Chapter 1.13
CODE ENFORCEMENT

Sections:

1.13.010    Purpose and intent.

1.13.020    Definitions.

1.13.030    Violations.

1.13.040    Joint and several responsibility and liability.

1.13.050    Responsibility to enforce.

1.13.060    Guidelines regarding responses to potential violations.

1.13.070    Right of entry and warrants.

1.13.080    Investigation – Notice and order – Separate violations – Service of process.

1.13.090    Other actions – Additional notice – Recording – Amendment – Administrative conference.

1.13.100    Extensions.

1.13.110    Denial of permits based on existing code violation – Exceptions.

1.13.120    Stop work orders.

1.13.130    Emergency orders.

1.13.140    Notice – Do not occupy.

1.13.150    Administrative appeals.

1.13.160    Administrative appeal fee waiver.

1.13.170    Administrative appeal hearing.

1.13.180    Civil penalty.

1.13.190    Additional relief.

1.13.200    Penalties for subdivision and planned residential development violations.

1.13.210    Criminal penalties.

1.13.220    Judicial appeals.

1.13.010 Purpose and intent.

The purpose of this chapter is to establish a uniform and efficient system to enforce city regulations, provide an opportunity for a prompt hearing and decision on alleged violations and establish penalties for violations. This chapter is for the benefit of the general public’s health, safety and welfare and not for the benefit of any person or class of persons. This chapter intends to place the duty to comply with its requirements upon the owner, occupier, or other person responsible for the condition of the land and buildings within the scope of the Sequim Municipal Code. Nothing in this chapter is intended to impose any duty, including without limitation a duty to enforce, upon the city or any of its officers, employees, or volunteers that would subject them to damages in a civil action. (Ord. 2019-013 § 1 (Exh. A))

1.13.020 Definitions.

A

“Aggrieved party” means a person whose ownership, financial, or personal rights are substantially affected by a violation of this chapter.

D

“Director” means the city department head or designee responsible for enforcing violations of this chapter.

E

“Emergency order” means an order imposed by the city requiring the immediate halt to all ongoing use or activity in violation of the Sequim Municipal Code which threatens the health and safety of the occupants of the premises or any member of the public.

F

“Final decision” means the ultimate conclusion of the appropriate reviewing body or individual.

N

“Notice and order” means a document that includes the final decision of a director concluding that a violation has occurred, describing the violation as well as penalties and deadlines for compliance.

O

“Order” includes either a stop work order or an emergency order.

P

“Party of record” means the responsible party; any person who can demonstrate that the person is aggrieved by a violation or a decision on the violation; and the director or city manager.

R

“Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought within two years or a notice of civil violation has been issued within two years of the new violation.

“Responsible party” means the property owner and/or the person(s) responsible for the condition of the property on which a violation has been committed.

S

“Stop work order” means an order imposed by the city requiring an immediate halt to all ongoing use or activity in violation of the Sequim Municipal Code. (Ord. 2019-013 § 1 (Exh. A))

1.13.030 Violations.

A. It is a violation of the Sequim Municipal Code for any person to initiate, maintain or cause to be initiated or maintained the use of any structure, land or property within the city without first obtaining the permits or authorizations required for that use.

B. It is a violation of the Sequim Municipal Code for any person to use, construct, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the city, in any manner that is not permitted by the terms of the permit or authorization issued pursuant to the Sequim Municipal Code if the terms or conditions are explicitly stated on the permit documents, the approved plans, or other city decision containing conditions of approval.

C. The provisions of this chapter are not exclusive and may be used in addition to other code enforcement provisions authorized by the Sequim Municipal Code or other applicable law or regulation.

D. If there is a conflict between this chapter and any other provision of the Sequim Municipal Code or city ordinances providing for a civil penalty, this chapter prevails. (Ord. 2019-013 § 1 (Exh. A))

1.13.040 Joint and several responsibility and liability.

Responsibility for code violations enforced under this chapter is joint and several. The city may take action against (A) one party even if other persons may also be potentially responsible for a violation or (B) some or all parties potentially responsible for a violation. (Ord. 2019-013 § 1 (Exh. A))

1.13.050 Responsibility to enforce.

The community development director, the public works director, the police chief, and the administrative services director (collectively, director) have the responsibility to enforce this chapter, pursuant to the code provision(s) cited as the basis for enforcement. A director may call upon any other appropriate city department or public agency to assist in enforcement, including without limitation the Clallam County Fire District No. 3, Clallam County environmental health department, Washington State Department of Ecology, and/or other appropriate agencies. (Ord. 2019-013 § 1 (Exh. A))

1.13.060 Guidelines regarding responses to potential violations.

A. It is the city’s policy to investigate and to attempt to resolve all potential code violations. At the director’s discretion, potential violations may be processed in any order that maximizes the enforcement efficiency. However, at times when not all potential code violations can be investigated due to lack of resources or otherwise, the most serious potential violations should be addressed before less serious potential violations. The following priorities apply when responding to potential violations:

1. Violations that present an imminent threat to public health or safety.

2. Violations that present a high risk of damage to public resources or facilities.

3. Violations involving a regulated use or activity under the Sequim Municipal Code, such as provisions covering critical areas, floodplain management, shorelines or shorelands.

4. Violations that may result in damage to real or personal property.

5. Violations that do not fit within any of the previous categories and have only minor public impacts. These potential violations should be processed in the order in which they are received and as resources allow.

B. As a guideline and as resources allow, all potential violations should be investigated within 60 calendar days and enforcement actions should be initiated within 120 calendar days of coming to the city’s attention. Failure to meet these guideline response dates does not in any way constitute city liability or prevent the director from investigating and enforcing potential violations outside of these response times. (Ord. 2019-013 § 1 (Exh. A))

1.13.070 Right of entry and warrants.

A. Any entry made to private property to inspect for code violations must be accomplished in conformity with Constitutional and statutory constraints on entry. The director is authorized to enter upon any property to administer this chapter provided such entry is consistent with the Constitutions and laws of the United States and the state of Washington.

B. Upon presentation of proper credentials, a director may, with the consent of the owner or occupier of a building or premises, enter at reasonable times any building or premises subject to the consent or warrant to perform the responsibilities imposed by this chapter. If the property is occupied, the director must ask permission of the occupants before entering the property. If an owner, occupant, or agent refuses permission, the director may seek an administrative or criminal search warrant. Owner consent is not required where enforcement procedures are related to publicly accessible portions of a business or pursuant to a lawfully issued administrative warrant.

C. The director is authorized to enter upon property or premises to determine whether city codes are being followed and to obtain supporting documentation as may be necessary to determine such adherence. This documentation may include, without limitation, photographs, digital images, videotapes, video images, audio recordings, samples, or other physical evidence. All inspections, entries, examinations, studies, and surveys will be done in a reasonable manner.

D. The Sequim city attorney may request that a court of competent jurisdiction issue an administrative warrant. The request must be supported by an affidavit of a person having knowledge of the facts sworn to before the judge and establishing the grounds for issuing the warrant.

1. If the judge finds that the affidavit given upon proper oath or affirmation shows probable cause to believe that a Sequim Municipal Code provision has been violated, the judge may issue an administrative warrant to conduct administrative inspections or gathering of evidence. The warrant must:

a. State the grounds for its issuance and the name of each person whose affidavit has been taken in support of the warrant;

b. Be directed to the director or a person authorized by the relevant code to execute it;

c. Command the person to whom it is directed to inspect the area, premises, or building identified for the purpose specified and the evidence that may be gathered;

d. Direct that it be served during normal business hours or at reasonable times if the inspection is not for a business.

2. When executed, a copy of the warrant must be left on the property or the premises searched.

3. A warrant issued under this section must be executed and returned, accompanied by a written inventory of any evidence taken, within 10 calendar days of its issuance date unless, upon a showing of a need for additional time, the court orders otherwise.

4. If evidence is seized pursuant to a warrant, a copy of the written inventory of any evidence taken must be provided to the person from whom or from whose premises the evidence was taken, together with a receipt for the evidence taken.

5. The judge who issued a warrant must attach a copy of the “return” (the endorsement made by the person executing the warrant, stating the actions taken and the time and mode of service, etc.) and all papers returnable in connection therewith and file them with the clerk of the court in which the warrant was made.

E. Any search warrant obtained pursuant to criminal sections authorized under this chapter is governed by appropriate Washington State statutes and court rules. (Ord. 2019-013 § 1 (Exh. A))

1.13.080 Investigation – Notice and order – Separate violations – Service of process.

A. Investigation. In accordance with this chapter, a director is authorized to investigate any structure, use, or practice which the director reasonably believes is in violation of the standards and requirements of the applicable provisions of the Sequim Municipal Code.

1. The city will determine whether a violation has occurred based upon information derived from sources such as field observations, witness statements, relevant documents, data systems for tracking violations, and applicable city codes and regulations. As soon as the city has reasonable cause to determine that a violation has occurred, the violation will be documented, and the responsible party promptly notified.

2. Except as provided in this chapter, a warning will be issued verbally or in writing promptly when a field inspection reveals a violation or as soon as the city otherwise determines a violation has occurred. The warning will inform the responsible party of the violation and allow the person(s) an opportunity to correct it or enter into a voluntary correction agreement as provided for in SMC 8.04.051. Verbal warnings will be logged and followed up with a written warning within five business days, and the site will be reinspected within 14 business days.

3. Nothing in this chapter adversely affects the rights of the owner, lessee, or occupant of any property to recover all costs and expenses incurred and required by this chapter from any person causing such violation.

4. The city may waive one or more code compliance provisions to avoid a substantial injustice. An example of a substantial injustice would be when a person owning property that is the subject of a code violation receives no apparent benefit from the code violation and all necessary remediation is being promptly provided. Any determination of substantial injustice must be made in writing supported by appropriate facts. For purposes of this section, substantial injustice cannot be based exclusively on financial hardship.

5. Any investigation fees that may be assessed by the city are in addition to penalties assessed in accordance with this chapter.

B. Notice and Order. If, after investigation, a director determines that the standards or requirements of the Sequim Municipal Code have been violated, the director may serve a notice and order upon the responsible party. The director may determine that a violation exists based on reliable information, including but not limited to a site visit authorized by the property owner, access to publicly accessible portions of a business, view from the public right-of-way or publicly owned property, aerial photographs, view from neighboring properties with the consent of the neighboring property owner, publicly available information on the Internet, citizen complaints, and public records. The notice and order must contain, at a minimum, the following information:

1. The name and address of the person to whom it is directed;

2. The location and specific description of the violation;

3. A statement that the notice and order is effective immediately upon posting at the site or service on the person to whom it is directed;

4. A specific identification of each standard, code provision or requirement violated;

5. A specific description of the actions required to correct, remedy or avoid the violation or to comply with the standards, code provision or requirements, including but not limited to replacement, repair, supplementation, revegetation or restoration;

6. The deadline for compliance;

7. A statement that the violation may result in the imposition of penalties, and if the violation is not already subject to criminal prosecution that any subsequent violations may result in criminal prosecution as provided in the Sequim Municipal Code or at the discretion of the Sequim city attorney or city prosecutor;

8. A statement that, if a director decides that it is appropriate, the violation may be referred to the city prosecutor for possible criminal prosecution;

9. A statement that failure to comply with the notice and order may result in further enforcement actions and civil fines;

10. A statement that on failure to attain compliance pursuant to the compliance schedule contained within the notice and order, a supplemental notice and order may be issued and additional penalties may accrue during the period of violation;

11. A statement that if compliance is not achieved within the deadline set forth within the notice and order, a director may obtain a warrant of abatement to abate the conditions on the property;

12. A statement that a lien may be filed against the property for any costs of abatement, civil penalties imposed, and/or for reasonable attorney’s fees and costs;

13. A statement that the notice and order represents a determination that a violation exists on property owned or occupied by the person named in the notice and order or has been committed by the person named in the notice and order, and that the determination for the notice and order and the imposition of any civil penalties is final unless timely appealed as provided in SMC 1.13.150;

14. A statement that in order to achieve compliance, a responsible party must submit written notice to the director that all necessary requirements for compliance have been met, and the director must assess and confirm that compliance has been achieved.

15. The following provisions may be added to the notice and order:

a. The notice and order may include or reference an order requiring that the violation immediately cease, and list steps to correct the violation;

b. The notice and order may include or reference an order requiring that the person stop work (“stop work order”) until specifically authorized by the director issuing the stop work order;

c. A statement that a civil penalty has been imposed pursuant to SMC 1.13.180; and

d. If an emergency condition exists, a statement that the emergency condition has resulted from the violation which appears to cause or constitute an imminent or immediate danger to the health and safety of the public, and that, if the responsible party cannot be contacted or refuses to immediately abate the same, a director, upon city manager’s or designee’s approval, will without notice abate the same in a manner allowed by law.

C. Service of Process. The director must serve or cause to be served the notice and order upon the responsible party personally or by mailing a copy of the notice and order by certified or registered mail, return receipt requested, to the person’s last known address, or by other available mail services. If the person cannot be personally served within the city of Sequim, or if an address for mailed service cannot be reasonably ascertained, or the address is a United States Postal Service or comparable post office box, notice must be served by conspicuously posting a copy of the notice and order on the violating property or by leaving a copy of the notice and order at the person’s residence with a person at least 18 years old and who resides there. Service directed to the landowner and/or occupant of the property may be made by posting the notice and order in a conspicuous place on the property where the violation occurred and concurrently mailing notice as provided in this chapter. The hearing examiner or other entity cannot require additional proof of service beyond the requirements of this chapter. Any failure by the responsible person(s) to see any document served by posting does not invalidate service nor does it invalidate the document. (Ord. 2019-013 § 1 (Exh. A))

1.13.090 Other actions – Additional notice – Recording – Amendment – Administrative conference.

A. Other Actions May Be Taken. Nothing in this chapter limits or precludes the city from taking any action or proceeding pursuant to stop work orders, emergency orders, penalties for subdivision violations, or civil or criminal penalties, or pursuant to the Sequim Municipal Code.

B. Additional Notice to Others. A director may mail or cause to be delivered to all residential and/or nonresidential rental units in the structure, or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice and order, stop work order or emergency order and the applicable requirements and procedures.

C. Recording. After consultation with the city attorney, a copy of the notice and order may be recorded with the county auditor as a notice to title when the responsible party fails to correct the violation and no appeal is filed or if a director requests that the city attorney take appropriate enforcement action. A director may choose not to record the notice to title if the notice and order is directed only to a responsible person other than the property owner. If a copy of the notice and order has been recorded and compliance has been achieved, the city will issue a notice of compliance and record the same with the county auditor within 30 calendar days.

D. Amendment. A notice and order may be amended at any time to:

1. Correct clerical errors;

2. Cite additional authority for a stated violation;

3. Add, remove, or modify a civil penalty (provided, that the city must state in writing the basis for a decision to waive penalties and such statement becomes part of the public record unless privileged);

4. Add new material information warranting waiver that was presented to the city after the notice and order or stop work order was issued; or

5. Promote resolution of litigation.

E. Administrative Conference. An informal administrative conference may be conducted by the city at any time to facilitate communication among concerned persons and provide a forum for efficient resolution of any violation. Interested parties will not unreasonably be excluded from such conferences. Administrative conferences are not considered part of the record and the meeting will not be recorded or transcribed. Any resolutions identified in the administrative conference will be reduced to writing and made part of a voluntary compliance agreement signed by the city and the person(s) receiving the notice and order. Voluntary compliance agreements are part of the record. (Ord. 2019-013 § 1 (Exh. A))

1.13.100 Extensions.

A director has discretion to grant a one-time extension of the compliance schedule set forth in a notice and order if the responsible party has made a good faith effort to comply with the requirements of the notice and order or if the original time frame is inadequate in the opinion of the director. When calculating a reasonable time for an extension of the compliance schedule, the director must consider the following criteria:

1. The type and degree of violation cited in the notice;

2. The stated intent, if any, of a responsible party to take steps to comply;

3. The procedural requirements for obtaining a permit to carry out corrective action;

4. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants;

5. Any other circumstances beyond the control of the responsible party. (Ord. 2019-013 § 1 (Exh. A))

1.13.110 Denial of permits based on existing code violation – Exceptions.

A. The city may deny a permit when, with regard to the site or project for which the permit is submitted:

1. Any person owning the property or submitting the development proposal has been found in violation of any city ordinance, resolution, regulation, or public rule that regulates or protects the public health, safety, and welfare, or the use and development of land and water; or

2. Any person owning the property or submitting the development proposal has been found in violation and remains in violation of the conditions of any permit, notice and order, or stop work order issued pursuant to any such ordinance, resolution, regulation, or public rule.

B. To further the remedial purposes of this chapter, denial may continue until the violation is cured by restoration, accepted as complete by the city, and all civil penalties imposed for the violation have been paid.

C. Exceptions. Any permits or approvals will be granted to the extent necessary to accomplish any required restoration or cure. (Ord. 2019-013 § 1 (Exh. A))

1.13.120 Stop work orders.

A. After attempts to resolve the issue have failed, a director has the authority to issue a stop work order prohibiting any work or other activity at the site for violation of applicable code provisions under any of the following circumstances:

1. To avoid material impairment of the director’s ability to secure compliance;

2. To avoid threats to public health or safety;

3. To avoid damage or impact to sensitive environmental areas; or

4. If the mitigation costs of the violation impacts would otherwise be the city’s responsibility.

The stop work order must be in writing and served upon persons engaged in doing such work or causing such work to be done. Notice of a stop work order must be immediately posted at a conspicuous place on the property where the violation is occurring. The stop work order must identify the violation that has been committed and state the specific location where the entire stop work order may be reviewed. Failure to comply with a stop work order constitutes a violation of this chapter.

B. A stop work order must include all information required in SMC 1.13.080(B).

C. If no appeal is filed and compliance is not achieved by the compliance schedule set forth in the order:

1. The director may ask the city attorney to seek additional relief; and/or

2. The director may file a notice and order, if one has not already been issued, or a supplemental notice and order, if one has already been issued, for the violation pursuant to this chapter and impose additional monetary penalties.

D. Nothing in this section should be interpreted to prevent a director from issuing a notice and order and imposing monetary penalties simultaneously with the issuance of a stop work order in accordance with this chapter.

E. Appealing a stop work order stays the imposition of additional civil penalties until the hearing examiner issues a decision. Additionally, any condition described in the stop work order that is not corrected within the specified time is deemed a public nuisance, and a director may ask the city attorney to take action in superior court to get a warrant of abatement for the property. The owner or responsible party (or both) is responsible for costs associated with the abatement in the manner provided by law.

F. In an appeal of a stop work order, the hearing examiner’s determination that a violation has been committed is a final decision for the purposes of an additional appeal.

G. To the extent that this chapter is inconsistent with the city’s adoption by reference of the International Building Code and International Residential Code or any other adopted Uniform or International Code and those codes’ enforcement procedures related to stop work orders, the provisions of this chapter prevail.

H. Defacing, destroying, or removing a stop work order is a criminal offense and may be referred to the city prosecutor. (Ord. 2019-013 § 1 (Exh. A))

1.13.130 Emergency orders.

A. Whenever any use or activity in violation of the Sequim Municipal Code threatens the health and safety of the occupants of the premises or any member of the public, a director has the authority to issue an emergency order directing that the use or activity be discontinued and that the condition be corrected. When such emergency conditions exist, a director, upon city manager approval, may summarily and without notice abate the condition in accordance with this chapter. The emergency order must be in writing and served upon the responsible party engaged in the use or activity or causing the use or activity to be done. The emergency order must be immediately posted in a conspicuous place on the property. Failure to comply with an emergency order constitutes a violation of this chapter.

B. The emergency order must include all the information in SMC 1.13.080(B).

C. The provisions of SMC 1.13.120(C) through (H) apply with equal force in this section. (Ord. 2019-013 § 1 (Exh. A))

1.13.140 Notice – Do not occupy.

In addition to any remedy provided for in this chapter, the director may issue a “do not occupy” notice whenever a condition exists that is immediately dangerous to life, limb, property or safety of the public or occupants of the property. The notice must contain substantially the same information as required by SMC 1.13.080 (Notice and order) and may be appended to, or incorporated by reference in, a notice and order. The notice is deemed served upon posting of the notice as required under this chapter and is effective upon service. Violation of a do not occupy notice constitutes a separate violation from any other code violation. (Ord. 2019-013 § 1 (Exh. A))

1.13.150 Administrative appeals.

A. Appeal Hearings. A responsible party may file an appeal for notice and orders, orders, and/or imposition of civil penalties in accordance with this chapter. Such an appeal may be filed in conjunction with an associated notice and order or order, the imposition of civil penalties, or both. If no appeal is filed with the director, the notice and order or order will become the director’s final order. The final order, including the collection of penalties, may be enforced by the city attorney in superior court.

B. Procedure for Potential Settlement. The hearing examiner has the discretion to grant a 60-day extension to the appeal deadline to allow for settlement discussions. The hearing examiner may extend that period upon a showing of good cause and upon agreement of all parties. If no settlement can be reached within 120 days of the original grant of extension, the appeal process must immediately commence in accordance with this chapter.

C. Standing to File Appeal.

1. Notice and Order. Only parties of record have standing to file an appeal of a notice and order. Parties of record are defined in SMC 1.13.020.

2. Stop Work Order and Emergency Order. Only the property owner or the responsible party as defined in SMC 1.13.020 may request an appeal hearing for a stop work order or emergency order.

D. Deadline for Filing Appeal. Appeals must be filed with the director within 10 calendar days of service of the notice and order or order.

E. Appeal Deadline/Methods of Service. For purposes of computing the time for filing an appeal, the day the decision is issued is not counted. If the last day of the deadline for filing the appeal is a Saturday, Sunday or holiday designated by RCW 1.04.070 or city ordinance, then the appeal must be filed on the next business day. Appeals must be delivered to the city clerk by mail or personal delivery before 4:00 p.m. on the last business day of the appeal period and must contain the appropriate appeal fee unless a waiver has been requested in accordance with SMC 1.13.160. Appeals received by regular mail or email after 4:00 p.m. on the last day of the appeal period or without the applicable fee or fee waiver request will not be accepted, no matter when such appeals were mailed or postmarked. Emailed appeals will not be accepted without express, prior written consent from the director.

F. Content of Appeal/Fees. Appeals must be in writing, be accompanied by the required appeal fee pursuant to the city’s rates and fees schedule (Chapter 3.68 SMC), and contain the following information:

1. Appellant’s name, address, phone number, and email address (if available);

2. A statement describing appellant’s standing to appeal and how the appellant is personally aggrieved by the decision;

3. Appellant’s statement of grounds for appeal and the facts upon which the appeal is based with specific references to the facts alleged in the notice and order or order;

4. The specific relief sought;

5. A statement under penalty of perjury under the laws of the state of Washington that the appellant has read the appeal and believes the contents to be true, followed by the appellant’s signature, the date of signing, and the city and state where signed.

G. Effect. The timely filing of an appeal stays any enforcement action based on a stop work order or notice and order until the hearing examiner’s decision is issued. The effect will not lift or remove a stop work order, but merely stay any further enforcement action such as the continued assessment of civil penalties. (Ord. 2019-013 § 1 (Exh. A))

1.13.160 Administrative appeal fee waiver.

A. Indigent persons may make a written request for waiver of the appeal fee of any code enforcement decision made pursuant to this chapter. Indigent status exists when:

1. The person is currently receiving assistance under a needs-based, means-tested assistance program including, but not limited to, the following: Federal Temporary Assistance for Needy Families; state-provided general assistance for unemployable individuals; Federal Supplemental Security Income; federal poverty-related veteran’s benefits; and food stamps programs; or

2. The person’s household income is at or below 125 percent of the federal poverty guideline; or

3. The person’s household income is above 125 percent of the federal poverty guideline and the applicant has recurring basic living expenses (as defined in RCW 10.101.010(2)(d)) that render the person without the financial ability to pay the appeal fee.

B. A person seeking waiver of the appeal fee of a code enforcement decision must use a form provided by the city and provide documentation of indigent status in the written waiver request. Incomplete forms or forms provided without supporting documentation will be rejected.

C. The city manager or designee will consider and make a written determination of the waiver request before the appeal hearing. The city may schedule a hearing while the waiver request is being processed. However, no hearing will be conducted unless and until the fee waiver has been granted or the fee has been paid. Any hearing scheduled under this section will be cancelled if required fees are not paid with 30 days’ written notice. (Ord. 2019-013 § 1 (Exh. A))

1.13.170 Administrative appeal hearing.

A. The hearing examiner has the authority to hear all appeals under this chapter. Hearings must follow the procedures set forth in Chapter 2.10 SMC.

B. The public hearing on an appeal of a notice and order, order and/or the imposition of civil penalties must include the following elements and be conducted as follows:

1. The community development department, upon agreement with a director and appellant, will coordinate with the hearing examiner to set the time and place of an appeal hearing, and to arrange for providing notice of the public hearing as set forth in Chapter 20.01 SMC. Appeals of enforcement actions require a public hearing and are processed as an appeal of a Type A-1 decision pursuant to SMC 20.01.240.

2. Parties to the hearing may represent themselves or be represented by a designated agent or an attorney.

3. If the person requesting the hearing fails to attend or participate in the hearing (even if a representative is present), the hearing examiner may issue a default order of dismissal in accordance with SMC 2.10.120.

4. The hearing examiner must, at the appropriate stage in the proceeding, give all parties full opportunity to submit and respond to motions and file briefs and objections.

5. The scope and standard of review is de novo. The city has the initial burden of proof in cases involving notice and orders, orders, or penalties to demonstrate by a preponderance of the evidence a violation exists and/or that the legal standard for imposing the penalty has been met. The hearing examiner will decide what weight should be granted to witness testimony.

6. At or after the appeal hearing on a notice and order, the hearing examiner may:

a. Uphold the notice and order, order, and/or imposition of civil penalties;

b. Set aside or order the city to withdraw the notice and order or order;

c. Leave the record open at the conclusion of the public hearing and continue the review to a date certain for receipt of additional information;

d. Modify the notice and order or order, which may include an extension of the compliance date;

e. Modify the civil penalty imposed.

C. If the hearing examiner issues a decision in favor of the city, the responsible party is required to pay any civil penalty imposed within 30 calendar days. If the responsible party fails to pay the penalty within the specified time period, the city attorney may ask that the Clallam County Superior Court enter summary judgment against the responsible party for the amount due or for such other relief as allowed by law.

D. To appeal the hearing examiner’s decision on a notice and order, stop work order, emergency order, or the imposition of civil penalties, a person with standing to appeal must file an appeal of the decision to Clallam County Superior Court within the required statutory time frame, or if subject to the Land Use Petition Act, as provided under Chapter 36.70C RCW, within the deadline set forth in RCW 36.70C.040.

E. Following the hearing examiner’s finding that a violation exists, a director may issue a supplemental notice and order and impose additional penalties for a continuing violation. Continuing violation penalties may accrue for each day of violation. The imposition and accrual of per-day penalties for a continuing violation must be accompanied by an initial notice and order (at the time a director determines that additional per-day penalties will accrue) with an additional opportunity for an appeal hearing. (Ord. 2019-013 § 1 (Exh. A))

1.13.180 Civil penalty.

A. In addition to any other sanction or remedial procedure that may be available pursuant to this chapter, any person violating or failing to comply with any of the provisions of the code chapters that adopt this chapter by reference is subject to an initial civil penalty as set forth below.

1. First violation (each offense) $250.00;

2. Second violation (each offense) $300.00;

3. Third violation (each offense) $350.00;

4. Fourth violation (each offense) $400.00;

5. Each additional day of each violation beyond four days, $500.00 per violation.

Penalties for violations of SMC Titles 13 and 15 are double the amounts specified above.

After a compliance deadline has passed, civil penalties may be imposed and accrue per day in conjunction with a supplemental notice and order in accordance with this chapter. To achieve compliance, a responsible party must submit written notice to the director that the responsible party has met all necessary requirements for compliance, and the director must assess and confirm that compliance has been achieved.

B. The director has the discretion to reduce or eliminate a civil penalty considering certain mitigating factors, including but not limited to the following:

1. A responsible party’s financial hardship or inability to pay; or

2. That the violation giving rise to the action was caused by the willful act, neglect, or abuse of another; or

3. A responsible party’s unavailability or inability to respond during the initial penalty phase, if the responsible party undertakes correction of the violation promptly upon receipt of the notice thereof; or

4. A responsible party’s inability to attain full compliance within the time specified because of an inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the responsible party; or

5. Any other conditions or circumstances beyond the control of the responsible party that a director deems sufficient to warrant a reduction or elimination of a civil penalty; or

6. A responsible party’s timely actions in achieving full compliance within the time frame for corrective action provided by the notice and order or stop work order.

The person(s) named in the notice and order who seek a reduction of the monetary penalty have the burden of proving that the violation has been corrected and the date of correction, including verification by the director.

C. Monetary penalties will not be reduced in the case of a repeat violation as defined in SMC 1.13.020.

D. Nothing in this section obligates the director to reduce any monetary penalties.

E. The penalty imposed by this section, if not timely remitted by the responsible party, will be collected by civil action brought in the name of the city or pursuant to RCW 7.80.010(5), 35A.21.160, or 35.22.280(3). A director must notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney, with the director’s assistance, will take appropriate action to collect the penalty, which action must be filed in Clallam County Superior Court. If the city is forced to take action for the collection of penalties, the city is entitled to reasonable attorney’s fees and costs.

F. After the compliance deadline, each day that the city documents a violation is a separate violation for which a criminal citation may be issued, additional civil penalties may be imposed and accrue during the period of violation, or both. However, no additional fines for a continuing violation may be assessed without providing notice and an opportunity for an appeal hearing in accordance with the provisions of this chapter.

G. Penalties must be paid to the general fund unless a specific utility is identified in the notice and order, in which case penalties must be paid to said utility fund. (Ord. 2019-013 § 1 (Exh. A))

1.13.190 Additional relief.

A. A director may ask the city attorney to seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of any of the code provisions that incorporate this chapter by reference, when civil or criminal penalties are inadequate to effect compliance. Such legal or equitable relief includes, without limitation, any of the following:

B. An action in superior court to obtain a warrant of abatement pursuant to RCW 7.48.260 if there is no appeal as authorized under SMC 1.13.150, or if after appeal the hearing examiner determined a violation was committed and did not authorize a delay and there has been no appeal to Clallam County Superior Court, and correction has not been made within the compliance deadline. Upon obtaining a warrant from the superior court the city may proceed to abate the condition in any reasonable manner.

C. Following affirmative review by the city manager and the city attorney, and in accordance with Washington State law, the city may impose a lien against the real property described in the civil penalty or abatement, for any civil penalty and/or for the cost of any work of abatement done pursuant to this chapter, together with interest and reasonable attorney’s fees and costs. The monetary penalties and abatement costs constitute a personal obligation of the responsible party.

The lien will be subordinate to all existing special assessment liens previously imposed upon the same property and superior to all other liens, except for state and county taxes, with which it will be on parity.

A director may cause a claim for lien to be recorded with the county auditor within 90 days from the date the city completes the work or abatement. The claim of lien must contain the following:

1. The authority for imposing a civil penalty of proceeding to abate the violation, or both;

2. A brief description of the civil penalty imposed or the abatement work done, or both, including the violations charged and the duration thereof, the time the work is commenced and completed and the name of the responsible party performing the work;

3. A legal description of the property to be charged with the lien;

4. The name of the known or reputed owner; and

5. The amount, including lawful and reasonable costs, for which the lien is claimed.

The lien may be foreclosed in Clallam County Superior Court.

D. When a director concludes that a violation has been committed that results in an emergency condition or reasonably appears to cause or constitute an imminent or immediate danger to public health and safety, and the responsible party cannot be contacted or refuses to immediately abate the same, the director has authority to summarily abate the violation without notice. A director must make all reasonable efforts to contact the responsible party before commencing emergency abatement action. Notice of the abatement action must be given to the responsible party as soon thereafter as possible and the city will be entitled to recover the abatement costs as provided in subsection C of this section.

E. A director has the ability to suspend or revoke any approvals or permits issued to the same property and/or responsible party for a violation of this chapter or any of the code sections that incorporate this chapter by reference. (Ord. 2019-013 § 1 (Exh. A))

1.13.200 Penalties for subdivision and planned residential development violations.

Violations of any provision of the Sequim Municipal Code regarding subdivisions and planned residential developments are subject to the enforcement procedures and penalties found in this chapter and any other applicable supplemental enforcement procedures and penalties found in the Sequim Municipal Code. (Ord. 2019-013 § 1 (Exh. A))

1.13.210 Criminal penalties.

A. Any person who has been found to have committed five or more civil violations pursuant to this chapter within the past five years will be deemed to have committed a misdemeanor and is subject to criminal prosecution and a fine in a sum not exceeding $1,000 or imprisonment for a term not exceeding 90 days, or both. Every day of continued noncompliance with a notice and order or order enforced in accordance with this chapter or any of the code provisions that incorporate this chapter by reference is a separate offense.

B. The above criminal penalty may also be imposed:

1. For any other violation of any of the code provisions that incorporate this chapter by reference; and

2. For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements of any of the code provisions that incorporate this chapter by reference. (Ord. 2019-013 § 1 (Exh. A))

1.13.220 Judicial appeals.

After a party has exhausted administrative remedies under this chapter, the city or appellant may appeal the hearing examiner’s final order to superior court under the procedures of the Land Use Petition Act, Chapter 36.70C RCW. If Chapter 36.70C RCW does not apply, the city or appellant may appeal the hearing examiner’s final order to superior court under the procedures of Chapter 7.16 RCW. (Ord. 2019-013 § 1 (Exh. A))