Chapter 1.20 ENFORCEMENT

The purpose of this chapter is to establish an efficient system to enforce the development and use regulations of the City, to provide an opportunity for a prompt hearing and decision on alleged violations of these regulations, to provide an administrative framework for resolving violations and to establish monetary penalties for violations. This chapter is intended to serve as an alternative to other means available to the City to remedy nuisance violations.

(Ord. 723 § 2 (Exh. B), 2020; Ord. 481 § 1, 2006; Ord. 100 § 1, 1996).

1.20.015 Duty of enforcement.

It is the intent of the City Council that any duty of enforcement of any codes, ordinances or regulations of the City, or any part thereof, be owed to the public at large, and not to any individual members of the public. The City Council, further, intends to make no assurances or promises of protection thereby or enforcement thereof to any individual, and that no special relationship regarding enforcement of any code, ordinance or regulation shall exist with any individual which would set such individual apart from the general public.

(Ord. 723 § 2 (Exh. B), 2020).

1.20.020 Definitions.

As used in this chapter, unless a different meaning is plainly required:

“Abate” means to repair, replace, remove, destroy or otherwise remedy a condition which constitutes a civil violation by such means in such a manner and to such an extent as the applicable department director determines is necessary in the interest of the general health, safety and welfare of the community.

“Act” means doing or performing something.

“Applicable department director” means the director of the department or his or her designee or any designated alternate empowered by ordinance or by the City Manager to enforce a City ordinance or regulation including the assigned code enforcement official.

“Civil violation” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation.

“Development” means the erection, alteration, enlargement, demolition, maintenance or use of any structure or the alteration or use of any land above, at or below ground or water level, and all acts authorized by a City regulation.

“Emergency” means a situation which, in the opinion of the applicable department director, requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.

“Hearings Examiner” means the University Place Hearings Examiner and the office thereof established pursuant to Chapter 2.20 UPMC.

“Omission” means a failure to act.

“Person” means an individual, firm, association, partnership, corporation or any entity, public or private.

“Person responsible for the violation” means any person who has an interest in the property.

“Regulation” means and includes the following, as now or hereafter amended:

1. The public nuisance provisions of UPMC Title 9, Public Safety, and UPMC Title 19, Zoning;

2. All other City ordinances making reference to this chapter;

3. All standards, regulations and procedures adopted by the City making reference to this chapter; and

4. The terms and conditions of any permit or approval issued by the City, or any concomitant agreement with the City pursuant to City ordinances making reference to this chapter.

“Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought within two years or a notice of civil violation has been issued within two years.

“Violation” means an act or omission contrary to a City regulation.

(Ord. 723 § 2 (Exh. B), 2020; Ord. 481 § 1, 2006; Ord. 100 § 2, 1996).

1.20.030 Voluntary correction.

A. General. Where possible, the City should, but is not required to, attempt to secure voluntary correction by contacting the person responsible for the violation, explaining the violation and requesting correction.

B. Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the City.

1. Content. The voluntary correction agreement is a contract between the City and the person responsible for the violation under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement should include the following:

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 regulation which has been violated; 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 violation 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 violation that the City may abate the violation and recover its costs and expenses and/or a monetary penalty pursuant to this chapter from the person responsible for the violation 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 violation waives the right to a hearing regarding the matter of the violation and/or the required corrective action.

2. Right to a Hearing Waived. Upon entering into a voluntary correction agreement, the person responsible for the violation waives the right to a hearing regarding the matter of the violation and/or the required corrective action. Notice of the waiver must be contained in the voluntary correction agreement.

3. Extension – Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the applicable department director if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation but unforeseen circumstances render correction under the original conditions unattainable.

4. Abatement by the City. The City may abate the violation if the terms of the voluntary correction agreement are not met.

5. Collection of Costs. If the terms of the voluntary correction agreement are not met, the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction and thereafter, plus all costs and expenses of abatement including a reasonable attorney’s fee.

6. Confession of Judgment. A voluntary correction agreement may take the form of a confession of judgment as provided by Chapter 4.60 RCW.

(Ord. 723 § 2 (Exh. B), 2020; Ord. 481 § 1, 2006; Ord. 100 § 3, 1996).

1.20.040 Notice of civil violation.

A. Issuance. When the City determines that a violation has occurred or is occurring, the City Manager or designee may issue a notice of civil violation.

B. Content. The notice of civil violation shall include the following:

1. The name and address of the person responsible for that violation; and

2. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and

3. A description of the violation and a reference to the provision(s) of the City regulation(s) which has been violated; and

4. The required corrective action and a date and time by which the correction must be completed, after which time the City may abate the unlawful condition; and

5. The date, time and location of an appeal hearing before the Hearings Examiner which will be at least 10 days but no more than 45 days from the date the notice of civil violation is issued; and

6. A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the applicable department director 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 and a monetary penalty in an amount per day for each violation as specified in subsection (E) of this section may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the Hearings Examiner.

C. Service of Notice. The applicable department director or designee shall serve the notice of civil violation upon the person responsible for the violation, either personally or by mailing a copy of the notice of civil violation to such person at their last known address. If the person responsible for the violation cannot be personally served within Pierce County and if an address for mailed service cannot be ascertained, notice shall be served by posting a copy of the notice of civil violation 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. Extension. Extensions of the time specified in the notice of civil violation for correction of the violation may be granted at the discretion of the applicable department director or by order of the Hearings Examiner.

E. Monetary Penalty. Unless a different penalty is set forth in this code, the monetary penalty for each violation per day or portion thereof shall be $500.00.

F. Continued Duty to Correct. 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 violation.

G. Collection of Monetary Penalty.

1. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is directed. Any monetary penalty assessed must be paid to the City within 10 calendar days from the date of mailing of the Hearings Examiner’s decision or a notice from the City that penalties are due.

2. The City Attorney is authorized to take appropriate action to collect the monetary penalty.

(Ord. 723 § 2 (Exh. B), 2020; Ord. 481 § 1, 2006; Ord. 100 § 4, 1996).

1.20.050 Hearing before the Hearings Examiner.

A. Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the Hearings Examiner not less than 10 calendar days but no more than 45 days after the notice of civil violation is issued. Extensions may be granted at the discretion of the City or Hearings Examiner.

B. Prior Correction of Violation. The hearing will be canceled and no monetary penalty will be assessed if the City approves the completed required corrective action at least 48 hours prior to the scheduled hearing.

C. Procedure. The Hearings Examiner shall conduct a hearing on the civil violation pursuant to the rules of procedure of the Hearings Examiner. The applicable department director and the person to whom the notice of civil violation was directed may participate as parties in 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 and that the required corrective action will correct the violation. The determination of the applicable department director as to the need for the required corrective action shall be accorded substantial weight by the Hearings Examiner in determining the reasonableness of the required corrective action.

D. Decision of the Hearings Examiner.

1. The Hearings Examiner shall determine whether the City has established by a preponderance of the evidence that a violation has occurred and that the required correction will correct the violation and shall affirm, vacate, or modify the City’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.

2. The Hearings Examiner shall issue 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;

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 assessed by the Hearings Examiner shall be in accordance with the monetary penalty in UPMC 1.20.040(E).

a. The Hearings Examiner shall have the following options in assessing monetary penalties:

(1) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or

(2) Assess monetary penalties beginning on the correction date set by the applicable department director, an alternate correction date set by the Hearings Examiner, or a date set forth in a voluntary correction agreement (if any) and thereafter; or

(3) Assess less than the established monetary penalty set forth in UPMC 1.20.040(E) based on the criteria of subsection (D)(3)(b) of this section; or

(4) Assess no monetary penalties.

b. In determining the monetary penalty assessment, the Hearings Examiner shall consider the following factors:

(1) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;

(2) Whether the person failed to appear at the hearing;

(3) Whether the violation was a repeat violation;

(4) Whether the person showed due diligence and/or substantial progress in correcting the violation;

(5) Whether a genuine code interpretation issue exists; and

(6) Any other relevant factors.

c. The Hearings Examiner may double the monetary penalty schedule if the violation was a repeat violation. In determining the amount of the monetary penalty for repeat violations the Hearings Examiner shall consider the factors set forth in subsection (D)(3)(b) of this section.

4. Notice of Decision. The Hearings Examiner shall send by certified mail return receipt requested a copy of the decision to the person to whom the notice of a civil violation was issued and to the applicable department director within 20 working days of the hearing.

E. Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear at the scheduled hearing, the Examiner will enter an order with findings pursuant to subsection (D)(2) of this section and assess the appropriate monetary penalty pursuant to subsection (D)(3) of this section. The City will enforce the Hearings Examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty, from that person.

F. Finality of Decision. The decision of all matters decided hereunder shall be final and conclusive unless, within 21 days from the date of the final decision, an applicant or an aggrieved party makes an application to a court of competent jurisdiction or competent administrative agency for review.

(Ord. 723 § 2 (Exh. B), 2020; Ord. 481 § 1, 2006; Ord. 354 § 1, 2002; Ord. 100 § 5, 1996).

1.20.060 Abatement by the City.

A. The City may abate a condition which was caused by or continues to be a civil violation when:

1. The terms of a voluntary correction agreement pursuant to UPMC 1.20.030 have not been met; or

2. A notice of civil violation has been issued and a hearing has been held as set forth in this chapter and the required correction has not been completed by the date specified in the Hearings Examiner’s order; or

3. The condition is subject to summary abatement as provided for in subsection (B) of this section.

B. Summary Abatement. Whenever any violation of a regulation causes a condition, the continued existence of 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 violation as soon as reasonably possible after the abatement.

C. Authorized Action by the 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 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 occupancy of the property and shall become due and payable to the City within 10 calendar days. The term “incidental expenses” includes but is not limited to personal costs, both direct and indirect, including attorneys’ fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the City in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing.

E. As provided by RCW 35A.21.405, the City Manager or designee is also authorized to file a special assessment against the property on which the notice of civil violation was assessed for the City’s costs in abating the nuisance and for any fines imposed. Before levying a special assessment, the City shall notify the property owner and any identifiable mortgage holder that a special assessment will be levied on the property and provide the estimated amount of the special assessment. The notice must be sent by regular mail.

F. This section does not preclude the use of other abatement processes allowed by law.

(Ord. 723 § 2 (Exh. B), 2020; Ord. 481 § 1, 2006; Ord. 100 § 6, 1996).

1.20.070 Criminal penalties.

(Ord. 481 § 1, 2006; Ord. 100 § 10, 1996).