Chapter 8.07
NUISANCE PROCEDURES
Sections:
8.07.050 Voluntary correction.
8.07.060 Notice of civil violation.
8.07.070 Hearing before the hearing examiner.
8.07.080 Abatement by the city.
8.07.090 Entry to businesses and premises.
8.07.100 Additional enforcement procedures.
8.07.130 Rules and regulations.
8.07.140 Civil suit authorized.
8.07.010 Authority.
This chapter is enacted pursuant to authority of the city to declare what shall be deemed nuisances; to impose fines upon parties who may create, continue, or suffer nuisances to exist; to prevent, remove, and abate nuisances at the expense of the parties creating, causing, or committing or maintaining the same; and to levy a special assessment on the land or premises whereon a nuisance is situated to defray the cost or to reimburse the city for the cost of abating the same. (Ord. 2000-2 § 1(part), 2000).
8.07.020 Purpose.
The purpose of this chapter is to establish an efficient system to enforce certain provisions of this code and regulations of the city, to provide a framework for voluntary correction of problems, to provide an opportunity for a prompt hearing and decision on alleged violations, and to provide financial penalty and abatement for proven violations. (Ord. 2000-2 § 1(part), 2000).
8.07.030 Definitions.
As used in this chapter, unless a different meaning is plainly required:
A. “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 necessary in the interest of the general health, safety and welfare of the community.
B. “Act” means doing or performing something.
C. “Applicable department director” means the city manager or the director of the department designated by the city manager to enforce this code and subordinates of the director working under his or her supervision.
D. “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. Traffic infractions pursuant to Title 10 are specifically excluded from the application of this chapter.
E. “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.
F. “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.
G. “Hearing examiner” means the city hearing examiner and the office thereof established pursuant to Section 20.10.070.
H. “Omission” means a failure to act.
I. “Person” means any individual, firm, association, partnership, corporation or any entity, public or private.
J. “Person responsible for the violation” means any person who is required by the applicable regulation to comply therewith, or who commits any act or omission which is a civil violation or causes or permits a civil violation to occur or remain upon property in the city, and includes but is not limited to: owner(s), lessor(s), tenant(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs. For violations of the sign code, this definition includes, but is not limited to, sign installers/posters, sign owners, and all other persons who cause or participate in the placement of a sign in a manner that constitutes a civil violation.
K. “Regulation” means and includes the following, as now or hereafter amended:
1. Titles 8, 12, 15, 19, 20 and 21; and
2. The terms and conditions of any development authorization, permit or approval issued by the city, or any concomitant agreement with the city.
L. “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.
M. “Violation” means an act or omission contrary to a regulation including an act or omission at the same or different location by the same person and including a condition resulting from such act or omission. (Ord. 2016-17 § 16, 2016: Ord. 2016-03 § 4, 2016: Ord. 2000-2 § 1(part), 2000).
8.07.040 Nuisances declared.
Any violation of a regulation is declared to be a nuisance. (Ord. 2000-2 § 1(part), 2000).
8.07.050 Voluntary correction.
A. Applicability. This section applies whenever the applicable department director determines that a violation of a regulation has occurred or is occurring.
B. General. The applicable department director shall pursue a reasonable attempt to secure voluntary correction by contacting the person responsible for the violation where possible, explaining the violation and requesting correction.
C. Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the city, acting through the applicable department director.
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 shall 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 provision(s) of the city ordinance or 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 abate the violation and recover its costs and expenses and 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
f. An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to an administrative appeal of the violation and/or the required corrective action.
2. Right to a Hearing Waived. The person responsible for the violation waives the right to an administrative appeal of the violation and the required corrective action upon entering into a 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 in accordance with Section 8.07.080 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, in accordance with subsection 8.07.060(E) of this chapter, plus all costs and expenses of abatement, as set forth in subsection 8.07.080(D)(3) of this chapter. (Ord. 2000-2 § 1(part), 2000).
8.07.060 Notice of civil violation.
A. Issuance.
1. When the applicable department director determines that a violation has occurred or is occurring, and is unable to secure voluntary correction, pursuant to Section 8.07.050, the applicable department director may issue a notice of civil violation to the person responsible for the violation.
2. The applicable department director may issue a notice of civil violation without having attempted to secure voluntary correction as provided in Section 8.07.050 under the following circumstances:
a. When an emergency exists;
b. When a repeat violation occurs;
c. When the violation creates a situation or condition which cannot be corrected;
d. When the violation is of the sign code (Chapter 20.204 of this code); or
e. When the person knows, or reasonably should have known, that the action is in violation of a city regulation.
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 which has been violated; 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 unlawful condition in accordance with Section 8.07.080 and the hearing examiner’s order; and
5. The date, time and location of an appeal hearing before the hearing examiner which will be at least ten 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 forty-eight hours prior to the hearing; except, that this statement need not be included where the violation constitutes a repeat violation, the violation creates a situation or condition which cannot be corrected, or the violation is of the sign code (Chapter 20.204 of this code); and
7. In the case of a violation of the sign code, a statement indicating that the hearing will be canceled if corrective action is taken and the monetary penalty recommended by the applicable department director is paid in full to the city at least forty-eight hours prior to the scheduled hearing; and
8. A statement that the costs and expenses of abatement incurred by the city pursuant to Section 8.07.080(D) of this chapter and a monetary penalty in an amount per day for each violation as specified in Section 8.07.060(E) of this chapter may be assessed against the person to whom the notice of civil violation is directed as specified and ordered by the hearing examiner.
C. Service of Notice. The applicable department director shall serve the notice of civil violation upon the person to whom it is directed, either personally or by mailing a copy of the notice of civil violation to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within Walla Walla 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 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. No extension of the time specified in the notice of civil violation for correction of the violation may be granted, except by order of the hearing examiner.
E. Monetary Penalty.
1. Except for violations of the sign code (Chapter 20.204 of this code), the monetary penalty for each violation per day or portion thereof shall be as follows:
a. First day of each violation, one hundred dollars;
b. Second day of each violation, two hundred dollars;
c. Third day of each violation, three hundred dollars;
d. Fourth day of each violation, four hundred dollars;
e. Each additional day of each violation beyond four days, five hundred dollars per day.
2. For violations of the sign code (Chapter 20.204 of this code), the monetary penalty for each violation is one hundred dollars per sign per day or portion thereof.
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 at the offices of its finance division within ten calendar days from the date of mailing of the hearing examiner’s decision or a notice from the city that penalties are due.
2. The city finance division is authorized to turn over to collection any penalty for which payment becomes past due.
3. The city attorney or his/her signee is authorized to take appropriate action to collect the monetary penalty.
H. Notice as Determination. The notice of civil violation represents a determination that a violation infraction has occurred or is occurring. The determination will be final unless contested as provided in this chapter. (Ord. 2000-2 § 1(part), 2000).
8.07.070 Hearing before the hearing examiner.
A. Notice. A person to whom a notice of civil violation is issued will be scheduled to appear before the hearing examiner not less than ten calendar days after the notice of civil violation is issued.
B. Prior Correction of Violation or Payment of Monetary Penalty. Except in the case of a repeat violation, a violation which creates a situation or condition which cannot be corrected, or a violation of the sign code (Chapter 20.204 of this code), 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 forty-eight hours prior to the scheduled hearing. In the case of a violation of the sign code, the hearing will be canceled if corrective action is taken and the monetary penalty recommended by the applicable department director is paid in full to the city at least forty-eight hours 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 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, if applicable, is reasonable. The determination of the applicable department director 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 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 and that the required correction is reasonable and shall affirm, vacate, or modify the city’s determination(s) regarding the alleged violation and/or the required corrective action, with or without written conditions.
2. The hearing 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, or in the case of a violation of the sign code, notification that the illegal signs shall be destroyed by the city;
c. The date and time by which the correction must be completed;
d. The monetary penalties assessed based on the criteria in subsection 8.07.070(D)(3) of this chapter;
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 hearing examiner shall be in accordance with the monetary penalty schedule in Section 8.07.060(E) of this chapter.
a. Violations Other than Sign Code (Chapter 20.204 of this code) Violations.
i. The hearing examiner shall have the following options in assessing monetary penalties:
(A) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or
(B) Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the hearing examiner and thereafter; or
(C) Assess no monetary penalties.
ii. In determining the monetary penalty assessment, the hearing examiner shall consider the following factors:
(A) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;
(B) Whether the person failed to appear at the hearing;
(C) Whether the violation was a repeat violation;
(D) Whether the person showed due diligence and/or substantial progress in correcting the violation;
(E) Whether a genuine code interpretation issue exists; and
(F) Any other relevant factors.
b. Sign Code (Chapter 20.204 of this code) Violations. The hearing examiner shall assess a monetary penalty for each sign cited within a single twenty-four hour period extending from 12:01 a.m. to twelve midnight on a single day.
c. Effect of Repeat Violations.
i. Nonsign Code Violations. Except in the case of violations of the sign code (Chapter 20.204 of this code), the hearing 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 hearing examiner shall consider the factors set forth in subsection 8.07.070(D)(3) of this chapter.
ii. Sign Code Violations (Chapter 20.204 of this code). The hearing examiner shall double the per sign monetary penalty assessed for each repeat violation.
4. Notice of Decision. The hearing examiner shall mail a copy of the decision to the appellant and to the applicable department director within fifteen 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 hearing examiner will enter an order finding that the violation occurred and assessing the appropriate monetary penalty. The city will carry out the hearing examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person.
F. Appeal to Superior Court. An appeal of the decision of the hearing examiner must be filed with superior court within twenty calendar days from the date the hearing examiner’s decision was mailed to the person to whom the notice of civil violation was directed, or is thereafter barred. (Ord. 2000-2 § 1(part), 2000).
8.07.080 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 voluntary correction agreement pursuant to Section 8.07.050 have not been met; or
2. A notice of civil violation has been issued pursuant to Section 8.07.060 and a hearing has been held pursuant to Section 8.07.070 and the required correction has not been completed by the date specified in the hearing examiner’s order; or
3. The condition is subject to summary abatement as provided for in Section 8.07.080(B) of this chapter.
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. A notice of civil violation, together with notice of such summary 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 occupy the property and shall become due and payable to the city at the office of the city finance division within ten calendar days after the bill is mailed by the city. The term “incidental expenses” includes but shall not be limited to: personnel costs, both direct and indirect, including attorney’s 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. Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns, or holds any interest or estate in any property, in performing any tasks necessary to correct the violation.
F. Levy of Special Assessment for Costs and Expenses. In addition to any other method of collection authorized by law, all costs and expenses incurred by the city to abate a condition shall be levied as a special assessment on the land or premises whereon the violation was situated upon the filing of a statement of costs and expenses with the city clerk which may be enforced in the manner provided by law. (Ord. 2000-2 § 1(part), 2000).
8.07.090 Entry to businesses and premises.
Whenever necessary to make an inspection to determine whether a civil violation has occurred or is occurring, or to enforce any provision of the Walla Walla Municipal Code, or regulation issued thereunder, violation of which is a civil violation under this chapter, the applicable department director or his designee may enter any building or premises at any reasonable time, provided if such building or premises is occupied he shall first present credentials and demand entry; and if such building or premises is not occupied, he shall first make a reasonable effort to locate the owner or other person having charge of the building or premises and demand entry. If such entry is refused, or the owner or other person having charge of the building or premises cannot be located, the applicable department director or his designee shall have recourse to every remedy provided by law to secure entry, including recourse to the district or superior court for issuance of a warrant authorizing such entry and inspection. (Ord. 2000-2 § 1(part), 2000).
8.07.100 Additional enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by this code or other applicable law. (Ord. 2000-2 § 1(part), 2000).
8.07.110 Conflicts.
In the event of a conflict between this chapter and any other provision of the Walla Walla Municipal Code or city ordinance providing for a civil penalty, this chapter shall control. (Ord. 2000-2 § 1(part), 2000).
8.07.120 Meaning of terms.
For the purposes of this code, whenever “civil infraction” and “civil penalty” are used in any code, ordinance or regulation of the city, these terms shall be deemed to have the same meaning as the terms civil violation and monetary penalty, respectively, as used herein. (Ord. 2000-2 § 1(part), 2000).
8.07.130 Rules and regulations.
The city manager may adopt and promulgate rules and regulations for administration and enforcement of this chapter which are not inconsistent herewith or with superior law. The purpose of such rules and regulations is to carry out the provisions of this chapter. (Ord. 2000-2 § 1(part), 2000).
8.07.140 Civil suit authorized.
In addition to whatever other penalties may be available to enforce this chapter, civil suit may be commenced in the name of the city to collect any penalty, cost, or expense due to the city. (Ord. 2000-2 § 1(part), 2000).
8.07.150 Violation – Penalty.
Any person who knowingly violates Section 8.07.080(E) of this chapter shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished as set forth in Section 1.24.010 of this code. Each day in which a violation of Section 8.07.080(E) of this chapter continues shall be considered a separate offense. (Ord. 2000-2 § 1(part), 2000).