Chapter 13.15
ON-SITE SEWAGE DISPOSAL SYSTEMS
Sections:
13.15.010 Legislative findings.
13.15.050 OSS inspection frequency and protocols.
13.15.060 New OSS installations, maintenance, deficiencies, and OSS failures.
13.15.070 Reporting and data collection.
13.15.080 Record keeping and verification by the town.
13.15.090 Community outreach and assistance.
13.15.100 Voluntary correction.
13.15.110 Notice of civil violation.
13.15.120 Hearing before the hearing examiner.
13.15.140 Remedies not exclusive.
13.15.150 Information sharing.
13.15.160 Actions during program transition.
13.15.010 Legislative findings.
The recitals set forth above are adopted as the legislative findings of the town council of the town of Yacolt in support of the adoption of the ordinance codified in this chapter. [Ord. 498 § 1, 2012; Ord. 496 § 1, 2012.]
13.15.020 On-site sewage disposal system inspection and maintenance verification program established.
A program providing for the verification of compliance with inspection and maintenance requirements of the state of Washington and the Clark County public health department relating to on-site sewage disposal systems within the town of Yacolt is hereby established. [Ord. 498 § 2, 2012; Ord. 496 § 2, 2012.]
13.15.030 Purpose.
The town council of the town of Yacolt finds that properties using on-site sewage disposal systems can present grave health, safety and welfare concerns where the person responsible for such properties has failed to follow inspection requirements, maintenance protocols, or to take corrective action to abate nuisance conditions. Such properties can have a serious negative impact upon the quality of life, safety and health of the neighborhoods where they are located, as well as the values of property affected by such failures. Such conditions are or may become a financial burden to the town and its citizens, including through the negative impact of such conditions on the town’s ground and surface waters and water supply. The town of Yacolt declares such conditions to be a public nuisance. It is the purpose of this chapter to provide a remedy for situations where property owners fail to timely or properly inspect, monitor, maintain or repair their on-site sewage disposal systems by providing a process for communication, correction, and eventual abatement of deficiencies. The primary intent of this chapter is to assist Clark County public health department in identifying circumstances where a property owner has failed to timely inspect, monitor, maintain and/or report information to the department as required by the department. If nuisance conditions or violations described herein remain uncorrected, this chapter is intended to ameliorate these conditions and hold accountable those persons responsible for the properties involved. [Ord. 498 § 3, 2012; Ord. 496 § 3, 2012.]
13.15.040 Definitions.
As used in this chapter, unless a different meaning is plainly required:
“Abate” means to inspect, 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 town official determines is necessary in the interest of the general health, safety, and welfare of the community.
“Applicable town official” means the mayor of the town of Yacolt or the town public works director, or the designee of the mayor or public works director, including any department director or other designee empowered by ordinance or by the mayor to enforce a town ordinance or regulation.
“Civil violation” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day in which a violation occurs or exists is a separate violation.
“Department” means the Clark County public health department.
“Emergency” means a situation which in the opinion of the applicable town official requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons or property.
“Nuisance” (also referred to herein as violation or nuisance violation) means a violation of any law or order of the state of Washington or the Clark County public health department relating to the inspection, maintenance, repair or replacement of any on-site sewage disposal system within the limits of the town of Yacolt.
“OSS” or “on-site sewage disposal system” means any system of piping, treatment devices, or other facilities that convey, store, treat, or dispose of wastewater or sewage on the property where it originates or on nearby property under the control of the user where the system is not connected to a public sewer system. For purposes of this chapter, an “on-site sewage disposal system” does not include indoor plumbing and associated fixtures.
“Person” means any individual, firm, association, partnership, corporation, or any entity, public or private, or the authorized agents of these entities.
“Person responsible for the violation” means the property owner or any person otherwise responsible for the violation as tenant, occupant, or otherwise.
“Property owner” means the person or persons who are the legal owners according to the records of Clark County, Washington, of the real property upon or within which the violation has occurred or is occurring.
“Town” means the town of Yacolt. [Ord. 498 § 4, 2012; Ord. 496 § 4, 2012.]
13.15.050 OSS inspection frequency and protocols.
Property owners in the town of Yacolt shall have their OSSs inspected in compliance with state and local law, including without limitation the laws and regulations currently described in Clark County Code Title 24 together with any future amendments thereto, or as administered and interpreted by the department under the authority of said title. [Ord. 498 § 5, 2012; Ord. 496 § 5, 2012.]
13.15.060 New OSS installations, maintenance, deficiencies, and OSS failures.
Property owners in the town of Yacolt shall install, inspect, pump, maintain, repair and/or replace their on-site sewage disposal systems as may be required by state and local law, including without limitation the laws and regulations currently described in Clark County Code Title 24 together with any future amendments thereto, or as required by the department under the authority of said title. [Ord. 498 § 6, 2012; Ord. 496 § 6, 2012.]
13.15.070 Reporting and data collection.
Property owners in the town of Yacolt shall comply with all information collection and reporting requirements for any action described in YMC 13.15.050 and 13.15.060 as may be required by state and local law, including without limitation the laws and regulations described currently in Clark County Code Title 24 together with any future amendments thereto, or as required by the department under the authority of said title. [Ord. 498 § 7, 2012; Ord. 496 § 7, 2012.]
13.15.080 Record keeping and verification by the town.
The mayor, town clerk, or appropriate designee is hereby authorized and directed to work cooperatively with the Clark County public health department to develop and maintain a system within the town to verify the timeliness and adequacy of required OSS inspections, maintenance and reporting activities for OSSs within the town of Yacolt. [Ord. 498 § 8, 2012; Ord. 496 § 8, 2012.]
13.15.090 Community outreach and assistance.
The mayor is authorized to develop and implement a plan to inform the residents and owners of property within the town of Yacolt about the terms of this chapter and to remind and encourage property owners to complete the operation and maintenance inspections required by state and local law. Public information should encourage certified inspectors and OSS maintenance specialists to obtain current town of Yacolt business licenses before doing business within the geographical limits of the town. The mayor, through his or her staff, is further authorized to assist the town’s citizens by identifying potential programs for financial assistance with OSS repairs and replacement where needed. [Ord. 498 § 9, 2012; Ord. 496 § 9, 2012.]
13.15.100 Voluntary correction.
A. Applicability. This section applies whenever the applicable town official determines that a nuisance or violation as described herein has occurred or is occurring. The town is authorized to seek voluntary correction under this section when authorized and approved by the department or where the department fails to respond to a request by an applicable town official for enforcement action by the department or approval of the town’s proposed enforcement actions for a period of 10 business days.
B. General. The applicable town official shall attempt to secure voluntary correction by contacting the person responsible for the violation, as provided below, and explaining the violation and requesting correction.
1. Contact shall occur either:
a. In person or by telephone; or
b. By certified mail, return receipt requested, and by first class mail.
2. The applicable town official shall keep a record of his/her attempts to contact the person responsible for the violation.
3. The applicable town official shall not be required to make more than five attempts in a 10-calendar-day period to contact the person responsible for the violation before issuing a notice of civil violation under YMC 13.15.110.
C. Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the town acting through the applicable town official.
1. Content. The voluntary correction agreement is a contract between the town and the person responsible for the violation under which such person agrees to abate the violation within a specified time and according to the specified conditions. The voluntary correction agreement shall include the following:
a. The name and address of the person responsible for the violation and the name and address of the property owner; and
b. The street address or other 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 law or regulation which has been violated; and
d. A description of 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 town may abate the violation and recover its costs and expenses (including attorney fees, expert witness fees, and court costs) and/or a monetary penalty pursuant to this chapter from the person responsible for the violation if the terms of the voluntary correction agreement are not satisfied; and
f. An agreement that by entering into the voluntary correction agreement, the person responsible for the violation waives the right to a hearing before the hearing examiner under this chapter, 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 shall have no right to a hearing before the hearing examiner under this chapter, regarding the matter of the violation and/or the required corrective action.
3. Extension and Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the applicable town official if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions.
4. Abatement by the Town. The town may abate the violation in accordance with this chapter 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, as set forth in YMC 13.15.110, 13.15.120 and 13.15.130.
6. Notice to Property Owner. A copy of the voluntary correction agreement shall be mailed by certified mail, return receipt requested, to the property owner.
7. Interpretation by Town Council. Any dispute between the person responsible for the violation and the applicable town official about the interpretation of the voluntary correction agreement may be presented to the town council at a regularly scheduled town council meeting and resolved by the town council. The person responsible for the violation agrees to be bound by the determination of town council. [Ord. 498 § 10, 2012; Ord. 496 § 10, 2012.]
13.15.110 Notice of civil violation.
The applicable town official is authorized to issue a notice of civil violation when authorized and approved by the department or where the department fails to respond to a request by an applicable town official for enforcement action by the department or approval of the town’s proposed enforcement actions for a period of 10 business days.
A. Issuance.
1. When the applicable town official determines that a violation has occurred or is occurring, and is unable to secure voluntary correction, pursuant to YMC 13.15.100, the applicable town official may issue a notice of civil violation to the person responsible for the violation and the property owner.
2. The applicable town official may issue a notice of civil violation without having attempted to secure voluntary correction as provided in YMC 13.15.100 under the following circumstances:
a. When an emergency exists; or
b. When the violation creates a situation or condition which cannot be corrected; or
c. When the person responsible for the violation and the property owner knows or reasonably should have known that the action is in violation of this chapter; or
d. The person responsible for the violation and the property owner cannot be contacted, as provided in YMC 13.15.100, or refuses to communicate or cooperate with the town in correcting the violation.
B. Content. The notice of civil violation shall include the following:
1. The name and address of the person responsible for the violation and the name and address of the property owner; 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 provisions of the state or local law or directive which has been violated; and
4. A description of the required corrective action and a date and time by which the correction must be completed after which the town may abate the unlawful condition in accordance with YMC 13.15.130; and
5. The date, time and location of an appeal hearing before the hearing examiner which will be at least 30 calendar days but no more than 60 calendar days from the date the notice of civil violation is issued, unless such date is continued by the hearing examiner for good cause shown; and
6. A statement indicating that the hearing will be canceled and no monetary penalty will be assessed, other than the court filing fee, if the applicable town official approves the completed, required corrective action prior to the hearing; and
7. A statement that the costs and expenses of abatement incurred by the town pursuant to YMC 13.15.130, and a monetary penalty in an amount per day for each violation as specified in this section, may be assessed against the person(s) to whom the notice of civil violation is directed as specified and ordered by the hearing examiner; and
8. A statement that the property owner(s) or the person responsible for violation could be held jointly and severally liable for any costs and expenses and any monetary penalty.
C. Service of Notice. The applicable town official shall serve the notice of civil violation upon the person responsible for the violation and the property owner, either personally or by mailing a copy of the notice of civil violation by certified mail, return receipt requested, to such person at their last known address. If the person responsible for the violation and/or the property owner cannot be personally served within Clark 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 and by publishing the notice one time in a newspaper which publishes legal notice in Clark County, Washington. If the property owner is the same person as the person responsible for the violation, only one copy of the notice need be given. 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 the attempts to serve the person(s) 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 town official or by order of the hearing examiner.
E. Monetary Penalty. The monetary penalty for each violation per day or portion thereof shall be $25.00.
F. Continued Duty to Correct. Payment of a monetary penalty pursuant to this chapter does not relieve the person(s) 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(s) to whom the notice of civil violation is directed. Any monetary penalty assessed must be paid to the town within 10 calendar days from the date of mailing of the hearing examiner’s decision or a notice from the town that penalties are due.
2. The town attorney is authorized to take appropriate action to collect the monetary penalty.
3. The monetary penalty described herein does not replace or limit any penalty or remedy that may apply to the violation as imposed by any other authorized person or entity, including the department. [Ord. 498 § 11, 2012; Ord. 496 § 11, 2012.]
13.15.120 Hearing before the hearing examiner.
A. Notice. The person(s) to whom a notice of civil violation is issued will be scheduled to appear before the hearing examiner at least 30 calendar days but no more than 60 calendar days from the date the notice of civil violation is issued.
B. Hearing Examiner. One or more hearing examiners shall be appointed by the town council to hear cases brought under this chapter. The hearing examiner may be a town employee but shall not be an employee of the public works department or the town attorney’s office.
C. Prior Correction of Violation. Except in the case of a violation which creates a situation or condition which cannot be corrected, the hearing will be canceled and no monetary penalty will be assessed if the applicable town official approves the completed required connective action at least 48 hours prior to the scheduled hearing.
D. Procedure. The hearing examiner shall conduct a hearing on the civil violation. The applicable town official and the person(s) to whom the notice of civil violation was directed may participate as parties in the hearing and each party may call witnesses. The town 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 town official 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. Formal rules of evidence need not be followed, but all witnesses shall be sworn by the hearings officer.
E. Decision of the Hearing Examiner.
1. The hearing examiner shall determine whether the town 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 town’s decisions regarding the alleged violation and/or the required corrective action.
2. The hearing examiner shall issue a written order to the person responsible for the violation and the property owner 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 described in this chapter;
e. The date and time after which the town may proceed with abatement of the unlawful condition if the required correction is not completed.
F. Assessment of Monetary Penalty. Monetary penalties assessed by the hearing examiner shall be in accordance with the monetary penalty schedule in YMC 13.15.110.
1. 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 town official or an alternate correction date set by the hearing examiner and thereafter; or
c. Assess no monetary penalties.
2. In determining the monetary penalty assessment, the hearing examiner shall consider the following factors:
a. Whether the person(s) responded to attempts to contact the person and cooperated with efforts to correct the violation;
b. Whether the person(s) failed to appear at the hearing;
c. Whether the violation was a repeat violation;
d. Whether the person(s) showed due diligence and/or substantial progress in correcting the violation;
e. Whether a genuine issue exists regarding interpretation of the law or directive underlying the violation; and
f. Any other relevant factors.
3. 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 above.
G. Notice of Decision. The hearing examiner shall mail a copy of the decision to the property owner and the person responsible for the violation and to the applicable town official within 10 working days of the hearing.
H. Failure to Appear. If the person(s) to whom the notice of civil violation was issued fails to appear at the scheduled hearing, the examiner will enter an order finding that the violation occurred and assessing the appropriate monetary penalty. The town will carry out the hearing examiner’s order and will seek to recover all related expenses, plus the cost of the hearing and any monetary penalty from that person(s).
I. Appeal to Superior Court. An appeal of the decision of the hearing examiner must be filed with the superior court within 10 calendar days from the date the hearing examiner’s decision was mailed to the person(s) to whom the notice of civil violation was directed, or is thereafter barred. [Ord. 498 § 12, 2012; Ord. 496 § 12, 2012.]
13.15.130 Abatement by town.
A. Remedy of Abatement Authorized. The town may abate a condition which was caused by or continues to be a civil violation when:
1. The terms of the voluntary correction agreement have not been met; or
2. A notice of civil violation has been issued pursuant to YMC 13.15.110 and a hearing has been held pursuant to YMC 13.15.120 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 this section.
B. Summary Abatement. Whenever any nuisance or violation causes a condition, the continued existence of which constitutes an immediate threat to public health, safety, or welfare or to the environment, the town 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. No right of action shall lie against the town or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats, but neither shall the town be entitled to recover any costs incurred for summary abatement, prior to the time that actual notice of same is provided to the person responsible for the violation and the property owner.
C. Authorized Action by the Town. Using any lawful means, the town may enter upon the subject property and may correct the condition that is subject to abatement. The town may seek such judicial process as it deems necessary to effect the correction of such condition.
D. Recovery of Costs and Expenses. The costs, including the incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the property owner and shall become due and payable to the town within 10 calendar days. The term “incidental expenses” includes but is not limited to personnel costs, both direct and indirect; attorney’s fees; costs incurred in documenting the violation; and actual expenses and costs of the town in preparing notices, specifications, and contracts, the expenses and costs of the town in accomplishing, contracting, and inspecting the work; and the costs of any required printing, mailing, posting and publishing.
E. Interference. Any person who knowingly obstructs, impedes, or interferes with the town or its agents, or with the person responsible for the violation or the property owner in the performance of duties imposed by this chapter, shall be guilty of a misdemeanor punishable by imprisonment not exceeding 90 days and a fine not exceeding $1,000. The town may also impose a civil fine of up to $1,000 for knowingly obstructing, impeding or interfering with the town. [Ord. 498 § 13, 2012; Ord. 496 § 13, 2012.]
13.15.140 Remedies not exclusive.
The rights, remedies and provisions of this chapter are cumulative, and are not exclusive of any rights or remedies otherwise provided or allowed by law to the town. [Ord. 498 § 14, 2012; Ord. 496 § 14, 2012.]
13.15.150 Information sharing.
Upon request, the town will provide information developed under YMC 13.15.080 with the department and with Clark Public Utilities. [Ord. 498 § 15, 2012; Ord. 496 § 15, 2012.]
13.15.160 Actions during program transition.
The town clerk is hereby authorized and directed to refund all monies held by the town under its existing OSS inspection program within 60 days of the effective date of the ordinance codified in this chapter. The mayor is authorized to take all reasonable and necessary actions to terminate the town’s existing septic inspection program, and implement the provisions of this chapter in accordance with its terms and purpose. [Ord. 559 § 2(A), 2017; Ord. 498 § 16, 2012; Ord. 496 § 16, 2012.]
13.15.170 Conflicts.
Nothing in this chapter is intended to replace or limit in any way the duties, responsibilities and enforcement authority of the Clark County public health department. In the event of a conflict between enforcement actions of the department and the enforcement authority or enforcement actions of the town of Yacolt under this chapter, the town will defer to the department. [Ord. 498 § 17, 2012; Ord. 496 § 17, 2012.]