissal of the appeal by the hearing examiner prior to any hearing.
B. An appeal fee in the amount set forth in the city’s fee resolution must be submitted with a written request for appeal, unless the appellant submits with his or her request for appeal an affidavit or declaration that he or she is unable to pay the fee due to financial hardship and moves the hearing examiner to waive the fee after showing good cause to do so. The appeal fee shall be returned to the appellant if the hearing examiner determines that the appellant is the substantially prevailing party.
C. If an appeal is submitted, the hearing examiner will conduct a hearing at the next available hearing date for the hearing examiner after the city issues a notice of hearing. For good cause, the hearing examiner may, at his or her discretion, change a previously set hearing date.
D. If an appeal is submitted, the office of the hearing examiner shall mail a hearing notice giving the time, location, and date of the hearing, by first-class mail to person(s) to whom the notice of violation or civil penalty was directed and any other parties identified in the appeal request.
E. The hearing examiner shall conduct a hearing on the violation or penalty. The director, as well as the person(s) to whom the notice of violation or civil penalty was directed, may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to establish, by a preponderance of the evidence, that the violation has occurred and that the required corrective action is reasonable, or that the civil penalty was appropriately assessed for noncompliance with this chapter.
F. The hearing examiner shall determine whether the city has established, by a preponderance of the evidence, that the violation has occurred and that the required corrective action is reasonable, or that the civil penalty was appropriately assessed and reasonable, and based on that determination shall issue a final order that affirms, modifies, or vacates the notice of violation or civil penalty being appealed. The hearing examiner’s final order shall contain the following information:
1. The decision regarding the alleged violation including findings of facts and conclusion of law based thereon;
2. If applicable, a statement that the required corrective actions imposed by the city are affirmed, modified, or waived;
3. If applicable, any additional conditions imposed by the hearing examiner regarding the violation and any corrective action, and the date and time by which the additional condition and/or correction must be met and/or completed;
4. If applicable, a statement that any associated civil penalties are affirmed, modified, or waived;
5. If requested, a determination on appellant’s financial hardship and waiver of appeal fee; and
6. If paid, whether the appeal fee should be returned to appellant when appellant is substantially the prevailing party.
G. If the appellant and/or any person(s) to whom the appealed notice of violation or civil penalty was directed fails to appear at the scheduled hearing, the hearing examiner shall proceed with the hearing and issue a final order based on the evidence submitted by the party(ies) in attendance.
H. The final order shall be served by first-class mail on the appellant and/or any person(s) to whom the appealed notice of violation or civil penalty was directed.
I. A final order of the hearing examiner shall be considered the final administrative decision and may be appealed to a court of competent jurisdiction within twenty-one calendar days of its issuance, or if applicable, as provided in RCW 36.70C.040. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.070 Collection of civil penalty.
A. The civil penalty constitutes an obligation of the person, firm, or corporation to whom the civil penalty is directed. The civil penalty assessed must be paid to the city within thirty calendar days from the date of service of the civil penalty or, if an appeal is filed, the time required in the hearing examiner’s final order (thirty days after issuance of order if no time requirement is specified). The civil penalty may also jointly and severally be assessed against the property where the violation occurred when permitted by law.
B. A civil penalty that is not paid within thirty days may be referred to a collection agency, officially approved by the city for collection. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.080 Abatement.
A. In the event that compliance is not achieved through the measures outlined in this chapter, or that the measures are not, at the reasonable discretion of the director, appropriate to remedy the violation, the city may remove or correct the same through any lawful means of abatement that is determined to be proper by the city attorney.
B. Using any lawful means, the city may enter unsecured property and may remove or correct a violation which is subject to abatement with the consent of the owner and person in control of the premises. If the owner and person in control of the premises do not consent to entry, the city may seek such judicial process in Snohomish County superior court as it deems necessary to effect the removal or correction of such condition. (Ord. 1317 § 1 (Exh. A) (part), 2013)
9.49.090 Additional relief.
Nothing in this chapter shall preclude the city from seeking any other relief as authorized in other provisions of this code or by state or federal law or regulation. Enforcement of this chapter is in addition to any other remedy that may exist at law or in equity. (Ord. 1317 § 1 (Exh. A) (part), 2013)