Chapter 8.30
PUBLIC NUISANCES
Sections:
8.30.040 Liability for continuing nuisance.
8.30.050 Money collected for abatement – Disposition.
8.30.010 Definitions.
The following words and phrases used in this chapter, unless the context otherwise clearly indicates, shall have the following meanings:
A. “Abate” means to repair, replace, remove, destroy or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable department director 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 the building official/permit administrator of the city of Okanogan or his or her designee authorized in writing to enforce this chapter of the Okanogan Municipal Code.
D. “Hearing board” or “board” means the board of adjustment of the city of Okanogan.
E. “Notice of abatement” or “notice to abate” means a notice to abate unsafe or unlawful condition as provided in this code.
F. “Person” means and includes, without limiting its definition in Chapter 1.04 OMC, individuals, firms partnerships, corporations, and all associations of natural persons, whether acting by themselves or by an agent or employee.
G. “Owner” means and includes without limiting the definition of that term in Chapter 1.04 OMC, any agent, lessee, owner, tenant or other person occupying or having charge or control of any premises. An owner or agent is deemed to have control if he or she has actual or constructive knowledge of the maintenance upon the premises or any nuisance as defined in this chapter.
H. “Premises” means any building, lot, parcel, real estate or land or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips and any lake, river, stream, drainage way or wetland.
I. “Public nuisance” and “nuisance” each mean and consist of doing an unlawful act, or omitting to perform a duty, or suffering or permitting any condition or thing to be or exist, which act, omission, condition or thing either:
1. Unreasonably injures or endangers the comfort, repose, health or safety of others;
2. Offends public decency;
3. Is offensive to the senses of reasonable persons;
4. In any way renders other persons insecure in life or use of property. (Ord. 782 § 2, 1994)
8.30.015 Prohibited conduct.
It is a violation of this chapter for any person to permit, create, maintain, or allow, upon any premises, any of the acts or things declared in OMC 8.30.010 or 8.30.020 to be a public nuisance, or to fail to abate such a nuisance pursuant to lawful notice given under OMC 8.30.030. (Ord. 782 § 2, 1994)
8.30.020 Nuisances declared.
The following specific acts, omissions, places and conditions are declared to be public nuisances:
A. Erecting, continuing or using any building or other place in the city for the exercise of any trade, employment or manufacture, which by occasioning noxious exhalation, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or the public;
B. Causing or allowing any offal, filth, poison, or noisome substance to be collected or to remain in any place, street, highway, or alley in the city to the prejudice of others;
C. Maintaining any house, shop, stable or other structure which cannot be occupied or rented and which poses danger of incendiarism and/or injury;
D. All houses or premises kept for the purpose of prostitution or for the performance of lewd acts as that term is defined in Chapter 9.04 OMC (adopting Chapter 9A.88 RCW);
E. All houses or places where drunkenness, fighting or other breaches of the peace are carried on or permitted;
F. All dirt, offal, or vegetable matter, the contents of any hog pen or sty, poultry house, privy, drain or vault, which by noxious air, poisonous gas, or noise, shall offend inhabitants of the neighborhood;
G. Keeping howling or barking dogs or permitting any animal to run at large which defiles, injures or destroys lawns, gardens, trees or shrubbery;
H. Building or maintaining any structure in such condition as to be dangerous to the health of the citizens of the city;
I. Obstructing or encroaching upon or rendering unsafe for passage any public highway, private way, street, alley, park, square, driveway, lake or stream in the city;
J. Carrying on, within the city limits, a business of manufacturing gunpowder, nitroglycerin, or other highly explosive substance, or mixing or grinding the materials therefor, in any place within 250 yards of any building in existence at the time such business may be commenced.
K. Placing, depositing, keeping, having or leaving in or upon any private lot, building, structure or premises, or in or upon any street, avenue, park, parkway or public or private place in the city any one or more of the following conditions, places or things:
1. Any putrid, unsound or unwholesome bones, meat, hides, skins, or the whole of any part of any dead animal, fish or fowl;
2. Privies, vaults, cesspools, sumps, pits or like places which are not securely protected from flies or rats, or which are foul or malodorous;
3. Filthy or littered trash-covered cellars, house yards, factory yards, vacant areas in rear of stores, vacant lots, houses, buildings or premises;
4. Animal manure in any quantity which is not securely protected from flies and the elements, or which is kept or handled in violation of any ordinances of the city;
5. Poison oak or poison ivy (whether growing or otherwise), liquid household waste, human excrete, garbage, butcher’s trimmings and offal, parts of fish, or any other vegetable or animal matter in any quantity; provided nothing in this chapter shall prevent the temporary retention of waste in city or the dumping of nonputrifying waste in a place and manner approved by the health officer;
6. Tin cans, bottle, glass cans, small pieces of scrap iron, wire, material, bric-a-brac, broken crockery, broken glass, broken plaster, scrap building materials, and all such trash or abandon material unless the same be kept in covered bins or galvanized iron receptacles approved by the health officer;
7. Trash, litter, weeds or grass, rags, accumulations of empty barrels, boxes, crates, packing cases, mattresses, bedding, excelsior, packing straw, or other packing materials, lumber not piled, scrap iron, abandoned stoves, kitchen appliances, tine and other metal not neatly piled or anything whatsoever in which flies or rats may breed or multiply or which may be a fire danger;
8. Any abandoned unattended or discarded icebox, refrigerator, freezer or other container having an air-tight door or lid and a snap lock or other locking device which may not be easily released from the inside when such lid or door is in a closed position;
9. Laying out, exposing or leaving exposed, in an unenclosed place known to be accessible to domestic animals or children, any substance or combination of substances known to be a poison or poisonous if consumed by a human, animal, or fowl;
10. The emitting of loud and raucous noise, from whatever the source or location, in a manner which, under the circumstances, unreasonably disturbs others;
11. Causing or allowing any other nuisance as defined in OMC 8.30.010 or other provision of the Okanogan Municipal Code;
12. Except as may be allowed by any other city ordinance, the use of any lot, parcel, or public right-of-way used for the storage, collection, or abandonment of scrap or discarded goods and materials, to include household garbage, cardboard, plastics, rags, scrap metal, vehicular parts, batteries, tires, glass, used building materials, pallets, household appliances or furniture, or other scrap or discarded goods, materials, machinery, or two or more inoperable motor vehicles, or any other type of junk, if such goods, materials, or condition is visible from any public street, alley, or other public or private property;
13. Accumulation of any materials, otherwise lawfully allowed within a specific zoning district, in or upon any private lot where such materials collectively exceed the coverage specified under OMC 18.60.030 (Maximum Lot Coverage) or OMC 18.64.030 (Accessory Uses), whichever is greater;
14. Building materials, whether new or used, construction debris, associated fill, or other materials normal and usual to an active building project shall constitute a nuisance if allowed to accumulate in an uncovered condition for more than six months, consecutively, regardless of whether a valid building permit is in possession. (Ord. 1080 § 1, 2007; Ord. 782 § 2, 1994)
8.30.030 Abatement procedure.
A. Upon receipt of information or upon personal observation that a nuisance exists as defined in this chapter, the enforcement officer shall cause an investigation of the matter and premises involved. If the enforcement officer determines that a nuisance exists he or she shall file a written finding to that effect with the city clerk.
B. After having filed a finding that a nuisance exists, the enforcement officer shall require the owner of the premises involved to abate the nuisance at his or her own cost and expense, in whole or in part. The enforcement officer shall give written notice to the owner as prescribed in this section, describing the property involved, the condition to be corrected, and a specified reasonable time within which the owner must correct the condition, which shall be no less than five days, or 10 days from the date of service by mail as evidenced by the postmark on the notice. The notice must further specify (a) that if the owner fails to abate the nuisance within the specified period of time, the city shall cause the work to be performed and shall assess all or any portion of the cost thereof against the owner; (b) that the owner may be liable for civil penalties for each day or part of day that the condition continues to exist following the notice, (c) that the owner alternatively may be liable to criminal prosecution, as provided in this chapter; and (d) that the owner has a right to appeal the notice as provided in subsection E of this section. The required notice shall be in substantially the following form:
NOTICE TO ABATE UNSAFE OR UNLAWFUL CONDITION (NUISANCE)
(Name and address of person notified)
As owner, agent, lessee or other person occupying or having charge or control of the building, lot or premises at _______________, you are hereby notified that the enforcement officer of the City of Okanogan has determined, pursuant to Chapter 8.30 of the Okanogan Municipal Code, that there exists upon or adjoining said premises the following condition contrary to the provisions of Chapter 8.30 of the Okanogan Municipal Code.
You are hereby further notified to abate that condition to the satisfaction of the city within ___ days of the date of this notice. If you do not abate the condition within ___ days the city will abate the condition at your expense. In addition, your failure to abate the condition will be considered a violation for which you may incur monetary penalties as provided in OMC 8.30.015 and 8.30.060, for each day or part of day that the condition continues to exist.
Alternatively, failure to abate a nuisance may be prosecuted as a misdemeanor under OMC 8.30.070.
You have the right to appeal this notice within five days as provided in OMC 8.30.030E, Okanogan Municipal Code, or within 10 days from the date of service by mail, as evidenced by postmark on the notice.
Thank you for your immediate attention to this matter.
________________ ________
Enforcement Officer Date
C. The notice given by the enforcement officer to the owner shall be deposited in the United States mail with a return receipt requested or shall be personally served by delivering a copy thereof to the owner or by leaving the same with a person of suitable age and discretion at the owner’s place of residence. If the owner is not a resident of the city of Okanogan, the notice shall be served by leaving the same with the tenant in possession of the property or, if there is no such tenant, by posting a copy of the notice in a conspicuous place on the property involved and by mailing a copy thereof to the owner at his or her last known address, if any. Service by mail will be deemed complete at the end of the third full day following its deposit in the U.S. Mail, postage prepaid.
D. Upon serving the notice prescribed in this chapter, the enforcement officer shall file with the city clerk a certificate of service, in the following form:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the attached notice to abate unsafe or unlawful condition was served upon the person (or persons) to whom it was addressed by (check one or more of the following):
[ ] Delivering the copy to each of the addressees personally;
[ ] Leaving the copy at the owner’s place of residence with a person of suitable age and discretion; or
[ ] Leaving the copy with the tenant in possession of the property; or
[ ] Mailing a copy, certified mail with return receipt requested, to the owner at his (her) last known address, postage prepaid; or
[ ] Leaving a copy posted on the vacant premises and mailing a copy, certified mail with return receipt requested, to the owner (who is not a city resident) at his (her) last known residence, postage prepaid.
____________ ___________
Date Signature
E. A person to whom a notice of abatement has been issued may appeal the issuance of the notice by filing a written notice of appeal with the hearing examiner within five calendar days from the date of service of the notice or within 10 days following the date of service by mail, as evidenced by the postmark on the notice. The notice of appeal need not be in a particular form but must clearly state that the person identified in the notice of appeal is the person to whom a notice of abatement was given, the date of the notice of abatement and the notice of appeal, and the reason or reasons why the person believes the notice to be in error. The hearing examiner shall review the appeal and shall make a determination, after considering all pertinent facts, within 10 days. The procedure for review by the hearing examiner including rules of evidence shall follow the rules prescribed for hearings before that hearing examiner, insofar as is reasonably possible and appropriate. If no such rules exist, the hearing examiner shall formally adopt as its rules, insofar as appropriate, the hearing procedures of the Okanogan civil service commission relating to contested cases. The hearing examiner’s decision shall be in writing, and shall be filed with the city clerk. A copy of the decision shall be mailed promptly to the property owner, and, if the decision finds that the nuisance exists, the decision shall notify the property owner of the amount of time within which the nuisance must be abated.
F. If the notice is not timely or correctly appealed or if the appeal fails, and if the nuisance has not been abated within the time prescribed in the notice, the city shall cause the nuisance to be abated and shall charge the cost thereof against the property owner. The charges shall be considered as a personal obligation of the owner to the city, and shall be enforceable by the city in the same manner as other monetary claims.
G. The costs of abatement, when borne by the city, may be assessed against the real property upon which the costs were incurred unless paid. The enforcement officer shall forward such costs to the city clerk-treasurer, who shall certify them to the county treasurer for assessment on the tax rolls. (Ord. 1080 § 2, 2007; Ord. 782 § 2, 1994)
8.30.040 Liability for continuing nuisance.
Every successive owner or occupant of property who neglects to abate a continuing nuisance upon or in the use of such property caused by a former owner, is liable in the same manner as the owner who created it. (Ord. 1080 § 2, 2007; Ord. 782 § 2, 1994)
8.30.050 Money collected for abatement – Disposition.
All money collected for abatement purposes as provided in this chapter shall be paid to the city treasurer, shall be separately stated and itemized by the treasurer, and shall be credited by the treasurer to the departments or divisions of the city government which have incurred the abatement costs. (Ord. 1080 § 2, 2007; Ord. 782 § 2, 1994)
8.30.060 Civil penalties.
A. Violations as Civil Infractions. A violation of Chapter 8.30 OMC is a civil infraction for which civil penalties may be assessed for each day or part of day that the violation continues.
B. Notice of Civil Infraction. In addition to other civil remedies, the enforcement officer may issue a notice of civil infractions to an owner who fails to abate the nuisance within the amount of time specified in the notice of abatement. The notice shall be filed with the city clerk and served in the same manner as that provided in this chapter for the service of a notice of abatement. The notice shall state that a civil penalty has been assessed against the person to whom the notice of civil infraction was directed and shall accrue for each and every day or portion thereof during which the violation of the notice abatement continues, and shall notify the person of a right to appeal. The amount of the penalty shall be measured daily for each violation as specified in subsection C of this section.
The notice shall be substantially the following form:
NOTICE OF CIVIL INFRACTION FOR FAILURE TO ABATE NUISANCE
(Name and address of person notified)
You are hereby notified that your failure to comply with the Notice to Abate Unsafe or Unlawful Condition (Nuisance) is a violation of OMC 8.30.015, and constitutes a civil infraction. As provided in OMC 8.30.060, a civil penalty has been assessed against you in the amount of _______, and a separate civil penalty in that amount may be assessed against you for each day or part of day that this violation continues, commencing __________, and until the condition specified in the said notice has been corrected to the city’s satisfaction.
Civil penalties must be paid within 30 days after they have been incurred. Your failure to pay the assessed penalties when due may result in a civil suit against you for the amount of those penalties in addition to hearing examiner costs and abatement costs incurred by the city in correcting the condition in question.
You have the right to appeal this notice to the Okanogan Hearing Examiner, as provided in OMC 8.30.060 D, within 10 days, or within 13 days if served by mail, as evidenced by the postmark on said notice.
Thank you for your immediate attention to this matter.
_________________ _________
Enforcement Officer Date
C. Civil Penalties Assessed. The amount of civil penalty that is assessed for each violation per day or portion of day is as follows:
1. First violation: $150.00;
2. Second violation: $250.00;
3. Third violation: $350.00;
4. Additional violations in excess of three: $500.00.
D. Appeal. A person to whom a notice of civil infraction has been directed may file any appeal with the Okanogan hearing examiner to context the issuance of such notice or the amount of any civil penalty imposed, not later than 10 days following the service of the notice or 13 days following date of service by mail as evidenced by the postmark on the notice.
E. Accrual of Penalty Pending Appeal. The civil penalty for a continuing violation does not accrue during the pendency of a timely appeal; however, the enforcement officer may impose a daily civil penalty from the date of service of the notice of civil infraction if he or she find that the appeal is frivolous or is solely intended to delay compliance, or if the appeal is not timely.
F. Continuing Duty to Correct. Payment of a civil penalty pursuant to this chapter does not relieve a person of the duty to abate a nuisance that was ordered by the enforcement officer.
G. Collection of Civil Penalty.
1. The civil penalty constitutes a personal obligation of the person to whom the notice of civil infraction is directed. Any civil penalty assessed must be paid to the city treasurer within seven calendar days from the date of service of notice of civil infraction or, if any appeal was filed pursuant to subsection D of this section, within seven calendar days of the decision of the hearing examiner.
2. The city attorney, on behalf of the city, is authorized to collect the civil penalty by using appropriate legal remedies, the seeking or granting of which shall neither stay nor terminate the accrual of additional per diem civil penalties as long as the violation continues.
H. Other Remedies Preserved.
1. The provisions of this chapter are not exclusive of other rights and remedies of the city under other provisions of the Okanogan Municipal Code.
2. In addition to the city’s right to assess costs and penalties against owners as provided in its ordinances, the city shall retain all rights of lien and other rights against the property in question for costs that remain unpaid, in the manner and form provided by state law and city ordinances. (Ord. 1080 § 2, 2007; Ord. 782 § 2, 1994)
8.30.070 Criminal penalties.
A. As an alternative to any other penalty provided in this chapter or by law, any person who knowingly violates any provision of this chapter of the Okanogan Municipal Code shall be guilty of a misdemeanor.
B. Any person who knowingly obstructs or hinders or provides false information to any officer or agent of the city of Okanogan or other governmental unit in the enforcement of this chapter is guilty of a gross misdemeanor.
C. Any violation that is required by state law to be prosecuted as a criminal offense shall not be prosecuted as a civil infraction under this code. (Ord. 782 § 2, 1994)
8.30.080 Emergencies.
Nothing in this chapter of the Okanogan Municipal Code shall prevent the enforcement officer or any other officer of the city of Okanogan or other governmental unit from taking any other action, summary or otherwise, necessary to eliminate or minimize an imminent danger to the health or safety of any person or property, or the unlawful obstruction of any public way or easement. The city’s costs of abating any such nuisance, summarily or otherwise, shall be recoverable in the same manner and to the same extent as costs of abating nuisances under any other provisions of this chapter, in addition to or as an alternative to any other rights or remedies the city may possess. (Ord. 782 § 2, 1994)
8.30.090 Safeguards.
In any case where a nuisance is abated the enforcement officer or other officer, agent or employee shall proceed with due care and without unnecessary destruction of property. In all cases the enforcement officer shall be authorized to employ such assistance and adopt such means as may be necessary to effect the entire abatement of the nuisance. (Ord. 782 § 2, 1994)