Chapter 4.05
GENERALLY
Sections:
4.05.030 Declaration of nuisance.
4.05.050 Abatement proceedings – Authorized.
4.05.060 Abatement proceedings – Legal relief.
4.05.090 Civil penalties – Procedures.
4.05.100 Civil penalties – General requirements.
4.05.110 Civil penalties – Schedules.
4.05.120 Enforcement and penalties for sensitive areas.
4.05.010 Administration.
The directors are authorized to utilize the procedures of this title in order to enforce violations of any land use or public health ordinance. (Ord. 37 § 1 Exh. A (.04.010), 1994).
4.05.020 Definitions.
For the purpose of this title, the words and phrases designated in this section shall be defined as follows:
A. “City” means the city of Newcastle.
B. “Director” means the director of the department of community development (the “local health officer” as that term is used in Chapter 70.05 RCW), if any, the fire marshal or such other person as the council shall by ordinance authorize to utilize the provisions of this title, and shall also include any duly authorized representative of such directors.
C. “Hearing examiner” means the city hearing examiner.
D. “Nuisance” is defined as unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs, or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or which in any way renders other persons insecure in life, or in the use of property.
E. “Public nuisance” means a nuisance which affects the rights of an entire community or neighborhood, although the extent of the nuisance may be unequal.
F. “Land use ordinance” includes the ordinance codified in this title and any other existing or future ordinance or resolution of the city which regulates the use and development of land, whether or not such ordinance or resolution has been or will be codified, including but not limited to the following ordinances and amendments which shall be enforced by the director of community development or any duly authorized representative: the zoning code, the subdivision code, the building and construction codes, the shoreline management ordinance, the surface water runoff ordinance, the surface water design manual and the city road standards.
G. “Public health ordinance” includes the ordinance codified in this title and any other existing or future ordinance or resolution of the city, or provisions of the Washington Administrative Code which regulate the public health, including but not limited to the following ordinances and amendments: the rabies control section of the animal control ordinance, the plumbing code, the city’s water pollution ordinance and the city’s nuisance ordinance.
H. “Permit” means any form of certificate, approval, registration, license, or other written permission given to any person to engage in any activity as required by law, ordinance or regulation.
I. “Person” includes any natural person, organization, corporation or partnership and their agents or assigns. (Ord. 57 § 1, 1994; Ord. 37 § 1 Exh. A (.04.020), 1994).
4.05.030 Declaration of nuisance.
All violations of land use and public health ordinances are determined to be detrimental to the public health, safety, and welfare and are public nuisances. All conditions which are determined by a director to be in violation of any land use or public health ordinance shall be subject to the provisions of this title and shall be corrected by any reasonable and lawful means, as provided in this title. (Ord. 37 § 1 Exh. A (.04.030), 1994).
4.05.040 Right of entry.
A. Whenever necessary to make an inspection to enforce or determine compliance with the provisions of any land use or public health ordinance, or whenever a director or his duly authorized inspector has cause to believe that a violation of any land use or public health ordinance has been or is being committed, the inspector may enter any building, structure, property or portion thereof at reasonable times to inspect the same.
B. If such building, structure, property or portion thereof is occupied, the inspector shall present identification credentials, state the reason for the inspection, and demand entry.
C. If such building, structure, property or portion thereof is unoccupied, the inspector shall first make a reasonable effort to locate the owner or other persons having charge or control of the building, structure, property or portion thereof and demand entry. If the inspector is unable to locate the owner or such other persons, and he has reason to believe that conditions therein create an immediate and irreparable land use or health hazard, he shall make entry.
D. It is unlawful for any owner or occupant or any other person having charge, care or control of any building, structure, property or portion thereof to fail or neglect after proper demand has been given to permit prompt entry thereon where the inspector has reason to believe that conditions therein create an immediate and irreparable land use or health hazard.
E. Unless entry is consented to by the owner or person in control of any building, structure, property or portion thereof or conditions are believed to exist which create an immediate and irreparable land use or health hazard, the inspector, prior to entry, shall obtain a search warrant as authorized by the laws of the state of Washington. (Ord. 37 § 1 Exh. A (.04.040), 1994).
4.05.050 Abatement proceedings – Authorized.
In addition to or as an alternative to any other judicial or administrative remedy provided in this title or by law or other ordinance, a director may order that a violation of a land use or public health ordinance, a rule or regulation adopted thereunder, or a condition of any permit or approval issued pursuant to such ordinance, rule or regulation, be abated. A director may order any person who creates or maintains a violation of any land use or public health ordinance, any rule or regulation adopted thereunder, or any condition of any permit or approval issued pursuant to such ordinance, rule or regulation, to commence corrective work and to complete the work within such time as the director determines reasonable under the circumstances. If the required corrective work is not commenced or completed within the time specified, a director may proceed to abate the violation and cause the work to be done. The director will charge the costs thereof as a lien against the property and as both a joint and separate personal obligation of any person who is in violation. If the city is forced to abate a violation pursuant to this section, the director will commence a judicial action for all costs and fees incurred by the city in abating the violation and shall seek both a judgment lien against the property and a personal judgment against all violators of the ordinance, rule or permit condition, jointly and severally. (Ord. 2002-256 § 1; Ord. 37 § 1 Exh. A (.04.050), 1994).
4.05.060 Abatement proceedings – Legal relief.
Notwithstanding the existence or use of any other remedy, a director may seek legal or equitable relief to enjoin any acts or practices or abate any conditions which constitute or will constitute a violation of any land use or public health ordinance, any rule or regulation adopted thereunder, or any condition of any permit or approval issued pursuant to such ordinance, rule or regulation. (Ord. 2002-256 § 2; Ord. 37 § 1 Exh. A (.04.060), 1994).
4.05.080 Misdemeanor.
As an alternative to any other judicial or administrative remedy provided in this title or by law or other ordinance, a director may refer to the prosecuting attorney for criminal prosecution a willful or knowing violation of any land use or public health ordinance, any rule or regulation adopted thereunder, any condition of any permit or approval issued pursuant to such ordinance, rule or regulation, or any order issued pursuant to this title. Any person who willfully or knowingly violates any land use or public health ordinance, any rule or regulation adopted thereunder, any condition of any permit or approval issued pursuant to such ordinance, rule or regulation, or any order issued pursuant to this title, or by each act of commission or omission procures, aids or abets such violation, is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000 and/or imprisonment in the county jail for a term not to exceed 90 days. Each day such violation continues shall be considered an additional misdemeanor offense. (Ord. 2002-256 § 3; Ord. 37 § 1 Exh. A (.04.080), 1994).
4.05.090 Civil penalties – Procedures.
A. Any person or entity that violates any land use or public health ordinance, any rule or regulation adopted thereunder, or any condition of any permit or approval issued pursuant to such ordinance, rule or regulation, or that, by any action of commission or omission procures, aids or abets such violation, shall be subject to civil penalties as provided in this chapter.
B. Civil penalties may be directly assessed by the appropriate director by means of a notice and order issued pursuant to Chapter 4.15 NMC, or may be recovered by legal action filed in King County superior court by the city.
C. Civil penalties assessed by means of a notice and order shall be collected in accordance with the lien, personal obligation and other procedures specified in this title. Civil penalties assessed in a legal action in superior court shall be collected in the same manner as judgments in civil actions. (Ord. 2002-256 § 4; Ord. 37 § 1 Exh. A (.04.090), 1994).
4.05.100 Civil penalties – General requirements.
A. Any person engaged in the development, management, sale, rental or use of property solely for the purpose of residential occupancy by the person or his or her immediate family shall be deemed to be engaged in noncommercial ventures for purposes of this chapter. All other persons shall be deemed to be engaged in commercial ventures for purposes of this chapter.
B. Each and every day or portion thereof during which any violation is committed, continued, permitted or not corrected shall be deemed a violation for purposes of this chapter. Civil penalties for failure to obtain any required permit or to follow any condition of any issued permit or approval shall begin to accrue on the first day activity subject to the permit or approval requirement or permit or approval condition is commenced and shall cease to accrue on the day the permit is obtained or the permit or approval condition is satisfied. (Ord. 2002-256 § 5; Ord. 37 § 1 Exh. A (.04.100), 1994).
4.05.110 Civil penalties – Schedules.
A. Civil penalties for violation by persons engaged in commercial ventures shall be assessed pursuant to the following schedule:
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Violation of city code provisions or permit or approval conditions relating to: |
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Water pollution |
$1,000 per violation |
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Clearing, grading and/or paving and/or the surface water design manual |
$1,000 per violation |
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Subdivisions |
$250 per violation |
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Chapter 18.24 NMC, Critical Areas |
See provisions in NMC 4.05.120 |
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Violation of any stop work order |
$500 per violation |
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Violation of any stop work order issued for a violation of Chapter 18.24 NMC, Critical Areas |
$2,000 per violation |
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All other violations |
$150 per violation |
B. Civil penalties for violations by persons engaged in noncommercial ventures shall be assessed pursuant to the following schedule:
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Violation of city code provisions or permit or approval conditions relating to: |
|
|
Water pollution |
$500 per violation |
|
Clearing, grading and/or paving and/or the surface water design manual |
$500 per violation |
|
Subdivisions |
$100 per violation |
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Chapter 18.24 NMC, Critical Areas |
See provisions in NMC 4.05.120 |
|
Violation of any stop work order |
$100 per violation |
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Violation of any stop work order issued for a violation of Chapter 18.24 NMC, Critical Areas |
$1,000 per violation |
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All other violations |
$25 per violation |
C. Penalties for the second separate violation by the same person shall be double the rates identified in subsections (A) and (B) of this section; provided, that for violations of Chapter 18.24 NMC, penalties shall be assessed in accordance with NMC 4.05.120. Each day on which activity occurs in violation of a stop work order shall be deemed a separate violation for purposes of this section.
D. In addition to obtaining any civil or criminal remedy provided for by this chapter, a director may assess the costs incurred by the city in enforcing this chapter against any person or entity that violates any land use or public health ordinance, any rule or regulation adopted thereunder, or any condition of any permit or approval issued pursuant to such ordinance, rule or regulation, or that, by any action of commission or omission procures, aids or abets such violation. The costs of enforcement shall be a joint and several obligation of any and all persons and/or entities in violation. (Ord. 2009-417 § 2 (Att. 1); Ord. 2002-256 § 6; Ord. 57 § 2, 1994; Ord. 37 § 1 Exh. A (.04.110), 1994).
4.05.120 Enforcement and penalties for sensitive areas.
The enforcement provisions for sensitive areas are intended to encourage compliance with Chapter 18.24 NMC, Critical Areas, and protect sensitive areas and the public from harm. To achieve this, violators will not only be required to restore damaged sensitive areas, insofar as that is possible, but will also be required to pay a civil penalty for the redress of ecological, recreational, and economic values lost or damaged due to their unlawful action.
A. The provisions in this section are in addition to and not in lieu of any other penalty, sanction or right of action provided by law.
B. In all cases, the owner of the land shall be named as a party to the notice and order. In addition to any other persons who may be liable for violations, the owner shall be jointly and severally liable for the restoration of a site and payment of any civil penalties imposed.
C. Violation of this section means the violation of any provision of Chapter 18.24 NMC, Critical Areas, or of the administrative rules promulgated hereunder, or of any permit or approval or stop work order or any other order issued pursuant hereto, or of any of the terms and conditions of any sensitive area tract or setback area, easement or other covenant, plat restriction or binding assurance, or of any mitigation plan, or contract or agreement concluded pursuant to the abovementioned provisions of this section.
D. Civil Penalties. Any person in violation of Chapter 18.24 NMC, Critical Areas, shall be subject to civil penalties assessed as follows:
1. An amount reasonably determined by the director to be equivalent to the economic benefit that the violator derives from the violation as measured by the greater of the resulting increase in market value of the property or the value received by the violator, or savings of construction costs realized by the violator performing any act in violation of this chapter.
2. An amount, not to exceed $25,000, that is reasonably based upon the nature and gravity of the violation and the cost to the city of enforcing this chapter against the violator.
3. Any civil penalty recovered under this section shall be deposited in the sensitive areas mitigation fund for use by the city in protecting or restoring sensitive areas as set forth in NMC Title 18, Zoning.
4. No civil penalty shall be imposed under this chapter upon the city or city employees for any act or omission relating to the administration or enforcement of this chapter.
F. Revocation or Refusal to Accept Application.
1. In addition to the revocation and suspension provisions set forth in Chapter 4.20 NMC, a permit or approval that is subject to sensitive areas review may be revoked or suspended upon failure by an applicant to disclose a change of circumstances on the development proposal site which materially affects his or her ability to meet the permit or approval conditions or which makes inaccurate the sensitive area study that was the basis for imposing permit or approval conditions.
2. In addition to any other enforcement method, to further the remedial purposes of this section, the city shall refuse to accept any application for a permit or approval for a development proposal for any property on which a violation of this chapter has occurred, or of the administrative rules promulgated thereunder or of any permit, approval, order, easement plan or agreement issued pursuant thereto has occurred. Such refusal shall continue until the violation is cured by restoration accepted as complete by the city and by payment of any civil penalty imposed for the violation; provided, that applications for permits or approvals shall be accepted to the extent necessary to accomplish any required cure.
3. In order to further the remedial purpose of this section, the city shall refuse to accept any application for a development proposal permit or approval from any person found to have violated this chapter until the violation is cured by restoration accepted as complete by the city or a mitigation plan and performance bond to ensure completion has been approved by the city and by payment of any civil penalty imposed for the violation; provided, that applications shall be accepted to the extent necessary to accomplish any required cure.
4. For the purposes of this subsection, a person will be deemed to have been found in violation of this chapter:
a. When a notice and order alleging a violation is issued and not timely appealed; or
b. When a determination is made by a hearing examiner that a person has committed a violation, unless that determination is timely appealed to superior court and is thereupon reversed or otherwise stayed.
G. Any person subject to the provisions of this chapter who violates any provision of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area, within a reasonable time, to its condition prior to such violation. (Ord. 37 § 1 Exh. A (.04.120), 1994).