Chapter 8.16
NUISANCES*
Sections:
8.16.020 Conditions constituting a nuisance.
8.16.050 Voluntary correction.
8.16.060 Notice of civil violation.
8.16.070 Hearing before the court.
8.16.080 Abatement by the city.
8.16.090 Abatement does not preclude action for damages.
8.16.100 Additional enforcement procedures.
8.16.110 Successive liability.
* Prior ordinance history: Ords. 493 and 543.
8.16.010 Definitions.
The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:
A. “Abate” means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such a manner and to such an extent as the enforcement officer, in his judgment, determines is necessary in the interest of the general health, safety and welfare of the community.
B. “Building materials” means and includes lumber, plumbing materials, wallboard, sheet metal, plaster, brick, cement, asphalt, concrete block, roofing material, cans of paint and similar materials.
C. “Enforcement officer” means and includes the city public works director or his/her designee, any city law enforcement officer, and the city fire chief.
D. “Premises” means any building, lot, parcel, real estate, land or portion of land whether improved or unimproved including adjacent sidewalks and parking strips.
E. “Property” means any object of value that a person may lawfully acquire and hold.
1. “Junk” means and includes all old appliances or parts thereof, all old iron or other metal, inoperable automobiles or parts thereof, grass, cardboard, old lumber, old wood and old mattresses.
2. “Litter” means and includes all other waste, paper and discarded material.
3. “Refuse” means and includes all trash, dirt, garbage, discarded food, animal and vegetable matter, cans and ashes.
4. “Weeds” means any undesired, uncultivated plants or grasses growing in a profuse or unsightly manner.
F. “Nuisance” means each of the following:
1. A nuisance is a thing, act, omission to act, occupation or use of property which:
a. Unreasonably annoys, injures or endangers the safety, health, comfort or repose of the public;
b. Is offensive to the senses;
c. Offends public decency;
d. Unlawfully interferes with, obstructs or renders dangerous for passage a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley, highway or sidewalk;
e. In any way renders other persons insecure in life or use of property;
f. Obstructs the free use of property so as to essentially interfere with the comfortable enjoyment of life and property.
2. Any violation of the city zoning code, Title 17 of the Brewster Municipal Code.
3. Any violation of the city building and construction code, Title 15 of the Brewster Municipal Code.
G. “Responsible person” or “person responsible” means any agent, lessee, owner or person occupying or having charge or control of any premises. (Ord. 798 § 1 (part), 2007)
8.16.020 Conditions constituting a nuisance.
Each of the following conditions, unless otherwise permitted by law, is declared to constitute a nuisance, and whenever the enforcement officer determines that any of these conditions exist upon any premises or in any park, lake, river, stream, drainage way or wetlands, the enforcement officer may require or provide for the abatement thereof pursuant to this chapter.
1. All decayed or unwholesome food offered for sale to the public;
2. All diseased animals running at large;
3. All ponds or pools of stagnant water;
4. The existence of hides, skins, the whole or any part of any dead animal, fish or fowl, vegetable or animal matter in any quantity, but nothing herein shall prevent the temporary retention of wastes in approved, covered receptacles;
5. Accumulation of manure or rubbish;
6. Privy vaults and garbage cans which are not flytight;
7. The pollution of any public well or cistern, stream, lake, canal or body of water by sewage, creamery, industrial wastes or other substances;
8. All noxious weeds and other rank growths upon public or private property to include, but not be limited to, poison oak, poison ivy, deadly nightshade or any toxic weed or uncultivated plant (whether growing or otherwise), weeds, tall grass or uncultivated shrubs or growth;
9. Burning or disposing of refuse, sawdust or other material in such a manner to cause or permit ashes, sawdust, soot or cinders to be left upon the streets or alleys of the city, or to cause or permit the smoke, ashes, soot, gases or noxious fumes arising from such burning to become annoying to any considerable number of persons or to injure or endanger the health, comfort or repose of said persons; this subsection shall not apply where the party responsible for the action has properly obtained a fire permit from the fire department of the city;
10. Offensive trades and businesses as defined by state statute or city ordinance;
11. All public exposure of persons having a contagious disease;
12. The use of a common public drinking cup or roller towel;
13. The distribution of samples of medicines or drugs unless such samples are placed in the hands of an adult person;
14. The insufficient covering and sealing of unused wells;
15. All acts, omissions of acts, occupations and uses of property which are deemed by the enforcement officer to be a menace to the health of the inhabitants of this city, or any considerable number thereof;
16. All snow and ice not removed from public sidewalks by the owner or occupant of the abutting property in a reasonable time, which shall be within twenty-four hours after snow has ceased to be deposited thereon in commercial zones and within forty-eight hours after snow has ceased to be deposited thereon in residential zones. Snow shall not be pushed within five feet of fire hydrants, nor piled atop water meter lids. Snow removed from sidewalks shall not be placed in public streets or alleyways. All persons who occupy or own the residential or commercial properties abutting a public sidewalk shall be responsible for keeping the public sidewalk abutting such property cleared. Sidewalks shall be considered cleared if the shoveled path extends the full width of the sidewalk and the length of the abutting property;
17. All trees, hedges, billboards, fences or other obstructions which prevent persons from having a clear view of traffic approaching an intersection from cross streets in sufficient time to bring a motor vehicle driven at a reasonable speed to a full stop before the intersection is reached;
18. All limbs of trees which are less than eight feet above the surface of any public sidewalk, or twelve feet above the surface of any street. In addition to the foregoing it constitutes a nuisance for anyone to fail to maintain landscaping, including, but not limited to, lawns, shrubs, trees and other plantings, whether of native growth or domestic vegetation, in commercial, manufacturing, industrial or residential areas of the city;
19. The existence of any dead, diseased, infested or dying tree that may constitute a danger to street trees, streets or portions thereof;
20. The existence of any tree, shrub or foliage, unless by consent of the city, which is apt to destroy, impair, interfere or restrict:
a. Streets, sidewalks, sewers, utilities or other public improvements;
b. Visibility on, free use of, or access to such improvements;
21. The existence of any vines or climbing plants growing into or over any street tree, or any public hydrant, pole, or the existence of any shrub, vine or plant growing on, around or in front of any hydrant, stand-pipe, sprinkler system connection or any other appliance or facility provided for fire protection purposes in such a way as to obscure the view thereof or impair the access thereto;
22. All buildings, walls and other structures which have been damaged by fire, decay or otherwise so as to endanger the safety of the public. Any unsightly and dangerous building, billboard or other structure, or old abandoned or partially destroyed building or structure, or any building or structure commenced and left unfinished. All unoccupied buildings which have not been securely closed against entry by those having no interest in said property;
23. All explosives, inflammable liquids and other dangerous substances stored in any manner or in any amount other than that provided by state or federal law or city ordinance;
24. The existence of any accumulation of materials or objects in a location or in a manner which endangers property or safety or constitutes a fire hazard;
25. Obstructions and excavations affecting the ordinary use by the public of streets, alleys, sidewalks or public grounds except under such conditions as are provided by ordinance;
26. Any use of property abutting on a public street or sidewalk or any use of a public street or sidewalk which causes large crowds of people to gather, obstructing traffic and the free use of the streets or sidewalks;
27. All hanging signs, awnings and other similar structures over the streets or sidewalks, or so situated as to endanger public safety, not constructed and maintained as provided by ordinance;
28. The keeping or harboring of any dog or other animal which by frequent or habitual howling, yelping, barking or the making of other noises, or the keeping or harboring of any fowl which by frequent habitual crowing or the making of other noises shall annoy or disturb a neighborhood or any considerable number of persons; provided, that a violation of this subsection shall not be established except upon the testimony of not less than three witnesses as to the facts constituting the nuisance;
29. The keeping of any animals, insects or reptiles on any premises which animals, insects or reptiles would pose a threat of damage to property or injury to persons or would otherwise cause detriment to the health, safety and welfare of neighboring persons and properties;
30. All conditions or things which present an unreasonable danger of injury to persons or property;
31. All places used or maintained as a junkyard, or dumping grounds, or for the wrecking of automobiles, trucks, tractors or machinery of any kind, or for the storing or leaving of worn out, wrecked, stripped or abandoned automobiles, trucks or other machinery of any kind, or of any of the parts thereof or the existence of any unused and abandoned trailer, house trailer, boat or other vehicle or major parts thereof;
32. The keeping, using and maintaining of any pen, stable, lot, place or premises in which any hog, cattle, horse or fowls may be confined or kept;
33. Repealed by Ord. 827;
34. Repealed by Ord. 827;
35. Repealed by Ord. 827;
36. Any fighting between persons or animals or birds conducted on any premises or at any location;
37. Repealed by Ord. 827;
38. All barbed wire fences which are located within three feet of any public sidewalk, and any fence charged with electricity in any amount whatsoever;
39. Riding or leading horses upon the sidewalks or parking strips anywhere within the city limits;
40. The conducting of repairs to, or the abandonment of, an automobile, truck or other motor vehicle of any kind upon the public streets or alleys of the city;
41. The dumping, throwing, placing, leaving or causing to be permitted or dumped, thrown, placed or left, any filth, paper, cans, glass, rubbish, trash, garbage, grass trimmings and shrubbery of any kind in or upon any street, alley, sidewalk, ditch or private property of another in the city;
42. Any accumulation of garbage, refuse, or debris allowed to remain in any place in the city;
43. The permitting to remain outside any dwelling, building or other structure, or within any unoccupied or abandoned building, dwelling or other structure, in a place accessible to children, an abandoned, unattended or discarded icebox, refrigerator or other container, which has an airtight door or lid, snap lock or automatic locking device, which may not be released from the inside, without first removing said door or lid, snap lock or other locking device;
44. The permitting of any unused well, cistern or storage tank to remain on any real property without first demolishing or removing from the city such storage tank or securely closing and barring any entrance or trap door thereto, or without filling any well or cistern, and capping the same without sufficient security;
45. The existence of any drainage onto or over any sidewalk, street or public right-of-way;
46. Construction, expansion or remodeling until such permit shall have been issued or any violation of the building and construction codes of the city set forth in Title 15 of this code;
47. The existence of any violation of shoreline use regulation;
48. The existence of any violation of zoning or land use restriction or the provisions set forth in Title 17 of this code;
49. All disorderly houses, houses of ill fame, houses of prostitution or bawdy houses kept or resorted to for the purpose of prostitution or for the resort of lewd people, and all houses, rooms, booths or other structures used as a place of resort where women are employed to draw customers, dance, or for the purpose of prostitution or in which women practice or carry on the business of prostitution;
50. Any house or place where drunkenness, gambling, fighting or breaches of the peace are carried on or permitted;
51. Any building, room or rooms, place or places in the city, kept or maintained, in which intoxicating liquors are sold or given away contrary to law, or in which such liquors are kept or harbored for the evident purpose of selling or giving away the same contrary to law; or where persons are permitted to resort for the purpose of drinking illegal intoxicating liquors, or where intoxicating liquors are kept for the purpose of inducing people to resort, to buy, or receive intoxicating liquors in violation of the law;
52. The outside storage of materials and supplies, including new and used equipment. “Outside” means visible to the public from a neighboring property or from any public right-of-way, including all streets and alleys;
53. It shall be a nuisance for any person, firm or corporation to play or permit to be played in any place in the city any musical instrument, radio, television or any sound-reproducing device, the noise of which shall unreasonably disturb or interfere with the peace, comfort and repose of others. For purposes of this subsection, any noise emitted by the musical instrument, radio, television or sound-reproducing device that may be heard more than one hundred feet from the place of origin of the noise shall be deemed to be noise that unreasonably disturbs or interferes with the peace, comfort and repose of others. (Ord. 827 § 2, 2010; Ord. 804 § 1, 2008; Ord. 798 § 1 (part), 2007)
8.16.030 Exempted acts.
This chapter shall not apply to the United States, the state of Washington, Okanogan County, the city of Brewster, or any of their respective officers, employees or contractors when engaged in snow removal, street cleaning, emergency repair to any street, building or structure, fire suppression, providing law enforcement services, or any other emergency for the preservation of life or property. (Ord. 798 § 1 (part), 2007)
8.16.040 Variance.
A. The city council may, upon written application filed with the city clerk, grant a variance from any of the provisions of this chapter and authorize the issuance of a special permit for any activity when it finds that such variance is in the public interest or when it finds the activity will have substantial public participation.
B. A variance shall be granted only after approval by the city council.
C. Any variance granted and any special permit issued thereunder shall state the nature of the activity and the date, times and place for which the variance is granted, and shall state any special provisions or limitations applicable to exercise the variance.
D. Upon the granting of a variance the enforcement officer shall issue a special permit to the applicant to conduct the activity for which a variance has been granted.
E. Any activity conducted under a variance and special permit shall conform strictly to the terms and provisions of the variance and special permit. (Ord. 798 § 1 (part), 2007)
8.16.050 Voluntary correction.
A. This section applies whenever the enforcement officer determines that a nuisance is occurring.
B. The enforcement officer shall pursue a reasonable attempt to secure voluntary correction by contacting the person responsible for the nuisance where possible, explaining the nuisance, and requesting the correction.
C. A voluntary correction agreement may be entered into between the person responsible for the nuisance and the city, acting through the enforcement officer.
1. The voluntary correction agreement is a contract between the city and the person responsible for the nuisance under which such person agrees to abate the nuisance within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:
a. The name and address of the person responsible for the nuisance;
b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance is occurring;
c. A description of the nuisance;
d. The necessary corrective action to be taken, and a date or time by which correction must be completed;
e. An agreement by the person responsible for the nuisance that the city may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement;
f. An agreement by the person responsible for the nuisance that the city may abate the nuisance and recover its costs and expenses and a monetary penalty pursuant to this chapter from the person responsible for the nuisance if terms of the voluntary correction agreement are not met; and
g. An agreement that by entering into the voluntary correction agreement the person responsible for the nuisance waives the right to an appeal of the nuisance and/or the required corrective action.
2. The person responsible for the nuisance waives the right to an appeal of the nuisance and the required corrective action upon entering into a voluntary correction agreement.
3. The city shall have the right to inspect the subject property to determine compliance with the terms of the voluntary correction agreement.
4. An extension of the time limit for correction or a modification of the required corrective action may be granted by the enforcement officer if the person responsible for the nuisance has shown due diligence and/or substantial progress in abating the nuisance but unforeseen circumstances render abatement under the original conditions unattainable.
5. The city may abate the nuisance in accordance with Section 8.16.080 if the terms of the voluntary correction agreement are not met.
6. If the terms of the voluntary correction agreement are not met, the person responsible for the nuisance shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with Section 8.16.060, plus all costs and expenses of abatement as set forth in Section 8.16.080. (Ord. 798 § 1 (part), 2007)
8.16.060 Notice of civil violation.
A. When the enforcement officer determines that a nuisance has occurred, or is occurring, and is unable to secure voluntary correction, pursuant to Section 8.16.050, the enforcement officer may issue a notice of civil violation to the person responsible for the nuisance. The enforcement officer may issue a notice of civil violation without having attempted to secure voluntary correction as provided in Section 8.16.050 under the following circumstances:
1. When an emergency exists; or
2. When a repeat violation occurs; or
3. When the violation creates a situation or condition which cannot be corrected; or
4. When the person knows or reasonably should have known that a nuisance is occurring; or
5. When the person cannot be contacted or refuses to communicate or cooperate with the city in correcting the violation.
B. The notice of the civil violation shall include the following:
1. The name and address of the person responsible for the nuisance; and
2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance is occurring; and
3. A description of the nuisance; and
4. The required corrective action and a date and time by which the correction must be completed after which the city may abate the nuisance in accordance with Section 8.16.080; and
5. The date, time and location of an appeal hearing before the Brewster municipal court shall be scheduled not less than ten calendar days and not more than forty calendar days from the date the notice of abatement is issued; and
6. A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the enforcement officer approves the completed required corrective action at least forty-eight hours prior to the hearing; and
7. A statement that the costs and expenses of abatement incurred by the city pursuant to Section 8.16.080(D) and a monetary penalty as specified in subsection E of this section may be assessed against the person to whom the notice of civil violation is issued as specified and ordered by the Brewster municipal court.
C. The enforcement officer shall serve the notice of civil violation upon the person to whom it is issued, either personally or by mailing, certified, return receipt requested, a copy of the notice of abatement to such person at his/her last known address. If the person to whom the notice is issued cannot after due diligence be personally served within Okanogan County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of abatement conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail.
D. No extension of the time specified in the notice of civil violation for correction of the nuisance may be granted, except by order of the Brewster municipal court.
E. The monetary penalty for each day the nuisance is permitted to continue or portion thereof shall be as follows:
1. First day, one hundred dollars;
2. Second day, two hundred dollars;
3. Third day, three hundred dollars;
4. Fourth day, four hundred dollars;
5. Each additional day beyond four days, five hundred dollars per day.
F. Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil violation was issued of the duty to abate and correct the nuisance.
G. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is issued. Any monetary penalty assessed must be paid to the city within ten calendar days from the date of mailing of the Brewster municipal court’s decision and order or a notice from the city that penalties are due. The city attorney or his/her designee is authorized to take appropriate action to collect the monetary penalty, plus reasonable attorneys’ fees and costs incurred in collecting said monetary penalty, which attorneys’ fees and costs of collection shall be an additional part of the monetary civil penalty ordered to be paid by the Brewster municipal court. (Ord. 798 § 1 (part), 2007)
8.16.070 Hearing before the court.
A. Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the Brewster municipal court not less than ten calendar days nor more than thirty calendar days after the notice of civil violation is issued. Continuances may be granted at the discretion of the court for good cause shown.
B. Prior Correction of Violation. The hearing will be canceled and no monetary penalty will be assessed if the enforcement officer approves the completed required corrective action prior to the scheduled hearing.
C. Procedure. The court shall conduct a hearing on the civil violation pursuant to the current applicable rules of civil procedure for the Brewster municipal court. The enforcement officer and the person to whom the notice of civil violation was directed 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 is reasonable under the circumstances. The determination of the enforcement officer as to the need for the required corrective action shall be accorded substantial weight by the court in determining the reasonableness of the required corrective action.
D. Decision of the Court.
1. The court shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable under the circumstances, and shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.
2. The court shall issue an order to the person responsible for the violation which contains the following information:
a. The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;
b. The required corrective action;
c. The date and time by which the correction must be completed;
d. The monetary penalties assessed based on the criteria in subsection (D)(3) of this section;
e. The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.
3. Assessment of Monetary Penalty. Monetary penalties assessed by the court shall be in accordance with the monetary penalties in Section 8.16.060(E).
a. The court shall have the following options in assessing monetary penalties:
i. Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or
ii. Assess monetary penalties beginning on the correction date set by the enforcement officer or an alternate correction date set by the court and thereafter; or
iii. Assess less than the established monetary penalty set forth in Section 8.16.060(E) based on the criteria of subsection (D)(3)(b) of this section; or
iv. Assess no monetary penalties.
b. In determining the monetary penalty assessment, the court shall consider the following factors:
i. Whether the person responded to the enforcement officer’s attempts to contact the person, and cooperated 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; and
v. Any other relevant factors.
E. Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear without lawful excuse at the scheduled hearing, the court shall enter an order with findings pursuant to subsection (D)(2) of this section and assess the appropriate monetary penalty pursuant to subsection (D)(3) of this section.
The city may enforce the court’s order and recover all related expenses incurred by the city, including attorneys’ fees, costs of the hearing and any monetary penalty from that person which shall collectively all be considered monetary penalties ordered to be paid by the Brewster municipal court.
F. Appeal to Superior Court. Any appeal of the decision of the Brewster municipal court shall be pursuant to the then-current rules for appeal of matters from the Brewster municipal court to the Okanogan County superior court. (Ord. 798 § 1 (part), 2007)
8.16.080 Abatement by the city.
A. Abatement. The city may abate a nuisance when:
1. The terms of a voluntary correction agreement pursuant to Section 8.16.050 have not been met; or
2. A notice of civil violation has been issued pursuant to Section 8.16.060 and a decision and order has been issued pursuant to Section 8.16.070 and the required correction has not been completed by the date specified in the decision and order; or
3. The condition is subject to summary abatement as provided for in subsection B of this section.
B. Summary Abatement. Whenever a nuisance is occurring which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the nuisance as soon as reasonably possible after the abatement.
C. Authorized Action by 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.
D. Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the city within ten calendar days following the billing. The term “incidental expenses” includes but is not limited to:
1. Personnel costs, both direct and indirect, including attorneys’ fees and costs;
2. Costs incurred in documenting the violation;
3. Hauling, storage and disposal expenses;
4. Actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and
5. The costs of any required printing or mailing. (Ord. 798 § 1 (part), 2007)
8.16.090 Abatement does not preclude action for damages.
The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. (Ord. 798 § 1 (part), 2007)
8.16.100 Additional enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other enforcement alternatives authorized by the Brewster Municipal Code or state law. (Ord. 798 § 1 (part), 2007)
8.16.110 Successive liability.
Every successive owner, occupant or caretaker of property who neglects to abate a continuing nuisance upon or in the use of such property, caused by a former owner, occupant or caretaker, is liable therefor in the same manner as the one who first created it. (Ord. 798 § 1 (part), 2007)
8.16.120 Conflicts.
In the event of a conflict between this chapter and any other provision of the Brewster Municipal Code or other city ordinance providing for a civil penalty, the terms of this chapter shall control. (Ord. 798 § 1 (part), 2007)