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,
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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
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Ordinance No. 6328
September 21, 2010
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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.
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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.
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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
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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.
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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;
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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.
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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: _________________
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Ordinance No. 6328
September 21, 2010
Page 9 of 9