Chapter 8.05
NUISANCES
Sections:
8.05.010 Conditions constituting a public nuisance.
8.05.020 Unlawful to permit or maintain nuisance.
8.05.050 Voluntary correction.
8.05.060 Administrative enforcement.
8.05.070 Emergency enforcement.
8.05.090 Civil infraction citation.
8.05.010 Conditions constituting a public nuisance.
It is the purpose of this nuisance chapter to prevent and prohibit safety and health hazards that create a menace to the health and welfare of the public and the residents of the town, and to prevent and prohibit those conditions and activities which interfere with the enjoyment of public and private property. Accordingly, any act or omission that unreasonably interferes with another’s use of their land or property, that injures or endangers the health or safety of others, that poses a threat or harm to the life of another or in the use of their property, is hereby declared unlawful and in violation of this nuisance chapter. “Nuisance” includes: (1) a nuisance defined by statute; (2) a nuisance at common law, either public or private; and (3) those specific actions or omissions defined herein; provided, reference to specific acts or omissions is not intended as a limitation on the definition of a nuisance. The following conditions, unless otherwise permitted by law, are declared to constitute a public nuisance in the town:
(1) The existence of any dead, diseased, infested or dying tree or shrub that may constitute a danger to street trees, streets, or portions thereof.
(2) The existence of any tree, shrub, or foliage, unless by consent of the town, which is apt to destroy, impair, interfere, or restrict:
(a) Streets, sidewalks, sewers, utilities, or other public improvements;
(b) Visibility on or for use of, or access to, streets, sidewalks, sewers, utilities, or other public improvements.
(3) The existence of any vines or climbing plants growing into or over any street tree, or any public hydrant, pole, or electrical equipment, or the existence of any shrub, vine, or plant growing on, around, or in front of, any hydrant, standpipe, 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.
(4) The existence of any accumulation of materials or objects which constitutes a fire hazard or interferes with access to any public utility connection, drain, or outlet.
(5) The existence of any obstruction to a street, alley, crossing, or sidewalk, and any excavation in or under any street, alley, crossing, or sidewalk, which is, by ordinance, prohibited, or which is made without lawful permission, or which, having been made by lawful permission, is kept and maintained after the purpose thereof has been accomplished and for an unreasonable length of time.
(6) The erecting, maintaining, using, placing, depositing, leaving or permitting to be or remain in or upon any private lot, building, structure, or premise, or in or upon any street, alley, sidewalk, park, parkway, or other public or private place in the town, any one or more of the following:
(a) Any putrid, unhealthy, or unwholesome bones, meat, hides, skins, the whole or any part of any dead animal, fish or foul, or waste parts of any fish or animal in any quantity, but nothing herein shall prevent the temporary retention of waste in approved covered receptacles.
(b) Any privies, vaults, cesspools, sumps, pits, or like places which are not securely protected from flies and rats, and which are foul or odorous.
(c) Any noxious weeds, whether growing or otherwise, but nothing herein shall prevent the temporary retention of such weeds in approved covered receptacles.
(d) Accumulation of bottles, cans, glass, ashes, small pieces of scrap iron, wire, metal articles, broken stone, or cement, broken crockery, broken glass, broken plaster, and all such trash, or abandoned material, unless it is kept in approved covered receptacles.
(e) Accumulation of trash, litter, rags, empty barrels, boxes, crates, packing crates, mattresses, bedding, packing hay, lumber not neatly piled, scrap iron, tin or other metal not neatly piled, or anything whatsoever in which flies or rats may breed or multiply, or which may be a fire hazard.
(7) The existence of any fence or other structure or thing on private property which is decayed or otherwise dilapidated or in an unsafe condition.
(8) The existence on any premises of an abandoned unusable trailer, house trailer, automobile, boat, or other vehicle or major parts thereof.
(9) The existence on any premises of any abandoned or unused well, cistern, or storage tank, without first demolishing or removing from the town such storage tank, or securing and closing and barring any entrance or trap door thereto, or without filling any well or cistern or capping the same with sufficient security to prevent access thereto by children.
(10) The existence on any premises, in a place accessible to children, of any unattended and/or discarded icebox, refrigerator, other large appliances and attractive nuisances.
(11) The existence on any premises of abandoned, wrecked, dismantled, or inoperative vehicles, which are not properly cared for, stored, licensed, or maintained, and which constitute an attractive nuisance to children on public or private property, are declared to be a public nuisance and may be abated. It is unlawful for any firm, person, or corporation to place or keep an abandoned vehicle, abandoned automobile hulk, wrecked, dismantled, or inoperative vehicle, or parts thereof, upon any public or private property in the town or as the owner, occupier, or party in control, of any real property within the town to permit or allow any such automobile or portion thereof to be placed or kept on said property.
(12) The existence on any premises of any items of personal property which are not properly stored and maintained and which constitute junk and trash.
(13) Buildings which are in a state of disrepair and which do not meet state, county or city codes for habitability, use, or occupancy, and which could constitute an attractive nuisance to children.
(14) Any toxic substance or hazardous waste as defined by federal, state, county, or city ordinance or laws, and as hereinafter amended, which is improperly stored or discharged upon the ground, into the air, or into the water, within the city limits.
(15) Smoke, odors, and/or noxious fumes which may be detrimental to the health of a number of people within the city limits.
(16) Fruit trees or other trees, bushes, or shrubs which are infested with insects.
(17) Repealed by Ord. 647.
(18) The existence of, or the causing, making or allowing to be made from any audio equipment the following:
(a) Sound from a motor vehicle audio system, such as a radio, tape player, or compact disc player, which is operated at such a volume that it can be clearly heard at a distance of 75 feet, or more, from a vehicle itself; or
(b) Sound from portable audio equipment, such as a radio, tape player or compact disc player, which is operated at such a volume that it can be clearly heard at a distance of 75 feet, or more, from the source of the sound.
(19) Between the hours of 10:00 p.m. and 7:00 am., the existence of, or making or continuing or causing to be made or continued, any noise which either annoys, injures or endangers the comfort, health or safety of others, unless the making or continuing of the same is necessary for the protection or preservation of property, or for the health, safety, life or limb of some person.
(20) The existence of, or causes or makes, or allows to be made, any loud or raucous and frequent repetitive or continuous sounds created by use of a musical instrument or other device capable of producing sound when struck by an object, whistle, or sound amplifier, or other device capable of producing, amplifying or reproducing sound.
(21) To own or keep any dog within the town which barks or howls or any dog or cat which whines or otherwise behaves in such a manner as to disturb the peace and quiet and safety of the public or persons in the neighborhood. It shall be a rebuttable presumption that any such barking, whining or howling does, in fact, disturb the peace, comfort and/or repose of others. (Ord. 647 § 3(A), 2012; Ord. 541 § 1, 2005; Ord. 531 § 1, 2004)
8.05.020 Unlawful to permit or maintain nuisance.
It is unlawful for any person, by themselves or by their agents or employees, or as the agent or employee of another person, firm or corporation to do or permit to be done upon any premises over which they have control, or maintain, carry on, suffer or allow any of the acts or things declared to be nuisances herein; or to do or cause or permit, or suffer to be done, or to maintain any act or thing which is detrimental or injurious to public health, or offensive to the senses, or contrary to public decency or morality. If the owner or agent of any premises has actual or constructive knowledge of the maintenance on or in their premises of any nuisance, as defined herein, they shall be deemed one of the persons in control of the premises. (Ord. 541 § 1, 2005; Ord. 531 § 2, 2004)
8.05.030 Enforcement person.
The chief of police or any town police officer, or the town’s designated building and code enforcement officer, is authorized to enforce this chapter and issue civil notice or citations as provided herein or take appropriate abatement procedures. Such enforcement action or actions may be taken by either of the town officers or officials mentioned herein upon observation of the acts or things declared to be a nuisance or upon citizen complaints of the occurrence of such acts or things declared to be a nuisance. (Ord. 541 § 1, 2005; Ord. 531 § 3, 2004)
8.05.040 Exempt activity.
This chapter shall not apply to any lawful public gatherings conducted within the town limits; provided, that such public gatherings receive the proper approval of the town, and comply with any rules or regulations designated by the town for such public gathering. This chapter shall not apply to a licensed dismantler or dealer or to vehicles that are completely enclosed in a building and not visible from the street, nor to materials stored on the premises of any other licensed business for use in connection with such business, so long as the business is conducted in accordance with all local, state, or federal ordinances, laws and regulations. (Ord. 541 § 1, 2005; Ord. 531 § 4, 2004)
8.05.050 Voluntary correction.
Whenever the enforcement person for the town, as authorized herein, determines a nuisance has occurred or is occurring, and further determines that issuing a citation as a civil infraction is not necessary to rectify the nuisance, or that an emergency does not exist or that the act or thing declared to be a nuisance is not a repeated violation with knowledge by the person that such act or thing is a violation of this chapter, then the enforcement person may seek voluntary correction by contacting the person responsible for the nuisance, explaining the violation and requesting correction. The enforcement officer and the person responsible for the nuisance may enter into a voluntary correction agreement that identifies the acts or things constituting the nuisance, reference to the specific code provision violated, the necessary corrective action to be taken, and the time by which the correction must be completed. The enforcement person may require such additional terms and conditions reasonably necessary to accomplish the corrective action including, without limitation, the assessment of reasonable costs and monetary penalties if the terms of the voluntary correction agreement are not met by the person entering into the agreement. (Ord. 541 § 1, 2005; Ord. 531 § 5, 2004)
8.05.060 Administrative enforcement.
(1) The enforcement person may issue a notice of civil violation to any person responsible for permitting or maintaining a nuisance in violation of this chapter. The notice of civil violation shall include: (a) the name and address of the person found to be the owner or the owner’s agent or the occupant responsible for correcting the violation, (b) the address or sufficient description of the property at which the nuisance exists, (c) a brief description of the violation and reference to the applicable code provision violated, (d) a statement of the required corrective action, (e) a statement of the time by which correction must be completed, which shall not be less than 10 days, unless the enforcement person has found that an imminent hazard exists to the health or safety of the public, (f) a statement of office address and office phone number of the enforcement person or their agent. It shall also contain a statement that if the person responsible does not complete correction of the violation by the date required, the town may abate the condition and recover costs and penalties as provided herein. Such notice of violation shall also advise that the person responsible may appeal such notice by filing a written appeal with the clerk of the town. Such notice of appeal shall be so filed within seven calendar days of the date of the personal service or mailing of the notice of violation, and such notice of appeal shall specify what portion of the violation notice is being challenged and grounds for such challenge.
(2) The enforcement person or their agent shall serve the notice of civil violation either personally upon the person responsible or by mailing it to them by regular and certified mail, return receipt requested, at their last known address. Service by mail shall be deemed effective the third day following the day the notice was placed in the mail, excluding Sundays and holidays.
(3) If a notice of appeal is filed, the matter shall be promptly set for a hearing to be held in not more than 30 days from the date of receipt of such appeal by the town. The hearing shall be before the municipal court judge.
(4) At the hearing, the person appealing may introduce evidence to show that there is no violation of this chapter, or that the town’s conditions or timeline as to compliance are not reasonable, or that they are not responsible under the terms of this chapter to abate such nuisance. The enforcement person may introduce evidence that there is a violation and that the timeline is reasonable and to rebut evidence. Each party may call witnesses. Technical rules of evidence need not be followed. The burden of proof shall be upon the enforcement person to show by a preponderance of the evidence that there is a violation as claimed and that the time given for correction and the method or extent of correction required are reasonable.
(5) After receiving evidence and argument, the municipal court shall either (a) authorize the enforcement person to proceed to abate the violation, unless the person responsible does so within the next five days, or (b) if the municipal court finds there is not a violation of this chapter or that the town has not proceeded according to this chapter, the municipal court shall direct the town not to proceed under such notice. The municipal court may authorize the enforcement person to proceed, but may order a delay where the municipal court has found that the property owner can abate the nuisance and the delay will not have any adverse effect upon other property or upon the safety of any person. The municipal court shall also compute and assess the monetary penalty, if any, as provided herein. The municipal court in each case shall enter a written decision and shall mail a copy to the person appealing, as well as to the enforcement person, no later than 10 working days after the hearing. The person appealing shall have 30 days from the date of mailing of the written decision to petition to the superior court or district court for injunctive relief seeking to restrain the town from proceeding with the abatement of the violation, and the court is authorized to affirm, reverse or modify such enforcement action, and any such hearing or trial shall be de novo, meaning the court shall be directly reviewing the action by the town as a new matter.
(6) If the person responsible has not appealed the notice of violation as provided for in this chapter, or if the property owner has appealed but the town council has found for the enforcement person and has not authorized a delay and there has been no appeal to superior court and correction has not been made within the specified time, the town is authorized by this chapter to proceed with its own personnel or with a contractor to abate the nuisance in any reasonable manner.
(7) Civil monetary penalties shall accrue at the rate of $100.00 per day after the date the correction of the nuisance was to be completed as provided in subsection (1) of this section until completion of the correction unless a different date of completion is established by the municipal court; provided, that the municipal court may assess a lesser penalty if the person showed diligence in correcting the violation or whether good faith interpretation of code interpretation existed. No penalties shall accrue while an appeal is pending unless the municipal court finds the appeal was frivolous or for delay only. The monetary penalty and the cost of abatement accomplished by the town constitutes a personal obligation of the responsible person and the town attorney may, by use of appropriate legal remedies including, without restricting the town’s remedies, foreclosing against the real property of the responsible person in the manner of foreclosing mechanic’s liens pursuant to Chapter 60.04 RCW, recover such penalties and abatement costs, together with interest and reasonable attorney’s fee, and to enter into compromises. (Ord. 590 § 1, 2008; Ord. 541 § 1, 2005; Ord. 531 § 6, 2004)
8.05.070 Emergency enforcement.
Whenever the enforcement person finds, as a result of a declared nuisance, that an emergency condition results therefrom or it reasonably appears to cause or constitute an imminent or immediate danger to the health and safety of the public, and the responsible person cannot be contacted or refuses to immediately abate the same, the enforcement person shall have authority to summarily and without notice abate the same. Notice of the abatement action shall be given to the responsible party as soon thereafter as possible and the town shall be entitled to recover the abatement costs as provided in TMC 8.05.060(7). (Ord. 541 § 1, 2005; Ord. 531 § 7, 2004)
8.05.080 Abatement suit.
Whenever the enforcement person determines a nuisance to exist, the town may proceed, in addition to any other remedy provided herein, to enjoin and abate the same pursuant to Chapter 7.48 RCW, et seq., as amended. (Ord. 541 § 1, 2005; Ord. 531 § 8, 2004)
8.05.090 Civil infraction citation.
In addition to all other enforcement remedies, the enforcement person may issue a civil infraction citation for each nuisance violation with a penalty of not more than $250.00 per violation. Each separate nuisance act constitutes a separate violation, and each day that the act or thing that constitutes a nuisance continues constitutes a separate violation. (Ord. 541 § 1, 2005; Ord. 531 § 9, 2004)