Chapter 8.10
NUISANCES
Sections:
8.10.010 Conditions constituting a public nuisance.
8.10.020 Unlawful to permit or maintain nuisance.
8.10.040 Voluntary correction.
8.10.060 Administrative enforcement.
8.10.070 Emergency enforcement.
8.10.090 Civil infraction citation.
8.10.010 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 acts 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:
A. All dangerous, unwholesome, nauseous or offensive odors, gases or fumes arising from or incidental to any business or uses of property where such odors, gases or fumes are allowed to escape into the open air in such amounts as to be at any time detrimental to the health of any individuals or the public, or that is so noticeable, discomforting or disagreeable as to offend the sensibilities of any reasonable individuals or the public at a distance of two hundred (200) feet from the building or the source of such odors, gases or fumes or at the property boundary where the same are generated and released.
B. Fumes or smoke caused by the open burning, including in burning barrels, of any materials of organic nature including, without limitation, sawdust or construction waste.
C. The blowing or scattering of dust, or the scattering or spreading of dirt or soil or other dust-causing materials, on public streets or rights-of-way creating dust that affects the health, comfort or repose of individuals or the public.
D. Open excavations, ditches or trenches that an adult or child could reasonably expect to injure themselves if such adult or child were to fall or slip into the same, or any open excavation, ditch or trench other than designed and approved storm detention facilities that may collect standing water for any period of time and irrigation canals that have been in operation prior to the effective date of the ordinance codified in this chapter, where such open excavation, ditch or trench remains open and exposed or where adequate precautions reasonably designed to prevent access by an adult or child such as fencing, warnings, brightly colored warning tape, patrolling or monitoring of the immediate area in question are missing or not in place. If active construction has ceased for a period of seven days or more, open excavations, ditches or trenches shall be properly covered or secured.
E. The improper handling, storage or keeping of any chemical substances, mixtures or waste as defined in the Toxic Substance Control Act, 15 USC Sections 2601 through 2692, as amended; hazardous substances, materials or waste as defined in the Washington Model Toxic Control Act, Chapter 70.105D RCW, as amended; or other substances, materials or waste that could reasonably be expected to be harmful or injurious to the public or children of any age that are used, stored or kept on private property or at a construction site or any commercial property in such a manner that it could be reasonably expected that children or the public could access the same. “Improper use, handling, storage or keeping” means that such substances, materials, waste or chemicals are left in an unsecure or unlocked storage facility, or left accessible to the intruding public or children around commercial, business or construction sites. Also, the improper use, handling, storage or keeping of construction materials that could reasonably be expected to be harmful to children that are not specifically defined or referred to herein are also a nuisance.
F. Abandoned, used or unused, discarded, or stored ice boxes, refrigerators, freezers or other containers having a door with a latch or lock that is not opened from the inside; or any structure or building of any nature that is not regularly occupied or that may be abandoned that any person or child could enter and may not reasonably be expected to remove themselves therefrom or may reasonably be expected that such person or child could be injured thereon.
G. The existence of any open or unsecure well, pit, shaft, storage tank, cistern or any similar situation that is not secured or closed and made inaccessible to the general public or children.
H. Abandoned, uncompleted construction or construction materials not covered, marked or secured in an appropriate manner.
I. Trees, plants, shrubs or vegetation or parts thereof which so overhang any sidewalk or street, or which are growing thereon in such manner as to obstruct or impair the free and full use of the sidewalk or street by the public, or obstruct the view of pedestrians or users of vehicles thereof, or obstruct the view of users of vehicles entering the street or roadway from a driveway, or interfere with the wires, poles or fixtures lawfully maintained thereon.
J. Grass, weeds, shrubs, bushes, refuse, trees or other types of plants or vegetation that is left growing in an unmaintained or uncontrolled manner or which left in a pile or piles or scattered about on any property becomes a fire hazard or gathering place for rodents, skunks, wasps or other animals, pests or insects.
K. Noxious weeds, meaning a plant or plants that when established are destructive, competitive or difficult to control by cultural or chemical practices or that may be listed in the Washington State Noxious Weed List established pursuant to Chapter 17.10 RCW and on the Okanogan County noxious weed control board noxious weed list that are left growing uncontrolled or left growing where no action is taken to eliminate or eradicate the same and, as a result thereof, the noxious weeds have spread or are reasonably expected to spread to properties in the immediate vicinity.
L. The disposal, dumping or placing of grass or lawn clippings, leaves, shrub or tree pruning or debris or other yard waste or debris on neighboring or adjacent property owned by another without the consent or permission of such neighboring or adjacent property owner. (Ord. 632 § 1(D) (part), 2011)
8.10.020 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, to carry on, suffer or allow any of the acts or things declared to be nuisances herein, or to do, 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. 632 § 1(D) (part), 2011)
8.10.030 Enforcement person.
Enforcement of this chapter may be by any police officer or other law enforcement officer, fire department and building department personnel, jurisdictional health department personnel, and those public employees charged with the responsibility of operating and maintaining all public places within the provisions of this chapter. All such enforcement officers are empowered to issue citations to persons violating provisions of this chapter. In addition, mailing of such citations or other process to the last known place of residence of the offender shall be deemed as personal service upon the person charged. Nothing herein shall be construed to prohibit citizen complaints or arrests as may be otherwise permitted under applicable state regulations, state statute, ordinance or court rule. A citation issued to a business shall be deemed as issued to the proprietor. (Ord. 632 § 1(D) (part), 2011)
8.10.040 Voluntary correction.
Whenever the enforcement officer 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 person or thing declared to be a nuisance is not a repeat violation with knowledge by the person that such act or thing is a violation of this chapter, then the enforcement officer 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, refers to the specific code provision violated, and states the necessary corrective action to be taken and the time in which the corrective action 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 corrective agreement are not met by the person entering into the agreement. (Ord. 632 § 1(D) (part), 2011)
8.10.060 Administrative enforcement.
A. 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: (1) 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, (2) the address or sufficient description of the property at which the nuisance exists, (3) a brief description of the violation and reference to the applicable code provision violated, (4) a statement of the required corrective action, (5) a statement of the time by which correction must be completed, which shall not be less than ten (10) days, unless the enforcement person has found that an imminent hazard exists to the health or safety of the public, (6) 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.
B. 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.
C. If a notice of appeal is filed, the matter shall be promptly set for a hearing to be held not more than thirty (30) days from the date of receipt of such appeal by the town. The hearing shall be before the municipal court judge.
D. 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.
E. After receiving evidence and argument, the municipal court shall either (1) authorize the enforcement person to proceed to abate the violation, unless the person responsible does so within the next five days; or (2) 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 ten (10) working days after the hearing. The person appealing shall have thirty (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.
F. 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 municipal court judge has found for the enforcement person and has not authorized a delay and there has been no petition to superior court or district 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.
G. Civil monetary penalties shall accrue at the rate of not less than twenty-five dollars ($25.00) nor more than two hundred fifty dollars ($250.00) per day after the date the correction of the nuisance was to be completed as provided in subsection A 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 fees, and to enter into compromises. (Ord. 632 § 1(D) (part), 2011)
8.10.070 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 Section 8.10.060(G). (Ord. 632 § 1(D) (part), 2011)
8.10.080 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. 632 § 1(D) (part), 2011)
8.10.090 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 less than twenty-five dollars ($25.00) nor more than two hundred fifty dollars ($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. 632 § 1(D) (part), 2011)