Chapter 8.18
NUISANCES
Sections:
8.18.060 Authorized act not a nuisance.
8.18.070 Successive owners or occupant liable.
8.18.080 Abatement does not preclude action for damages.
8.18.090 Voluntary correction.
8.18.100 Notice of civil violation.
8.18.110 Hearing before the hearing examiner.
8.18.120 Abatement by the city.
8.18.130 Additional enforcement procedures.
8.18.010 Construction.
This chapter is an exercise of the police power of the city of Rock Island and is deemed necessary for the continued peace, health and welfare of the city. Therefore all of its provisions shall be liberally construed for the accomplishment of such purposes. (Ord. 98-011 § 2).
8.18.020 Definitions.
The words and phrases used in this chapter, unless the context otherwise indicates, shall have the following meanings:
A. “Abate” means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such a manner and to such an extent as the enforcement officer, in his judgment, determines is necessary in the interest of the general health, safety and welfare of the community.
B. “Building” means any building dwelling, structure, or mobile home, factory built house, or part thereof, built for the support, shelter or enclosure of persons, animals, chattels or property of any kind.
C. “Building materials” means and includes, but is not limited to, lumber, plumbing materials, wall board, sheet metal, plaster, brick, cement, asphalt, concrete block, roofing materials, cans of paint and similar materials.
D. “Disposable package or container” means all packages or containers defined as such by rules and regulations adopted by the State of Washington Department of Ecology.
E. “Enforcement officer” means the building official of the city of Rock Island or his/her designee.
F. “Litter” means all waste material including, but not limited to, disposable packages or containers thrown or deposited on public or private property, including depositing handbills on vehicles or public property, but not including the waste of primary processes of mining, logging, saw milling, farming or manufacturing.
G. “Person” means any individual, firm, partnership, corporation, association or other entity, public or private, whether acting by themselves or by a servant or employee.
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.
I. “Property” means any object of value that a person may lawfully acquire and hold.
J. “Nuisance” means:
1. An act or omission to act, or a condition or use of property which either annoys, injures or endangers the comfort, repose, health or safety of the public; offends public decency; decreases the value of nearby property; or in any way renders other persons insecure in life or in the use of property.
2. The erecting, maintaining, using, placing, depositing, causing, allowing, leaving or permitting to be or remain in or upon any private lot, building, structure, or premises, or in or upon any street, avenue, alley, park, parkway, public water (including lakes, rivers and/or streams), or other public or private place in the city, any one or more of the following conditions, things, or acts:
a. Accumulations of refuse, except a compost pile so covered or concealed as not to affect the health, safety or depreciation of adjoining property;
b. Burning or disposal of refuse or other material in such a manner as to cause or permit dense smoke, ashes, soot or gases arising from such burning or disposal to become annoying or endangering the health, comfort or repose of any person or the general public. The burning of small amounts of weeds, twigs, grass, or other material resulting from the normal tending of lawns or gardens is allowed;
c. Carcasses of animals not buried or destroyed within 24 hours after death;
d. All limbs of trees overhanging a public sidewalk which are less than 10 feet above the surface of said sidewalk, or overhanging a city street which are less than 12 feet above the surface of said street;
e. The existence of any vines or climbing plants growing into or over any street, public hydrant, power or light pole; or the existence of any shrub, vine or plant growing on, around or in front of any hydrant, stand pipe, sprinkler system connection or any other appliance or facility provided for fire protection purposes in such a way as to obscure the view thereof or impair the access thereto; or obstruct or interfere with the proper diffusion from the light from any street lamp;
f. Any use of property abutting on a public street or sidewalk or any use of public street or sidewalk which causes any obstruction of traffic and the free use of the streets or sidewalks; provided, that this subsection shall not apply to events, programs or parades authorized by the city council;
g. Any poisonous or harmful substance which is reasonably accessible to persons or to animals;
h. Any attractive nuisance which may prove detrimental to children which is left in any place exposed or accessible to children. This includes, but is not limited to, unused or abandoned refrigerators, freezers, or like containers, or other large appliances or equipment or parts thereof; abandoned motor vehicles; any structurally unsound or unsafe fence or edifice; any unsecured or abandoned excavation, pit, well, cistern, storage tank or shaft; any lumber, trash, debris or vegetation which may prove a hazard for minors;
i. The existence of any dead, diseased, infested or dying tree or other vegetation that may constitute a danger to property or persons;
j. The existence of any fence or other structure which creates any traffic safety problem through obscured sight distance;
k. The existence of any fence or other structure or thing which is in a sagging, leaning, fallen, decayed or other dilapidated or unsafe condition on private property abutting or fronting upon any public street, sidewalk or place;
l. The existence of any fence or other structures located in a public right-of-way without specific approval from the city;
m. Any accumulation of material on property including, but not limited to, animal matter, ashes, bottles, boxes, broken stone, building materials which are not properly stored or neatly piled, cans, cement, crates, empty barrels, dead animals or animal waste, glass, litter, mattresses or bedding, old appliances or equipment or any parts thereof, furniture, iron or other scrap metal, packing cases, packing material, plaster, plastic, rags, wire, yard waste or debris or other objects which endanger property or public safety, or constitute a fire hazard or vermin habitat; provided, that nothing herein shall prevent the temporary retention of waste in covered receptacles approved by the building official;
n. Any dangerous building as defined in the Uniform Code for the Abatement of Dangerous Buildings, or any building, structure, or addition to such, commenced and left unfinished six months beyond the expiration of the building permit issued for that building or 12 months from the date of building commencement if no building permit was required to be issued;
o. The non-emergency repair of an automobile, truck or other motor vehicle of any kind upon the public streets, alleys or other public property of the city;
p. The erection, continuance or use of any building, room or other place in the city for the exercise of any trade, employment or manufacture which, by producing noxious fumes, offensive odors or other annoyances, is discomforting, offensive or detrimental to the health of individuals or of the public;
q. Any unguarded or abandoned excavation, pit, well, or holes which would endanger health or safety;
r. Dumping, depositing, placing or leaving of any litter, refuse, ashes, debris, gravel, earth, rock, stone or other material upon the banks, channels, beds or bars of any navigable water, or the felling of any tree or trees, so that the same shall in whole or in part project within the high water bank of any navigable watercourse, or the casting, placing, depositing or leaving of any logs, roots, snags, stumps, or brush upon the banks or in the bed or channel of any navigable watercourse.
K. “Person responsible for the violation” means any person who has an interest in or resides on the property, whether as owner, lessor, tenant, occupant or other person entitled to control, use and/or occupy the property.
L. “Refuse” means vegetable offal, animal offal, discarded food, cans, bottles, waste paper, boards and boxes, tree limbs and all other waste substances from private and public establishments and from residences; but shall not include small amounts of weeds, twigs, grass, or other material resulting from the normal tending of lawns or gardens.
M. “Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought or a notice of civil violation has been issued, within the immediately preceding 12 consecutive month period.
N. “Structure” means that which is built or constructed, an edifice or building of any kind, or any piece of work artificially built up or composed of parts joined together in some definite manner. (Ord. 98-011 § 2).
8.18.030 Nuisances unlawful.
Unless otherwise permitted by law and whenever the enforcement officer determines that any nuisance exists upon any premises, the enforcement officer may require or provide for the abatement thereof pursuant to this chapter. (Ord. 98-011 § 2).
8.18.040 Exempted acts.
This chapter shall not apply to the United States, the state of Washington, Douglas County, the city of Rock Island, or any of their respective officers, employees or contractors when engaged in snow removal, street cleaning, emergency repair to any street, building or structure, fire suppression, or any other emergency for the preservation of life or property. (Ord. 98-011 § 2).
8.18.050 Prohibited conduct.
It shall be unlawful for any person responsible for the violation to create, permit, maintain, suffer, carry on or allow, upon any premises, any of the acts or things declared by this chapter to be a nuisance or to violate any of the provisions of this chapter. (Ord. 98-011 § 2).
8.18.060 Authorized act not a nuisance.
No act which is done or maintained under the express authority of a statute or ordinance can be deemed a nuisance. (Ord. 98-011 § 2).
8.18.070 Successive owners or occupant liable.
Every successive owner or occupant of property or premises who neglects to abate a continuing nuisance upon or in the use of such property caused by a former owner is liable therefor in the same manner as the one who first created it. (Ord. 98-011 § 2).
8.18.080 Abatement does not preclude action for damages.
The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence. (Ord. 98-011 § 2).
8.18.090 Voluntary correction.
A. This section applies whenever the enforcement officer determines that a nuisance is occurring.
B. The enforcement officer shall pursue a reasonable attempt to secure voluntary correction by contacting the person responsible for the nuisance, where possible, explaining the nuisance, and requesting correction.
C. A voluntary correction agreement may be entered into between the person responsible for the nuisance and the city, acting through the enforcement officer.
1. The voluntary correction agreement is a contract between the city and the person responsible for the nuisance under which such person agrees to abate the nuisance within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:
a. The name and address of the person responsible for the nuisance; and
b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance is occurring; and
c. A description of the nuisance; and
d. The necessary corrective action to be taken, and a date or time by which correction must be completed; and
e. An agreement by the person responsible for the nuisance that the city may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement; and
f. An agreement by the person responsible for the nuisance that the city may abate the nuisance and recover its costs and expenses and a monetary penalty pursuant to this chapter from the person responsible for the nuisance if terms of the voluntary correction agreement are not met; and
g. An agreement that by entering into the voluntary correction agreement the person responsible for the nuisance waives the right to an administrative appeal of the nuisance and/or the required corrective action.
2. The person responsible for the nuisance waives the right to an administrative appeal of the nuisance and the required corrective action upon entering into a voluntary correction agreement.
3. The city shall have the right to inspect the subject property to determine compliance with the terms of the voluntary correction agreement.
4. An extension of the time limit for correction or a modification of the required corrective action may be granted by the enforcement officer if the person responsible for the nuisance has shown due diligence and/or substantial progress in abating the nuisance but unforeseen circumstances render abatement under the original conditions unattainable.
5. The city may abate the nuisance in accordance with RIMC 8.18.120 if the terms of the voluntary correction agreement are not met.
6. If the terms of the voluntary correction agreement are not met, the person responsible for the nuisance shall be assessed a monetary penalty commencing on the date set for correction and thereafter, in accordance with RIMC 8.18.100(E), plus all costs and expenses of abatement, as set forth in RIMC 8.18.120(D). (Ord. 98-011 § 2).
8.18.100 Notice of civil violation.
A. When the enforcement officer determines that a nuisance has occurred or is occurring, and is unable to secure voluntary correction, pursuant to RIMC 8.18.090, the enforcement officer may issue a notice of civil violation to the person responsible for the nuisance. The enforcement officer may issue a notice of civil violation without having attempted to secure voluntary correction, as provided in RIMC 8.18.090 under the following circumstances:
1. When an emergency exists; or
2. When a repeat violation occurs; or
3. When the violation creates a situation or condition which cannot be corrected; or
4. When the person knows or reasonably should have known that a nuisance is occurring; or
5. When the person cannot be contacted or refuses to communicate or cooperate with the city in correcting the violation.
B. The notice of civil violation shall include the following:
1. The name and address of the person responsible for the nuisance; and
2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the nuisance is occurring; and
3. A description of the nuisance; and
4. The required corrective action and a date and time by which the correction must be completed after which the city may abate the nuisance in accordance with RIMC 8.18.120; and
5. The date, time and location of an appeal hearing before the hearing examiner shall be scheduled not less than 10 calendar days and not more than 30 calendar days from the date the notice of abatement is issued; and
6. A statement indicating that the hearing will be cancelled and no monetary penalty will be assessed if the enforcement officer approves the completed, required corrective action at least 48 hours prior to the hearing; and
7. A statement that the costs and expenses of abatement incurred by the city pursuant to RIMC 8.18.120(D) and a monetary penalty as specified in RIMC 8.18.100(E) may be assessed against the person to whom the notice of civil violation is issued as recommended by the hearing examiner and subsequently approved by the city council; and
8. A statement that the hearing examiner’s recommended decision is subject to the city council’s review at a public meeting and approval, vacation or modification within 30 days of the date of the hearing examiner’s written recommended decision; and
9. A statement that the city council will be limited to the hearing examiner’s record of the hearing, the recommended decision and that the city council’s decision shall be final.
C. The enforcement officer shall serve the notice of civil violation upon the person to whom it is issued, either personally or by mailing, certified, return receipt requested, a copy of the notice of abatement to such person at his/her last known address. If the person to whom the notice is issued cannot after due diligence be personally served within Douglas County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of abatement conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail.
D. No extension of the time specified in the notice of civil violation for correction of the nuisance may be granted, except by order of the city council.
E. The monetary penalty for each day the nuisance is permitted to continue or portion thereof shall be as follows:
1. First day, $100.00;
2. Second day, $200.00;
3. Third day, $300.00;
4. Fourth day, $400.00;
5. Each additional day beyond four days, $500.00 per day.
F. Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil violation was issued of the duty to correct the nuisance.
G. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is issued. Any monetary penalty assessed must be paid to the city within 10 calendar days from the date of mailing of the city council’s decision and order or a notice from the city that penalties are due. The city attorney or his/her designee is authorized to take appropriate action to collect the monetary penalty, plus reasonable attorneys’ fees and costs incurred in collecting said monetary penalty. (Ord. 98-011 § 2).
8.18.110 Hearing before the hearing examiner.
A. Notice. A person to whom a notice of civil violation is issued shall receive notice to appear before the hearing examiner, and the date, time and location thereof, which hearing shall be not less than 10 calendar days nor more than 30 calendar days from the date the notice of civil violation is issued. Continuances of the hearing may be granted at the discretion of the enforcement officer, or by the hearing examiner for good cause shown.
B. Prior Correction of Violation. The hearing will be cancelled and no monetary penalty will be assessed, if the enforcement officer approves the completed required corrective action prior to the scheduled hearing.
C. Procedure. The hearing examiner shall conduct a hearing on the civil violation pursuant to the rules of procedure of the hearing examiner. The enforcement officer and the person to whom the notice of civil violation is issued are parties to the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred or is occurring and that the required corrective action is reasonable under the circumstances. The determination of the enforcement officer as to the need for the required corrective action shall be accorded substantial weight by the hearing examiner in determining the reasonableness of the required corrective action.
D. Decision and Recommendation of the Hearing Examiner.
1. The hearing examiner shall determine whether the city has established by a preponderance of the evidence that a violation has occurred or is occurring and that the required correction is reasonable under the circumstances, and shall recommend to the city council affirming, vacating, or modifying the enforcement officer’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.
2. The hearing examiner shall issue to the city council a record of the hearing and a written recommendation for an order to the person responsible for the violation which contains the following information:
a. The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;
b. The required corrective action;
c. The date and time by which the correction must be completed;
d. The monetary penalties assessed based on the criteria in subsection (D)(3) of this section; and
e. The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.
3. Assessment of Monetary Penalty. Monetary penalties recommended for assessment by the hearing examiner shall be in accordance with the monetary penalty in RIMC 8.18.100(E).
a. The hearing examiner shall have the following options in recommending assessment of monetary penalties:
i. Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or
ii. Assess monetary penalties beginning on the correction date set by the enforcement officer or an alternate correction date set by the hearing examiner and thereafter; or
iii. Assess less than the established monetary penalty set forth in RIMC 8.18.100(E) based on the criteria of subsection (D)(3)(b) of this section; or
iv. Assess no monetary penalties.
b. In determining the monetary penalty assessment, the hearing examiner shall consider the following factors:
i. Whether the person responded to the enforcement officer’s attempts to contact the person, and cooperated to correct the violation;
ii. Whether the person failed to appear at the hearing;
iii. Whether the violation was a repeat violation;
iv. Whether the person showed due diligence and/or substantial progress in correcting the violation; and
v. Any other relevant factors.
c. The hearing examiner may recommend doubling the monetary penalty schedule if the nuisance violation is a repeat violation. In determining the amount of the monetary penalty for repeat violations, the court shall consider the factors set forth in subsection (D)(3)(b) of this section.
E. Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear without lawful excuse at the scheduled hearing, the hearing examiner shall enter a recommended order with findings pursuant to subsection (D)(2) of this section and recommend assessment of the appropriate monetary penalty pursuant to subsection (D)(3) of this section. Such recommendation shall be forwarded to the city council for review pursuant to subsection F of this section.
F. City Council Review and Order.
1. The city council shall schedule a public meeting within not less than 10 calendar days nor more than 30 calendar days to review the hearing examiner’s decision.
2. The person to whom the notice of civil violation is issued shall be notified in writing of the date of such review.
3. The council shall review the record and recommendation of the hearing examiner as set forth in subsection D of this section and may affirm, vacate or modify the recommended decision of the hearing examiner. No new testimony or evidence shall be presented. The decision of the council shall be final.
4. The council shall issue an order to the person responsible for the violation which contains the information as set forth in subsection D of this section.
5. The city may enforce the order and recover all related expenses, including attorneys’ fees, costs of the hearing and any monetary penalty from that person.
G. Appeal to Superior Court. An appeal of the decision and order of the city council must be filed with the Douglas County superior court within 20 calendar days from the date the council’s decision and order was mailed to the person to whom the notice of civil violation was issued. (Ord. 98-011 § 2).
8.18.120 Abatement by the city.
A. Abatement. The city may abate a nuisance when:
1. The terms of voluntary correction agreement pursuant to RIMC 8.18.090 have not been met; or
2. A notice of civil violation has been issued pursuant to RIMC 8.18.100 and a decision and order has been issued pursuant to RIMC 8.18.110 and the required correction has not been completed by the date specified in the decision and order; or
3. The condition is subject to summary abatement as provided for in subsection B of this section.
B. Summary Abatement. Whenever a nuisance is occurring which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the nuisance as soon as reasonably possible after the abatement.
C. Authorized Action by City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek such judicial process as it deems necessary to effect the removal or correction of such condition.
D. Recovery of Costs and Expenses. The costs, including attorneys’ fees and incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the city within 10 calendar days billing. The term “incidental expenses” includes but is not limited to:
1. Personnel costs, both direct and indirect, including attorneys’ fees and costs;
2. Costs incurred in documenting the violation;
3. Hauling, storage and disposal expenses; and
4. Actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and
5. The costs of any required printing and mailing.
E. Obstruction Violation. Any person who knowingly obstructs, impedes, or interferes with the city or its agents, or with the person responsible for the nuisance in the performance of duties imposed by this chapter, or a decision and order issued by the Rock Island city council or an agreement between the city and the person responsible for the nuisance, is guilty of a misdemeanor and subject to the penalty as set forth in RIMC 1.20.030. (Ord. 98-011 § 2).
8.18.130 Additional enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Rock Island Municipal Code except as precluded by law. (Ord. 98-011 § 2).
8.18.140 Conflicts.
In the event of a conflict between this chapter and any other provision of the Rock Island Municipal Code or other city ordinance providing for a civil penalty, this chapter shall control. (Ord. 98-011 § 2).