Chapter 1.20 CODE COMPLIANCE AND ENFORCEMENT

(m) Such other code provisions, ordinances, resolutions, or public rules that promote or protect the public health, safety, or welfare, or the use and development of land and water. (Ord. 1465 § 2 (part), 2016).

1.20.020 Definitions.

Except where specifically defined in this section, all words used in this chapter shall carry their customary meanings. The word “shall” is always mandatory, and the word “may” denotes a use of discretion in making a decision. The following words and phrases used in this chapter shall have the following meanings:

(a) “Abate” means to repair, replace, remove, destroy, demolish, board up, or otherwise remedy a condition which constitutes a civil violation by such means, in such a manner, and to such extent as the city building official, city administrator, or his/her designee determines is necessary in the interest of the general health, safety, and welfare of the community.

(b) “Code enforcement officer” means the city code enforcement officer, the city building official, and all other city officials designated by ordinance or by the city council for purposes of enforcing the regulations subject to the provisions of this chapter.

(c) “Emergency” means a situation or civil violation which, in the opinion of the city building official, city administrator, or his or her designee, requires immediate action to prevent or eliminate an imminent threat to the public health, safety, or welfare of persons or property.

(d) “Hearing examiner” means the Othello hearing examiner and the office thereof established pursuant to the Othello Municipal Code.

(e) “Omission” means a failure to act.

(f) “Person” means and includes individuals, firms, partnerships, corporations, and all associations of natural persons, whether acting by themselves or by an agent or employee.

(g) “Person responsible for violation” means either the person who caused the violation and/or the owner, lessor, tenant, or other person entitled to control, use, and/or occupy property where a civil code violation occurs.

(h) “Nuisance” is 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; or

(2) Offends public decency; or

(3) Is offensive to the sense of reasonable persons; or

(4) In any way renders other persons insecure in life or use of property.

(i) “Regulation” means and includes all of the code provisions, ordinances, standards, regulations, procedures, terms and/or conditions specified under Section 1.20.015 or elsewhere in the Othello Municipal Code.

(j) “Violation” means:

(1) An act or omission contrary to any city regulation that promotes or protects the public health, safety, or welfare or the use and development of land or water, whether or not the regulation is codified; and/or

(2) An act or omission contrary to the conditions of any permit, notice and order, or stop work or other order issued pursuant to any such regulation. (Ord. 1468 § 1, 2016: Ord. 1465 § 2 (part), 2016).

1.20.025 Declaration of public nuisance.

All civil code violations are determined to be detrimental to the public health, safety, and environment, and are declared to be public nuisances. All conditions determined to be civil code violations shall be subject to and may be enforced pursuant to the provisions of this chapter, in addition to any other remedies allowed by law, except where specifically excluded by law or regulation. Any person who willfully or knowingly causes, aids or abets a civil code violation pursuant to this title by any act of commission or omission shall be deemed to have committed a civil violation subject to a C-7 penalty. (Ord. 1465 § 2 (part), 2016).

1.20.030 Enforcement, authority, and administration.

(a) In order to discourage public nuisances and otherwise promote compliance with applicable code provisions, the city may, in response to field observations, determine that violations of Chapter 5.20 et seq., Chapter 8.26 et seq., and/or Titles 13 through 17 have occurred or are occurring, and may:

(1) Enter into voluntary compliance agreements with persons responsible for code violations;

(2) Issue notice and orders, assess civil penalties, and recover costs as authorized by this chapter;

(3) Require abatement by means of a judicial abatement order, and if such abatement is not timely completed by the person or persons responsible for a code violation, undertake the abatement and charge the reasonable costs of such work as authorized by this chapter;

(4) Allow a person responsible for the code violation to perform community service, as approved by the city administrator, in lieu of paying civil penalties as authorized by this chapter;

(5) Order work stopped at a site by means of a stop work order, and if such order is not complied with, assesses civil penalties as authorized by this chapter;

(6) Suspend, revoke, or modify any permit previously issued by the city or deny a permit application as authorized by this chapter when other efforts to achieve compliance have failed; and

(7) Forward a written statement providing all relevant information relating to the violation to the office of the city attorney with a recommendation to prosecute willful and knowing violations as C-1 civil infractions punishable by a fine of one thousand dollars.

(b) The procedures set forth in this chapter are not exclusive. These procedures shall not in any manner limit or restrict the city from remedying or abating violations of this title in any other manner authorized by law.

(c) In addition to, or as an alternative to, utilizing the procedures set forth in this chapter, the city may seek legal or equitable relief to abate any conditions or enjoin any acts or practices which constitute a code violation.

(d) In addition to, or as an alternative to, utilizing the procedures set forth in this chapter, the city may assess or recover civil penalties accruing under this chapter by legal action filed in Adams County district court or superior court by the office of the city attorney.

(e) The provisions of this chapter shall in no way adversely affect the rights of the owner, lessee, or occupant of any property to recover all costs and expenses incurred and required by this chapter from any person causing such violation.

(f) In administering the provisions for code compliance, the city shall have the authority to waive any one or more such provisions so as to avoid substantial injustice. Any determination of substantial injustice shall be made in writing supported by appropriate facts. For purposes of this subsection, substantial injustice cannot be based exclusively on financial hardship.

(g) The city may, upon presentation of proper credentials, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued court order, enter at reasonable times any building or premises subject to the consent or court order to perform the duties imposed by this code. It is the intent of the city council that any entry made to private property for the purpose of inspection for code violations be accomplished in strict conformity with constitutional and statutory constraints on entry, and the holdings of the relevant court cases regarding entry. The right of entry authorized by this chapter shall not supersede those legal constraints.

(h) The city may request that the police, appropriate fire district, appropriate health district, or other appropriate city department or other noncity agency assist in enforcement. (Ord. 1465 § 2 (part), 2016).

1.20.050 Procedures when probable violation is identified.

(a) The city shall determine, based upon information derived from sources such as field observations, the statements of witnesses, relevant documents, and data systems for tracking violations and applicable city codes and regulations, whether or not a violation has occurred. As soon as the city has reasonable cause to determine that a violation has occurred, the violation shall be documented and the person responsible for the code violations promptly notified.

(b) A warning may be issued verbally or in writing promptly when a field inspection reveals a violation, or as soon as the city otherwise determines a violation has occurred. Any warning issued hereunder shall inform the person determined to be responsible for a code violation of the violation and allow the person an opportunity to correct it or enter into a voluntary compliance agreement as provided for by this chapter.

(d) The city shall use all reasonable means to determine and proceed against the person(s) actually responsible for the code violation occurring when the property owner has not directly or indirectly caused the violation.

(e) If the violation is not corrected, or a voluntary compliance agreement is not entered into within thirty days of notification by the city, a notice and order or stop work order should be issued. Stop work orders should be issued promptly upon discovery of a violation in progress. (Ord. 1465 § 2 (part), 2016).

1.20.060 Service—Notice and order and stop work order.

(a) Service of a notice and order shall be made on a person responsible for code violation by one or more of the following methods:

(1) Personal service of a notice and order may be made on the person identified by the city as being responsible for the code violation, or by leaving a copy of the notice and order at the person’s house of usual abode with a person of suitable age and discretion who resides there;

(2) Service directed to the landowner and/or occupant of the property may be made by posting the notice and order in a conspicuous place on the property where the violation occurred and concurrently mailing notice as provided for below, if a mailing address is available; or

(3) Service by mail may be made for a notice and order by mailing one copy, postage prepaid, by ordinary first class mail to the person responsible for the code violation at his or her last known address, at the address of the violation, or at the address of the place of business of the person responsible for the code violation. The taxpayer’s address as shown on the tax records of Adams County shall be deemed to be the proper address for the purpose of mailing such notice to the landowner of the property where the violation occurred. Service by mail shall be presumed effective upon the third business day following the day upon which the notice and order was placed in the mail.

(b) For notice and orders only, when the address of the person responsible for the code violation cannot be reasonably determined, service may be made by publication once a week for two consecutive weeks in the official newspaper used by the city for issuing public notice. Service by publication shall be deemed complete at the expiration of the time prescribed for publication. A notice and order served by publication shall be signed by a code compliance officer, shall include the dates of the publication, and shall contain a brief statement of the nature of the action and how it can be remedied.

(c) Service of a stop work order on a person responsible for a code violation may be made by posting the stop work order in a conspicuous place on the property where the violation occurred or by serving the stop work order in any other manner permitted by this chapter.

(d) The failure of the city to make or attempt service on any person named in the notice of violation, notice and order, or stop work order shall not invalidate any proceedings as to any other person duly served. (Ord. 1465 § 2 (part), 2016).

1.20.070 Training and rule making.

The city shall adopt procedures to implement the provisions of this chapter, and specifically the guidelines set out in this chapter describing reasonable and appropriate protocols for investigating code violations. (Ord. 1465 § 2 (part), 2016).

1.20.080 Obligations of persons responsible for code violation.

(a) It shall be the responsibility of any person identified as responsible for a code violation to bring the property into a safe and reasonable condition to achieve code compliance. Payment of civil penalties, applications for permits, acknowledgment of stop work orders, and compliance with other remedies do not substitute for performing the corrective work required and having the property brought into compliance to the extent reasonably possible under the circumstances.

(b) Persons determined to be responsible for a code violation pursuant to a notice and order shall be liable for the payment of any civil penalties and abatement costs. (Ord. 1465 § 2 (part), 2016).

1.20.090 Determination of compliance.

After issuance of a warning, voluntary compliance agreement, notice and order, or stop work order, and after the person(s) responsible for a violation has come into compliance, the city shall issue a written determination of compliance. The city shall mail copies of the determination of compliance to each person originally named in the warning, voluntary compliance agreement, notice and order, or stop work order. (Ord. 1465 § 2 (part), 2016).

1.20.100 Voluntary compliance agreement—Authority.

(a) Whenever the city determines that a code violation has occurred or is occurring, the city shall make reasonable efforts to secure voluntary compliance from the person responsible for the code violation. Upon contacting the person responsible for the code violation, the city may enter into a voluntary compliance agreement as provided for in this chapter.

(b) A voluntary compliance agreement may be entered into at any time after issuance of a verbal or written warning, a notice and order, or a stop work order and before an appeal is decided.

(c) Upon entering into a voluntary compliance agreement, a person responsible for a code violation waives the right to administratively appeal, and thereby admits that the conditions described in the voluntary compliance agreement existed and constituted a code violation.

(d) The voluntary compliance agreement shall incorporate the shortest reasonable time period for compliance, as determined by the city. An extension of the time limit for compliance or a modification of the required corrective action may be granted by the city if the person responsible for the code violation has shown due diligence or substantial progress in correcting the violation, but circumstances render full and timely compliance under the original conditions unattainable. Any such extension or modification must be in writing and signed by the authorized representative of the city and person(s) who signed the original voluntary compliance agreement.

(e) The voluntary compliance agreement is not a settlement agreement. (Ord. 1465 § 2 (part), 2016).

1.20.110 Voluntary compliance agreement—Contents.

The voluntary compliance agreement is a written, signed commitment by the person(s) responsible for a code violation in which such person(s) agrees to abate the violation, remediate the site, and/or mitigate the impacts of the violation. The voluntary compliance agreement shall include the following:

(a) The name and address of the person responsible for the code violation;

(b) The address or other identification of the location of the violation;

(c) A description of the violation and a reference to the provision(s) of the ordinance, resolution or regulation which has been violated;

(d) A description of the necessary corrective action to be taken and identification of the date or time by which compliance must be completed;

(e) The amount of the civil penalty that will be imposed if the voluntary compliance agreement is not satisfied;

(f) An acknowledgment that if the city determines that the terms of the voluntary compliance agreement are not met, the city may, without obtaining any court order or issuing a notice and order or stop work order, impose any remedy authorized by this chapter, enter the real property and perform abatement of the violation, assess the costs incurred by the city to pursue code compliance and to abate the violation, including reasonable legal fees and costs, and the suspension, revocation or limitation of a development permit obtained or to be sought by the person responsible for the code violation;

(g) An acknowledgment that if a penalty is assessed, and if any assessed penalty, fee or cost is not paid, the city may charge the unpaid amount as a lien against the property where the code violation occurred if owned by the person responsible for the code violation, and that the unpaid amount may be a joint and several personal obligation of all persons responsible for the violation;

(h) An acknowledgment that by entering into the voluntary compliance agreement, the person responsible for the code violation thereby admits that the conditions described in the voluntary compliance agreement existed and constituted a code violation; and

(i) An acknowledgment that the person responsible for the code violation understands that he or she has the right to be served with a notice and order, or stop work order for any violation identified in the voluntary compliance agreement, has the right to administratively appeal any such notice and order or stop work order, and that he or she is knowingly and intelligently waiving those rights. (Ord. 1468 § 2, 2016: Ord. 1465 § 2 (part), 2016).

1.20.120 Failure to meet terms of voluntary compliance agreement.

(a) If the terms of the voluntary compliance agreement are not completely met, and an extension of time has not been granted, the person responsible for the violation may, without being issued a notice and order or stop work order, be assessed a civil penalty as set forth by this chapter, plus all costs incurred by the city to pursue code compliance and to abate the violation, and may be subject to other remedies authorized by this chapter. Penalties imposed when a voluntary compliance agreement is not met accrue from the date that an appeal of any preceding notice and order or stop work order was to have been filed or from the date the voluntary compliance agreement was entered into if there was not a preceding notice and order or stop work order. The city is not required to obtain a court order before abating a condition subject to a voluntary compliance agreement that has been violated.

(b) The city may, but is not required to, issue a notice and order or stop work order for failure to meet the terms of a voluntary compliance agreement. (Ord. 1465 § 2 (part), 2016).

1.20.130 Notice and order—Authority.

When the city has reason to believe, based on investigation of documents and/or physical evidence, that a code violation exists or has occurred, or that the terms of a voluntary compliance agreement have not been met, the city is authorized to issue a notice and order to any person responsible for a code violation. (Ord. 1465 § 2 (part), 2016).

1.20.140 Notice and order—Effect.

(a) A notice and order represents a determination that a violation has occurred, that the party to whom the notice is issued is a person responsible for a code violation, and that the violations set out in the notice and order require the assessment of penalties and other remedies that may be specified in the notice and order.

(b) The city is authorized to impose civil penalties upon a determination by the city that a violation has occurred pursuant to a notice and order.

(c) Issuance of a notice and order in no way limits the city’s authority to issue a stop work order to a person previously cited through the notice and order process pursuant to this chapter. (Ord. 1465 § 2 (part), 2016).

1.20.150 Notice and order—Contents.

The notice and order shall contain the following information:

(a) The address, when available, or location of the violation;

(b) A legal description of the real property or the Adams County tax parcel number where the violation occurred or is located, or a description identifying the property by commonly used locators;

(c) A statement that the city has found the named person(s) responsible for a violation and a brief description of the violation(s) found;

(d) A statement of the specific provisions of the ordinance, resolution, regulation, public rule, permit condition, notice and order provision, or stop work order that was or is being violated;

(e) A statement that a civil penalty is being assessed, including the dollar amount of the civil penalties, and that any assessed penalties must be paid within twenty days of service of the notice and order;

(f) A statement advising that any costs of enforcement incurred by the city shall also be assessed against the person to whom the notice and order is directed;

(g) A statement that payment of the civil penalties assessed under this chapter does not relieve a person found to be responsible for a code violation of his or her duty to correct the violation and/or to pay any and all civil penalties or other cost assessments issued pursuant to this chapter;

(h) A statement of the corrective or abatement action required to be taken and that all required permits to perform the corrective action must be obtained from the proper issuing agency;

(i) A statement advising that, if any required work is not commenced or completed within the time specified by the notice and order, the city may proceed to seek a judicial abatement order from Adams County superior court to abate the violation;

(j) A statement advising that, if any assessed penalty, fee or cost is not paid on or before the due date, the city may charge the unpaid amount as a lien against the property where the code violation occurred if owned by a person responsible for a violation, and as a joint and several personal obligation of all persons responsible for a code violation;

(k) A statement advising that any person named in the notice and order, or having any record or equitable title in the property against which the notice and order is recorded, may appeal from the notice and order to the hearing examiner within fourteen days of the date of service of the notice and order;

(l) A statement advising that a failure to correct the violations cited in the notice and order could lead to the denial of subsequent Othello permit applications on the subject property;

(m) A statement advising that a failure to appeal the notice and order within the applicable time limits renders the notice and order a final determination that the conditions described in the notice and order existed and constituted a violation, and that the named party is liable as a person responsible for a violation;

(n) A statement advising the person responsible for a code violation of his/her duty to notify the city of any actions taken to achieve compliance with the notice and order; and

(o) A statement advising that failure to comply with the notice and order may be referred to the office of the city attorney for appropriate legal action. (Ord. 1465 § 2 (part), 2016).

1.20.160 Notice and order—Supplementation, revocation, modification.

(a) The city may add to, revoke, in whole or in part, or otherwise modify a notice and order by issuing a written supplemental notice and order. The supplemental notice and order shall be governed by the same procedures and time limits applicable to all notice and orders contained in this chapter.

(b) The city may issue a supplemental notice and order, or revoke a notice and order issued under this chapter:

(1) If the original notice and order was issued in error;

(2) Whenever there is new information or change of circumstances; or

(3) If a party to an order was incorrectly named. (Ord. 1465 § 2 (part), 2016).

1.20.170 Notice and order—Administrative conference.

An informal administrative conference may be conducted by the city at any time for the purpose of facilitating communication among concerned persons and providing a forum for efficient resolution of any violation. Interested parties shall not unreasonably be excluded from such conferences. (Ord. 1465 § 2 (part), 2016).

1.20.180 Notice and order—Remedies—Suspension, revocation, or limitation of permit.

(a) The city may suspend, revoke, or modify any permit issued by the city whenever:

(1) The permit holder has committed a violation in the course of performing activities subject to that permit;

(2) The permit holder has interfered with the authorized representatives of the city in the performance of his or her duties related to that permit;

(3) The permit was issued in error or on the basis of materially incorrect information supplied to the city;

(4) Permit fees or costs were paid to the city by check and returned from a financial institution marked nonsufficient funds (NSF) or canceled; and

(5) There is a permit or approval that is subject to sensitive area review, and the applicant has failed to disclose a change of circumstances on the development proposal site which materially affects an applicant’s ability to meet the permit or approval conditions, or which makes inaccurate the sensitive area study that was the basis for establishing permit or approval conditions.

(b) Such suspension, revocation, or modification shall be carried out through the notice and order provisions of this chapter and shall be effective upon the compliance date established by the notice and order. Such suspension, revocation, or modification may be appealed to the hearing examiner using the appeal provisions of this chapter.

(c) Notwithstanding any other provision of this chapter, the city may immediately suspend operations under any permit by issuing a stop work order. (Ord. 1465 § 2 (part), 2016).

1.20.190 Notice and order—Remedies—Denial of permit.

(a) The city may deny a permit when, with regard to the site or project for which the permit is submitted:

(1) Any person owning the property or submitting the development proposal has been found in violation of any ordinance, resolution, regulation, or public rule of the city that regulates or protects the public health, safety and welfare, or the use and development of land and water; and/or

(2) Any person owning the property or submitting the development proposal has been found in violation and remains in violation of the conditions of any permit, notice and order, or stop work order issued pursuant to any such ordinance, resolution, regulation, or public rule.

(b) In order to further the remedial purposes of this chapter, such denial may 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, except that permits or approvals shall be granted to the extent necessary to accomplish any required restoration or cure. (Ord. 1465 § 2 (part), 2016).

1.20.200 Notice and order—Remedies—Abatement.

In addition to, or as an alternative to, any other judicial or administrative remedy, the city may use the notice and order provisions of this chapter to order any person responsible for a code violation to abate the violation and to complete the work at such time and under such conditions as the city determines reasonable under the circumstances. If the required corrective work is not commenced or completed within the time specified, the city may seek a judicial abatement order pursuant to this chapter. (Ord. 1465 § 2 (part), 2016).

1.20.210 Stop work order—Authority.

The city is authorized to issue a stop work order to a person responsible for a code violation. Issuance of a notice and order is not a condition precedent to the issuance of the stop work order. (Ord. 1465 § 2 (part), 2016).

1.20.220 Stop work order—Effect.

(a) A stop work order represents a determination that a code violation has occurred or is occurring, and that any work or activity that caused, is causing or contributing to the violation on the property where the violation has occurred, or is occurring, must cease.

(b) A stop work order requires the immediate cessation of the specified work or activity on the named property. Work activity may not resume unless specifically authorized in writing by the city.

(d) Failure to appeal the stop work order within twenty days renders the stop work order a final determination that the civil code violation occurred and that work was properly ordered to cease.

(e) A stop work order may be enforced by the city police. (Ord. 1465 § 2 (part), 2016).

1.20.230 Stop work order—Remedy—Civil penalties.

(a) In addition to any other judicial or administrative remedy, the city may assess civil penalties for the violation of any stop work order according to the civil penalty schedule established in Section 1.20.250.

(b) Civil penalties for the violation of any stop work order shall begin to accrue on the first day the stop work order is violated and shall cease accruing on the day the work is actually stopped.

(c) Violation of a stop work order shall be a separate violation from any other code violation. (Ord. 1465 § 2 (part), 2016).

1.20.240 Stop work order—Remedy—Criminal penalties.

In addition to any other judicial or administrative remedy, the city may forward to the office of the city attorney a detailed factual background of the alleged violation with a recommendation that a misdemeanor charge be filed against the person(s) responsible for any willful violation of a stop work order to the extent allowed under the Othello Municipal Code or Revised Code of Washington. (Ord. 1465 § 2 (part), 2016).

1.20.250 Civil penalties—Assessment schedule.

(a) Civil penalties for code violations shall be imposed for remedial purposes for violations identified in a notice and order or stop work order, pursuant to the following schedule:

Notice and orders and stop work orders—basic initial penalty: five hundred dollars.

(b) Additional penalties shall be added where there is:

(1) Second violation: five hundred dollars.

(2) Each subsequent violation (three or more): one thousand dollars.

(3) Economic benefit to person responsible for violation: five thousand dollars.

(c) Civil penalties shall be paid within twenty days of service of the notice and order or stop work order if not appealed. Payment of the civil penalties assessed under this chapter does not relieve a person found to be responsible for a code violation of his or her duty to correct the violation and/or to pay any and all civil penalties or other cost assessments issued pursuant to this chapter.

(d) The city may suspend civil penalties if the person responsible for a code violation has entered into and fulfilled all requirements of a voluntary compliance agreement.

(e) Civil penalties assessed create a joint and several personal obligation in all persons responsible for a code violation.

(f) In addition to, or in lieu of, any other state or local provision for the recovery of civil penalties, the city may file for record with the Adams County auditor to claim a lien against the real property for the civil penalties assessed under this chapter if the violation was reasonably related to the real property. Any such lien can be filed under this chapter if, after the expiration of thirty days from when a person responsible for a code violation receives the notice and order or stop work order (excluding any appeal), any civil penalties remain unpaid in whole or in part. (Ord. 1465 § 2 (part), 2016).

1.20.260 Civil penalties—Duty to comply.

Persons responsible for a code violation have a duty to notify the city in writing of any actions taken to achieve compliance with the notice and order. For purposes of assessing civil penalties, a violation shall be considered ongoing until the person responsible for a code violation has come into compliance with the notice and order, voluntary compliance agreement, or stop work order, and has provided sufficient evidence of such compliance. (Ord. 1465 § 2 (part), 2016).

1.20.270 Civil penalties—Community service.

The city is authorized to allow a person responsible for a code violation that accumulates civil penalties as a result of a notice and order, or for failure to comply with the terms of a voluntary compliance agreement, to voluntarily participate in an approved community service project(s) in lieu of paying all or a portion of the assessed civil penalties. Community service may include, but is not limited to, abatement, restoration, or education programs designed to clean up the city. The amount of community service will reasonably relate to the comparable value of penalties assessed against the violator. The rate at which civil penalties are worked off under this section is ten dollars per hour. The city shall take into consideration the severity of the violation, any history of previous violations, and practical and legal impediments in considering whether to allow community service in lieu of paying penalties. (Ord. 1465 § 2 (part), 2016).

1.20.280 Civil penalties—Waivers.

(a) Civil penalties may be waived or reimbursed to the payer by the city under the following circumstances:

(1) The notice and order or stop work order was issued in error;

(2) The civil penalties were assessed in error;

(3) New, material information warranting waiver has been presented to the city since the notice and order or stop work order was issued; or

(4) As appropriate to resolve litigation.

(b) The city shall state in writing the basis for a decision to waive penalties, and such statement shall become part of the public record unless privileged. (Ord. 1465 § 2 (part), 2016).

1.20.290 Civil penalties—Critical areas.

(a) The compliance provisions for critical areas are intended to protect critical areas and the general public from harm and to further the remedial purposes of this chapter. To achieve this, persons responsible for a code violation will not only be required to restore damaged critical areas, insofar as that is possible and beneficial, 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.

(b) The provisions of this section are in addition to, and not in lieu of, any other penalty, sanction, or right of action provided by law for other related violations.

(c) Where feasible, the owner of the land on which the violation occurred shall be named as a party to the notice and order. In addition to any other persons who may be liable for a violation, and subject to the exceptions provided in this chapter, the owner shall be jointly and severally liable for the restoration of a site and payment of any civil penalties imposed.

(d) Violation of critical area provisions of this code means:

(1) The violation of any provision of Chapter 13.08, Critical Areas, or of the administrative rules promulgated thereunder;

(2) The failure to obtain a permit required for work in a critical area; or

(3) The failure to comply with the conditions of any permit, approval, terms and conditions of any sensitive area tract or setback area, easement, covenant, plat restriction or binding assurance, or any notice and order, stop work order, mitigation plan, contract or agreement issued or concluded pursuant to the above-mentioned provisions.

(e) Any person in violation of Chapter 13.08, Critical Areas, may be subject to civil penalties, costs, and fees as follows:

(1) According to the civil penalty schedule under Section 1.10.030 for C-1 civil infractions; provided, that the exact amount of the penalty per violation may be determined by the city based on the physical extent and severity of the violation; or

(2) The greater of:

(A) An amount determined to be equivalent to the economic benefit that the person responsible for a code violation derives from the violation, measured as the total of:

(i) The resulting increase in market value of the property;

(ii) The value received by the person responsible for a violation;

(iii) The savings of construction costs realized by the person responsible for a code violation as a result of performing any act in violation of Chapter 13.08, Critical Areas; or

(B) Code compliance costs incurred by the city to enforce Chapter 13.08, Critical Areas. (Ord. 1465 § 2 (part), 2016).

1.20.300 Cost recovery.

(a) In addition to the other remedies available under this chapter, upon issuance of a notice and order or stop work order the city shall charge the costs of pursuing code compliance and abatement incurred to correct a code violation to the person responsible for a code violation. These charges include:

(1) Reasonable Legal Fees and Costs. For purposes of this section, “reasonable legal fees and costs” shall include, but are not limited to, legal personnel costs, both direct and related, incurred to enforce the provisions of this chapter as may be allowed by law;

(2) Administrative Personnel Costs. For purposes of this section, “administrative personnel costs” shall include, but are not limited to, administrative employee costs, both direct and related, incurred to enforce the provisions of this chapter;

(3) Abatement Costs. The city shall keep an itemized account of costs incurred by the city in the abatement of a violation under this chapter; and

(4) Actual expenses and costs of the city in preparing notices, specifications and contracts; in accomplishing or contracting and inspecting the work; and the costs of any required printing, mailing, or court filing fees.

(b) Such costs are due and payable thirty days from mailing of the invoice.

(c) All costs assessed by the city in pursuing code compliance and/or abatement create joint and several personal obligations in all persons responsible for a violation. The office of the city attorney, on behalf of the city, may collect the costs of code compliance efforts by any appropriate legal means.

(d) In addition to, or in lieu of, any other state or local provision for the recovery of costs, the city may, after abating a violation pursuant to this chapter, file for record with the Adams County auditor to claim a lien against the real property for the assessed costs identified in this chapter if the violation was reasonably related to the real property, in accordance with any lien provisions authorized by state law.

(e) Any lien filed 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, with which it shall share priority. The city may cause a claim of lien to be filed for record within ninety days from the later of the date that the monetary penalty is due or the date the work is completed or the nuisance abated. The claim of lien shall contain sufficient information regarding the notice and order, a description of the property to be charged with the lien, the owner of record, and the total of the lien. Any such claim of lien may be amended from time to time to reflect changed conditions. Any such lien shall bind the affected property for the period as provided for by state law. (Ord. 1465 § 2 (part), 2016).

1.20.310 Collection of civil penalties, fees, and costs.

The city may use the services of a collection agency in order to collect any civil penalties, fees, costs, and/or interest owing under this chapter. (Ord. 1465 § 2 (part), 2016).

1.20.320 Abatement.

(a) Emergency Abatement. Whenever a condition constitutes an immediate 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.

(b) Judicial Abatement. The city may seek a judicial abatement order from Adams County superior court to abate a condition which continues to be a violation of this code where other methods of remedial action have failed to produce compliance.

1.20.330 Code compliance abatement fund—Authorized.

All monies collected from the assessment of civil penalties and for abatement costs and work shall be allocated to support expenditures for abatement, and shall be accounted for through either creation of an account in the fund for such abatement costs, or other appropriate accounting mechanism. (Ord. 1465 § 2 (part), 2016).

1.20.340 Judicial enforcement—Petition for enforcement.

In addition to any other judicial or administrative remedy, the office of the city attorney, on behalf of the city, may seek enforcement of the city’s order by filing a petition for enforcement in Adams County superior court.

The petition must name as respondent each person against whom the city seeks to obtain civil enforcement.

A petition for civil enforcement may request monetary relief, declaratory relief, temporary or permanent injunctive relief, and any other civil remedy provided by law, or any combination of the foregoing. (Ord. 1465 § 2 (part), 2016).

1.20.350 Appeal of notice and order/stop work order.

(a) How to Appeal. A person to whom a notice and order is issued pursuant to this chapter may appeal to the hearing examiner by filing a written notice of appeal with the city clerk within fourteen calendar days from the date of service of the notice and order. The appeal must be accompanied by a filing fee in the amount established by the city’s fee resolution, which is refundable if the appellant prevails on the appeal.

(b) Effect of Appeal. The timely filing of an appeal pursuant to this section shall stay the requirement for action specified in the notice and order that is the subject of the appeal. The monetary penalty for a continuing violation does not continue to accrue during the pendency of the appeal; however, the hearing examiner may impose a daily monetary penalty from the date of service of the notice and order if he or she finds that the appeal is frivolous or intended solely to delay compliance.

(c) Effect of Failure to Appeal. The violation shall be deemed committed, the notice and order shall become the final administrative order, and the monetary penalties assessed shall be immediately due and subject to collection if (1) an appeal is not filed within fourteen calendar days after the notice and order was issued, or (2) an appeal was timely filed, but the appellant or his or her representative failed to appear at the hearing. (Ord. 1465 § 2 (part), 2016).

1.20.360 Appeal—Hearing.

(a) Date of Hearing. Within ten days of the clerk’s receipt of the appeal, the hearing examiner shall set a public hearing for a date within forty-five days of the clerk’s receipt of the appeal, unless a longer period is agreed to between the parties.

(b) Notice of Hearing. The clerk shall cause a notice of the appeal hearing to be posted on the property that is the subject of the notice and order, and mailed to the appellant and the complainant, if not anonymous, at least ten calendar days before the hearing. The notice shall contain the following:

(1) The file number and a brief description of the matter being appealed;

(2) A statement of the scope of the appeal, including a summary of the errors alleged and the findings and/or legal conclusions disputed in the appeal;

(3) The date, time and place of the public hearing on the appeal;

(4) A statement of who may participate in the appeal; and

(5) A statement of how to participate in the appeal.

(c) Conduct of Hearing. The hearing examiner shall conduct the hearing on the appeal pursuant to Chapter 2.16 and the rules of procedure of the hearing examiner. (Ord. 1465 § 2 (part), 2016).

1.20.370 Appeal—Decision.

(a) 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 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.

(b) The hearing examiner shall issue an order to the person responsible for the violation which contains the following information:

(1) The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;

(2) The required corrective action;

(3) The date by which the correction must be completed;

(4) The monetary penalties assessed based on the provisions of this chapter;

(5) The date after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.

(c) Abatement. Where action to abate the violation is required, the hearing examiner shall give substantial weight to the city’s determination regarding the nature of any such action required, and whether such action has been satisfactorily performed.

(d) Notice of Decision. The hearing examiner shall mail a copy of the decision, including findings of fact, conclusions, and order, to the applicable department director within fourteen working days of the hearing. The city shall forward a copy of the decision to the appellant no later than two working days after its receipt of the decision.

(e) Judicial Review. Judicial review of a decision by the hearing examiner may be sought by any person aggrieved or adversely affected by the decision, pursuant to the provisions of the Land Use Petition Act, Chapter 36.70C RCW, if applicable, or other applicable authority, if any, if the petition or complaint seeking review is filed and served on all parties within twenty-one days of the date of the decision. For purposes of this section, “aggrieved or adversely affected” shall have the meaning set forth in RCW 36.70C.060(2).

(f) Effect of Decision. If judicial review is not obtained, the decision of the hearing examiner shall constitute the final decision of the city, and the failure to comply with the decision of the hearing examiner shall constitute a civil violation punishable by a fine of not more than five thousand dollars. In addition to civil penalties pursuant to this subsection, the city may pursue collection and abatement as provided in this chapter. (Ord. 1465 § 2 (part), 2016).

1.20.380 Additional code enforcement procedures.

The provisions of this chapter are not exclusive, and may be used in addition to other code enforcement provisions authorized by the Othello Municipal Code or other applicable law or regulation. (Ord. 1465 § 2 (part), 2016).

1.20.390 Interference.

Any person who knowingly obstructs, impedes, or interferes with the city or its agents, or with a person responsible for a violation, any of whom are engaged in performing duties imposed by this chapter, shall be guilty of a C-1 civil violation punishable by a fine of up to five thousand dollars. (Ord. 1465 § 2 (part), 2016).

1.20.400 Collection of monetary penalties.

The monetary penalty constitutes a personal obligation of the person to whom a notice of civil infraction or notice and order is directed. Any monetary penalty assessed must be paid to the city within ten calendar days from the date of mailing of the court’s decision, hearing examiner’s decision, or a notice from the city that penalties are due. Any such monetary penalty shall further constitute a lien against the affected real property. The city attorney is authorized to take all actions available to collect the monetary penalty. (Ord. 1465 § 2 (part), 2016).

1.20.410 Lien—Authorized.

(a) The city of Othello shall have a lien for any monetary penalty imposed, the cost of any abatement proceedings under this chapter, and all related costs including attorney and expert witness fees, against the real property on which the monetary penalty was imposed or any of the abatement work 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, with which it shall be on parity.

(b) The city shall cause a claim for lien to be filed for record within ninety days from the later of the date that the monetary penalty is due, or the date the work is completed or the violation abated.

(c) The claim of lien shall contain sufficient information regarding the civil violation, as determined by the city, a description of the property to be charged with the lien and the owner of record, and the total amount of the lien.

(d) Any such claim of lien shall be verified by the city, and may be amended from time to time to reflect changed conditions. (Ord. 1465 § 2 (part), 2016).

1.20.420 Right of entry.

The code enforcement officer is authorized to enter upon property or premises at any reasonable time to determine whether a civil violation has occurred or is occurring, or to enforce any provision of the Othello Municipal Code or any city regulation, violation of which is a civil violation under this chapter. The code enforcement officer may make examinations, surveys, and studies as may be necessary in the performance of his or her duties. These may include the taking of photographs, digital images, videotapes, video images, audio recordings, samples, or other physical evidence. If the premises are occupied, the code enforcement officer shall first present credentials and request entry. If an owner, occupant, or agent refuses entry, the city may seek an administrative or criminal search warrant. (Ord. 1465 § 2 (part), 2016).

1.20.430 Conflicts.

In the event of a conflict between this chapter and any other provision of the Othello Municipal Code or city ordinance providing for a civil penalty, the more specific provision shall apply. (Ord. 1465 § 2 (part), 2016).

1.20.440 Adoption of certain other laws.

To the extent that any provision of the Adams County Code, or any other law, rule or regulation referenced in the enforcement code, is necessary or convenient to establish the validity, enforceability or interpretation of the enforcement code, then such provision of the Adams County Code, or other law, rule or regulation, is hereby adopted by reference. (Ord. 1465 § 2 (part), 2016).