Chapter 14.13
ENFORCEMENT AND PENALTIES
Sections:
14.13.020 Compliance required.
14.13.040 Enforcing official liability.
14.13.060 Responsibilities defined.
14.13.070 Voluntary correction agreements.
14.13.080 Notice of violation and order.
14.13.085 Hearing before hearing examiner – Procedures.
14.13.090 Violation – Civil enforcement and penalties.
14.13.100 Repealed.
14.13.110 Approval revocation, suspension and modification.
14.13.010 Purpose.
The purpose of this chapter is to ensure compliance, abate noncompliance and punish violations of applicable titles of the CMC, including without limitation CMC Titles 14 through 18. The provisions of this chapter may also be used to supplement enforcement actions described within the Cashmere Municipal Code, and shall be applied and interpreted to accomplish this purpose. (Ord. 973 § 1, 2000).
14.13.020 Compliance required.
A. No person, corporation, partnership, association or other legal entity shall fail or refuse to comply with, or interfere with or resist the enforcement of, the provisions of CMC Titles 15 through 18 and/or any condition of approval imposed by the Cashmere city council, planning commission, hearing examiner or city administrator, or a land use order, directive or decision or a city official. Any such act or failure to act shall constitute a violation under this chapter.
B. Actions under this chapter may be taken in any order deemed necessary or desirable by the city to achieve the purpose of this chapter and the development code.
C. Proof of a violation of a development permit or approval shall constitute prima facie evidence that the violation is that of the applicant and/or owner of the property upon which the violation exists. An enforcement action under this chapter shall not relieve or prevent enforcement against any other responsible person. (Ord. 973 § 1, 2000).
14.13.030 Enforcing official.
The city administrator shall be responsible for enforcing CMC Titles 14 through 18 and may adopt administrative rules to meet that responsibility. The city administrator may delegate enforcement responsibility as appropriate. (Ord. 973 § 1, 2000).
14.13.040 Enforcing official liability.
The city administrator charged with the enforcement of this chapter, acting in good faith and without malice in the discharge of the duties required by this title or other applicable laws, shall not thereby be rendered personally liable for damages that may accrue to persons or property as a result of an act or by reason of an act or omission in the discharge of such duties. A suit brought against the city administrator or designee because of such act or omission performed by the administrator or designee in the enforcement of any provision of such codes or other pertinent laws or regulations implemented through the enforcement of this chapter shall be defended by the city until final termination of such proceedings, and any judgment resulting therefrom shall be assumed by the City. (Ord. 973 § 1, 2000).
14.13.050 Right of entry.
When it is necessary to make an inspection to enforce the provisions of this chapter, or when the city administrator has reasonable cause to believe that there exists in a building or upon a premises a condition which is contrary to or in violation of the CMC which makes the building or premises unsafe, dangerous or hazardous, the city administrator may enter the building or premises at reasonable times to inspect or to perform the duties imposed by this chapter; provided, that if such building or premises be occupied that credentials be presented to the occupant and entry requested. If such building or premises be unoccupied, the city administrator shall first make a reasonable effort to locate the owner or other person having charge or control of the building or premises and request entry. If entry is refused, the city administrator shall have recourse to the remedies provided by law to secure entry. (Ord. 973 § 1, 2000).
14.13.060 Responsibilities defined.
Owners remain liable for violations of duties imposed by the CMC, even though an obligation is also imposed on the occupants of the building and/or premises, and even though the owner has, by agreement, imposed on the occupant the duty of complying with all or portions of the CMC. (Ord. 973 § 1, 2000).
14.13.070 Voluntary correction agreements.
A. The city administrator, prior to filing any notice of violation and order, may enter into a voluntary correction agreement with a person responsible for correcting the condition, which may be the owner, agent or occupant.
B. Any such voluntary correction agreement shall be a contract between the city and the person responsible for the violation, and shall follow a form to be approved by the city attorney. It shall be entirely voluntary and no one shall be required to enter into such an agreement.
C. The voluntary correction agreement shall include the following:
1. The name and address of the person responsible for the violation;
2. The street address or a description sufficient for identification of the building, structure, or property, upon or within which the violation is occurring;
3. A description of the violation;
4. The necessary corrective action to be taken, and a date or time by which correction must be completed;
5. An agreement by the person responsible for the violation that the city may inspect the subject property as may be necessary to determine compliance with the voluntary correction agreement;
6. An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses, including attorneys fees, and a monetary penalty pursuant to this chapter from the person responsible for the violation if terms of the voluntary correction agreement are not met; and
7. An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to an appeal of the violation and/or the required corrective action.
D. The person responsible for the violation waives the right to an appeal of the violation and the required corrective action upon entering into a voluntary correction agreement.
E. The city shall have the right to inspect the subject property to determine compliance with the terms of the voluntary correction agreement.
F. An extension of the time limit for correction or a modification of the required corrective action may be granted by the city administrator or enforcement officer if the person responsible for the violation has shown due diligence and/or substantial progress in abating the violation but unforeseen circumstances render abatement under the original conditions unattainable.
G. The city may abate the violation in accordance with CMC 14.13.095 if the terms of the voluntary correction agreement are not met.
H. If the terms of the voluntary correction agreement are not met the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with CMC 14.13.080(E), plus all costs and expenses of abatement, as set forth in CMC 14.13.095. (Ord. 1238 § 1, 2014; Ord. 973 § 1, 2000).
14.13.080 Notice of violation and order.
A. Upon the city administrator’s determination that a violation has been committed, except as provided for in CMC 14.13.070, Voluntary correction agreements, the enforcing official shall issue a notice of violation and order.
B. The notice of violation and order shall, at a minimum, contain the following:
1. The name and address of each property owner of record, and any other person the city has determined is responsible for correcting the violation(s);
2. The street address or a legal description sufficient for identification of the property;
3. The assessor tax parcel number(s) of the property;
4. A description of each violation;
5. An order that the use, acts or omissions which constitute the violation(s) must cease;
6. A statement of the corrective action required for each violation, with the date by which such action must be completed;
7. A warning: “the failure or refusal to complete the corrective action by the date required will result in enforcement action and civil penalties as provided in CMC Chapter 14.13”;
8. The date, time and location of an appeal hearing before the city hearing examiner, which shall be scheduled to occur not less than 10 calendar days and not more than 30 calendar days from the date the notice of violation and order is issued;
9. A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the city administrator approves the completed, required corrective action at least 48 hours prior to the hearing; and
10. A statement that the costs and expenses of abatement incurred by the city pursuant to CMC 14.13.095 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 hearing examiner.
C. The notice of violation and order shall be served upon those persons identified in subsection (B)(1) of this section. Service of the notice of violation and order shall be by personal service or by both regular first class mail and certified mail, return receipt requested, addressed to each person’s last known address. If the person to whom the notice is issued cannot after due diligence be personally served within Chelan 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 violation 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 violation for correction of the violation may be granted, except by order of the hearing examiner.
E. The monetary penalty for each day the violation is permitted to continue or portion thereof shall be as follows:
1. First day: $100.00;
2. Second day: $200.00;
3. Third day: $300.00;
4. Fourth day: $400.00;
5. Each additional day beyond four days: $500.00 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 violation.
G. The monetary penalty constitutes a personal obligation of the person to whom the notice of violation is issued. Any monetary penalty assessed must be paid to the city within 10 calendar days from the date of mailing of the hearing examiner’s decision and order or a notice from the city that penalties are due. The city attorney may take, or cause to be taken, whatever appropriate action he or she deems necessary 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 hearing examiner. (Ord. 1238 § 2, 2014; Ord. 1182 § 1, 2011; Ord. 1171 § 1, 2010; Ord. 973 § 1, 2000).
14.13.085 Hearing before hearing examiner – Procedures.
A. Notice. A person to whom a notice of violation is issued will be scheduled to appear before the city hearing examiner not less than 10 calendar days nor more than 30 calendar days after the notice of violation is issued. Continuances may be granted at the discretion of the hearing examiner for good cause shown.
B. Prior Correction of Violation. The hearing will be canceled and no monetary penalty will be assessed if the city administrator approves the completed required corrective action prior to the scheduled hearing.
C. Procedure. The hearing examiner shall conduct a hearing on the violation pursuant to the current applicable rules of proceeding before the hearing examiner. The city administrator and the person to whom the notice of 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 city administrator as to the need for the required corrective action shall be accorded substantial weight by the hearing examiner in determining the reasonableness of the required corrective action.
D. Decision of the Hearing Examiner.
1. The hearing examiner 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 hearing examiner 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 corrective action must be completed;
d. The monetary penalties assessed based on the criteria in subsection (D)(3)(b) of this section; and
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 hearing examiner shall be in accordance with the monetary penalties in CMC 14.13.080(E).
a. The hearing examiner shall have the following options in assessing monetary penalties:
i. Assess monetary penalties beginning on the date the notice of violation was issued and thereafter; or
ii. Assess monetary penalties beginning on the corrective action date set by the city administrator or an alternate corrective action date set by the hearing examiner and thereafter; or
iii. Assess less than the established monetary penalty set forth in CMC 14.13.080(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 hearing examiner shall consider the following factors:
i. Whether the person responded to the city administrator’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 factors determined to be relevant by the hearing examiner.
E. Failure to Appear. If the person to whom the notice of violation was issued fails to appear without lawful excuse at the scheduled hearing, the hearing examiner 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)(b) of this section.
The city may enforce the hearing examiner’s order and recover all related expenses incurred by the city, including attorney fees, costs of the hearing and any monetary penalty from that person which shall collectively all be considered civil monetary penalties ordered to be paid by the hearing examiner.
F. Appeal to Superior Court. Any appeal of the decision of the hearing examiner shall be filed with the Chelan County superior court and served on the city clerk/treasurer within 21 calendar days from the date of the hearing examiner’s decision. (Ord. 1238 § 3, 2014).
14.13.090 Violation – Civil enforcement and penalties.
The failure or refusal to complete corrective action by the date set forth in a notice of violation and order shall subject the person(s) to whom the notice of violation and order was directed to the following enforcement actions and penalties:
A. The city administrator may revoke, modify or suspend any permit, variance, subdivision or other land use approval issued for the subject property;
B. The person responsible for correcting the violation may be assessed civil monetary penalties for each day of the violation as set forth in CMC 14.13.080;
C. The city, through its authorized agents, may, in addition to any other remedy provided herein, initiate abatement or injunction proceedings or other appropriate action in the courts of this state, to prevent, enjoin, abate or terminate violations of this chapter. The city may obtain temporary, preliminary, and permanent injunctive relief from the Chelan County superior court;
D. The city may enter the subject property and complete all corrective action and otherwise abate the violation as set forth in CMC 14.13.095;
E. The remedies provided in subsections A through D of this section are cumulative remedies and not alternative remedies and are in addition to any other remedy to which the city may be entitled by law;
F. In any action or proceeding brought by the city to enforce this chapter or in any action brought by any other person in which the city is joined as a party challenging this chapter, in the event the city is a prevailing party, then the nonprevailing party challenging the provisions of this chapter, or the party against whom this chapter is enforced in such action, shall pay the city’s reasonable costs and attorneys fees incurred in such action or proceeding, including appeal. (Ord. 1238 § 4, 2014; Ord. 1182 § 2, 2011; Ord. 1171 § 2, 2010; Ord. 973 § 1, 2000).
14.13.095 Abatement by city.
A. Abatement. The city may abate a violation when:
1. The terms of a voluntary correction agreement pursuant to CMC 14.13.070 have not been met; or
2. A notice of violation has been issued pursuant to CMC 14.13.080 and a decision and order has been issued pursuant to CMC 14.13.085 and the required correction has not been completed by the date specified in the decision and order and the city obtains an order from the Chelan County superior court authorizing the abatement activity to occur; or
3. The condition is subject to summary abatement as provided for in subsection B of this section.
B. Summary Abatement. Whenever a violation 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 violation 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 10 calendar days following the billing. The term “incidental expenses” includes but is not limited to:
1. City personnel costs, both direct and indirect, incurred by the city and related to the enforcement action;
2. All actual reasonable attorneys fees and costs incurred by the city and related to the enforcement action;
3. Hauling, storage and disposal expenses;
4. Actual administrative 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 personal service, printing and mailing.
E. Obstruction Violation. Any person who knowingly obstructs, impedes, or interferes with the city or its agents, or with the person responsible for the violation in the performance of duties imposed by this chapter, or a decision and order issued by the hearing examiner or an agreement between the city and the person responsible for the violation, is guilty of a civil infraction and shall be subject to the penalties as set forth in CMC 1.20.010. (Ord. 1238 § 5, 2014).
14.13.100 Violation – Criminal penalties.
Repealed by Ord. 1238. (Ord. 973 § 1, 2000).
14.13.110 Approval revocation, suspension and modification.
A. A permit, variance, subdivision or other land use approval may be revoked, suspended or modified on one or more of the following grounds:
1. Failure to complete corrective action as required pursuant to a notice of violation and order.
2. The approval was obtained through fraud.
3. The approval was obtained through inadequate or inaccurate information.
4. The approval was issued contrary to law.
5. The approval was issued under a procedural error which prevented consideration of the interests of persons directly affected by the approval.
6. The approval is being exercised or implemented contrary to the terms or conditions of the approval or contrary to law.
7. The use for which the approval was issued is being exercised in a manner which is detrimental to public health, safety or welfare.
8. Interference with the performance of federal, state, county or city official duties.
B. Action to revoke, suspend or modify a permit, subdivision, or other land use approval shall be taken by the enforcing official through issuance of a notice of violation and order as described in CMC 14.13.040.
C. If a permit or approval is revoked for fraud or deception, no similar application shall be accepted for a period of one year from the date of final action and appeal, if any. If a permit or approval is revoked for any other reason, another application may be submitted subject to all of the requirements of the development code. (Ord. 973 § 1, 2000).