Chapter 16.20
GEOLOGICALLY HAZARDOUS AREAS
Sections:
16.20.015 Relationship to shoreline master program.
16.20.040 Designation of geologically hazardous areas.
16.20.045 Designation of specific hazard areas.
16.20.046 Critical facilities.
16.20.047 Exempt uses and activities.
16.20.048 Reasonable use exception for geologically hazardous areas.
16.20.050 Critical area report for geologically hazardous areas.
16.20.057 Performance standards – Specific hazards.
16.20.070 Violation – Penalty.
16.20.010 Short title.
This chapter shall be known and may be cited as the “geologically hazardous areas ordinance” of the city of Tumwater.
(Ord. 1282, Added, 08/20/1991)
16.20.015 Relationship to shoreline master program.
If there are any conflicts between the shoreline master program and the geologically hazardous regulations which apply in shoreline jurisdiction, the requirements of the shoreline master program apply.
(Ord. O2012-005, Added, 03/18/2014)
16.20.020 Intent.
It is the declared policy of the city of Tumwater to encourage land uses that are compatible with underlying geological conditions through the use of appropriate engineering, design and construction practices. It is also recognized that at times even the best of efforts to properly design and apply technology will not adequately reduce the risks of geological hazards. In these instances, areas of extreme geological instability are to be avoided as sites for development and placement of structures.
(Ord. 1282, Added, 08/20/1991)
16.20.030 Definitions.
A. “Slope” means an inclined ground surface the inclination of which is expressed as a ratio of horizontal distance to vertical distance.
B. “Site” means any lot, tract, parcel, large lot holding, either owned or leased, and any contiguous combination thereof, intended to be developed.
C. “Landslide area” means those areas susceptible due to combinations of bedrock, soil, slope gradient, slope aspect, hydrology, and other identified factors.
(Ord. 1282, Added, 08/20/1991)
16.20.040 Designation of geologically hazardous areas.
Geologically hazardous areas include areas determined to be susceptible to erosion, sliding, earthquake, or other geological events pursuant to TMC 16.20.045. They pose a threat to the health and safety of citizens when incompatible development is sited in areas of significant hazard. Areas susceptible to one or more of the following types of hazards shall be designated as a geologically hazardous area.
A. Erosion hazard;
B. Landslide hazard;
C. Seismic hazard;
D. Volcanic hazard;
E. Tsunami hazard; and
F. Other geological events including mass wasting, debris flows, rock falls, and differential settlement.
(Ord. O2004-019, Amended, 05/17/2005; Ord. 1282, Added, 08/20/1991)
16.20.045 Designation of specific hazard areas.
A. Erosion Hazard Areas. Erosion hazard areas are at least those areas identified by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having a “moderate to severe,” “severe,” or “very severe” rill and inter-rill erosion hazard.
B. Landslide Hazard Areas. Landslide hazard areas are areas potentially susceptible to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible to landslides because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following:
1. Areas of historic failures such as:
a. Those areas delineated by the U.S. Department of Agriculture’s Natural Resources Conservation Service as having “severe” limitation for building site development;
b. Those areas mapped by the Department of Ecology (Coastal Zone Atlas) or the Department of Natural Resources (slope stability mapping) as unstable (“U” or class 3), unstable old slides (“UOS” or class 4), or unstable recent slides (“URS” or class 5);
c. Areas designated as quaternary slump, earthflows, mudflows, lahars, or landslides on maps published by the U.S. Geological Survey or Department of Natural Resources.
2. Areas with all three of the following characteristics:
a. Slopes steeper than fifteen percent; and
b. Hillsides that have intersecting geologic contact with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and
c. Springs or ground water seepage.
3. Areas that have shown movement during the Holocene epoch (from ten thousand years ago to present) or that are underlain or covered by mass wastage debris of that epoch.
4. Slopes that are parallel or sub parallel to planes of weakness (such as bedding planes, joint systems, and fault planes) in subsurface materials.
5. Slopes having gradients steeper than eighty percent subject to rock fall during seismic shaking.
6. Areas potentially unstable because of rapid stream incision, stream bank erosion, and undercutting by wave action.
7. Areas located in a canyon or on an active alluvial fan, presently or potentially subject to inundation by debris flows or catastrophic flooding.
8. Any area with a slope of forty percent or steeper and with a vertical relief of ten or more feet except areas composed of consolidated rock. A slope is delineated by establishing its toe and top and measured by averaging the inclination over at least ten feet of vertical relief.
C. Seismic Hazard Areas. Seismic hazard areas are areas subject to severe risk of damage as a result of earthquake induced ground shaking, slope failure, settlement, soil liquefaction, lateral spreading, or surface faulting. Ground shaking is the primary cause of earthquake damage in Washington. The strength of ground shaking is primarily affected by:
1. The magnitude of the earthquake;
2. The distance from the source of an earthquake;
3. The type of thickness of geologic materials at the surface; and
4. The type of subsurface geologic structure.
Settlement and soil liquefaction conditions occur in areas underlain by cohesionless, loose, or soft-saturated soils of low density, typically in association with a shallow ground water table.
D. Volcanic Hazard Areas. Volcanic hazard areas are subject to pyroclastic flows, lava flows, debris avalanche, inundation by debris flows, lahars, mudflows, or related flooding resulting from volcanic activity.
(Ord. O2004-019, Added, 05/17/2005)
16.20.046 Critical facilities.
Critical facilities such as hospitals and emergency response centers, hazardous materials storage, etc., are not to be located within geologically hazardous areas unless there are no other feasible alternative sites.
(Ord. O2016-024, Added, 03/21/2017)
16.20.047 Exempt uses and activities.
A. Activities within the improved right-of-way including but not limited to construction of new utility facilities or improvements or upgrades to existing utility facilities that take place within existing improved right-of-way or existing impervious surface.
B. Operation, Maintenance or Repair. Operation, maintenance, or repair of existing structures, infrastructure improvements, utilities, public or private roads, dikes, levees, or drainage systems, that do not require construction permits, if the activity does not further alter or increase impact to, or encroach further within, the critical area or buffer and there is no increased risk to life or property as a result of the proposed operation, maintenance, or repair. Operation and maintenance includes vegetation management performed in accordance with best management practices that is part of ongoing maintenance of structures, infrastructure, or utilities; provided, that such management actions are part of a regular ongoing maintenance, do not expand further into the critical area, are not the result of an expansion of the structure or utility; and do not directly impact endangered species.
C. Minor Utility Projects. Utility projects which have minor or short duration impacts to critical areas, as determined by the community development director in accordance with the criteria below, and which do not significantly impact the functions or values of a critical area(s); provided, that such projects are constructed with best management practices as defined in TMC 16.28.030(C). Minor activities shall not result in the transport of sediment or increased stormwater. Such allowed minor utility projects shall meet the following criteria:
1. There is no practical alternative to the proposed activity with less impact on critical areas;
2. The activity involves the placement of a utility pole, street signs, anchor, or vault or other small component of a utility facility; and
3. The activity involves disturbance of no more than seventy-five square feet.
D. Emergencies. Those activities necessary to prevent an immediate risk of damage to private property and that require remedial or preventative action in a timeframe too short to allow for compliance with the requirements of this chapter. Emergency actions that create an impact to a critical area or its buffer shall use all reasonable methods to address the emergency; in addition, they must have the least possible impact to the critical area or its buffer. The person or agency undertaking such action shall notify the city within one working day following commencement of the emergency activity. Within thirty days, the community development director shall determine if the action taken was within the scope of the emergency actions allowed in this subsection. If the community development director determines that the action taken was beyond the scope of an allowed emergency action, then inspection and remedial action would be required. If remedial action is required and not completed, then enforcement provisions would apply.
E. The community development director may allow the following activities within other geologically hazardous areas if the activity will not increase the risk of hazard:
1. Construction of new buildings with less than two thousand five hundred square feet of floor area or roof area, whichever is greater, and which are not residential structures or used as places of employment or public assembly;
2. Additions to existing residences that are two hundred fifty square feet or less; and
3. Installation of fences.
(Ord. O2011-002, Amended, 03/01/2011; Ord. O2004-019, Added, 05/17/2005)
16.20.048 Reasonable use exception for geologically hazardous areas.
A. After it has been determined by the city that all reasonable economic use has been denied, an exception may be applied for pursuant to this section.
B. An application for a reasonable use exception shall be made to the city and it shall include a critical area report and mitigation plan if necessary, and any other project related documents, such as permit applications to other agencies, special studies and environmental documents. The application must be submitted with payment of the necessary fee as established in the city’s fee resolution, as written or hereafter amended. The community development director shall prepare a recommendation to the hearing examiner based on review of the submitted information, a site inspection, and the proposal’s ability to comply with reasonable use exception criteria in subsection D of this section.
C. The hearing examiner shall review the application and conduct a public hearing. The hearing examiner shall approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all the reasonable use exception criteria in subsection D of this section.
D. Criteria for review and approval of reasonable use exceptions follow:
1. The application of this title would deny all reasonable use of the property;
2. No other reasonable use consistent with existing zoning of the property has less impact on the critical area;
3. The proposed impact to the critical area is the minimum necessary to allow for reasonable economic use of the property;
4. The inability of the applicant to derive reasonable economic use of the property is not the result of actions by the applicant after the effective date of this title, or its predecessor;
5. The proposal does not pose an unreasonable threat to public health, safety, or welfare on or off the development proposal site;
6. The proposal is consistent with other applicable regulations and standards.
(Ord. O2016-024, Added, 03/21/2017)
16.20.050 Critical area report for geologically hazardous areas.
A critical areas report for geologically hazardous areas shall be prepared as part of any development permit application by a geotechnical engineer or geologist, licensed in the state of Washington, with experience analyzing geologic, hydrologic, and ground water flow systems.
A. The project area of the proposed activity and all geologically hazardous areas within two hundred feet of the project area shall be addressed in a critical areas report for geologically hazardous areas. A critical areas report for a geologically hazardous area shall contain an assessment of the geological hazards including the following:
1. Site and construction plans showing:
a. The type and extent of geologic hazard areas, and any other critical areas and buffers on, adjacent to, or within two hundred feet of the proposal;
b. Proposed development, including location of existing and proposed structures, fill, storage of materials, drainage facilities, with dimensions indicating distances to the floodplain;
c. Topography, in two-foot contours, of the project area and all hazard areas addressed in the report; and
d. Clearing limits.
2. Assessment of geotechnical characteristics, including:
a. An assessment of the geologic characteristics and engineering properties of the soils, sediments, and/or rock of the project area and potentially affected adjacent properties;
b. A review of the site history regarding landslides, erosion, and prior grading (soils analysis shall be accomplished in accordance with accepted soil engineering practices);
c. A description of the surface and subsurface geology, hydrology, soils, and vegetation found in the project area and in all hazard areas addressed in the report;
d. A detailed overview of the field investigations, published data and references; data and conclusions from past assessments of the site; and site specific measurements, test, investigations, or studies that support the identification of geologically hazardous areas; and
e. A description of the vulnerability of the site to seismic and other geologic events.
3. Analysis of Proposal. The report shall contain a geotechnical analysis including a detailed description of the project, its relationship to geologic hazard(s) and its potential impact upon the hazard area, the subject property and affected adjacent properties.
4. Minimum Buffer and Building Setback. The report shall make a recommendation for the minimum no-disturbance buffer and minimum building setback from any geologic hazard based upon the geotechnical analysis.
B. Incorporation of Previous Study. Where a valid geotechnical report has been prepared within the last five years for a specific site, and where the proposed land use activity and surrounding site conditions are unchanged, said report may be incorporated into the required critical area report if approved in advance by the community development director. The applicant shall submit a critical area report detailing any changed environmental conditions associated with the site.
C. Mitigation of Long-Term Impacts. When hazard mitigation is required, the mitigation plan shall specifically address how the activity maintains or reduces the preexisting level of risk to the site and adjacent properties on a long-term basis (equal to or exceeding the projected lifespan of the activity or occupation). Proposed mitigation techniques shall be considered to provide long-term hazard reduction only if they do not require regular maintenance or other actions to maintain their function. Mitigation may also be required to avoid any increase in risk above the preexisting conditions following abandonment of the activity.
D. Critical area reports for geologically hazardous areas must meet the requirements of this section. Critical area reports for two or more types of critical areas must meet the additional report requirements for each type of relevant type of critical area as specified herein:
1. Erosion and Landslide Areas. The technical information for an erosion hazard or landslide hazard area(s) shall include the following information:
a. A copy of the site plan for the proposal showing:
i. The height of slope, slope gradient, and cross-section of the project area;
ii. The location of springs, seeps, or other surface expressions of ground water on or within two hundred feet of the project area or that have potential to be affected by the proposal; and
iii. The location and description of surface water runoff features.
b. Hazards Analysis. The hazards analysis component of the critical areas report shall specifically include:
i. A description of the extent and type of vegetative cover;
ii. A description of subsurface conditions based on data from site-specific explorations;
iii. Descriptions of surface and ground water conditions, public and private sewage and disposal systems, fills and excavations, and all structural improvements;
iv. An estimate of slope stability and the effect construction and placement of structures will have on the slope over the estimated life of the structure;
v. An estimate of the bluff retreat rate that recognizes and reflects potential catastrophic events such as seismic activity or a one-hundred-year storm event;
vi. Consideration of the run-out hazard of landslide debris and/or the impacts of landslide run-out on down slope properties;
vii. A study of slope stability including an analysis of proposed cuts, fills, and other site grading;
viii. Recommendations for building siting limitations; and
ix. An analysis of proposed surface and subsurface drainage, and the vulnerability of the site to erosion.
c. Geotechnical Engineering Report. The technical information for a project within a landslide hazard area shall include a geotechnical engineering report prepared by a licensed engineer that presents engineering recommendations for the following:
i. Parameters for design of site improvements including appropriate foundations and retaining structures. These should include allowable load and resistance capacities for bearing and lateral loads, installation considerations and estimates of settlement performance;
ii. Recommendations for drainage and sub drainage improvements;
iii. Earthwork recommendations including clearing and site preparation criteria, fill placement and compaction criteria, temporary and permanent slope inclinations and protection, and temporary excavation support, if necessary; and
iv. Mitigation and adverse site conditions including slope stabilization measures and seismically unstable soils, if appropriate.
d. Erosion and Sediment Control Plan. For any development proposal on a site containing an erosion hazard area, an erosion and sediment control plan is required. The erosion and sediment control plan shall be prepared in compliance with requirements set forth in the Drainage Design and Erosion Control Manual for Thurston Region, Washington.
e. Drainage Plan. The technical information shall include a drainage plan for the collection, transport, treatment, discharge, and/or recycle of water prepared in accordance with the Drainage Design and Erosion Control Manual for Thurston Region, Washington.
f. Mitigation Plans. Hazard and environmental mitigation plans for erosion and landslide hazard areas shall include the location and methods of drainage, surface water management, locations and methods of erosion control, a vegetation management and/or replanting plan, and/or other means for maintaining long-term soil stability.
g. Monitoring Surface Waters. If there is a significant risk of damage to downstream receiving waters due to potential erosion from the site, based on the size of the project, the proximity to receiving waters, or the sensitivity of the receiving waters, the technical information shall include a plan to monitor the surface water discharge from the site. The monitoring plan shall include a recommended schedule for submitting monitoring reports to the city.
E. Seismic Hazard Areas. A critical area report for a seismic hazard area shall also meet the following requirements:
1. The site map shall show all known and mapped faults within two hundred feet of the project area or that have potential to be affected by the proposal;
2. The hazards analysis shall include a complete discussion of the potential impacts of seismic activity on the site, such as forces generated and fault displacement; and
3. A geotechnical engineering report shall evaluate the physical properties of the subsurface soils, especially the thickness of unconsolidated deposits and their liquefaction potential. If it is determined that the site is subject to liquefaction, mitigation measures appropriate to the scale of the development shall be recommended and implemented.
F. Volcanic Hazard Areas. A critical area report for a volcanic hazard area shall also meet the following requirements:
1. Site Plan. The site plan shall show all areas within two hundred feet of the project area that have potential to be affected by pyroclastic flows, lahars, or mud and debris flows derived from volcanic events;
2. Hazards Analysis. The hazards analysis shall include a complete discussion of the potential impacts of volcanic activity on the site; and
3. Emergency Management Plan. The emergency management plan shall include plans for emergency building exit routes, site evacuation routes, emergency training, notification of local emergency management officials, and an emergency warning system.
G. Tsunami Hazard Areas. A critical area report for a tsunami hazard area shall also meet the following requirements:
1. Site Plan. The site plan shall show all areas within two hundred feet of the project area that have the potential to be inundated by wave action derived from a seismic event;
2. Hazards Analysis. The hazards analysis shall include a complete discussion of the potential impacts of the tsunami hazard on the site; and
3. Emergency Management Plan. The emergency management plan shall include plans for emergency training, notification of local emergency management officials, and an emergency warning system.
(Amended during 2011 reformat; O2011-002, Amended, 03/01/2011; Ord. O2004-019, Amended, 05/17/2005; Ord. 1282, Added, 08/20/1991)
16.20.055 Alterations of geologically hazardous areas – Performance standards – General requirements.
A. Permitted alterations of geologically hazardous areas or associated buffers will only be allowed for activities that:
1. Will not increase the threat of the geological hazard to adjacent properties beyond predevelopment conditions;
2. Will not adversely impact other critical areas;
3. Are designed so that the hazard to the project is eliminated or mitigated to a level equal to or less than predevelopment conditions; and
4. Are certified as safe as designed and under anticipated conditions by a qualified engineer or geologist, licensed in the state of Washington.
(Ord. O2004-019, Added, 05/17/2005)
16.20.057 Performance standards – Specific hazards.
A. Erosion and Landslide Hazard Areas. Activities on sites containing erosion or landslide hazards shall meet the standards of this chapter and the specific following requirements:
1. A buffer shall be established from all edges of landslide hazard areas. The size of the buffer is discretionary and shall be determined by the community development director to eliminate or minimize the risk of property damage, death, or injury resulting from landslides caused in whole or part by the development, based upon review of the critical area report prepared in accordance with TMC 16.20.050.
a. The minimum buffer shall be equal to the height of the slope or fifty feet, whichever is greater.
b. The buffer may be reduced to a minimum of ten feet when a qualified professional demonstrates to the community development director’s satisfaction that the reduction will adequately protect the proposed development, adjacent developments and uses and the critical area.
c. The buffer may be increased where the community development director determines a larger buffer is necessary to prevent risk of damage to proposed and existing development.
2. Alterations of an erosion or landslide area and/or buffer may only occur for activities for which a hazards analysis is submitted as part of a critical areas report that determines that:
a. The development will not increase surface water discharge or sedimentation to adjacent properties beyond predevelopment conditions;
b. The development will not decrease slope stability on adjacent properties; and
c. Such alterations will not adversely impact other critical areas.
3. Development within an erosion or landslide hazard area and/or buffer shall be designed to meet the following basic requirements unless it can be demonstrated that an alternative design that deviates from one or more of these standards provides greater long-term slope stability while meeting all other provisions of this title. The requirement for long-term slope stability shall exclude designs that require regular and periodic maintenance to maintain their level of function. The basic development standards are:
a. The proposed development shall not decrease the factor of safety for landslide occurrences below the limits of 1.5 for static conditions and 1.2 for dynamic conditions. Analysis of dynamic conditions shall be based on a minimum horizontal acceleration as established by the current version of the state building code adopted by the city;
b. Structures and improvements shall be clustered to avoid geologically hazardous areas and other critical areas;
c. Structures and improvements shall minimize alterations to the natural contour of the slope, and foundations shall be tiered where possible to conform to existing topography;
d. Structures and improvements shall be located to preserve the most critical portion of the site and its natural landforms and vegetation;
e. The proposed development shall not result in greater risk or a need for increased buffers on neighboring properties;
f. The use of retaining walls that allow the maintenance of existing natural slope area is preferred over graded artificial slopes; and
g. Development shall be designed to minimize impervious lot coverage.
4. Unless otherwise provided or as part of an approved alteration, removal of vegetation from an erosion or landslide hazard area or related buffer shall be prohibited.
5. Clearing shall be allowed only from May 1 to October 31 of each year; provided, that the city may extend or shorten the time period on a case-by-case basis depending on actual weather conditions. Timber harvest, not including brush clearing or stump removal, may be allowed pursuant to an approved forest practice permit issued by the Washington State Department of Natural Resources and a landclearing permit issued by the city.
6. Utility lines and pipes shall be permitted in erosion and landslide hazard areas only when the applicant demonstrates that no other practical alternative is available. The line or pipe shall be located aboveground and properly unanchored and/or designed so that it will continue to function in the event of an underlying slide. Stormwater conveyance shall be allowed only through a high density polyethylene pipe with fuse welded joints, or similar product that is technically equal or superior.
7. Point discharges from surface water facilities and roof drains onto or upstream from an erosion or landslide hazard area shall be prohibited except as follows:
a. Conveyed via continuous storm pipe down slope to a point where there are no erosion hazard areas downstream from the discharge;
b. Discharged at flow durations matching predeveloped conditions with adequate energy dissipation, into existing channels that previously conveyed stormwater runoff in the predeveloped state; or
c. Dispersed discharge upslope of the steep slope onto a low-gradient undisturbed buffer demonstrated to be adequate to infiltrate all surface and stormwater runoff, and where it can be demonstrated that such discharge will not increase the saturation of the slope.
8. The division of land in landslide hazard areas and associated buffers is subject to the following:
a. Land that is located wholly within a landslide hazard area or its buffer may not be subdivided. Land that is located partially within a landslide hazard area or its buffer may be divided; provided, that each resulting lot has sufficient buildable area outside of, and will not affect, the landslide hazard or its buffer; and
b. Access roads and utilities may be permitted within the landslide hazard area and associated buffers if the city determines that no other feasible alternative exists.
9. On site sewage disposal systems, including drain fields, shall be prohibited within erosion and landslide hazard areas and related buffers.
B. Volcanic and Tsunami Hazard Areas. Activities on sites containing areas susceptible to inundation due to volcanic or tsunami hazards shall require an evacuation and emergency management plan.
(Ord. O2011-002, Amended, 03/01/2011; Ord. O2004-019, Added, 05/17/2005)
16.20.060 Appeals.
If, in the opinion of the building official, geologically hazardous areas, as described in TMC 16.20.050, represent a severe risk which cannot be successfully ameliorated by structural design, the affected site or portion thereof may be declared unbuildable. Appeals of the building official are as provided for in TMC Title 15.
(Ord. O2010-017, Amended, 12/21/2010; Ord. 1282, Added, 08/20/1991)
16.20.070 Violation – Penalty.
A. Remedies Not Exclusive. Each violation of the provisions of this chapter shall be a separate offense and will subject the violator to civil and/or criminal penalties. In the case of a continuing violation, each day’s continuance shall be a separate and distinct offense. The mayor of the city of Tumwater, through his or her designee(s) has authority to enforce this chapter against any violation or threatened violation thereof through issuance of administrative orders, penalty notices, levying of fines and/or the institution of actions at law or in equity including injunctive relief, in order to ensure that no uses are made of a regulated wetland or their buffers which are inconsistent with this chapter or an applicable wetlands protection program. In addition, the city attorney is authorized to commence criminal prosecution for violations under this chapter. Recourse to any single remedy will not preclude recourse to other legal remedies available.
B. Enforcement Actions. Enforcement of the provisions of this chapter is delegated to the director of community development. If the director of community development or his or her designee determines that any development action is not in compliance with approved development plans, or is in violation of this chapter, the director or designee may:
1. Issue a cease and desist order to halt such activity. The order shall become effective immediately upon receipt by the person to whom it is issued, and/or to his/her agent on site. The order shall set forth the following terms and conditions:
a. A description of the specific nature, extent and time of violation and the damage or potential damage; and
b. The specific corrective action to be taken within a given time, and the penalties for failure to comply.
2. Issue a restoration order for complete or partial restoration of the critical area by the owner and/or the person responsible for the violation within a given time, and the penalties for failure to comply.
3. Issue a civil penalty notice.
4. Request that the city attorney commence a criminal prosecution, and seek any civil or equitable relief to enjoin any act or practices and to abate any conditions which constitute or will constitute a violation of this chapter.
C. Civil Penalties.
1. Content. The notice of civil penalty shall include the following information:
a. The name and address of the person responsible for the violation; and
b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
c. A description of the violation and a reference to the provision(s) of the city of Tumwater code section that has been violated; and
d. The required corrective action and a date and time by which the correction must be completed; and
e. Notice of an opportunity for an appeal hearing before the hearing examiner; and
f. A statement indicating that no monetary penalty will be assessed if the director or his or her designee approves the completed, required corrective action at least forty-eight hours prior to the end date for compliance in the restoration order; and
g. A statement that a monetary penalty in an amount per day for each violation as specified herein will be assessed against the person whom the notice of civil penalty is directed.
2. Service of Notice. The director or his or her designee shall serve the notice of civil penalty upon the person to whom it is directed, either personally or by mailing by both regular mail and certified mail, a copy of the notice of civil penalty to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within Thurston 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 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. Monetary Penalties. The maximum monetary penalty for each separate violation per day or portion thereof shall be as follows:
1. First day of each violation – $100.00;
2. Second day of each violation – $200.00;
3. Third day of each violation – $300.00;
4. Fourth day of each violation – $400.00;
5. Each additional day of each violation beyond four days – $500.00 per day.
E. Collection of Monetary Penalty. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil penalty is directed. The city is authorized to take appropriate action to collect the monetary penalty.
F. Criminal Penalties. Any person, firm, or corporation who knowingly violates or knowingly fails to comply with any term or provision of this chapter shall be charged with a misdemeanor. Each day a violation occurs shall be a separate offense. In the event of a continuing violation or failure to comply, the second and subsequent days shall constitute a gross misdemeanor. Continuing violation shall mean a violation which is committed within one year of the initial violation, and which arises out of the same facts as the initial violation.
G. Appeal of Administrative Orders and Penalties. Any person issued a cease and desist order, restoration order and/or incurring a civil penalty may appeal the same by filing, in writing within ten days of receipt of the order/penalty notice, a notice of appeal and paying the appeal fee. The appeal must set forth in a concise statement: (1) the reason for the appeal, (2) the name and address of the appellant and his/her interest(s) in the property or proposed development affected by such order/penalty, (3) must contain a reference to the specific code section(s) that support the appellant’s argument, (4) must specify the reason(s) why the appellant believes the order or penalty to be erroneous, and (5) must specify the relief sought. The appellant will have the burden of proof to show the order or penalty is erroneous. Upon receipt of the appeal notice by the city clerk, the city clerk will schedule a hearing before the hearing examiner, who is authorized to remit or mitigate the penalty only upon a demonstration of extraordinary circumstances, such as the presence of information or factors not considered, or not known and not reasonably capable of being known in setting the original penalty. The hearing examiner’s powers on appeal are set forth in TMC Chapter 2.58. Any person appealing the issuance of an administrative order or civil penalty notice shall abide by the terms of that order or notice during the pendency of an appeal to the hearing examiner. The hearing examiner’s decision may be further appealed according to the provisions of TMC Chapter 2.58.
(Ord. O2011-002, Amended, 03/01/2011; Ord. O2005-023, Amended, 09/06/2005; Ord. O2004-019, Amended, 05/17/2005; Ord. 1282, Added, 08/20/1991)
16.20.080 Severability.
If any section, paragraph, subsection, clause or phrase of this chapter is for any reason held to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of the chapter.
(Ord. 1282, Added, 08/20/1991)