Chapter 2.54
UNIFIED CODE ENFORCEMENT
Sections:
2.54.040 Voluntary correction.
2.54.050 Stop work orders and notice of civil violation.
2.54.060 Notice of civil violation – Response.
2.54.070 Hearing before the hearing examiner.
2.54.110 Additional code enforcement procedures.
2.54.010 Purpose and intent.
The city council has determined that the enforcement of Blaine Municipal Code throughout the city is an important public service that serves to protect public health, safety, and quality of life. It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, occupier or other person responsible for the condition of the land and buildings within the scope of the Blaine Municipal Code. Nothing herein is intended to limit or establish a condition precedent on the city’s exercise of its authority to proceed with an action under Chapter 35.80A RCW or similar statute allowing for the condemnation of blighted property. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.020 Definitions.
A. “Abate” means to discontinue an activity, or repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation by such means, in such manner and to such extent as the applicable department director determines is necessary in the interest of the general health, safety and welfare of the community.
B. “Aggrieved party” shall mean a person whose proprietary, pecuniary, or personal rights are substantially affected by a violation of this chapter.
C. “Code enforcement officer” means any employee or agent, designated by the city community development services director or the city manager, whose duty it is to enforce codes and ordinances enacted by the city.
D. “Correct” means to abate, repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such a manner and to such extent as the enforcement officer, in his judgment, determines is necessary in the interest of the general health, safety and welfare of the community.
E. “Emergency” means a situation or violation which, in the opinion of the city community development services director, or the city building official, or city manager, or his or her designee, requires immediate action to prevent or eliminate an imminent threat to the public health, safety, or welfare of persons or property.
F. “Hearing examiner” means the Blaine hearing examiner and the office thereof established pursuant to Chapter 2.58 BMC.
G. “Incidental expenses” includes, but shall not be limited to, administrative costs, both direct and indirect, including staff time and costs incurred in documenting the violation; attorney’s and expert witness fees and costs; hauling, storage and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing.
H. “Notice of civil violation” shall mean a document which includes the final decision of a code enforcement officer, concluding that a violation has occurred, and describing the violation as well as penalties and deadlines for compliance.
I. “Omission” means a failure to act.
J. “Order” includes either a stop work order or an emergency order, and includes without limitation an order to correct or cease activity.
K. “Person” means and includes individuals, firms, partnerships, corporations, and all associations of natural persons, whether acting by themselves or by an agent or employee.
L. “Responsible party” means the property owner and/or “person” responsible for the control, use, and/or condition of the property on which a violation has been committed.
M. “Stop work order” shall mean a written order imposed by the city requiring an immediate halt to all ongoing activity identified in said written order and any other activity that is or may be in violation of the Blaine Municipal Code. A stop work order may be combined with a notice of civil violation.
N. “Order to correct or cease activity” shall mean a written order imposed by the city requiring an immediate correction identified in said written order and any other activity that is or may be in violation of the Blaine Municipal Code. An order to correct or cease activity may be combined with a notice of civil violation.
O. “Violation” means:
1. An act or omission contrary to any city regulation that promotes or protects the public health, safety, or welfare or the use and development of land or water, whether or not the regulation is codified; and/or
2. An act or omission contrary to the conditions of any permit, notice of violation, or stop work order or other order issued pursuant to any such regulation.
P. “Voluntary correction agreement” shall mean a written agreement entered into between the responsible party and the city under which the responsible party agrees to abate the condition that is a violation within a specified time and according to specified conditions. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.030 Applicability.
This chapter may be applied for the purposes of enforcing violations under the following regulations:
A. BMC Title 8, Health and Safety;
B. BMC Title 15, Buildings and Construction;
C. BMC Title 17, Land Use and Development. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.040 Voluntary correction.
A. After the code enforcement officer receives a written complaint, or visually sees the violation from a public right-of-way, the code enforcement officer will investigate and verify that there is indeed a violation present. If the code enforcement officer determines a violation exists on the property, the code enforcement officer may, but is not required to, pursue a reasonable attempt to secure voluntary correction by contacting the responsible party and explaining the violation and requesting correction.
B. In lieu of the issuance of a notice of civil violation a voluntary correction agreement may be entered into between the responsible party and the city, acting through the code enforcement officer. Once a notice of civil violation is issued, the code enforcement officer may not enter into a voluntary correction agreement. The form of the voluntary correction agreement and administrative policies related thereto may be established by the city manager or his/her designee. The code enforcement officer is authorized to execute voluntary correction agreements consistent with the provisions of this title and applicable administrative policies. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.050 Stop work orders and notice of civil violation.
A. Stop Work Orders. Whenever a continuing violation of this chapter will materially impair the code enforcement officer’s ability to secure compliance with this chapter, or when the continuing violation threatens the health or safety of the public, the code enforcement officer may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. Any violation of a stop work order is hereby declared to be a nuisance and the code enforcement officer is authorized to enjoin or abate such nuisance by any legal or equitable means as may be available. The costs, specifically including reasonable attorney and expert witness fees, for the injunction or abatement shall be recovered by the city from the responsible party in the manner provided by law.
B. When the code enforcement officer determines that a violation has occurred or is still occurring, and does not seek a voluntary correction agreement or is unable to secure a voluntary correction agreement with the responsible party, the code enforcement officer shall issue a notice of civil violation and may issue an order to correct and/or cease activity to the responsible party.
C. The notice of civil violation shall include the following:
1. The name and address of the responsible party;
2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring;
3. A description of the violation and a reference to the provision(s) of the city regulation which has been violated;
4. The required corrective action and a date and time by which the correction must be completed after which the city may abate the unlawful condition in accordance with this chapter and the hearing examiner’s decision;
5. A statement that a civil violation is a noncriminal offense for which imprisonment may not be imposed as a sanction;
6. A statement of the monetary penalty established for the violation(s). An administrative fee for the issuance of a notice of civil violation or stop work order and cost of abatement for violation(s) may be assessed against the responsible party to whom the notice of civil violation or stop work order is directed, in accordance with a fee schedule established by the city council. In addition, a maximum monetary penalty of $250.00 may be assessed against the property on a per day basis for the existence of any and all violation as listed in the notice of civil violation or stop work order, as established by the unified fee schedule;
7. A statement of the options provided in this chapter for responding to the notice and the procedures necessary to exercise these options;
8. A statement that at any hearing to contest the determination, the city has the burden of proving, by a preponderance of the evidence, that the violation was committed and that the person may subpoena witnesses including the code enforcement officer who issued the notice;
9. A statement that at any hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the violation, the person will be deemed to have committed the violation and may not subpoena witnesses;
10. A statement that the person named in the notice must respond as provided in this chapter within 15 days of issuance; and
11. A statement that failure to respond to the notice or a failure to appear at a hearing requested for the purpose of contesting the determination or for the purpose of explaining mitigating circumstances will result in a default judgment against the person in the amount of the penalty and assessments as set forth in the notice of civil violation and the city’s unified fee schedule.
D. The code enforcement officer shall serve the notice of civil violation upon the responsible party either personally or by mailing a copy of the notice of civil violation by certified or registered mail, return receipt requested, to such person at his or her last known address, or by other available mail services. If the person cannot be personally served within Whatcom County, and if an address for mailed service cannot be reasonably ascertained, a notice shall be served by posting a copy of the notice of civil violation on the violating property, as well as on the city’s website.
E. A notice of civil violation represents a determination that a violation has been committed. The determination is final unless contested as provided for in this chapter.
F. The issuance or disposition of a notice of civil violation shall not limit or preclude any other action or proceeding. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2878 § 1 (Exh. A), 2016; Ord. 2869 § 1 (Exh. A), 2015)
2.54.060 Notice of civil violation – Response.
A. Response. A person who receives a notice of civil violation shall respond to such notice as provided in this section within 15 days of the date of the notice. If the response is mailed, it must be postmarked not later than midnight of the day the response is due.
B. Uncontested Determination. If the person determined to have committed the violation does not contest the determination, the person shall respond by completing the appropriate portion of the notice of violation and submitting it, either by mail or in person, to the code enforcement officer. A check or money order in the amount of the penalty prescribed for the violation must be submitted with the response. The accounts receivable cashier may accept cash in payment for a violation. When a response that does not contest the determination is received, an appropriate order is entered into the code enforcement officer’s records.
C. Contested Determination. If the person determined to have committed the violation elects to contest the determination, the person shall respond by completing the portion of the notice of civil violation requesting a hearing and submitting it to the code enforcement officer, either by mail or in person. The code enforcement officer shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be earlier than 14 days nor more than 90 days from the date of notice of the hearing, except by a signed agreement.
D. Failure to Respond or Appear. The hearing examiner shall enter a default judgment assessing the monetary penalty and any assessments as set forth in the unified fee schedule prescribed for the violation if a person issued a notice of civil violation fails to respond or appear as provided in this section.
1. A determination that a person committed a violation does not relieve the person or responsible party of the duty to correct the violation or comply with the city code.
2. The determination that a violation has occurred as reflected in the notice of civil violation may only be challenged by contesting the notice of civil violation before the city hearing examiner.
3. Upon the entry of a default judgment, the city may abate the violation. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.070 Hearing before the hearing examiner.
A. Procedure. When timely requested by the person receiving the notice of civil violation pursuant to this chapter, the hearing examiner shall conduct a contested hearing on the violation pursuant to this section, those rules set forth in this chapter, and the hearing examiner’s rules of procedure adopted by the city council. The code enforcement officer and the responsible party may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action, if applicable, is reasonable. The determination of the code enforcement officer as to the required corrective action shall be accorded substantial weight by the hearing examiner in determining the reasonableness of the required corrective action.
B. Notice of Decision. The hearing examiner shall mail a copy of the decision to the appellant and to the code enforcement officer within 10 business days of the hearing.
C. Contested Hearing.
1. The contested hearing is a hearing held without a jury to contest the determination that a violation has been committed.
2. The hearing examiner may consider the notice of civil violation and any sworn statements submitted by the authorized representative who issued and served the notice in lieu of his or her personal appearance at the hearing. The person named in the notice may subpoena witnesses, including the authorized representative who has issued and served the notice, and has the right to present evidence and examine witnesses present in the contested hearing.
3. The burden of proof is on the city to establish the commission of the violation by a preponderance of evidence.
4. After consideration of the evidence and argument, the hearing examiner shall determine whether the violation was committed. If it has not been established that the violation was committed, an order dismissing the notice shall be entered in the hearing examiner’s records. If it has been established that a violation has been committed, an appropriate order shall be entered in the hearing examiner’s records. If the hearing examiner determines that the city has established that a violation has occurred, the hearing examiner shall determine if the required correction is reasonable and shall affirm or modify the required corrective action.
D. Civil Violation Penalties.
1. Assessment of Monetary Penalty. Monetary penalties and assessments assessed by the hearing examiner shall be in accordance with the unified fee schedule and this chapter. Each and every calendar day during any portion of which any violation of this chapter is committed, continued or permitted by any such person or responsible party shall constitute a separate offense, subjecting the person and/or responsible party to daily penalties and assessments.
a. The hearing examiner has the discretion to reduce or eliminate monetary penalties by taking into account the following mitigating factors:
i. Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;
ii. Whether the person failed to appear at the hearing;
iii. Whether the violation was a repeat violation;
iv. Whether the person showed due diligence and/or substantial progress in correcting the violation;
v. Whether a genuine code interpretation issue exists; and
vi. Any other relevant factors as determined by the hearing examiner.
2. Monetary Penalties Payable Immediately. A monetary penalty imposed by the hearing examiner under this chapter is payable immediately. If the penalty is not immediately paid, the city may proceed to collect the penalty in the same manner as other civil judgments.
3. Restitution. The hearing examiner may also order a person to have committed a violation to make restitution. The determination that a violation has occurred as reflected in the notice of civil violation may only be challenged by contesting the notice of civil violation before the city hearing examiner.
4. The responsible party shall be responsible for the direct cost to the city resulting from the fees related to the hearing examiner’s time and expenses; unless the hearing examiner determines that the cited responsible party was guiltless of all cited violations at the time of citation.
E. Failure to Appear. If the person fails to appear without prior legal excuse at the scheduled hearing, the examiner will enter an order finding that the violation occurred and assessed the appropriate monetary penalty. The city will carry out the hearing examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person.
F. Each party to a violation case is responsible for their costs incurred.
G. Appeal to Hearing Examiner. Within 15 days of service of a determination, findings of fact, and order of the enforcement officer, any party who is cited in the notice of civil violation, stop work order, order to correct, and any civil penalties attendant thereto, or other order to revoke permit or impose a civil penalty, or any person having any record title or legal interest in the building, structure, premises, personal property, or land where the violation is alleged to exist may appeal a notice of civil violation and order or order to revoke permit to the hearing examiner by filing a notice of appeal with the city community development services department. The rules of procedure related to an appeal hearing are set forth in the hearing examiner rules of practice and procedure for the city of Blaine, except as provided for herein. The city hearing examiner shall conduct a hearing on the appeal. The hearing shall be governed by the hearing examiner’s rules of practice and procedures. If no timely appeal to a hearing examiner is filed with the city clerk, a copy of the building official’s determination, findings of fact and order shall be deemed final and binding and the same may be recorded with the Whatcom County auditor.
H. Appeal to Whatcom County Superior Court. The parties to the hearing examiner appeal may appeal the hearing examiner’s final decision and order to the Whatcom County superior court under the procedures of the Land Use Petition Act, Chapter 36.70C RCW, if the final decision subject to appeal is a land use decision as defined by Chapter 36.70C RCW. In the event that Chapter 36.70C RCW does not apply, the city or the appellant may appeal the hearing examiner’s final order to superior court under the procedures of Chapter 7.16 RCW. In all such proceedings before the superior court, the appeal shall be on the record. In the event that the decision of the hearing examiner is subject to an appeal under the Shoreline Management Act, then the appeal provisions related to the appeal of shoreline permit decisions to the Shoreline Hearings Board shall apply. Section 3.21 of the hearing examiner rules of practice and procedure for the city of Blaine shall not apply to an appeal of a hearing examiner’s decision on an appeal of notice of civil violation, stop work order, order to correct, and any civil penalties attendant thereto, or other order to revoke permit or impose a civil penalty. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2878 § 1 (Exh. A), 2016; Ord. 2869 § 1 (Exh. A), 2015)
2.54.080 Abatement.
A. The city may abate a condition which was caused by or continues to be a violation when:
1. The terms of voluntary correction agreement have not been met; or
2. A notice of civil violation has been issued and a hearing has been held and the required correction has not been completed by the date specified in the hearing examiner’s order; or
3. The failure to comply with the final decision of the hearing examiner issued pursuant to this chapter; or
4. The condition is subject to summary abatement as provided for in this chapter or state law.
B. Authorized Action by the City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek such judicial process as it deems necessary to effect the removal or correction of such condition.
C. The city may use whatever means available to them including third parties to abate the violation.
D. Summary Abatement. When a violation of a regulation causes a condition, or if the property is in a condition that causes an immediate and emergent threat to the public health, safety or welfare or the environment, and requires immediate action in order to mitigate the risk it poses to public health, welfare or safety or the environment, the community development services director or an authorized representative may summarily and without prior notice abate the condition. Notice of such abatement, and the reason for it, shall be given to the responsible party for the condition or violation as soon as reasonably possible after the abatement. The costs associated with summary abatement are the responsibility of responsible party. Conditions that are considered a threat to public health and safety and must be mitigated via summary abatement include, but are not limited to, open wells, refrigerators, freezers, iceboxes, discharging of sewage, and hazardous waste.
E. Recovery of Costs and Expenses. Any person found guilty of keeping or maintaining a violation as provided in this chapter shall be liable for all costs and expenses incurred by the city of abating the same when the condition or violation has been abated by the city, or by any designee of the city.
F. Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns, or holds any interest or estate in any property, in performing any tasks necessary to correct the violation.
G. Forgo Daily Penalty. The responsible party has the option to have the city abate the violation via executing a voluntary correction agreement as provided for in this chapter. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.090 Warrants.
Whenever necessary to make an inspection to determine whether a violation has occurred or is occurring, or to enforce any provision of Blaine’s Municipal Code or regulation issued thereunder, violation of which is a civil violation under this chapter, the code enforcement officer may enter the property at any reasonable time, provided if such property is occupied the code enforcement officer shall first present credentials and request entry; and, if such property is not occupied, the code enforcement officer shall first make a reasonable effort to locate the responsible party or other person having charge of the property and demand entry. If such entry is refused, or the responsible party or other person having charge of the property cannot be located, the code enforcement officer shall have recourse to every remedy provided by law to secure entry, including recourse to the superior court of Whatcom County for issuance of a warrant authorizing such entry and inspection to the extent such warrant is authorized by state law. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.100 Lien authorized.
A. In addition to other powers given in this chapter to collect such costs and expenses, the city may put a lien against the property to recuperate monetary penalties and abatement costs owed to the city. The code enforcement officer abating the violation will document the expenses associated with abating the violation and add that to the total cost owed. Such costs include, but are not limited to, the city’s legal fees and costs, abatement expenses and incidental expenses. These costs, in addition to any monetary penalties, constitute a personal obligation to the party to whom a notice of civil violation or abatement order is issued. Any and all such monetary penalties and assessments shall further constitute a lien on the affected property. The city attorney is authorized to take all actions available to collect the monetary penalty and any assessments provided for in this chapter.
B. Payment of a monetary penalty pursuant to this chapter does not relieve the responsible party of the duty to correct the violation. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.110 Additional code enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other code enforcement provisions authorized by the Blaine Municipal Code or other applicable law or regulation. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.120 Fees.
Fees are adopted on the unified fee schedule and amended by council from time to time. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)
2.54.130 Severability.
If any one or more sections, subsections or sentences of this chapter are held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portion of this chapter and the same shall remain in full force and effect. (Ord. 2982 § 1 (Exh. A), 2022; Ord. 2869 § 1 (Exh. A), 2015)