Chapter 8.26
CHRONIC NUISANCE PROPERTIES
Sections:
8.26.046 Administrative review.
8.26.080 Collection of judgments.
8.26.090 Successive owners liable.
8.26.100 Chronic nuisance does not become legal by prescription.
8.26.105 Provisions of Wapato Municipal Code not superseded.
8.26.010 Scope and purpose.
A. Chronic nuisance properties present serious health, safety and welfare concerns, where the persons responsible for such properties have failed to take corrective action to abate the nuisance condition or conditions. Chronic nuisance properties have a significant negative impact upon the quality of life, health and safety of the neighborhoods wherein they are located. This chapter is enacted to remedy nuisance activities that are particularly destructive to residents’ quality of life, health and safety, and repeatedly occur or exist at properties, by providing a process for abatement of the chronic nuisance activities. The remedies outlined herein are not exclusive.
B. Chronic nuisance properties also have a significant financial impact on the city due to repeated calls for service to the properties due to the nuisance activities repeatedly occurring on such properties. This chapter is intended to ameliorate those conditions and hold accountable those persons responsible for the properties.
C. The purpose of this chapter is to protect the health, safety, and welfare of the residents and visitors of the city as well as the general public. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.020 Definitions.
For purposes of this chapter, the following words or phrases shall have the meanings prescribed below:
A. “Abate” means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a violation of this chapter by such means and in such a manner and to such an extent as the applicable city department director or designee(s) determines is necessary in the interest of the general health, safety and welfare of the community.
B. “Chronic inebriant activity” for purposes of this chapter only means activity involving chronically intoxicated persons, persons being drunk in public, littering, urinating and defecating in public, and other activities and crimes associated with chronic intoxication.
C. “Control” means the ability to regulate, restrain, dominate, counteract or govern property, or conduct that occurs on the property.
D. “Chronic nuisance property” means property where the property owner omits to perform a duty or permits an action or condition to occur or exist which intrudes on the ability of neighbors or citizens to use or enjoy their properties or public property adjacent to where the nuisance occurs, creates an unreasonable financial burden on the city due to nuisance activity on the property, and includes, but is not limited to, a property on which any combination of six or more nuisance activities exists during any thirty-day period, or ten or more nuisance activities during any sixty-day period.
E. “Drug-related activity” means any unlawful activity at a property which consists of the manufacture, delivery, sale, storage, possession, or giving away of any controlled substance as defined by Chapter 69.50 RCW et seq., legend drug as defined in Chapter 69.41 RCW et seq., or imitation controlled substances as defined in Chapter 69.52 RCW et seq.
F. “Landlord” means the owner, lessor, or sublessor of a dwelling unit or the property of which it is a part, and, in addition, means any person designated as a representative of the landlord.
G. “Nuisance activity” means and includes:
1. Any nuisance as defined by state law or local ordinance occurring on a property or directly attributable to a property, including, but not limited to, violations of the following laws and regulations:
a. Chapters 6.04 and 6.06, animals and prohibited dogs;
b. Chapter 8.24, Nuisances;
c. Chapter 8.28, Abandoned and Junked Vehicles;
d. Title 15, Buildings and Construction; or
e. Title 17, Zoning.
2. Any criminal conduct as defined by local ordinance occurring on a property or directly attributable to a property, including, but not limited to, the following activities or behaviors:
a. Chapters 6.04 and 6.06, animals and prohibited dogs;
b. Chapter 8.32, Noise;
c. Chapter 8.44, Open Burning;
d. Disorderly conduct, Section 9.16.010;
e. Unlawful assembly, Section 9.16.020;
f. Missiles and rock throwing, Section 9.16.030;
g. Contributing to the delinquency of a minor, Section 9.24.030;
h. Discharging firearms, Section 9.28.010;
i. Open container, Section 9.44.020; or
j. Any chronic inebriant activity.
3. Any criminal conduct as defined by the following sections of the Revised Code of Washington, as adopted by reference in the WMC:
a. Chapter 9A.36 RCW et seq., regarding assault;
b. RCW 26.50.110, Violation of a No Contact Order;
c. Chapter 9A.46 RCW et seq., regarding harassment;
d. Chapter 9A.52 RCW et seq., regarding burglary and trespass;
e. Chapter 9A.48 RCW et seq., regarding arson, reckless burning, and malicious mischief;
f. Chapter 9A.88 RCW et seq., regarding indecent exposure and prostitution;
g. Chapter 9.41 RCW et seq., regarding firearms and dangerous weapons;
h. Violation of any gambling laws or regulations;
i. Chapter 9.68 RCW et seq., regarding obscenity and prostitution;
j. Chapter 9.68A RCW et seq. regarding sexual exploitation of children;
k. Chapter 9A.32 RCW et seq., regarding homicide;
l. Chapter 9A.38 RCW et seq., regarding kidnapping, unlawful imprisonment and custodial interference;
m. Chapter 9A.44 RCW et seq., regarding sex offenses;
n. Drug-related activity as defined herein.
4. For purposes of this chapter, “nuisance activity” shall not include conduct where the person responsible for the nuisance activity is the victim of a crime and had no control over the criminal act of another.
5. Any attempt to commit and/or conspiracy to commit any of the above activities, behaviors or conduct shall also be considered a nuisance activity.
H. “Owner” means any person having any interest in the real estate in question as indicated in the records of Yakima County, or who establishes, under this chapter, their ownership interest therein.
I. “Person responsible” or “person in charge” means, unless otherwise defined, any person who has titled ownership of the property or structure which is subject to this chapter; an occupant in control of the property or structure which is subject to this chapter; a developer, builder, or business operator or owner who is developing, building or operating a business on the property or in a structure which is subject to this chapter; and/or any person who has control over the property and allows a violation of this chapter to continue.
J. “Person” means natural person, joint venture, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, officer or employee of any of them. “Person” also may mean a receiver, or person appointed by a court or judicial officer to take charge of a property during a pending civil action or proceeding, or upon a judgment, decree, or court order, and to manage and/or dispose of a property as the court or judicial officer may direct.
K. “Premises” and “property” may be used by this chapter interchangeably and mean any public or private building, lot, parcel, dwelling, rental unit, town home, residence, real estate or land, or portion thereof, including property used as residential or commercial property. “Property” shall include single-family residences.
L. “Rental unit” means any structure or that part of a structure, including but not limited to single-family home, duplex, town home, room or apartment, which is rented to another and used as a home, residence, or sleeping place by one or more persons. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.030 Violation.
A. Any property within the city that is a chronic nuisance property is in violation of this chapter and subject to its remedies.
B. Any owner or person in charge of a chronic nuisance property shall be in violation of this chapter and subject to its remedies. The person in charge and the owner are jointly liable for any chronic nuisance. Both the owner and person in charge are subject to the provisions and remedies of this chapter. Application of this chapter against one party does not preclude application to another party who is an owner or person in charge of a chronic nuisance property. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.040 Process.
A. The appropriate city department shall confirm the presence of a chronic nuisance property. If it is determined that the site is not a chronic nuisance, the case will be closed.
B. If it is determined that the site is a chronic nuisance, a notice of violation will be sent to the owner of the property and the person in charge of the property. The notice of violation shall contain:
1. The street address or a legal description sufficient for identification of the property;
2. A concise description of the nuisance activities that exist or that have occurred on the property;
3. A request that the owner or person in charge respond to the appropriate department within ten calendar days of service of the notice of violation to discuss the nuisance activities and create a plan to abate the chronic nuisance;
4. An offer to the owner or person in charge of an opportunity to abate the nuisance activities giving rise to the violation; and
5. A statement describing that if the owner and/or person in charge fails to develop or comply with a plan of action, the property is subject to abatement and the owner and/or person in charge is responsible for civil penalties up to two hundred fifty dollars per day and that the owner and/or person in charge is responsible for the costs of municipal services after the notice of violation of the chronic nuisance property is received.
C. Such notice of violation shall be either (1) personally served or (2) delivered by first class mail and certified mail, return receipt requested, to the person in charge of the property. If the person in charge of the property is not the owner, then a copy shall be served on the owner at the address indicated by the Yakima County assessor in the manner described above.
D. If the owner or person in charge responds, as required by the notice of violation, and agrees to abate the nuisance activity, the appropriate department and the person in charge and/or property owner may work out an agreed-upon plan of action which would abate the nuisance activity. If the owner and person in charge are different persons or entities, then both the owner and person in charge are required to agree to the plan. If an agreed-upon plan of action does not result in the abatement of the nuisance activities or if no agreement concerning abatement is reached, the owner and/or person in charge of the property is subject to civil penalties, suspension or revocation of his or her business license, and any other remedy provided in this chapter.
E. The plan of action may include, but not be limited to, items such as education for the owner or person in charge of the property, physical improvements for crime prevention, security for the property, and other items necessary to abate the chronic nuisance property. The plan must include specific time frames in which items will be completed.
F. The monetary penalties for violations of this chapter shall be as follows: first civil penalty: one hundred twenty-five dollars; and second and subsequent civil penalties: two hundred fifty dollars. Civil penalties will continue to accumulate until the plan of action is in place or the nuisance conditions are abated. Civil penalties may be imposed when a plan of action is in place if the owner and/or person in charge fails to adhere to the plan of action or if the chronic nuisance continues. The city may file a lien for the civil penalties with the Yakima County auditor’s office.
G. If an owner or person in charge fails to develop or implement a plan of action or if the chronic nuisance continues, his or her business license may be suspended. Civil penalties may continue to accrue during the periods of suspension.
H. Each day that a property or person is not in compliance with the provisions of this chapter is a separate violation of this chapter.
I. The remedies of this chapter are not exclusive and do not affect any other enforcement actions taken by the city under another section of the municipal code or law or enforcement actions taken by a different jurisdiction. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.046 Administrative review.
A. General. A person, firm, or corporation to whom a notice of violation for a chronic nuisance or a civil penalty is assessed may request an administrative review of the notice of violation or civil penalty.
B. How to Request an Administrative Review. A person, firm, or corporation may request an administrative review of the notice of violation or for a civil penalty by filing a written request with the city clerk/treasurer within ten calendar days of the notification date of violations or the date the civil penalty is assessed. The city clerk/treasurer shall forward the information to the mayor. The request shall state, in writing, the reasons the director should review the notice of violation or the issuance of the civil penalty. Failure to state the basis for the review, in writing, shall be cause for dismissal of the review. Upon receipt of the request for administrative review, the mayor shall review the information provided.
C. Decision of the Mayor. After considering all of the information provided, the mayor shall, within seven business days of the request for administrative review, determine whether a violation has occurred, and shall affirm, vacate, suspend, or modify the notice of violation for the nuisance(s) or the amount of any monetary penalty assessed. The mayor’s decision shall be either (1) personally served or (2) delivered by first class mail and certified mail, return receipt requested, to the appellant, with a copy mailed to the owner at the address indicated by the Yakima County assessor if different than the appellant. (Ord. 1277 §1(part), 2013)
8.26.050 Judicial action.
A. The city attorney may initiate legal action on the chronic nuisance property and seek abatement of the nuisance in Yakima County superior court. If legal action is initiated, the city shall file a formal lis pendens notice.
B. In determining whether a property shall be deemed a chronic nuisance property and subject to the court’s jurisdiction, the city shall have the initial burden to prove by a preponderance of the evidence that the property is a chronic nuisance property. The city may submit official police reports and/or other affidavits and evidence outlining the information that led to arrest(s), reports or findings by city officials, or evidence of other chronic nuisance activity occurring or existing at the property. The failure to prosecute an individual, or the fact that no one has been convicted of a crime, is not a defense to a chronic nuisance action.
C. Once the court determines the property to be a chronic nuisance under this chapter, the court may order any relief deemed appropriate to abate the chronic nuisance activity. As part of the relief provided to the city, the court shall assess an emergency response reimbursement in the amount of one hundred dollars per police department and fire department response to the premises.
D. If the court determines the property to be a chronic nuisance property, the court may order the property to be abated by the city or may order the property into a receivership, in accordance with Chapter 7.60 RCW.
E. Once a determination has been made by the court that the chronic nuisance property is subject to abatement, the court may authorize the city to physically abate the property. Costs for such abatement shall be submitted to the court for review. Reasonable costs of abatement shall be assessed against the property owner.
F. If the superior court determines the property to be a chronic nuisance property, and the superior court finds that no abatement is possible which will remedy the chronic nuisance activities on the property, the court shall order the property closed and secured against all unauthorized access, use and occupancy for a period of up to one year, and may impose a civil penalty and costs. Such order shall not alter or affect the requirement of any business or rental unit at the end of the one-year period to obtain the required licenses to operate from the city upon reopening.
G. Once a determination has been made by the superior court that the chronic nuisance property shall be subject to closure, the court may authorize the city to physically secure the premises and initiate such closure. Costs for such closure shall be submitted to the court for review. Any civil penalty and/or costs awarded to the city may be filed with the city clerk/treasurer, who shall cause the same to be filed as a lien on the property with the county auditor and county treasurer.
H. The superior court shall retain jurisdiction during any period of closure or abatement of the property.
I. Wapato municipal court is to have jurisdiction of all civil infractions issued pursuant to this chapter. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.060 Additional relief.
The city may seek any legal or equitable relief at any time to mitigate violations referenced in this chapter. The city clerk/treasurer may also suspend or revoke the business license and/or landlord license of the property owner, person in charge, or both. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.070 Summary closure.
Nothing in this chapter prohibits the city from taking any emergency action for the summary closure of such property when it is necessary to avoid an immediate threat to public health or safety. The city may take summary action to close the property without complying with the notification provisions of Section 8.26.040, but shall provide such notice as is reasonable under the circumstances and if necessary under other sections of this code. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.080 Collection of judgments.
If the person cited fails to pay any penalty imposed pursuant to this chapter, the penalty costs and costs for municipal services may be referred to a collection agency. The cost to the city for the collection services shall be assessed as costs, at the rate agreed upon between the city and the collection agency, and added to the judgment. Alternatively, the city may pursue collection in any other manner allowed by law including filing a lien against the property for the amounts due and owing to the city. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.090 Successive owners liable.
Every successive owner of property, or person in charge, who, having knowledge or constructive knowledge of the chronic nuisance activity, neglects to abate a continuing chronic nuisance upon or in the use of such property caused by a former owner, is liable therefor in the same manner as the one who first created it. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.100 Chronic nuisance does not become legal by prescription.
No lapse of time can legalize a chronic nuisance. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.105 Provisions of Wapato Municipal Code not superseded.
Nothing herein limits the abilities of the Wapato police department, Wapato fire department, public works or Wapato code enforcement, or any other agency of the city of Wapato, to enforce all other provisions of the Wapato Municipal Code, local, state or federal laws or regulations. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)
8.26.110 Severability.
If any portion of this chapter, or its application to any person or circumstance, is held invalid, the validity of this chapter as a whole, or any other portion thereof, or the application of the provision to other persons or circumstance is not affected. (Ord. 1277 §1(part), 2013: Ord. 1231 §1(part), 2010)