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HomeMy WebLinkAboutITEM V-C Memorandum TO: Councilmember Lynn Norman, Chair, Planning & Community Development Committee Councilmember Nancy Backus, Vice Chair, Planning & Community Development Committee Councilmember Rich Wagner, Planning and Community Development Committee CC: Mayor Lewis Dan Heid, City Attorney Doug Ruth, Assistant City Attorney FROM: Jeff Tate, Development Services Manager, Planning & Development Department DATE: September 9, 2010 RE: DISCUSSION AND INFORMATION: Ordinance #6328 – Discussion of proposed amendments to Chapter 1.25 (civil penalties and violations) for expedited corrective responses to abandoned and/or unkempt or unoccupied residential and nonresidential properties in the City of Auburn. PURPOSE OF DISCUSSION: To present draft code amendments that would expand the available enforcement options used for attaining compliance with Titles 5, 8, 10, 12, 13, 15, 16, 17, 1and 18. NEW/MODIFIED PROVISIONS: 1.Within Chapter 8.12, modify the language that authorizes liens to be filed against property where the code compliance officer has determined that a nuisance violation is present. The purpose of this amendment is to add specificity in the types of abatement costs that can be recovered through the filing of a lien. 2.Within Chapter 1.25, add a new section that allows civil penalties to be assessed at a rate of $500 plus $100 per day. These amendments clarify that fines accrue on a per day basis, how notice is served, and the procedures for appealing the penalty. BACKGROUND: Similar to the rest of the country, in recent years the City has seen an increased rate in the number of foreclosed and/or abandoned properties. Likewise, the number of unmaintained properties has also increased. Properties located within well maintained neighborhoods have become eyesores due to a lack of vegetation control, unmowed yards, broken and/or boarded up windows, and graffiti tagging. This phenomenon has caused a spike in code compliance cases that are filed under Chapter 8.12 Public Nuisances. Under the City’s currently adopted code compliance procedures, when code compliance receives a nuisance complaint an enforcement official opens a case file and visits the property to verify the legitimacy of the complaint. If the complaint has validity the enforcement official typically initiates a correction process by contacting the property owner and establishing a compliance schedule. In the case of foreclosed and/or abandoned properties it tends to be difficult to identify a contact person who is responsible for the property. Many of these properties are owned by out of state banks or corporate entities who are either unaware of the condition of the property or do not consider maintenance of the property as a high priority. City staff are attempting to identify the location of foreclosed and/or abandoned properties in order to provide proactive outreach before a violation exists. Based on a variety of sources of information the list of foreclosed and/or abandoned properties is currently at about 230. The City has registered with Mortgage Electronic Registration Systems (MERS) which is a nationwide database of properties created by the real estate finance industry. Many properties within MERS identify a specific person within a bank or corporation that acts as a property preservation specialist. This proves to be useful information when attempting to notify property owners that a violation exists, a notice of correction has been issued, or fines are being levied. While MERS provides a good lead for some properties it remains difficult for out of state entities to act quickly in remediating a nuisance violation (e.g. mowing a lawn). Planning and Development believes that current procedures used in the compliance and enforcement of nuisance violations should be modified. By increasing the fine amounts and allowing the fines to be filed as a lien on the property it is likely that banks, mortgage institutions and corporate entities will be more likely to prioritize compliance efforts and seek resolution of the violation in a more expedient manner. The attached amendments are divided into three sections. The first section adds a definition to the Chapter 1.25 for “Property Owner”. The second section clarifies that any abatement actions initiated by the City pursuant to Chapter 8.12 (nuisance violations) are paid back through the filing of a lien on the property. The third section modifies Chapter 1.25 by establishing a new option that may be used by the compliance officer if he/she determines that initial attempts at seeking compliance are not effective. Currently, Chapter 1.25 allows the compliance officer to issue an “civil infraction” which carries a cost of $250.00. Every day the violation persists is considered a separate infraction which means that the compliance officer must issue a new citation each day. The draft amendments would allow for an alternative process whereby a “civil penalty” is levied and that accrues at a daily rate until the violation is remedied. Under this option, the compliance officer is not burdened with issuing a new penalty each day, rather it accrues automatically. The existing procedure is likely to be more effective with owners of property that are present. The proposed alternative is likely to be more effective when working with absentee owners. QUESTIONS/THOUGHTS: 1.Is it appropriate to develop an alternative approach for absentee property owners? 2.Under Section 3, Item A of the attachment: Are the fine amounts appropriate ($500 for initial fine plus $100 per day for each day the violation persists)? ORDINANCE NO. 6328 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, ADDING A NEW SECTION TO CHAPTER 1.25 AND AMENDING SECTIONS 1.25.020 AND 8.12.080 OF THE AUBURN CITY CODE RELATING TO ADOPTION OF A CIVIL PENALTY FOR VIOLATIONS OF THE CODE AND THE LEVYING OF AN ASSESSMENT TO RECOVER THE COST OF NUISANCE ABATEMENT. WHEREAS , the City of Auburn has, similar to other jurisdictions in the region and the nation, experienced a rise in abandoned or unkempt or unoccupied residential and non-residential buildings and properties as a result of economic conditions that have had a negative impact on the safety, sanitation, and architectural and physical aesthetic character of certain neighborhoods and business districts in the City; and, WHEREAS , the City of Auburn seeks to balance and support the property private rights of all owners of residential and non-residential buildings and/or properties within its current and future municipal limits by ensuring that these buildings and properties are regularly and consistently maintained in good condition and do not become public nuisances; and, WHEREAS , RCW 7.80.010(5) provides Auburn the option to adopt a system of hearing, determining, and imposing civil penalties for code violations, in addition to its present enforcement mechanism of issuing civil infractions to code violators; and, Ordinance No. 6328 September X, 2010 Page 1 of 8 WHEREAS , the Auburn City Council has determined that it is in the interest of the public health, safety and welfare to provide for additional regulations and standards to successfully resolve and/or limit the occurrence of public nuisances associated with the failure of property owners to properly maintain buildings and/or properties consistent with adopted City codes; NOW, THEREFORE , THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, DO ORDAIN as follows: Section 1. Amendment to City Code. That section 1.25.020 of the Auburn City Code be and the same hereby is amended to read as follows: “Except where specifically defined in this section, all words used in this chapter shall carry their customary meanings. The word “shall” is always mandatory, and the word “may” denotes a use of discretion in making a decision. A. “Act” means doing or performing something. B. “Code enforcement official” means the director or designee of the director of the department authorized and/or empowered to enforce a violation of ACC Titles 5, 8, 12, 13, 15, 16, 17 and 18, and Chapter 10.02 ACC, or such other provisions of the ACC that are enforceable pursuant to the provisions of this chapter, and all standards, regulations and procedures adopted pursuant to those titles and the terms and conditions of any permit or approval issued pursuant to those titles of this code, and such of the code provisions specifying civil penalties not within the specific or exclusive enforcement responsibility of another official. C. “Emergency” means a situation or civil violation which in the opinion of the code enforcement official requires immediate action to prevent or eliminate an imminent threat to the public health, safety or welfare of persons or property. D. “Omission” means a failure to act. E. “Person” includes any natural person, his heirs, executors, administrators or assigns, and also includes a firm, partnership or Ordinance No. 6328 September X, 2010 Page 2 of 8 corporation, its or their successors or assigns, a governmental body, or the agent of any of the aforesaid. F. “Stop work order” means the written order issued by the code enforcement official or other authorized enforcement official, or his/her designee, to direct that work or activity shall be stopped until such activity is authorized to resume by the code enforcement official or other authorized enforcement official, or his/her designee. G. “Violation” means an act or omission contrary to requirements contained in ACC Titles 5, 8, 12, 13, 15, 16, 17 and/or 18, and Chapter 10.02 ACC, or such other provisions of the ACC that are enforceable pursuant to the provisions of this chapter, and/or all standards, regulations and procedures adopted pursuant to those titles and the terms and/or conditions of any permit or approval issued pursuant to those titles, and such other code provisions as are specified. H. “Municipal court” means the “municipal court of the city of Auburn,” as established pursuant to Chapter 2.14 ACC, as the forum in which violations of the ACC shall be heard. I. “Property Owner” means any Person or Persons, having legal right or interest such as a fee owner, contract purchaser, mortgagor or mortgagee, option or optionee, and beneficiary or grantor of a trust or deed of trust, but not including the grantee of an easement. Section 2. Amendment to City Code. That section 8.12.080 of the Auburn City Code be and the same hereby is amended to read as follows: “If within three days after receiving a proper notice in writing for the abatement of any nuisance detrimental to health and welfare of the public, or source of filth as hereinabove defined, such notice to be signed by the mayor or designee, the person owning, occupying or controlling such premises fails, neglects or refuses to remove the same, such nuisance may be removed or abated by order of the mayor or designee, and the person on whom such notice for the removal of same was served, in addition to incurring the penalty provided, shall become indebted to the city for the damages, costs and charges incurred by the city in the removal of such nuisance. Such costs and charges are to be recovered by a civil action brought by the city against the person so served with such notice, which action the mayor or designee is authorized to bring for and on behalf of the Ordinance No. 6328 September X, 2010 Page 3 of 8 city. The mayor or designee is also authorized to file a lien against the property on which the nuisance was abated, whether pursuant to this chapter or by other legal process, or on the adjacent property where the nuisance was located on public property or on public right-of-way and where the nuisance was caused by or on behalf of the owner of the adjacent property,. whichThelien shall be in the amount of the city’s costs in abating the nuisance, the amount of relocation assistance advanced under RCW 59.18.085, and inthe cost of enforcing the lien, the amount of all outstanding penalties, and all allowable interest. In any such abatement by the city, the city shall also be entitled to interest accruing at the rate of 12 percent per annum from the time of the expenditure of funds by the city for such abatement.Additionally, the mayor may levy a special assessment on the property on which the nuisance was abated for the amount of the city’s costs in abating the nuisance, unless previously paid, and to contract with the County Treasurer to collect the assessment pursuant to RCW 84.56.035. Any salvage value proceeds resulting from the abatement of the property shall first be applied to the costs of abatement. Any remaining such monies shall be paid to the property owner as shown on the last equalized assessment roll.” Section 3. New Section. A new section is hereby added to Chapter 1.25 of the Auburn City Code, section 1.25.065, and shall read as follows: “A. Civil Penalty. In addition to any other enforcement actions available to the city, if the code enforcement official determines that a violation has not been corrected pursuant to ACC 1.25.030 within the time specified in the Notice to Correct Violation, he/she is authorized to impose a civil penalty against the Property Owner on whose property the violation exists, and/or the Person in possession of the property, and/or the Person otherwise causing or responsible for the violation. The penalty shall be up to $500 for the first day and $100 per day for each additional full day the violation continues. Each day on which a violation or failure continues shall constitute a separate violation. If unpaid within 14 calendar days of becoming effective, each penalty shall constitute a lien against the property of equal rank with state, county, and municipal taxes. B. Notice of Penalty. The penalty shall be imposed by serving a Notice of Penalty. Service of the Notice shall be made upon all Persons identified in the Notice either personally or by mailing a copy of such order by certified mail, postage prepaid, return receipt requested. If an address for mailed service cannot be ascertained, Ordinance No. 6328 September X, 2010 Page 4 of 8 service shall be accomplished by posting a copy of the Notice conspicuously on the affected property or structure. The initial penalty shall be effective and the reoccurring daily penalty shall commence on the date service is effective. Service by certified mail shall be effective five (5) calendar days after the date of postmark, unless U.S. postal records show actual receipt prior to that date. If service is by personal service, service shall be deemed effective immediately. If service is made by posting, service shall be effective on the third day following the day the Notice is posted. Reoccurring penalties shall become effective every twenty-four hours after midnight of the effective date of the initial penalty, if the violation is not corrected. The Notice shall contain all the information required to be placed in a Notice to Correct Violation, under ACC 1.25.030, and in addition the following: The amount of the initial penalty and the amount of the per day penalty for each day the violation(s) continues, and, if applicable, the conditions on which assessment of such civil penalty is contingent. A statement that the reoccurring penalty accrues each day automatically, without further notice. The procedure for appealing the penalty, as described in this chapter. That if the penalties are unpaid within 10 days of when they become effective, they shall become a lien on the property that shall be of equal rank with state, county and municipal taxes. C. Withdrawal. The Code Enforcement Officer may withdraw a Notice of Penalty if compliance is achieved, as determined by the Officer, within ten (14) calendar days of the service date of the Notice. The Officer shall not withdraw a Notice of Penalty if it is the second notice issued by the Officer to the same person for the same or similar violation committed within six months. D. Continued Duty to Correct. Payment of a penalty pursuant to this chapter does not relieve a person of the duty to correct the violation as ordered by the enforcement officer. Correction of the violation does not relieve a Person of the obligation to pay the penalty assessed, unless dismissed, withdrawn, or modified by the Hearing Examiner or the Code Enforcement Officer. Ordinance No. 6328 September X, 2010 Page 5 of 8 E. Appeal of Notice of Penalty. 1. An assessed civil penalty may be appealed to the city Hearing Examiner within fourteen (14) calendar days of the penalty’s effective date, in the same manner as determinations of the building official are appealed under ACC 15.07.130. After the fourteen (14) day period, penalties shall be final and binding. The Hearing Examiner may grant an extension of time for filing an appeal if the Person establishes that he/she did not receive the notice of penalty due to good cause. The burden of proving such good cause circumstances is on the person making the claim. 2. The appeal shall be processed and the hearing conducted according to the provisions of ACC 15.07.130 and the provisions of that section are adopted by reference for the purpose of this chapter. The person appealing may appeal either the determination that a violation exists or the amount of the civil penalty imposed, or both. The person appealing may appeal all penalties that are not final and binding. The Hearing Examiner has the authority to affirm, dismiss, or modify the civil penalty. The City shall have the burden of proving by a preponderance of the evidence the commission of a violation. If the Hearing Examiner finds that a violation was not committed at the time the Notice of Penalty was issued, the Examiner shall dismiss all penalties before him/her that were imposed for the alleged violation and the City shall dismiss all additional penalties, whether effective or final, that were imposed for the alleged violation. 3. The civil penalties for a continuing violation shall not continue to accrue pending determination of the appeal, however, the Hearing Examiner may impose a daily monetary penalty, to a maximum of $100 per day, from the date of service of the Notice of Penalty if the Hearing Examiner finds that the appeal is frivolous or intended solely to delay compliance. An appeal does not lift or stay a Notice to Correct Violation. 4. A person is precluded from appealing a penalty if the Hearing Examiner finds that it has determined in a prior appeal all the issues of fact and law raised by the person appealing. 5. At his/her discretion, the Hearing Examiner may consolidate appeals of penalties imposed on the same property for the same violations. Ordinance No. 6328 September X, 2010 Page 6 of 8 F. Cost Recovery & Lien. 1. Any monetary penalty imposed under this chapter constitutes a personal obligation of the person served the Notice of Penalty. The city attorney is authorized to collect the monetary penalty by use of appropriate legal remedies, the seeking of which shall neither stay nor terminate the accrual of additional per day penalties so long as the violation continues. 2. The city may authorize the use of collection agencies to recover monetary penalties, in which case the cost of the collection process shall be assessed in addition to the monetary penalty. 3. Once civil penalties are effective and due, pursuant to this section, the Code Enforcement Officer may file a lien with the county auditor on the property where the violation exists for the amount of the unpaid civil penalties. The claim of lien shall contain the following: a. The authority for imposing a civil penalty; b. A brief description of the civil penalty imposed, including the violations charged and the duration thereof; c. A legal description of the property to be charged with the lien; d. The name of the known or reputed Owner; and e. The amount, including lawful and reasonable costs, for which the lien is claimed. Section 2. Implementation. The Mayor is hereby authorized to implement such administrative procedures as may be necessary to carry out the directions of this legislation. Severability. Section 3. The provisions of this ordinance are declared to be separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section or portion of this ordinance, or the invalidity of the application thereof to any person or circumstance shall not affect the validity of the remainder of this ordinance, or the validity of its application to other persons or circumstances. Ordinance No. 6328 September X, 2010 Page 7 of 8 Section 4.Effective date. This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: __________________ PASSED: _______________________ APPROVED: ____________________ CITY OF AUBURN ______________________________ PETER B. LEWIS MAYOR ATTEST: _________________________ Danielle E. Daskam, City Clerk APPROVED AS TO FORM: _________________________ Daniel B. Heid, City Attorney Published: _________________ Ordinance No. 6328 September X, 2010 Page 8 of 8