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HomeMy WebLinkAboutITEM V-A AGENDA BILL APPROVAL FORM Agenda Subject:Date: Ordinance No. 6328 – Adopting civil penalties for September 22, 2010 violations of the code and the levying of an assessment to recover the cost of nuisance abatement (Amendments to Chapters 1.25, 8.12 and 8.20) Attachments:Budget Impact: Department: Ordinance No. 6328 N/A Planning & Development Administrative Recommendation: City Council introduce and adopt Ordinance No. 6328. Background Summary: Chapter 1.25 (Civil Penalties for Violations) of the Auburn City Code (ACC) contains the code compliance procedures for the remediation of ACC Titles 5, 8, 10, 12, 13, 15, 16, 17, and 18. Chapters 8.12 (Public Nuisances) and 8.20 (Vegetation) of the ACC contain specific standards that require that property be maintained and vegetation controlled. These rules are intended to ensure that neighborhoods are safe, free of rodent and pest infestation, and are not blighted by uncontrolled vegetation. 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. Current compliance procedures begin with the issuance of a Notice to Correct issued by the Codes Compliance Officer. Because it is it the City’s goal to work with property owners in a constructive manner in order to achieve voluntary compliance, the draft amendments do not modify the initial compliance process. The draft amendments create an additional option for those instances where voluntary compliance efforts have not been effective. Existing regulations set forth two options when voluntary compliance efforts have not remedied the violation. The first option, which is used infrequently, is to proceed directly to filing a superior court action for abatement. The ensuing steps include obtaining a court order, abating the violation, obtaining a judgment, and recording a lien to recover the costs of abatement. The second, and more common option, is to issue a Notice of Infraction. Similar to the issuance of a ticket, the violator either pays the fine or proceeds through a process of contesting the infraction. Current code requires that each day the violation exists that a new and separate Notice of Infraction be issued. The draft amendments create a third option which allows for the issuance of a reoccurring daily civil penalty that could then be liened against the property. Under this option the civil penalty is levied automatically and on a daily basis. Voluntary compliance continues to be the preferred method for resolving violations. When these efforts are ineffective it is likely that the existing procedures for issuance of a Notice of Infraction will continue to be effective at resolving most of the cases where a property owner or tenant is present. In those cases where there is an absentee property owner, or the property is owned by a corporate entity or bank, the additional option of issuing a daily civil penalty that can be liened against the property is likely to be more effective. The Codes Compliance Officer will continue to have discretion in evaluating the specifics of a given violation and the willingness of a landowner to correct the violation in a timely manner when determining the appropriate option for proceeding with each case. Agenda Subject:Date: Ordinance No. 6328 – Adopting civil penalties for September 22, 2010 violations of the code and the levying of an assessment to recover the cost of nuisance abatement (Amendments to Chapters 1.25, 8.12 and 8.20) Reviewed by Council & Committees:Reviewed by Departments & Divisions: Arts Commission COUNCIL COMMITTEES: Building M&O Airport Finance Cemetery Mayor Hearing Examiner Municipal Serv. Finance Parks Human Services Planning & CD Fire Planning Park Board Public Works LegalPolice Planning Comm. OtherPublic Works Human Resources Information Services Action: Committee Approval: Yes No Council Approval: Yes NoCall for Public Hearing___/___/____ Referred to _________________________________ Until ____/___/____ Tabled ______________________________________ Until___/___/____ Staff: Councilmember: Tate Meeting Date: Item Number: September 27, 2010 Page 2 of 2 ORDINANCE NO. 6 3 2 8 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, 8.12.080, AND 8.20.030 OF THE AUBURN CITY CODE TO ADOPT A PENALTY FOR VIOLATIONS OF THE CODE AND TO AUTHORIZE 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 private property 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 , the City of Auburn continues to promote an approach to working with property owners in a productive, constructive, and fair manner where the goal is to provide landowners with ample opportunity to remedy violations as the preferred approach to compliance over fining and penalizing property owners; and, --------------------------------- Ordinance No. 6328 September 21, 2010 Page 1 of 9 WHEREAS , when voluntary compliance efforts are unsuccessful, regulatory procedures are necessary to ensure that progress is made in the remediation of the violation; 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, 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 and section 2 of Ordinance 5966 be and the same hereby are 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 --------------------------------- Ordinance No. 6328 September 21, 2010 Page 2 of 9 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 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. --------------------------------- Ordinance No. 6328 September 21, 2010 Page 3 of 9 Section 2.Amendment to City Code. That section 8.12.080 of the Auburn City Code and section 6 of Ordinance 5837 be and the same hereby are 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 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, . whichThe lien 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. --------------------------------- Ordinance No. 6328 September 21, 2010 Page 4 of 9 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, 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 --------------------------------- Ordinance No. 6328 September 21, 2010 Page 5 of 9 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 tenfourteen (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. 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. --------------------------------- Ordinance No. 6328 September 21, 2010 Page 6 of 9 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. 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; --------------------------------- Ordinance No. 6328 September 21, 2010 Page 7 of 9 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 4.Amendment to City Code. That section 8.20.030 of the Auburn City Code and section 7 of Ordinance 5837 be and the same hereby are amended to read as follows: The code enforcement official, or his designee, pursuant to the provisions of Chapter 1.25 ACC, is authorized and empowered to notify the owner of any open or vacant private property within the city or the agent of such owner to properly cut and remove all grass, weeds and brush growing in violation of ACC 8.20.010 and 8.20.020 which is dangerous to public health, safety and welfare. A violation of any of the provisions of this chapter by any person, firm or corporation shall be a civil infraction or subject to a civil penalty, punishable in accordance with ACC 1.25.050, except where the violation is designated as a misdemeanor as provided in ACC 1.25.050. Section 5.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 6. 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 21, 2010 Page 8 of 9 Section 7.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 21, 2010 Page 9 of 9