Chapter 15.40
UNSAFE AND UNFIT BUILDINGS, STRUCTURES AND PREMISES
Sections:
15.40.030 Enforcement authority and powers.
15.40.040 Procedure to abate unsafe or unfit structures or premises – Complaint.
15.40.050 Determination – Reference to building code.
15.40.110 Additional violations and penalties.
15.40.010 Findings.
It is found that there exist in the city of Tumwater, dwellings, and other buildings, structures, and premises which are unfit for human habitation and which are unfit for other uses due to dilapidation, disrepair, structural defects, defects increasing the hazards of fire, accidents, or other calamities, inadequate drainage, overcrowding, or due to other conditions which are inimical to the health and welfare of the residents of the city. It is the intent of this chapter to clarify and strengthen the procedures for abating such nuisances, particularly unsafe or unfit dwellings, buildings, structures, or premises, as authorized by the provisions of Chapter 35.80 RCW.
(Ord. O2012-020, Added, 10/16/2012)
15.40.020 Nuisance declared.
All buildings or structures in the city which by reason of decay, dilapidation, or damage by fire, the elements, or any other cause, are now or hereafter shall become, in the judgment of the building official, dangerous to the lives and safety of persons or property or unsafe for the purpose or purposes for which they are being used, unsafe or unfit structures and premises as defined in this chapter are declared to be public nuisances.
(Ord. O2012-020, Added, 10/16/2012)
15.40.030 Enforcement authority and powers.
A. The responsibility for administration and enforcement of this chapter, unless otherwise provided, is vested in the building official.
B. The building official may exercise such lawful powers as may be necessary or convenient to effectuate the purposes and provisions of this chapter. These powers shall include the following in addition to others herein granted:
1. To determine, pursuant to standards prescribed by the building code, which dwellings within the city are unfit for human habitation;
2. To determine, pursuant to standards prescribed by the building code, which buildings, structures, or premises are unfit for other use;
3. To administer oaths and affirmations, examine witnesses and receive evidence;
4. To investigate the dwelling or other property conditions in the city and to enter upon premises to make examinations when the building official has reasonable ground for believing they are unfit for human habitation, or for other use;
5. To enter upon private and public property for such purposes, and other purposes of this chapter, and in such a manner as to cause the least possible inconvenience to the person(s) in possession, and to obtain an order for this purpose after submitting evidence in support of an application which is adequate to justify such an order from a court of competent jurisdiction in the event entry is denied or resisted.
(Ord. O2012-020, Added, 10/16/2012)
15.40.040 Procedure to abate unsafe or unfit structures or premises – Complaint.
A. If, after a preliminary investigation of any dwelling, building, structure, or premises, the building official finds that it is unfit for human habitation or other use, he or she shall cause to be served either personally or by certified mail with return receipt requested, upon all persons having any interest therein, as shown upon the records of the Thurston County auditor’s office, and shall post in a conspicuous place on such property, a complaint stating in what respects such dwelling, building, structure, or premises is unfit for human habitation or other use. If the whereabouts of any of such person(s) is unknown and the same cannot be ascertained by the building official in the exercise of reasonable diligence, and the building official makes an affidavit to that effect, then the serving of such complaint or order upon such persons may be made either by personal service or by mailing a copy of the complaint by certified mail, postage prepaid, return receipt requested, to each such person at the address of the building involved in the proceedings, and mailing a copy of the complaint and order by first-class mail to any address of each such person in the records of the county assessor or county auditor of Thurston County.
B. Such complaint shall contain a notice that a hearing will be held before the building official, at a place therein fixed, not less than ten days nor more than thirty days after the serving of the complaint; and that all parties in interest shall be given the right to file an answer to the complaint, to appear in person, and to give testimony at the time and place in the complaint. The rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the building official. A copy of such complaint shall also be filed with the Thurston County auditor, and such filing of the complaint or order shall have the same force and effect as other lis pendens notices provided by law.
The complaint shall be substantially in the following form:
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BEFORE THE CITY OF TUMWATER BUILDING OFFICIAL |
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In Re: The premises at [Address] |
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) No. |
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) COMPLAINT |
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___________________________ |
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TO: The Owners and Occupiers of the Premises Located at _______________________ |
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(Address) |
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(List names, address, and whether owner or occupier) |
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This is notice to you that the premises or structure which you own or occupy is unsafe or unfit for the following reasons: |
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(List facts and applicable TMC code section) |
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A hearing shall be held at (state date, time, and place of hearing) to determine whether there is sufficient legal cause to order you to take the following action: (list actions requested; e.g. repair, secure against entry, demolition, etc.). You may file a written answer to this complaint with the Building Official by mailing or delivering it to his or her address listed below. You may also appear at the hearing with or without an attorney. Failure to answer and/or come to the hearing may result in you being required to take the action described in the previous paragraph or, failing that, paying for the City of Tumwater to take that action. |
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DATED this day of 20___. |
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______________________________________ |
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Building Official |
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(Address) |
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(Email address) |
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(Telephone and FAX Numbers) |
C. Service of filing by mail of any complaint, notice, order, notice of appeal, or other paper under this chapter shall be deemed complete at the end of the third full day following its deposit in the U.S. mail, correctly addressed, with postage prepaid.
Personal service upon an owner or other party in interest under this chapter may be made by delivering a copy of the complaint or order to that person or by leaving the copy with a person of suitable age and discretion at the place of residence of the owner or other party in interest. The building official shall make and retain written proof of service.
(Ord. O2012-020, Added, 10/16/2012)
15.40.050 Determination – Reference to building code.
A. The building official may determine that a structure or premises is unsafe or unfit if he or she finds that conditions exist which are dangerous or injurious to the health or safety of the occupants of such dwelling, building, structure, or premises, the occupants of neighboring dwellings, or other residents of the city. Such conditions may include the following, without limitations: defects therein increasing the hazards of fire or accident, inadequate ventilation, light, or sanitary facilities, dilapidation, disrepair, structural defects, uncleanliness, overcrowding, or inadequate drainage, or any condition that does not meet the minimum standards prescribed by the currently adopted version of the building code. Minimum standards prescribed in the building code shall be used for determining the fitness or safety of a dwelling for human habitation, or any building, structure, or premises for other use; for the use and occupancy of dwellings throughout the city; or for the use and occupancy of any building, structure, or premises used for any other purpose.
B. In general, the determination of whether a structure or premises should be repaired or demolished shall be based on (1) the degree of structural deterioration of the structure or premises, or (2) the relationship that the estimated cost of repair bears to the value of the structure as determined by the building official using the assessed value of the structure, and any other method he or she deems appropriate under the circumstances.
(Ord. O2012-020, Added, 10/16/2012)
15.40.060 Findings and order.
A. If, after the required hearing, the building official determines that the dwelling or other structure or premises is unsafe or unfit for human habitation or that the structure or premises is unfit for other use, he or she shall make written findings of fact in support of that determination, and shall issue and cause to be served upon each owner and party in interest thereof, as provided in TMC 15.40.040, and shall post in a conspicuous place on the property, an order which (1) requires the owner or party in interest, within the time specified in the order, to repair, alter, or improve such dwelling, structure, or premises to render it fit for human habitation, or for other appropriate use, or to vacate and close the dwelling, structure, or premises, if that course of action is deemed proper and reasonable on the basis of the standards set forth as required in TMC 15.40.050 and the building code; or (2) requires the owner or party in interest, within the time specified in the order, to remove or demolish the dwelling, structure, or premises, if that course of action is deemed proper and reasonable on the basis of those standards. An order may require the owner to take effective steps to board up or otherwise bar access to the structure or premises, if deemed necessary for public safety, pending further abatement action.
B. The order may be in substantially the same form which appears below and may include notice of additional penalties or remedies available to the city under other provisions of this code.
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BEFORE THE CITY OF TUMWATER BUILDING OFFICIAL |
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In Re: The premises at [Address] |
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) No. |
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) ORDER OF ABATEMENT |
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___________________________ |
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On the _________ day of ______________________________, 20____ at _____ (time) at (list place, address), a hearing was held before the City of Tumwater Building Official pursuant to notice given by him/her through a complaint issued on ___________________ (date). (If applicable, list who appeared and short summary of testimony.) The Building Official after hearing made the following findings of fact and conclusions of law: |
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FINDINGS OF FACT |
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1. (List out) |
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CONCLUSIONS OF LAW |
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1. (List out) |
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Whereupon the Building Official issued the following order: |
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ORDER |
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DATED this _______ day of _________________________________, 20____. |
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_____________________________________________ Building Official |
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(Address) |
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(Email address) |
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(Telephone and FAX Numbers) |
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C. The order of the building official or the hearing examiner may prescribe times within which demolition or other abatement shall be commenced or completed. If the action is not commenced or completed within the prescribed time, the building official may commence the required abatement action after having taken the legally required steps, if any, to gain entry. If satisfactory progress has been made and sufficient evidence is presented that the work will be completed within a reasonable time, the building official or the hearing examiner may extend the time for completion of the work, subject to immediate summary revocation at any time without further hearing if satisfactory progress is not being made.
D. If the owner is unable to comply with the building official’s or the hearing examiner’s order within the time required, and the time for appeals to the hearing examiner or petition to the court has passed, the owner may, for good and sufficient cause beyond his or her control, request an extension of time in writing supported by affidavit. The building official or hearing examiner may grant a reasonable extension of time after finding that the delay was beyond the control of the owner. There shall be no appeal or petition from the denial of an extension of time.
E. Any work including demolition, construction, repairs, or alterations required under this chapter shall be subject to permitting requirements pursuant to the Tumwater Municipal Code and other laws and regulations of the state.
(Ord. O2012-020, Added, 10/16/2012)
15.40.070 Right to appeal.
A. The owner or any party in interest, within thirty days from the date of service upon him or her and the posting of an order issued by the building official under the provisions of TMC 15.40.040, may appeal by filing a written notice of appeal, together with the applicable fee as established by resolution of the city council, with the hearing examiner or his or her designee. The appeal must clearly state that the person identified in the notice of appeal is the person to whom an order of abatement was given, the date of the order and notice of the appeal, and the reason or reasons why the person believes the notice to be in error.
B. If no appeal is filed as provided in this chapter, a copy of the order shall be filed with the Thurston County auditor, and shall be a final order.
The building official shall make and retain a record of service as prescribed in TMC 15.40.040.
(Ord. O2012-020, Added, 10/16/2012)
15.40.080 Appeals.
A. The hearing examiner shall have jurisdiction to hear appeals of orders of abatement issued by the building official.
1. The hearing examiner or his or her designee shall arrange a time and place for hearing the appeal pursuant to Chapter 1.10 TMC. The filing of the notice of appeal shall stay the order of the building official except insofar as temporary measures of an emergent nature are required, such as securing the building to minimize any imminent danger to the public health or safety.
2. The matter must be concluded by the hearing examiner within sixty days after the date the appeal has been filed unless continued for a specified time with the consent of the appellant as provided in this section.
3. The hearing examiner shall conduct a full and fair review of the record of the proceedings before the building official and the action taken. The hearing shall be on the record and not de novo. Normally the hearing examiner will not accept new evidence or evidence not made available to the building official in the absence of good cause. However, the hearing examiner may allow presentation of new evidence at his/her discretion and may continue the matter for that purpose in the interest of conducting a full and fair hearing, if it will not cause the hearing to extend beyond the required sixty-day period. With the consent of the appealing party, a continuance may extend the hearing for a specified number of days beyond that period for further evidence or deliberation. If the hearing examiner fails to reach a decision within the required time, or the time extended with the appellant’s consent, the building official’s order and findings shall be deemed to be those of the hearing examiner, and shall be deemed final.
4. The hearing examiner may affirm, modify, reverse, or return with directions, the action or decision appealed in the event he or she finds an error of law or the record is not supported by substantiated evidence.
5. At the conclusion of the hearing, the hearing examiner shall issue a written decision describing the decision or action appealed, making written findings of fact, and stating the reasons for his or her decision, and making an appropriate order or orders, and notify the appellant in writing of his or her decision. A transcript of the hearing examiner’s decision, findings, and orders shall be made available to the appellant.
6. The hearing examiner may promulgate additional written rules of procedure for the conduct of proceedings to ensure a prompt and thorough review of appeals.
7. The decision, findings, and orders of the hearing examiner shall be reported in the same manner and shall bear the same legal consequences as if issued by the building official, and shall be subject to further review only in the manner and to the extent provided in subsection B of this section. If an appeal is not timely and correctly appealed under subsection B of this section, the hearing examiner’s decision is final.
B. Any person affected by an order issued by the hearing examiner pursuant to this section may, within thirty days after the posting and service of the order, petition the superior court for an injunction restraining the building official from carrying out the provisions of the order as provided by RCW 35.80.030.
(Ord. O2012-020, Added, 10/16/2012)
15.40.090 Abatement by city.
If the owner, following exhaustion of his or her rights of appeal, fails to comply with the final order to repair, alter, improve, vacate, close, remove or demolish the dwelling, structure, or premises, or to take other required action, the building official may direct or cause such dwelling, structure, or premises to be repaired, altered, improved, vacated, and closed, removed, or demolished, and to take such further steps as may be reasonable and necessary to prevent access to the structure or premises, for public health or safety reasons, pending abatement. The building official, with the assistance of the city attorney, may apply to the superior court for any legal or equitable remedy to enforce his or her order.
(Ord. O2012-020, Added, 10/16/2012)
15.40.100 Abatement costs.
A. The cost of the abatement of such nuisance may be paid out of the treasury of the city and charged to the owner of the property subject to abatement. The amount of the cost of such repairs, alternations, or improvements; or vacating and closing; or removal or demolition by the building official, shall be assessed against the real property upon which such cost was incurred unless such amount has been paid previously, and such cost shall be certified by the city finance director to the county treasurer as an amount due and owing to the city, pursuant to RCW 35.80.030, to be entered by the county treasurer as an assessment upon the tax rolls against the property for the current year and to become a part of the general taxes for that year to be collected at the same time and with interest at such rates and in such manner as is provided in RCW 84.56.020 as now or hereafter amended, for delinquent taxes, and when collected to be deposited to the credit of the city’s general fund.
B. If the dwelling or other structure or premises is removed or demolished by the building official, the official shall, if possible, sell the materials of the dwelling, structure, or premises, in the usual manner prescribed by city ordinance for selling surplus property. The proceeds of the sale shall be credited against the cost of the removal or demolition, and if there is any balance remaining, it shall be paid to the parties entitled thereto, as determined by the building official, after deducting costs incident to the sale.
C. As provided in RCW 35.80.030, the assessment shall constitute a lien against the property which shall be of equal rank with state, county, and municipal taxes.
D. Whenever a building or premises is found to be unsafe or unfit and the cost of demolition or other abatement must be incurred by the city, there shall be charged against the property the costs of all administrative proceedings before the building official and the hearing examiner including, but not limited to, salaries, wages, benefits, material, equipment rental, and other expenses incurred for inspecting, conducting hearings, or otherwise determining the status of the property.
E. The building official or hearing examiner may modify the time or methods of payment of such expenses as the condition of the property and the circumstances of the owner may warrant. In cases of extreme hardship, such expenses may be waived pursuant to written finding by the hearing examiner.
(Ord. O2012-020, Added, 10/16/2012)
15.40.110 Additional violations and penalties.
A. It shall be unlawful and a violation of this chapter to knowingly:
1. Occupy or allow to be occupied any building or premises ordered vacated;
2. Fail to comply with any order issued pursuant to this chapter;
3. Obstruct, hinder, or provide false information to any officer or agent of the city of Tumwater or other authorized governmental unit or agency in the enforcement of this chapter.
A violation of this section is a misdemeanor and may be punished by a fine not to exceed $1,000 and/or jail confinement of not more than ninety days. Each day of violation shall constitute a separate offense. In the event of continuing violation or failure to comply, the second and subsequent days shall constitute a gross misdemeanor, punishable by a fine not to exceed $5,000 and/or imprisonment for not more than three hundred and sixty-four days or both such fine and imprisonment.
B. As a separate and concurrent penalty, there is hereby imposed a civil penalty for failure to comply with an order of abatement within the time specified on such order. The penalty shall be $100.00 per day for matters involving residential dwellings, premises, and structures and $250.00 per day for premises, structures, and dwellings which are of either a multi-family, commercial, or industrial nature. Filing of a timely administrative appeal shall suspend the accumulation of the penalty assessed under this subsection until such time as the appeal is adjudicated.
C. As a separate and concurrent penalty, it shall be a civil infraction to:
1. Occupy or allow to be occupied any building or premises ordered vacated;
2. Fail to comply with any order issued pursuant to this chapter;
3. Obstruct, hinder, or provide false information to any officer or agent of the city of Tumwater or other authorized governmental unit or agency in enforcement of this chapter.
Each day of violation shall constitute a separate offense. A person found to have committed a civil infraction shall be assessed a Class 1 monetary penalty pursuant to TMC 1.10.120.
(Ord. O2012-020, Added, 10/16/2012)
15.40.120 Warrants for entry.
A. Whenever it is necessary to enter upon private property or the public property of another governmental agency to carry out the lawful directions of this chapter, the city may apply to a court of competent jurisdiction for a warrant authorizing the entry upon such property to carry out the same, if permission to enter has been refused by the owner or person in possession, or if the owner cannot be found or reasonably ascertained.
B. The application for a warrant shall be supported by an affidavit or the testimony of the officer intending to enter upon the property stating his office, purpose, and authority to so enter, the owner’s or person in possession refusal to permit such entry or the owner’s unavailability, the work, action, or other activity to be conducted upon the property and by whom and approximate time the activity will be conducted.
C. If the court finds just cause for the issuance of the warrant, it shall subscribe the same with a return date of not more than ten days following completion of the action or activity to be conducted upon the property.
D. Nothing in this section is intended to limit, restrict, or otherwise affect the right of officers or agents of any governmental entity to enter upon private or public property for any lawful purpose.
(Ord. O2012-020, Added, 10/16/2012)