Chapter 9.92
CHRONIC NUISANCE PROPERTIES
Sections:
9.92.050 COMMENCEMENT OF ACTION - ENFORCEMENT.
9.92.010 PURPOSE.
(a) Chronic nuisance properties present grave health, safety and welfare concerns, where the persons responsible for such properties have failed to take corrective action to abate the nuisance condition. Chronic nuisance properties have a tremendous negative impact upon the quality of life, safety and health of the neighborhoods where they are located. This chapter is enacted to remedy nuisance activities that are particularly disruptive to quality of life and repeatedly occur or exist at properties by providing a process for abatement. This remedy is not an exclusive remedy available under any state or local laws and may be used in conjunction with such other laws.
(b) Also, chronic nuisance properties are a financial burden to the City by the repeated calls for service to the properties because of the nuisance activities that repeatedly occur or exist on such property. This chapter is a means to ameliorate those conditions and hold accountable those persons responsible for such property. (Ord. 5325 §1 (part), 2017: Ord. 5039 §1 (part), 2008)
9.92.020 DEFINITIONS.
For purposes of this chapter, the following words or phrases shall have the meaning prescribed below:
(a) "Abate" means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable City department director or designee(s) determines is necessary in the interest of the general health, safety and welfare of the community;
(b) "Control" means the ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on a property;
(c) "Chronic nuisance property" means:
(1) Property that, within any one hundred twenty (120) day period, has three (3) or more nuisance activities; or
(2) Property that, within any three hundred sixty-five (365) day period, has six (6) or more nuisance activities.
(d) "Nuisance activity" means any nuisance that occurs or exists upon a property, or if specified in this section, occurs or exists within two hundred (200) feet of a property. To be considered a nuisance activity within two hundred (200) feet of the property, the nuisance activity must involve the person in control of the property and/or any person associated with the person in control of the property. A person is associated with the person in control of the property if he or she is a guest or invitee of the person in control of the property.
Nuisance activity includes:
(1) Any violation of the following laws and regulations occurring or existing on a property:
(i) Fire code, Chapter 18.02 BMC;
(ii) Multi-family requirements, Chapter 18.03 BMC;
(iii) Building code, Chapter 17.04 BMC, insofar as it relates to the minimum standards of a dwelling unit and habitable spaces.
(2) Any violation of the following laws and regulations occurring or existing on or within two hundred (200) feet of a property:
(i) Health and Sanitation, BMC Title 6.
(3) Criminal conduct occurring or existing on or within two hundred (200) feet of a property as follows:
(i) Most serious offenses, serious violent offenses, and violent offenses, as defined in RCW 9.94A.030;
(ii) Burglary and trespass, as defined in Chapter 9A.52 RCW;
(iii) Theft of a motor vehicle or mail, or possession of a stolen motor vehicle or stolen mail, as defined in Chapter 9A.56 RCW;
(iv) Stalking, as defined in RCW 9A.46.110;
(v) Harassment, as defined in RCW 9A.46.020;
(vi) Failure to disperse, as defined in RCW 9A.84.020;
(vii) Disorderly conduct, as defined in RCW 9A.84.030;
(viii) Any level or type of assault, as defined in Chapter 9A.36 RCW;
(ix) Any domestic violence crime, as defined in RCW 10.99.020;
(x) Reckless endangerment, as defined in RCW 9A.36.050;
(xi) Prostitution-related crimes, as defined in Chapter 9.24 BMC;
(xii) Indecent exposure, as defined in RCW 9A.88.010;
(xiii) Any firearms/dangerous weapons violation, as defined in BMC 9A.24.010 through 9A.24.220 and Chapter 9.41 RCW;
(xiv) Drug-related loitering, as defined in BMC 9.89.010;
(xv) Any dangerous animal violation, as defined in BMC 7.12.040;
(xvi) Any drug-related activity, which means the manufacture, delivery, sale, storage, possession, or giving away of any controlled substance as defined in Chapter 69.50 RCW, legend drug as defined in Chapter 69.41 RCW, or imitation controlled substance as defined in Chapter 69.52 RCW; and
(xvii) Any arrest pursuant to a warrant of arrest, where the person in control of the property had prior knowledge of the arrestee’s warrant.
(4) For purposes of this chapter, "nuisance activity" shall not include conduct where the person responsible is the victim of a crime and had no control over the criminal act.
(e) "Person" means natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them;
(f) "Person responsible for property" or "person responsible" means, unless otherwise defined, any person who has titled ownership of the property or structure which is subject to this chapter; an occupant in control of the property or structure which is subject to this chapter; a developer, builder, or business operator or owner who is developing, building, or operating a business on the property or in a structure which is subject to this chapter; and/or any person who has control over the property and allows a violation of this chapter to continue;
(g) "Premises" and "property" may be used by this chapter interchangeably and means any property, including land and that which is affixed, incidental or appurtenant to land, including but not limited to any business or residence, grounds, vacant lots, facilities, parking area, loading area, landscaping, building or structure or any separate part, unit or portion thereof, or any business equipment, whether or not permanent. (Ord. 5325 §1 (part), 2017: Ord. 5154 §1, 2011: Ord. 5039 §1 (part), 2008)
9.92.030 VIOLATION.
(a) Any property within the City of Bremerton which is a chronic nuisance property is in violation of this chapter and subject to its remedies; and
(b) Any person responsible for property who permits property to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies. (Ord. 5325 §1 (part), 2017: Ord. 5039 §1 (part), 2008)
9.92.040 PROCEDURE.
(a) When the Chief of Police, or his/her designee(s) (hereinafter "Chief"), receives documentation confirming the occurrence of three (3) or more nuisance activities within a one hundred twenty (120) day period or six (6) or more nuisance activities within a three hundred sixty-five (365) day period on or near any property, the Chief may review such documentation to determine whether it describes the nuisance activities enumerated in BMC 9.92.020. Upon such a finding, the Chief shall warn the person responsible for such property, in writing, that the property is in danger of being declared a chronic nuisance property.
(b) The warning shall contain:
(1) The street address or a legal description sufficient for identification of the property;
(2) A concise description of the nuisance activities that exist, or that have occurred on the property;
(3) A demand that the person responsible for such property respond to the Chief within ten (10) days of service of the warning to create a plan for abatement pursuant to subsection (e) of this section; and
(4) A statement explaining that if legal action is sought and the property is declared a chronic nuisance, the property could be subject to closure; civil penalties could be assessed, up to one hundred dollars ($100.00) per day from the date of the warning; and/or the City’s costs could be assessed against all persons responsible for the property.
(c) The Chief shall serve or cause to be served such warning in accordance with the procedures set forth in BMC 1.04.040(e) and (f).
(d) If the person responsible fails to respond to the warning within the time prescribed, the Chief may issue a notice declaring the property to be a chronic nuisance property and post such notice at the property. The Chief shall then refer the matter to the City Attorney for further action.
(e) If the person responsible responds as required by the warning and agrees to abate the nuisance activity, the Chief and the person responsible will work out an agreed action plan to abate the nuisance activity within a reasonable amount of time. If the action plan does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the Chief may issue and post a notice as set forth in subsection (d) of this section, and the matter shall be forwarded to the City Attorney for enforcement action. Provided, that in the event the Chief or the City Attorney determines that the person responsible has taken reasonable steps to abate the nuisance activity, the City Attorney shall not commence an enforcement action under this chapter, notwithstanding the continuance of the nuisance activity.
(f) Regardless of whether the nuisance activities are discontinued pursuant to a warning or action plan, the Chief may refer the matter to the City Attorney for enforcement if, within six (6) months of service of the warning as set forth in this section, the Chief receives additional documentation of the occurrence or existence of a nuisance activity as defined in BMC 9.92.020(d).
(g) It is a defense to an action for chronic nuisance that the person responsible, at all material times, could not, in the exercise of reasonable care or diligence, determine that the property had become a chronic nuisance property, or could not, in spite of the exercise of reasonable care and diligence, control the conduct leading to the determination that the property is a chronic nuisance property. (Ord. 5325 §1 (part), 2017: Ord. 5039 §1 (part), 2008)
9.92.050 COMMENCEMENT OF ACTION - ENFORCEMENT.
(a) Upon referral pursuant to BMC 9.92.040, the City Attorney may initiate an action in any court of competent jurisdiction to abate a chronic nuisance property, to impose penalties pursuant to this chapter, to seek alternative remedies under City or state laws, and to seek any other relief authorized by law.
(b) In determining whether a property shall be deemed a chronic nuisance property and subject to the court's jurisdiction, the City shall have the initial burden of proving by a preponderance of evidence that the property is a chronic nuisance property. The City may submit official police reports, reports of other City departments, and other affidavits outlining the information that led to arrest(s), and other chronic nuisance activity. The failure to prosecute an individual or the fact no one has been convicted of a crime is not a defense to a chronic nuisance action.
(c) Once a court determines the property to be a chronic nuisance under this chapter, the court may impose a civil penalty against any or all of the persons responsible for the property, and may order any other relief deemed appropriate. A civil penalty may be assessed for up to one hundred dollars ($100.00) per day for each day the nuisance activity continues to occur following the date of the original warning by the Chief, as described in BMC 9.92.040. In assessing the civil penalty, the court may consider the following factors, citing to those found applicable:
(1) The actions taken by the person responsible to mitigate or correct the nuisance activity;
(2) The repeated or continuous nature of the nuisance activity;
(3) The statements of the neighbors or those affected by the nuisance activity; and
(4) Any other factor deemed relevant by the court.
(d) The court which determines the property to be a chronic nuisance property may also assess costs against the person responsible in the amount it costs the City to abate, and/or attempt to abate, the nuisance activity.
(e) If the court determines the property to be a chronic nuisance property, the court may order the property closed and secured against all unauthorized access, use and occupancy for a period up to one (1) year; may make any order that will reasonably abate nuisance activities; may authorize the City to take reasonable action to abate and prevent further nuisance activities; may order that the Chief shall have the right to inspect the property to determine whether the court’s orders have been complied with; and may impose a civil penalty and costs.
(f) Once a determination has been made by the court that the chronic nuisance property shall be subject to closure the court may authorize the City to physically secure the premises and initiate such closure. Costs for such closure, or any other court-authorized abatement activity by the City, shall be submitted to the court for review. Any civil penalty and/or costs awarded to the City may be filed with the City Treasurer who may cause the same to be filed as a lien on the property with the county treasurer. The City shall file a formal lis pendens notice when an action for abatement is filed in the court.
(g) The court may retain jurisdiction during any period of closure or abatement of the property. (Ord. 5325 §1 (part), 2017: Ord. 5039 §1 (part), 2008)
9.92.060 SUMMARY CLOSURE.
Nothing in this chapter prohibits the City from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public welfare and safety. The City may take summary action to close the property without complying with the notification provisions of BMC 9.92.040, but shall provide such notice as is reasonable under the circumstances. (Ord. 5325 §1 (part), 2017: Ord. 5039 §1 (part), 2008)
9.92.070 SEVERABILITY.
If any portion of this chapter, or its application to any person or circumstances, is held invalid, the validity of the chapter as a whole, or any other portion thereof, or the application of the provision to other persons or circumstances is not affected. (Ord. 5325 §1 (part), 2017: Ord. 5039 §1 (part), 2008)