Chapter 9.71
CHRONIC NUISANCE PROPERTIES
Sections:
9.71.020 Violations of chapter.
9.71.030 Declaration of chronic nuisance property and procedure.
9.71.040 Correction agreement.
9.71.060 Commencement of action – Enforcement – Appeals.
9.71.090 Suspension or revocation of business license.
9.71.010 Definitions.
For purposes of this chapter, the following words or phrases shall have the meaning prescribed below:
(1) “Abate” means to repair, replace, remove, destroy, cure, 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 chief of police determines is necessary in the interest of the general health, safety, and welfare of the community.
(2) “Assault” means to intentionally touch, shoot, or strike another person in a manner that is harmful or offensive, regardless of whether any physical injury is done; or to intentionally place or attempt to place another in reasonable fear or apprehension of bodily injury by words, threats, or actions; and shall include all assaults under RCW 9A.36.011 through 9A.36.041.
(3) “Chief of police” means the chief of the Washougal police department and/or his or her designees.
(4) “Chronic nuisance property” means:
(a) Real property on which three or more nuisance activities as described in subsection (7) of this section exist or have occurred during any 90-day period, or on which five or more nuisance activities have occurred during any 12-month period. For purposes of this section, probable cause found by a court in a criminal case involving a nuisance activity shall establish a rebuttable presumption of the occurrence of the nuisance activity, regardless of the outcome of the case or charges. An owner and/or person in charge may rebut this presumption by a preponderance of the evidence; or
(b) Real property upon which a court has determined probable cause two or more times within a 12-month period against any person or different persons for any criminal offense under Chapter 69.50 RCW, including but not limited to illegal possession, manufacture, or delivery of a controlled substance, and which offense occurred on or near the property.
(c) Nuisance activities and controlled substance events occurring prior to enactment of this chapter shall be included in determining the number of activities or events established under subsections (4)(a) and (b) of this section. However, the final activity or event must occur after enactment of this chapter.
(5) “Drug traffic loitering” means to loiter in any public place or near any public or private place for the purpose of soliciting, inducing, enticing, or procuring another to sell or purchase a controlled substance as defined in Chapter 69.41, 69.50, or 69.52 RCW. Circumstances which may be considered in determining whether a person is drug traffic loitering include but are not limited to the following:
(a) Such person is seen by a law enforcement officer to be in possession of what appears to the officer to be drug paraphernalia, as defined by RCW 69.50.102;
(b) Such person is a known unlawful drug user, possessor, or seller. For purposes of this chapter a “known unlawful drug user, possessor, or seller” is a person who has been convicted in any court within this state of any violation of Chapter 69.41, 69.50, and/or 69.52 RCW within the past 10 years, or substantially similar laws of any political subdivision of this state or of any other state;
(c) Such person repeatedly beckons to, stops, contacts, or attempts to stop or contact pedestrians or engages pedestrians in conversation; or repeatedly beckons to, stops, contacts, or attempts to stop or contact motor vehicle operators by hailing, waving of arms, or any other bodily gesture;
(d) Such person circles an area in a motor vehicle;
(e) The area in which the person is loitering is a high drug activity geographic area, as determined by the chief of police;
(f) Such person transfers small objects or packages to pedestrians, motorists, or homes and is not dressed in the uniform of or driving a marked vehicle of a mail or parcel delivery company; or
(g) Such person has an outstanding warrant for a crime involving drug-related activity.
(6) “Prostitution related loitering” means to loiter in any public place or near any public or private place for the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution as further described in Chapter 9A.88 RCW.
(7) “Nuisance activity” means any one of the following:
(a) A “most serious offense” as defined in RCW 9.94A.030(32);
(b) A “drug-related activity” as defined in RCW 59.18.130(6); or
(c) Any of the following activities, behaviors, or criminal conduct:
(i) Assault, reckless endangerment, drug traffic loitering, prostitution related loitering, and/or unlawful harassment, as herein defined;
(ii) Harassment under RCW 9A.46.020;
(iii) Indecent exposure or any prostitution related offense under Chapter 9A.88 RCW;
(iv) Public disturbance by noise under Chapter 9.73 WMC;
(v) Disorderly conduct under RCW 9A.84.030(1)(a) or (c);
(vi) Malicious mischief under Chapter 9A.48 RCW;
(vii) Supplying to or possession of alcohol by a minor under RCW 66.44.270;
(viii) Possession of a controlled substance under RCW 69.50.4014;
(ix) Possession of a legend drug under RCW 69.41.030;
(x) Any violations under Chapter 9.28 WMC or Chapter 9.41 RCW relating to the illegal use or possession of firearms and other weapons;
(xi) Criminal street gang-related offenses as defined by RCW 9.94A.030(14); and/or a pattern of criminal street gang activity as defined by RCW 9.94A.030(36).
(8) “Owner” means any person who, alone or with others, has title or other ownership interest in any real property.
(9) “Person” means an individual, group of individuals, corporation, partnership, association, club, company, business trust, joint venture, organization, or any other legal or commercial entity or the manager, lessee, agent, landlord, tenant, officer, or employee of any of them.
(10) “Person in charge” of real property means the owner and any other person in actual or constructive possession of the real property, including but not limited to a landlord, lessee, tenant, occupant, agent, or manager of real property under his or her control.
(11) “Property” means any land, and that which is affixed, incidental or appurtenant to land, including but not limited to any business or residence, parking area, loading area, adjacent sidewalk or street, landscaping, building or structure or any separate part, unit or portion thereof.
(12) “Reckless endangerment” means to recklessly engage in conduct which creates a substantial risk of death or physical injury to another person.
(13) “Unlawful harassment” means a knowing and willful course of conduct directed at a specific person which alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer emotional distress or cause a reasonable parent to fear for the well-being of their child. Factors in determining whether the course of conduct serves any legitimate or lawful purpose are as follows: (a) who initiated contact between the parties; (b) contact by one party after clear notice by the other party that all further contact is unwanted; (c) whether the conduct appears designed to alarm, annoy, harass, intimidate, torment, or embarrass the other person; (d) whether the conduct has the purpose or effect of unreasonably interfering with the other person’s privacy, deprives the other person of the quiet use and enjoyment of real property which they own or reside in, or has the purpose or effect of creating an intimidating, hostile, or offensive living environment for the other person; (e) whether the conduct includes the use of any lewd, lascivious, indecent, or obscene words, images, or language; and/or (f) whether the conduct is constitutionally protected free speech.
(14) “Violation” means all nuisance activities and controlled substance events that establish a chronic nuisance property. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.020 Violations of chapter.
(1) Any real property within the city of Washougal which is a chronic nuisance property shall be in violation of this chapter and shall be subject to the penalties and remedies described in this chapter;
(2) Each owner and each person in charge of a chronic nuisance property shall be in violation of this chapter and shall be jointly and severally subject to the penalties and remedies described in this chapter; and
(3) An owner who fails to comply with WMC 9.71.035 shall be in violation of this chapter and may also be subject to penalties under WMC 9.71.090. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.030 Declaration of chronic nuisance property and procedure.
(1) The chief of police may declare real property within the city of Washougal to be a chronic nuisance property, as defined in this chapter, when there are specific facts and circumstances to support such a declaration. The chief of police shall provide written notice of this declaration to the owners and persons in charge of the property. The notice shall either be sent by first class mail or personally served, and a copy shall be sent by certified mail. If mailed, the date of service of the notice shall be the postmarked date. The notice shall contain:
(a) The street address and Clark County assessor’s parcel number identifying the real property;
(b) A declaration that the chief of police has determined the property to be a chronic nuisance property in violation of this chapter, with a concise description of each controlled substance event and/or nuisance activity that exists or that has occurred on the property which form the basis of the chronic nuisance property determination;
(c) A notice that each owner and each person in charge of the property is subject to monetary penalties set forth in WMC 9.71.050, licensing penalties set forth in WMC 5.04.040 and 9.71.090, and all other remedies available to the city under this chapter or by law;
(d) A demand that each owner and each person in charge respond to the chief of police within 10 days of service of the notice to discuss a course of action to abate the violations; and
(e) A notice that each owner or each person in charge who fails to respond to the chief of police within 10 days of service of the notice, or if the violations are not abated pursuant to the requirements of this chapter, the city of Washougal may file an action to abate the violations pursuant to WMC 9.71.060 and/or seek any other remedy against the property, owners, or persons in charge as allowed in this chapter and by law.
(2) Each owner and each person in charge who timely responds to the chief of police pursuant to the notice and enters into an agreement with the chief of police to a course of action to abate the violations may avoid monetary penalties, licensing penalties, and other remedies set forth in this chapter by entering into and complying with a written correction agreement conforming to the requirements of WMC 9.71.040.
(3) For each owner or person in charge that was served with a notice but fails to respond to the notice within the time required, or who fails to enter into a written correction agreement, or who fails to comply with the written correction agreement, the chief of police may refer the matter to the city attorney for initiation of proceedings pursuant to WMC 9.71.060, and the city may assess and pursue collection of the monetary penalties set forth in WMC 9.71.050, impose the licensing penalties set forth in WMC 5.04.040 and 9.71.090, and pursue all other remedies available to the city under this chapter or by law. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.035 Owner cooperation.
Each owner who receives a notice pursuant to WMC 9.71.030(1) shall promptly take all reasonable steps to assist in abatement of the violations. Reasonable steps may include the owner pursuing eviction of tenants or the persons in charge, when eviction is available to the owner under the terms of a lease or other agreement or by law and is consistent with state and local laws, including but not limited to RCW 59.18.580, the Victim Protection Limitation on Landlord’s Rental Decisions. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.040 Correction agreement.
(1) A correction agreement is a contract between the city and the owner(s) and/or person(s) in charge of the chronic nuisance property in which such person(s) agree to promptly take all lawful and reasonable actions, which shall be set forth in the agreement, to abate the violations within a specified time and according to specified conditions. The agreement shall be signed by the chief of police and all owner(s) and/or person(s) in charge who agree to abide by its terms. The agreement shall include the following:
(a) The name and address of each participating owner and/or person in charge of the property;
(b) The street address and Clark County assessor’s parcel number identifying the real property, or a description sufficient for identification of the property, building, structure, or land upon or within which the violations are occurring;
(c) A description of each violation;
(d) The necessary corrective action to be taken to abate each violation, including action by an owner under WMC 9.71.035, and a date or time by which each corrective action must be completed;
(e) An agreement by the owner(s) and/or person(s) in charge that the city may enter and inspect the property at reasonable times and as often as necessary to determine compliance with the correction agreement; and
(f) An agreement by the owner(s) and/or person(s) in charge that if the terms of the correction agreement are not met, the city may abate each violation and recover all abatement costs, expenses and monetary penalties pursuant to this chapter from the owner(s) and/or person(s) in charge. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.050 Monetary penalties.
(1) Except as provided in this section, in addition to any other sanction or remedy that may be available to the city, the owner(s) and/or person(s) in charge are subject to a monetary penalty of up to $500.00 per day beginning 10 days after the date of service of the notice issued pursuant to WMC 9.71.030(1), until the chief of police confirms that the corrective action for each violation has been fully completed.
(2) If the corrective action required to abate each violation has been fully completed to the satisfaction of the chief of police within 40 days of service of the notice issued pursuant to WMC 9.71.030(1), the matter shall not be referred to the city attorney and the owner(s) and/or person(s) in charge shall not be subject to any monetary or licensing penalty pursuant to this chapter. If the corrective action required to abate each violation has been fully completed to the satisfaction of the chief of police within the time frame allowed under a signed correction agreement, the owner(s) and/or person(s) in charge who signed the correction agreement shall not be subject to any monetary or licensing penalty pursuant to this chapter; provided, that all owner(s) and/or person(s) in charge who were served with a notice pursuant to WMC 9.71.030(1), but who failed or refused to enter into the correction agreement, shall be assessed a monetary penalty of $500.00.
(3) In addition to any other sanction or remedy that may be available to the city pursuant to this chapter, an owner who fails to comply with WMC 9.71.035 is subject to a civil monetary penalty of up to $25,000.
(4) In addition to all other remedies, monetary assessments that become final under this chapter against the owner(s) of a chronic nuisance property shall have a lien against such property in favor of the city for the amount of the assessment plus all fees and costs allowed under this chapter, including but not limited to the fees and costs to draft and record the lien. The city may cause said lien to be recorded against such property, but the lien shall be enforceable against the property without the need of being recorded. The lien shall be subordinate to all existing special assessment liens previously imposed upon the same property and shall be paramount to all other liens except for state and county taxes with which it shall be on a parity. No lien created by this chapter shall bind the property subject to the lien for a period longer than three years after the monetary assessment has become final, unless an action is commenced in the proper court within that time to enforce the lien.
(5) All monetary penalties in this chapter shall be determined on a case-by-case basis and shall be assessed at the sole discretion of the chief of police up to the maximum amount allowed under this chapter. Upon assessing a monetary penalty, the chief of police shall mail notice of the assessment by first class mail to each person to whom the assessment applies, which notice of assessment shall include: (a) the date notice was served pursuant to WMC 9.71.030(1); (b) the date upon which the violations were successfully abated, or if not fully abated, a statement that violations are continuing and that assessments will continue to accrue until each violation is fully abated; (c) the amount assessed and the dates for which this assessment applies; (d) if against the owner(s) of a chronic nuisance property, a statement that the assessment is a lien against such property pursuant to subsection (4) of this section; (e) how and where this assessment may be paid; and (f) the date by which this assessment must be paid before collection activities will be pursued by the city. The mailing address shall be the same address used to send the notice under WMC 9.71.030(1), or any updated address subsequently provided to the city by the owner(s) and/or person(s) in charge. The date of service of the assessment shall be the postmarked date. The date by which the assessment must be paid shall be no less than 30 days after service of the notice of assessment. If violations are continuing, the chief of police may make periodic assessments, as determined by the chief, until each violation is fully abated. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.060 Commencement of action – Enforcement – Appeals.
(1) Upon referral by the chief of police pursuant to this chapter, the city attorney may pursue all sanctions, penalties and remedies available under this chapter and pursuant to law. The city attorney may initiate an action in any court of competent jurisdiction, including but not limited to the Washougal municipal court, to: (a) obtain authority to enter the property; (b) allow the city to abate the violations; (c) obtain an order requiring the owner(s) and/or person(s) in charge to abate the violations; (d) obtain judgment and collect on any monetary penalties assessed by the chief of police or any other amounts allowed under this chapter; (e) seek alternative remedies under city or state laws; and/or (f) seek any other relief authorized by this chapter or by law. The city shall be entitled to reimbursement of its attorney’s fees and costs incurred to enforce this chapter, including but not limited to the collection of assessments, whether or not an action is filed with a court.
(2) Whenever necessary to make an inspection to enforce the provisions of this chapter, or whenever the chief of police, a city law enforcement officer, or a city code enforcement officer has reasonable cause to believe that a controlled substance event and/or nuisance activity has or is occurring in violation of this chapter, such city employees may seek permission to enter the property at all reasonable times to inspect the same. If permission to inspect is denied by the owner(s) and/or person(s) in charge of the property, or reasonable attempts to contact the owner(s) and/or person(s) in charge are unavailing, the chief of police and/or city attorney may apply to the court for an order authorizing entry upon the land for the performance of the inspection.
(3) All assessments under this chapter shall become final unless an appeal is filed within 20 days of service of the assessment. Any person against whom a monetary penalty is assessed under this chapter may seek appeal of the assessment by filing an action to appeal with the Washougal municipal court. All appeals shall be heard and decided by a Washougal municipal court judge. The method of appeal herein for all monetary assessment under this chapter shall be sole and exclusive. The decision of the Washougal municipal court judge shall be final.
(4) The appeal filing shall reference the assessment(s) being appealed, state the basis for the appeal, and shall be served upon the city attorney within three days of filing with the court. Within 15 days of filing the appeal with the court, a prehearing conference shall be set before a Washougal municipal judge to determine the timing of proceedings and other preliminary matters. All appeals shall be conducted in accordance with Chapter 1-08 WAC, Uniform Procedural Rules; provided, however, that WAC 1-08-590 shall be excluded. Should any conflict arise between the provisions of this chapter and the applicable sections of Chapter 1-08 WAC, the provisions of this chapter shall prevail. For purposes of this chapter, all references in the WAC to “agency” shall mean the Washougal municipal court judge.
(5) Filing an appeal shall stay the city from collecting on the appealed assessment until the appeal action has concluded, but shall not stay additional assessments from accruing due to continuing violations. This stay shall only apply to those persons who are named as appellants and who sign the appeal document. The assessment shall become final against all other nonparticipating persons against whom the assessment was made, should they fail to also timely appeal. The city may also proceed to collect assessments from all nonparticipating persons against whom it was assessed, regardless of the outcome of the appeal. Separate appeals based upon the same assessment or same chronic nuisance property shall be joined into one action. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.070 Burden of proof.
In all actions and appeals concerning enforcement of assessments, remedies, penalties, and licensing revocations under this chapter, the burden of proof shall be by a preponderance of the evidence. Copies of police reports, reports of other city departments, agencies and employees, and reports of agents and contractors of the city documenting nuisance activities and/or controlled substance activities shall be admissible in all such actions and appeals. Additionally, evidence of a chronic nuisance property’s general reputation and the reputation of persons residing in or frequenting the chronic nuisance property shall be admissible in all such actions and appeals. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.080 Remedies.
The owner(s) and/or person(s) in charge may be ordered by the court to cease renting or leasing the chronic nuisance property in order to secure abatement of the violations. They may also be ordered to pay relocation assistance not to exceed $3,300 to tenants who: (1) must relocate because of an order to cease renting or leasing; and (2) the court finds have not caused or participated in nuisance activities and/or controlled substance activities at the property. For the purpose of this section, the term “tenant” shall have the meaning set forth in RCW 59.18.030. (Ord. 1777 § 1 (Exh. A), 2015)
9.71.090 Suspension or revocation of business license.
In addition to any other remedy that is authorized by this chapter or other laws, upon the chief of police determining that a property is a chronic nuisance property pursuant to this chapter, and upon the failure to respond to the notice provided pursuant to WMC 9.71.030(1) or failure to enter into or comply with a written correction agreement, each owner and each person in charge shall be subject to the suspension or revocation of a business license or other license issued by the city and required at such property, including but not limited to licenses issued pursuant to WMC Title 5. This may be done on a case-by-case basis and at the sole discretion of the chief of police, by the chief forwarding a copy of the notice provided pursuant to WMC 9.71.030(1), requesting the finance director to suspend or revoke a business or other license issued by the city and relating to the chronic nuisance property, at which time the finance director may immediately pursue suspension or revocation of the said license(s) pursuant to the procedures set forth elsewhere in the Washougal Municipal Code. (Ord. 1777 § 1 (Exh. A), 2015)