Chapter 9.85
GRAFFITI ABATEMENT
Sections:
9.85.010 Purpose and legislative intent – Declaration of public nuisance.
9.85.030 Graffiti – Notice to abate.
9.85.035 City abatement program – Priorities.
9.85.040 City abatement program – Request for assistance.
9.85.050 Appeal of notice and order to abate – Stay of proceedings.
9.85.010 Purpose and legislative intent – Declaration of public nuisance.
It is the purpose and intent of this chapter to prevent graffiti and promote its eradication and prevent related vandalism. Graffiti and related vandalism damage and destroy public and private property and have a detrimental effect on the community at large. The city council finds that the elimination of graffiti is in the city’s best interest and is crucial in promoting and protecting the health, safety, and welfare of its citizens.
The further intent of this chapter is to fight against urban blight, preserve the value of all public and private property, and promote the security of the community, all of which are threatened and damaged by graffiti and graffiti-related vandalism. The existence of graffiti within the city of Toppenish is expressly found and declared to be a public nuisance.
A. Graffiti and other defacements of public and private property within the city constitute a nuisance. The city council finds that graffiti is also associated with criminal street gang activity pursuant to RCW 9A.48.105 and Chapter 9.100 TMC and the proliferation of graffiti promotes criminal street gangs and criminal street gang activity. Such activity constitutes an immediate threat to the life, health, safety, and property of residents of the city. Procedures herein requiring abatement, following notice and opportunity to appeal, are necessary and will preserve and protect the life, health, safety, and property of residents of the city.
B. Although it is appropriate, where possible, to request that the courts require people who are convicted of acts of defacement and vandalism involving the application of graffiti to public or private property to restore the property so defaced, damaged, or destroyed, apprehension of persons who commit such acts is difficult because the offenses involved can be committed quickly and surreptitiously so that witnesses to the acts are frequently nonexistent.
C. Although the public should be encouraged to cooperate in the elimination of graffiti by reporting the same to the proper authorities, it is also important to eliminate the presence of graffiti from the community so that the product of the illegal acts of those involved in the application of graffiti is not visible and the property on which the graffiti is located and surrounding properties do not suffer a diminution of value. (Ord. 2022-13 § 1, 2022).
9.85.020 Definitions.
For this chapter, the following words shall have the following meanings:
A. “Abate” means to repair, replace, remove, paint over, 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 code enforcement officer determines appropriate in the interest of the general health, safety, and welfare of the community. For purposes of this chapter, when the city abates graffiti under TMC 9.85.040, “abate” means only to paint over.
B. “City property” means property owned by the city, including, but not limited to, real and personal property, trees, utility poles, garbage cans, and dumpsters.
C. “Code enforcement officer” means the city of Toppenish code enforcement officer.
D. “Graffiti” means any unauthorized inscription, word, figure, painting, or other defacements that are written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to or on any surface of public or private property, by or with, but not limited to, any of the following: felt-tip marker, paint stick or graffiti stick, paint brush, spray can, or other graffiti implement.
E. “Graffiti abatement procedure” means the abatement procedure which identifies graffiti, issues notice to the landowner to abate the graffiti and cures the absence of response.
F. “Owner” means any person or entity who, alone or with others, has legal title to a property.
G. “Private contractor” means any person with whom the city shall have duly contracted to remove graffiti.
H. “Property” means any land and that which is affixed, incidental, or appurtenant to the land, including, but not limited to, any business or residence, parking area, loading area, landscaping, building, fence or structure, or any separate part, unit, or portion thereof.
I. “Property manager” means a person or entity who has a contract with an owner to manage real property.
J. “Tenant” means a person or persons who are renting or leasing real property under any type of landlord-tenant relationship. (Ord. 2022-13 § 1, 2022).
9.85.030 Graffiti – Notice to abate.
A. Whenever the code enforcement officer determines that graffiti exists on any public or private buildings, structures, and places that are visible to any person utilizing any public street, parkway, alley, sidewalk, or another right-of-way within the city, the code enforcement officer shall cause a notice to be issued to abate such nuisance. The property owner shall have five days after receipt of the notice to abate the graffiti or the same will be subject to Section 9.85.070 TMC. The code enforcement officer may specify a period more than five days after the date of notice to abate the graffiti when weather conditions do not permit the painting of exterior surfaces or abatement by other means.
B. The notice to abate graffiti pursuant to this section shall consist of a written notice to be served upon the owner(s) of the affected premises, as such owners’ names and addresses appear on the last property tax assessment rolls for Yakima County, Washington. If there is no known address for the owner, the notice shall be sent in care of the property address. The notice required by this section may be served in any one of the following manners:
1. By personal service on the owner, occupant, or person in charge or control of the property;
or
2. By U.S. First-Class mail, in which case the notice shall be deemed to have been received three days after depositing such notice, postage prepaid, in the United States mail in a properly addressed envelope.
C. The notice required by this section shall be in substantially the following format:
NOTICE AND ORDER TO ABATE GRAFFITI
Date:
To:
The City has found that your property located at _________________, Toppenish, Washington, has graffiti in violation of Chapter 9.85 of the Toppenish Municipal Code. This Notice is given pursuant to Section 9.85.030 TMC requiring such graffiti to be abated within five (5) days of your receipt of this Notice.
Within five (5) days of the receipt of this Notice, you are ordered to:
1. Paint over or abate the graffiti yourself.
OR
2. Contact the City of Toppenish - Code Enforcement Program to see if you qualify to participate in the city’s graffiti abatement program. If your property is eligible for participation, the city or its contractor may perform the abatement by painting over the graffiti. The city or its contractor will use its paint.
Code Enforcement Graffiti Abatement Program may be contacted by calling City Hall.
If the graffiti is not abated, or if you have not been approved to participate in the graffiti abatement program, within five days of your receipt of this notice, the City of Toppenish will enforce the provisions of this chapter to ensure abatement of graffiti from the property.
An appeal of this order may be submitted in writing to the Code enforcement officer of the City of Toppenish within five days from the date of this notice.
If you fail to comply with this order or appeal it pursuant to Section 9.85 TMC, a civil penalty will be assessed against you for $25.00 for every 5 days you remain in violation of this chapter.
If no appeal of the notice is received by the city, the city will proceed with enforcement of this chapter and all available laws to address the graffiti located on the property. (Ord. 2022-13 § 1, 2022).
9.85.035 City abatement program – Priorities.
There may not always be adequate funding or personnel for the city abatement program outlined in TMC 9.85.040. When funding and/or personnel is limited, the following priority may be established for service to those property owners who have entered the program:
1. Single-family residential zoned properties and city properties.
2. Two-family residential zoned properties.
3. Multifamily residential zoned properties.
4. Commercially zoned properties.
5. Manufacturing zoned properties.
Entry into the graffiti abatement program is not a guarantee of service. If adequate funding or personnel is not available, the property owner/property manager and tenant (if applicable) will be notified that they are responsible for the abatement of graffiti on the property. (Ord. 2022-13 § 1, 2022).
9.85.040 City abatement program – Request for assistance.
Subject to the availability of funding and personnel, the city makes available a graffiti abatement program. Owners of property within the city, and any owner who receives a notice issued pursuant to TMC 9.85.030 to abate graffiti, may request assistance from the city’s graffiti abatement program to abate graffiti placed on their property. Participation in such graffiti abatement program shall include the following:
A. Applicant shall sign a consent and release from liability form approved by the city, authorizing city personnel and/or its contractors to enter upon the owner’s property to abate the graffiti. Upon execution, such consent and release shall be in effect pursuant to the terms and conditions of the document. Any consent and release may be revoked in writing by the owner and/or property manager and/or tenant at any time.
B. The city or its contractors may abate the graffiti. Graffiti abated by the city shall be only by the application of paint provided by the city or contractor. Matching paint is not guaranteed. The city will only paint over graffiti and will not remove it through sandblasting or other means.
C. For applicants who have received a notice issued pursuant to TMC 9.85.030 to abate graffiti, acceptance into the city’s graffiti abatement program shall stay the five-day compliance requirement, or such other compliance deadline established in such notice by the code enforcement officer unless otherwise notified by the city.
D. The city or its contractors shall not authorize nor undertake to provide for the painting of any more extensive area than the area where the graffiti is located.
E. The city reserves the right to establish, modify and amend its graffiti abatement program, and to define by rule or policy standards of eligibility for participation, methods of abatement, and scheduling of abatement activities. (Ord. 2022-13 § 1, 2022).
9.85.050 Appeal of notice and order to abate – Stay of proceedings.
A. Appeals filed under this chapter shall be filed with the city clerk. All appeals shall be heard by the city’s land use hearing examiner.
B. Upon receipt of a timely written appeal from the owner or person occupying or controlling the premises affected, the city clerk shall, within 10 days of receipt of said timely appeal forward the appeal to the code enforcement officer. The code enforcement officer shall arrange for a hearing before the hearing examiner. City staff, the owner, and other parties entitled to be served with the notice to abate graffiti may participate as parties in the hearing and each party may call witnesses. Any complainant or person affected by the graffiti may appear and present evidence. The city shall have the burden of demonstrating by a preponderance of the evidence that the graffiti at issue is in violation of this chapter and that a determination of hardship should not issue.
Following such hearing, the hearing examiner shall:
1. Issue a determination upholding the code determination and requiring abatement within a specific amount of time;
2. Issue a determination of hardship; or
3. Issue a determination of termination of proceedings.
C. A determination upholding the code enforcement officer’s determination shall be served in the same manner as the notice to abate graffiti contained in TMC 9.85.030. Such determination shall notify the property owner of the city’s intent to proceed with any legal recourse after the amount of time listed in the determination has expired.
D. A determination of hardship shall stay the enforcement of this chapter for a specified period. A determination of hardship shall be issued to give appropriate effect to special and extenuating circumstances which, to do substantial justice, warrant the exercise of discretion to adjust the time frames, standards, and other provisions of this chapter. Examples of circumstances warranting such exercise of discretion include, without limitation: medical illness or disability affecting a property owner’s ability to comply, absences from Yakima County, and bona fide insurance coverage disputes that create a definite risk that enforcement of this chapter would unfairly result in a substantial economic loss to the property owner. (Ord. 2022-13 § 1, 2022).
9.85.060 Penalty.
Failure to comply with the notice to abate graffiti issued pursuant to TMC 9.85.030 may result in civil penalties against the property owner. A civil penalty of $25.00 may be assessed if the graffiti is not abated. The first civil penalty shall be issued five days after the notice to abate graffiti is issued. An additional $25.00 civil penalty may be assessed for every additional five-day period thereafter. (Ord. 2022-13 § 1, 2022).
9.85.070 Enforcement.
Upon failure of persons to comply with any notice issued pursuant to this chapter by the designated date, or such continued date thereafter as the code enforcement officer approves, or upon failure or refusal of the owner to participate in any available city graffiti abatement program, then the city attorney may initiate an action in any court of competent jurisdiction to abate the graffiti, to impose penalties pursuant to this chapter, to seek alternative remedies under city or state laws or seek any other relief authorized by law. The city is entitled to its costs associated with enforcement of this chapter, including, but not limited to, reasonable attorneys’ fees and costs. (Ord. 2022-13 § 1, 2022).