Chapter 6.20
PUBLIC NUISANCE – ABATEMENT1
Sections:
6.20.020 Prohibited conditions – Designated.
6.20.030 Prohibited conditions – Unlawful.
6.20.040 Inspection by administrator and first contact with responsible party.
6.20.055 Correction agreement.
6.20.075 Notice and order – Procedures.
6.20.085 Notice and order – Supplemental.
6.20.095 Abatement by the city.
6.20.010 Definitions.
In this chapter, unless a different meaning is plainly required, the terms designated in this section will be defined as follows:
(1) “Abate” means to destroy, remove, correct or terminate.
(2) “Administrator” means the city employee designated by the mayor to administer this chapter.
(3) “Continue” means not to destroy, remove, correct or terminate.
(4) “Debris” means and includes, but is not limited to, broken things, used building materials, rubble, glass, empty food containers and other conditions listed in OHMC 6.20.020(3), (4), (6) and (10).
(5) “Graffiti” means the defacing, damaging or destroying by spraying of paint or marring of ink, chalk, dye or other similar substances on public or private buildings, structures and places.
(6) “Owner” and “occupant” mean and include any natural person, corporation or unincorporated association having by deed, contract, assignment, lease or by permission of the same the right to enjoy, use or occupy the premises.
(7) “Person responsible for the violation” means the person who caused the violation, if that can be determined, including any of the following: a person who has titled ownership or legal control of the property or structure that is subject to the city code or regulation; an occupant or other person in control of the property or structure that is subject to the city code or regulation; a developer, builder, business operator, or owner who is developing, building, or operating a business on the property or in a structure that is subject to the city code or regulation; or any person who commits any act or omission which is a violation or causes or permits a violation of the city code to occur or remain upon property in the city, and includes but is not limited to owner(s), lessor(s), tenant(s), or other person(s) entitled to control, use and/or occupy property where a violation occurs.
(8) “Regulation” means and includes any of the following, as now enacted or hereafter amended: all Oak Harbor Municipal Code provisions; all standards, rules, and procedures adopted by the city that make reference to this chapter; and the terms and conditions of any permit or approval issued by the city.
(9) “Repeat violations” means a violation of the same city code in any location by the same person for which code enforcement has been undertaken within two years prior. Repeat violations may be evidenced by the prior issuance of a correction notice or a notice and order of violation.
(10) “Violation” means an act or omission contrary to city code or regulation including an act or omission at the same or different location by the same person and including a condition resulting from such act or omission. The violation of any city code or regulation shall be unlawful. Each day, or portion thereof, in which the violation continues constitutes a separate offense for which separate code enforcement actions and remedies may be pursued.
(11) “Weeds” means and includes, but is not limited to, noxious weeds, thistles, nettles or other plants that are a nuisance, hazard, tend to overgrow or choke out more desirable plants, or cause injury to man, animal or a desired crop, flower, garden plant or lawn cover. (Ord. 1895 § 1, 2020; Ord. 1651 § 2, 2013; Ord. 1434 § 1, 2005; Ord. 832 § 1, 1989).
6.20.020 Prohibited conditions – Designated.
Prohibited public nuisances include, but are not limited to, the following conditions:
(1) Grass or weeds, shrubs, bushes, trees or vegetation growing, or which has grown and died, exceeding the height of 12 inches which constitutes a fire hazard or a menace to public health, safety or welfare;
(2) Trees, plants, shrubs or vegetation of any kind or parts thereof which overhang a sidewalk or street, or which are growing thereon in such a manner as to obstruct or impair the free and full use of the sidewalk or street by the public;
(3) The presence of a substantial amount of paper, rubbish or other debris on the premises;
(4) Disposal of paper, rubbish, landscape waste or other debris on the private property of another without their approval;
(5) The outside storage of construction materials when not enclosed behind a sight-obscuring fence or a part of the business of a lawfully operated building supply business; provided, that the temporary storage of construction materials to be used for a lawful construction project for which a building permit was issued may be stored on the site of construction so long as work on the construction project is progressing diligently to completion;
(6) Abandoned, discarded or unused objects or equipment including but not limited to furniture, stoves, refrigerators, freezers and containers;
(7) Wells, privies, vaults, cesspools, closed drains, excavation or holes which are not protected or guarded and present a safety or health hazard or into which persons or animals might fall or otherwise be caught;
(8) All places not fenced with a six-foot-tall, sight-obscuring fence which are maintained as for junkyards, wrecking yards, vehicle dismantling operations, commercial vehicle storage, and outside repair of machinery, boats or vehicles;
(9) The outside storage of used parts or pieces of motor vehicles, boats, trailers, or recreational vehicles including but not limited to tires, batteries, fenders, frames, and hulks, unless the following conditions are met:
(a) The person is a licensed automobile dismantler,
(b) The storage is enclosed by a six-foot-tall, sight-obscuring fence,
(c) No part of the stored materials is otherwise visible from a public place,
(d) The place of storage is in an industrially zoned district or in a C-3 general commercial district;
(10) The outside storage of any movable property on residentially zoned property except the following enumerated items:
(a) Motor vehicles, boats, trailers and recreational vehicles not otherwise prohibited by this chapter or other provision of the Oak Harbor Municipal Code,
(b) Construction materials temporarily stored on site of a lawful construction project for which a building permit is issued and in such case not for more than two months,
(c) Gardening or landscaping materials used within 30 days of placement on the said property,
(d) Planters containing living plants, lawn and patio furniture maintained in good repair and lawn recreation equipment,
(e) Activities permitted under Chapter 15.04 OHMC so long as the same are lawfully carried out;
(11) Conditions which unlawfully interfere with, detract from or tend to obstruct or render dangerous for passage any stream, drainage ditch, public park, public pathway or sidewalk, parkway, street, alley, public square or highway in the city of Oak Harbor;
(12) Buildings or portions thereof which are deemed dangerous pursuant to the Oak Harbor building code (International Property Maintenance Code, International Existing Building Code, International Fire Code); provided, that such conditions or defects exist to the extent that the life, health, property or safety of the public or the structure’s occupants is endangered;
(13) Any premises or structures in which there is allowed prostitution, lewd behavior, underage consumption of alcohol or marijuana, the harboring of juvenile runaways or wanted persons, or where there is the use, sale, manufacturing or distributing of any narcotic or controlled substance, or at which there is a pattern of criminal activity, are prohibited nuisances;
(14) Defacing, damaging or destroying by spraying of paint or marring of ink, chalk, dye or other similar substances on public or private buildings, structures and places. (Ord. 1895 § 2, 2020; Ord. 1651 § 3, 2013; Ord. 832 § 1, 1989).
6.20.030 Prohibited conditions – Unlawful.
It is unlawful for the owner or occupant of a lot or parcel of land within the city of Oak Harbor to allow or continue a public nuisance on property under the control of the owner or occupant. (Ord. 1651 § 4, 2013; Ord. 832 § 1, 1989).
6.20.040 Inspection by administrator and first contact with responsible party.
(1) The administrator, or his or her designee, is hereby authorized to inspect lots and parcels of land, streets, alleys, and highways within the city of Oak Harbor, and to determine if a public nuisance exists on private property or on the streets, alleys or highways bordering such property.
(2) If a public nuisance is found by the administrator to exist, the administrator shall attempt to secure correction of any violation(s) by contacting the person and/or property owner responsible for the violation, in person, in writing or by telephone, and, where possible, explaining the violation and requesting correction within a reasonable time consistent with established policies. Each code enforcement contact with a person responsible for the property and/or violation shall be recorded in writing regardless if further action is taken or not. The information to be recorded in writing shall include, but is not limited to, the contact date, method of contact, parcel number, address of the violation, person contacted, and description of the alleged code violation to the extent possible.
(3) No code enforcement contact need be made in emergencies, for repeat violations, for nuisances that are already subject to a correction agreement, or when the person responsible for the nuisance knows, or reasonably should have known, that the action was a nuisance. (Ord. 1651 § 5, 2013; Ord. 1434 § 2, 2005; Ord. 832 § 1, 1989).
6.20.055 Correction agreement.
The administrator on behalf of the city is hereby authorized to enter a correction agreement with the person responsible for the violation under which the offender agrees to abate the violation within a specified time and according to specified conditions. The correction agreement shall include the following:
(1) Content. The correction agreement shall include the following:
(a) The name and address of the person responsible for the violation(s);
(b) The street address or other description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring;
(c) A description of the violation and a reference to the code which has been violated;
(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 violation that the city may inspect the premises as may be necessary to determine compliance with the correction agreement;
(f) An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses and/or monetary penalty pursuant to this chapter from the person responsible for the violation if the terms of the correction agreement are not satisfied;
(g) If the offender is not the owner of the property, the owner will be notified by the city of the agreement.
(2) Extension and Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the administrator if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions and the responsible person provides the request in writing clearly establishing the need for such an extension.
(3) Abatement by the City. The city may abate the violation in accordance with OHMC 6.20.095 if the terms of the correction agreement are not met.
(4) Collection of Costs. If the terms of the correction agreement are not met, the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction plus costs and expenses of abatement, in accordance with the provisions of this chapter. (Ord. 1651 § 7, 2013).
6.20.075 Notice and order – Procedures.
(1) A written notice and order may be directed to the person responsible for the nuisance when other attempts to gain compliance have failed. The notice and order shall contain:
(a) The street address or other description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance has occurred or is occurring;
(b) A description of the violation and a reference to the code which has been violated;
(c) The necessary corrective action to be taken and a date or time by which correction must be completed;
(d) A statement specifying the amount of any civil penalty assessed by reason of the violation and, if applicable, the conditions on which assessment of such civil penalty is contingent;
(e) Statements advising that if any required work is not completed within the time specified, the city may abate the violation and recover its costs and expenses and charge therefor as a lien against the property; and
(f) A statement that an appeal may be taken from the notice and order in accordance with the procedures set out in Chapter 1.24 OHMC. The appeal shall be heard by the hearing examiner.
(2) A notice and order shall be served upon the person to whom it is directed in person, or by mailing a copy of the notice to such person at his/her last known address, or by posting a copy of the notice in a conspicuous place on the affected property or structure, if any. Proof of service shall be made by a written declaration under penalty of perjury by the person serving the notice, declaring the date and time of service and the manner by which service was made. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this chapter. The notice and order may be, but is not required to be, posted on the subject property.
(3) No notice and order need be issued in emergencies, for repeat violations, for nuisances that are already subject to a correction agreement, or when the person responsible for the nuisance knows, or reasonably should have known, that the action was a nuisance. (Ord. 1943 § 1, 2022; Ord. 1651 § 10, 2013).
6.20.085 Notice and order – Supplemental.
The administrator may at any time add to, rescind in part, or otherwise modify a notice and order by issuing a supplemental notice and order. The supplemental notice and order shall be governed by the same procedures applicable to all notices and orders contained in this chapter. (Ord. 1651 § 12, 2013).
6.20.095 Abatement by the city.
(1) The city may abate a condition which was caused by or continues to be a code violation when:
(a) The terms of any correction agreement pursuant to this chapter have not been met; or
(b) A notice and order was issued pursuant to this chapter, and the required correction has not been completed; or
(c) The condition is subject to summary abatement as provided for in specific provisions of state law(s).
(2) Summary Abatement. Whenever a violation of a regulation causes a condition the continued existence of 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. No right of action shall lie against the city or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats.
(3) Summary Abatement – Vegetation Constituting a Safety Hazard. The city may abate a public nuisance resulting from vegetation described in OHMC 6.20.020(1) and/or (2), pursuant to RCW 35.21.310. Such abatement shall be initiated through the adoption of a resolution specific to each property owner of a violation, with at least five days’ notice to the property owner of when the resolution will be considered by the city council. The notice to the property owner shall describe the property by residential address and tax parcel identification number, and the hazardous condition to be abated. If the property owner does not abate the problem within the time identified in the notice, the city may abate the nuisance and charge the owner for the costs thereof, with any unpaid cost becoming a lien against the real property in the nature of a lien for labor and materials, and which can be enforced in the same manner.
(4) Summary Abatement – Graffiti. The city may abate a public nuisance resulting from graffiti as described in OHMC 6.20.020(14). It is important to eliminate the presence of graffiti from the community so that the product of illegal acts of those involved in application of graffiti is not visible; so as not to serve to instigate additional graffiti; and the property on which the graffiti is located, and surrounding properties, do not suffer diminution of value. The following processes shall be followed regarding the notification and abatement of graffiti:
(a) Notice.
(i) The code enforcement officer or police chief or their designated representatives shall cause a notice to be served upon the owner(s) of the affected premises, as such owner’s name and address appear on the last property tax assessment rolls of Island County, Washington. If there is no known address, the notice shall be sent in care of the property address. The notice required by this section may be served in any one of the following manners:
(A) By personal service on the owner.
(B) By registered or certified mail addressed to the owner at the last known address of said owner as set forth in the latest property tax assessment rolls of Island County. If this address is unknown, the notice will be sent to the property address.
(ii) The notice shall be substantially in the following form:
NOTICE IS HEREBY GIVEN that you are required, by ordinance of the City of Oak Harbor, at your own expense, to remove or paint over the graffiti located on the property commonly known as (address), Oak Harbor, Washington, which is visible to public view, within 15 days after the date of this notice; or, if you fail to do so, the city requires the nuisance to be abated by removal or painting over of the graffiti. The cost of the abatement by the city or private contractors employed by the city to abate the nuisance will be assessed upon your property.
(b) Appeal. Appeals shall be pursuant to Chapter 1.24 OHMC.
(c) Removal by City.
(i) Upon failure of persons to comply with the notice by the designated date, or such continued date thereafter as the code enforcement officer, police chief or their designated representative approves, then the code enforcement officer, police chief or designated representative is authorized to cause the graffiti to be abated by city forces or by private contract. The city or its private contractor is expressly authorized to enter upon the premises for such purposes. All reasonable efforts to minimize damage from such entry shall be taken by the city, and any paint used to obliterate or cover graffiti shall be as close as practicable to background color(s) when possible. If the code enforcement officer or police chief provides for the removal of the graffiti, they shall not authorize nor undertake to provide for the painting or repair of any more extensive area than the area where the graffiti is located.
(ii) Property owners in the city of Oak Harbor may consent in advance to city entry onto private property for graffiti removal purposes.
(5) 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.
(6) Interference. 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 shall be guilty of a misdemeanor punishable by imprisonment not exceeding 90 days and a fine not exceeding $1,000.
(7) Recovery of Costs and Expenses. The costs of the abatement, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and shall become due and payable to the city within 30 calendar days. The term “incidental expenses” includes but shall not be limited to personnel costs, both direct and indirect, including attorneys’ fees; costs incurred in documenting the violation; 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. All such costs and expenses may be included in a lien against the affected property. (Ord. 1895 § 3, 2020; Ord. 1651 § 14, 2013).
6.20.105 Lien authorized.
The city of Oak Harbor may record a lien for the cost of any abatement work done pursuant to this chapter, together with any costs including attorneys’ and expert witness fees, against the real property on which the monetary penalty was imposed or any of the work of abatement was performed. The lien shall be subordinate to all previously existing special assessment liens imposed on the same property and shall be superior to all other liens, except for state and county taxes.
(1) Should the person responsible for the violation not pay the city in full for the billed costs of recovery as prescribed by this chapter, the matter will be scheduled for review by the city council at a public meeting and the council may authorize the administrator to file a claim of lien for record.
(2) The claim of lien shall contain sufficient information regarding the notice of violation, as determined by the administrator, description of the property to be charged with the lien and the owner of record, and the total amount of the lien.
(3) Any such claim of lien shall be verified by the administrator, and may be amended from time to time to reflect changed conditions. (Ord. 1651 § 16, 2013).
6.20.110 Penalties.
(1) The failure to comply with the provisions of this chapter shall constitute a Class 1 infraction as defined in Chapter 1.28 OHMC. Each day of violation shall be a separate offense. This is an absolute liability offense. No mental element as defined in law is required for proof of violation.
(2) The knowing or intentional failure or refusal to comply with an abatement order of a nuisance is a misdemeanor which shall be punished by imprisonment in jail for a maximum term fixed by the court of not more than 90 days, or by a fine in an amount fixed by the court of not more than $1,000, or by both such jail sentence and fine. (Ord. 1717 § 17, 2015; Ord. 1651 § 17, 2013).
Prior legislation: Ord. 675.