Chapter 8.12
NUISANCES
Sections:
8.12.010 Definitions.
8.12.020 Types of nuisances.
8.12.030 Violations.
8.12.040 Duty to enforce.
8.12.050 Disposal of diseased animal carcass.
8.12.055 Graffiti removal fund and graffiti removal.
8.12.060 Investigation and notice of violation.
8.12.070 Time to comply.
8.12.080 Extension of compliance date.
8.12.090 Stop work order.
8.12.100 Emergency order.
8.12.110 Summary abatement.
8.12.115 Abatement by owner or other responsible person.
8.12.120 Civil penalty.
8.12.130 Criminal penalties.
8.12.140 Additional relief.
8.12.010 Definitions.
A. “Abate” means to repair, replace, remove, destroy or otherwise remedy the condition in question by such means and in such manner and to such an extent as the enforcement officer, in his or her judgment, determines is necessary in the interest of the general health, safety and welfare of the community.
B. “Building materials” means and includes lumber, plumbing materials, wallboard, sheet metal, plaster, brick, cement, asphalt, concrete block, roofing material, cans of paint and similar materials.
C. “Enforcement officer” means the code enforcement officer in the Burlington police department or any alternate designated by the chief of police.
D. “Garbage” means all discarded putrescible waste matter, including small dead animals weighing not over 15 pounds, but not including sewage or human or animal excrement.
E. “Graffiti” means the defacing, damaging or destroying by spraying of paint or marking of ink, chalk, dye or other similar substances on public or private buildings, structures, vehicles and places.
F. “Graffiti abatement” means the abatement procedure which identifies graffiti, issues notices to the property owner to abate the graffiti, and cures in the absence of response.
G. “Litter” means refuse such as, but not limited to, disposable packages and containers susceptible of being dropped, discarded or otherwise disposed of upon any property.
H. “Premises” means any building, lot, parcel, real estate or land or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips.
I. “Refuse” means either garbage or rubbish or both garbage and rubbish, and includes litter.
J. “Responsible person” means any agent, lessee or other person occupying or having charge or control of any premises, except the owner.
K. “Rubbish” means all discarded nonputrescible waste matter. (Ord. 1352 § 1, 1997; Ord. 1207 § 1, 1992; Ord. 1148 § 2, 1989).
8.12.020 Types of nuisances.
Each of the following conditions, unless otherwise permitted by law, is declared to constitute a public nuisance, and whenever the enforcement officer determines that any of these conditions exist upon any premises, whether residential, commercial or industrial, or in any lake, river, stream, drainage way or wetlands, the officer may require or provide for the abatement thereof pursuant to this chapter:
A. The existence of any weeds, trash, dirt, filth, the carcass of any animal, waste, shrubs, accumulation of lawn or yard trimmings or other offensive matter.
B. The existence of any dead, diseased, infested or dying tree that may constitute a danger to street trees, streets or portions thereof.
C. The existence of any tree, shrub or foliage, unless by consent of the city, which is apt to destroy, impair, interfere or restrict:
1. Streets, sidewalks, sewers, utilities or other public improvements; and
2. Visibility on or free use of, or access to such improvements.
D. The planting, setting, placing or installation of any shrub, bush or tree in any public parking strip or other public place except on approval of the city supervisor. The following trees are prohibited in any public parking strip: Poplar, willow, cottonwood, fruit woods (except ornamental type), nut trees, ailanthus, mountain ash and Oregon or big leaf maple.
E. The existence of any vines or climbing plants growing into or over any street tree, or any public hydrant, pole or transformer, or the existence of any shrub, vine or plant growing on, around or in front of any hydrant, standpipe, sprinkler system connection or any other appliance or facility provided for fire protection purposes in such a way as to obscure the view thereof or impair the access thereto.
F. The existence of any accumulation of materials or objects in a location when the same endangers property, safety or constitutes a fire hazard.
G. The existence of a sidewalk or portion of a sidewalk adjacent to any premises which is out of repair, and in a condition to endanger persons or property, or in a condition to interfere with the public convenience in the use of such sidewalk.
H. The burning or disposal of refuse, sawdust or any other material without a permit.
I. The existence of any obstruction to a street, alley, crossing or sidewalk, and any excavation in or under any street, alley, crossing or sidewalk, which is by ordinance prohibited, or which is made without lawful permission, or which, having been made by lawful permission, is kept and maintained after the purpose thereof has been accomplished, and for an unreasonable length of time.
J. The erecting, maintaining, using, placing, depositing, leaving or permitting to be or remain in or upon any private lot, building, structure or premises, or in or upon any street, alley, sidewalk, park, parkway or other public or private place in the city, any one or more of the following disorderly, disturbing, unsanitary, fly-producing, rat-harboring, disease-causing places, conditions or things:
1. Any putrid, unhealthy or unwholesome bones, meat, hides, skins, the whole or any part of any dead animal, fish or fowl, or waste parts of fish, vegetable or animal matter in any quantity; but nothing in this chapter shall prevent the temporary retention of waste in approved covered receptacles;
2. Any privies, vaults, cesspools, sumps, pits or like places which are not securely protected from flies and rats, or which are foul or malodorous;
3. Any filthy, littered or trash-covered dwellings, cellars, house yards, barnyards, stable yards, factory yards, vacant areas in the rear of stores, vacant lots, houses, buildings or premises;
4. Any animal manure in any quantity which is not securely protected from flies or weather conditions, or which is kept or handled in violation of any ordinance of the city;
5. Any poison oak or poison ivy, Russian thistle or other noxious weeds, whether growing or otherwise; but nothing in this chapter shall prevent the temporary retention of such weeds in approved covered receptacles;
6. Any bottles, cans, glass, ashes, small pieces of scrap iron, wire, metal articles, bric-a-brac, broken stone or cement, broken crockery, broken glass, broken plaster and all such trash, or abandoned material, unless it is kept in approved covered bins or galvanized iron receptacles;
7. Any trash, litter, rags, accumulations of empty barrels, boxes, crates, packing cases, mattresses, bedding, excelsior, packing hay, straw or other packing materials, lumber not neatly piled, scrap iron, tin or other metal not neatly piled, or anything whatsoever in which flies or rats may breed or multiply or which may be a fire hazard;
8. Any litter, refuse, rubbish or garbage.
K. The depositing or burning or causing to be deposited or burned in any street, alley, sidewalk, park, parkway or other public place which is open to travel, of any hay, straw, paper, wood, boards, boxes, leaves, manure or other rubbish or material.
L. The storage or keeping on any premises for more than 30 days of any used or unused building materials as defined in BMC 8.12.010, whose retail cost new would exceed $100.00, without a special permit from the building official; provided, that nothing herein shall:
1. Prohibit such storage without a permit when done in conjunction with a construction project for which a building permit has been issued and which is being prosecuted diligently to completion;
2. Prohibit such storage without a permit upon the premises of a bona fide lumber yard, dealer in building materials or other commercial enterprise when the same is permitted under the zoning ordinance and other applicable laws; and
3. Make lawful any such storage or keeping when it is prohibited by other ordinances or laws.
M. The existence of any fence or other structure or thing on private property abutting or fronting upon any public street, sidewalk or place which is in a sagging, leaning, fallen, decayed or other dilapidated or unsafe condition.
N. The existence or maintenance on any premises of a storage area, junkyard or dumping ground for the wrecking or disassembling of automobiles, trucks, trailers, house trailers, boats, tractors or other vehicle or machinery of any kind, or for the storing or leaving of worn out, wrecked, inoperative or abandoned automobiles, trucks, trailers, house trailers, boats, tractors or other vehicle or machinery or any major parts thereof.
O. The existence on any premises of any abandoned or unused well, cistern or storage tank without first demolishing or removing from the city such storage tank or securely closing and barring any entrance or trapdoor thereto or without filling any well or cistern or capping the same with sufficient security to prevent access thereto by children.
P. The existence on any premises, in a place accessible to children, of any unattended and/or discarded icebox, refrigerator or other large appliance.
Q. The existence of any drainage onto or over any sidewalk or public pedestrian way.
R. The existence or maintenance of graffiti, and other defacement of public and private property, including walls, rocks, bridges, buildings, fences, gates, vehicles, signs, road surfaces and other structures, trees, and all other real and personal property within the city.
S. The existence of any strong or offensive odor at the property line, including but not limited to rotting or decaying fish or other dead animals, rotting garbage, animal manure, strong chemical smells, and other strong or offensive odors.
T. Any other activity which has been declared a public nuisance by ordinances of the city as they currently exist or may hereafter be amended. (Ord. 1352 § 1, 1997; Ord. 1207 § 2, 1992; Ord. 1148 § 3, 1989).
8.12.030 Violations.
A. It is a violation of this chapter for any responsible person or owner to permit, maintain, suffer, carry on or allow, upon any premises or in any lake, river, stream, drainage way or wetlands, any of the acts or things declared by this chapter to be a public nuisance.
B. It is unlawful for any person to create, maintain, carry on or do any of the acts or things declared by this chapter to be a public nuisance.
C. It is a violation of this chapter for anyone to fail to comply with any notice, complaint or order issued in accordance this chapter.
D. It shall be unlawful for any person to write, paint, or draw upon any wall, rock, bridge, building, fence, gate, vehicle, sign, road surface or other structure, tree, or other real or personal property, either publicly or privately owned, any drawing, inscription, figure or mark of the type which is commonly known and referred to as “graffiti” within the city. Violation of this section shall be considered a misdemeanor and shall be punishable as set forth in chapter 1.24 BMC. (Ord. 1352 § 3, 1997; Ord. 1207 § 3, 1992; Ord. 1148 § 4, 1989).
8.12.040 Duty to enforce.
A. It shall be the duty of the enforcement officer to enforce this chapter. The enforcement officer may call upon the police, fire, health or other appropriate city departments to assist in enforcement.
B. Upon presentation of proper credentials, the enforcement officer or duly authorized representative of the officer may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any building or premises subject to the consent or warrant to perform the duties imposed by the nuisance code.
C. The nuisance code shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.
D. It is the intent of this nuisance code to place the obligation of complying with its requirements upon the owner or responsible person for the condition of the land and buildings within the scope of this code.
E. No provisions of or term used in this code is intended to impose any duty upon the city or any of its officers or employees which would subject them to damages in civil action.
F. It is unlawful for any responsible person or owner to permit, maintain, suffer, carry on or allow, upon any premises or in any lake, river, stream, drainage way or wetlands, any of the acts or things declared by this chapter to be a public nuisance.
G. It is unlawful for any person to create, maintain, carry on or do any of the acts or things declared by this chapter to be a public nuisance.
H. It is unlawful for anyone to deposit, throw, keep or place any garbage, rubbish, refuse or litter on any property, public or private, or in any public place except in garbage cans, or detachable containers where authorized, placed on private property or placed on the street or alley for collection when necessary, authorized or required. The owner or responsible person who is responsible for the condition of private property shall be responsible for removing any unlawful garbage, rubbish, refuse and litter. (Ord. 1207 § 4, 1992).
8.12.050 Disposal of diseased animal carcass.
Every person owning or having in charge any animal that has died or been killed on account of disease shall immediately bury the carcass thereof at least three feet underground at a place approved by the city health officer, or cause the same to be consumed by fire. No person shall sell or offer to sell or give away the carcass of any animal which died or was killed on account of disease. (Ord. 1207 § 5, 1992; Ord. 1148 § 5, 1989).
8.12.055 Graffiti removal fund and graffiti removal.
A. The city hereby creates a graffiti removal fund which will accept donations or fines levied for violations of the graffiti provisions of this code. The funds shall be for supplies for the removal of graffiti.
B. Whenever the enforcement officer determines that graffiti exists on any public or private buildings, structures, vehicles and places which are visible to any person utilizing any public road, parkway, alley, sidewalk or other right-of-way within the city, and when seasonable temperatures permit the painting of exterior surfaces, the enforcement officer shall cause a notice to be issued that there is graffiti and that the graffiti must be removed within 10 days of the notice, or the city will remove the graffiti using funds donated for that purpose.
C. Upon failure of persons to comply with the notice by the designated date, or such continued date thereafter as enforcement officer approves, the enforcement officer is authorized and directed to cause the graffiti to be abated by the city or by private contract, and the city or its private contractor is expressly authorized to enter upon the premises for such purposes. All reasonable efforts to minimize damage from such entry shall be taken by the city, and any paint used to obliterate or cover graffiti shall be as close as practicable to the background color(s). If the enforcement officer provides for the removal of the graffiti, the city shall not authorize nor undertake to provide for the painting or repair of any more extensive area than the area where the graffiti is located.
D. Property owners may consent in advance to city entry onto private property for graffiti removal purposes. (Ord. 1352 § 4, 1997).
8.12.060 Investigation and notice of violation.
A. The enforcement officer shall investigate any premises, structure or use which the officer reasonably believes does not comply with the standards and requirements of the nuisance code.
B. If after investigation the enforcement officer determines that the standards or requirements have been violated, they may have a notice of violation served upon the owner or responsible person for the condition. The notice of violation shall state separately each standard or requirement violated, shall state what corrective action is necessary to comply with the standards or requirements; and shall set a reasonable time for compliance.
C. The notice shall be served upon the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after a reasonable search and reasonable efforts are made to obtain service, the whereabouts of the person or persons is unknown or service cannot be accomplished and the enforcement officer makes an affidavit to that effect, then service of the notice upon such person or persons may be made by:
1. Publishing the notice once each week for two consecutive weeks in the city official newspaper; and
2. Mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known, or if unknown, to the address of the property involved in the proceedings.
D. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.
E. Nothing in this section shall be deemed to limit or preclude any action or proceeding pursuant to BMC 8.12.090 or 8.12.100.
F. The enforcement officer may mail, or cause to be delivered to all residential and/or nonresidential rental units in the structure or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, stop work order or emergency order and the applicable requirements and procedures.
G. A notice or an order may be amended at any time in order to:
1. Correct clerical errors; or
2. Cite additional authority for a stated violation.
H. The notice of violation shall not be amended by the enforcement officer to include additional violations as a result of any reinspection for compliance or other purpose except upon a clear showing that the amendment is necessary for the protection of public safety, health and general welfare and that the additional violation did not exist or could not reasonably have been discovered at the time of original inspection. (Ord. 1207 § 6, 1992; Ord. 1148 § 6, 1989).
8.12.070 Time to comply.
A. When calculating a reasonable time for compliance, the enforcement officer shall consider the following criteria:
1. The type and degree of violation cited in the notice;
2. The stated intent, if any, of a responsible person or owner to take steps to comply;
3. The procedural requirements for obtaining a permit to carry out corrective action;
4. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and
5. Any other circumstances beyond the control of the responsible person or owner.
B. Unless a request for extension of compliance date is made in accordance with BMC 8.12.080 the notice of violation shall become the final order of the enforcement officer. A copy of the notice shall be filed with the Skagit County auditor. The enforcement officer may choose not to file a copy of the notice or order if the notice or order is directed only to a responsible person other than the owner of the property. (Ord. 1207 § 7, 1992).
8.12.080 Extension of compliance date.
An extension of time for compliance with a notice of violation may be granted in writing by the enforcement officer upon receipt of a written request therefor. The enforcement officer may without a written request grant an extension of time after finding that required actions have been started and that the work is progressing at a satisfactory rate. (Ord. 1207 § 8, 1992).
8.12.090 Stop work order.
Whenever a continuing violation of this code will materially impair the enforcement officer’s ability to secure compliance with this code, or when the continuing violation threatens the health or safety of the public, the enforcement officer may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. A failure to comply with a stop work order shall constitute a violation of this nuisance code. (Ord. 1207 § 9, 1992).
8.12.100 Emergency order.
A. Whenever any use or activity in violation of this code threatens the health and safety of the occupants of the premises or any member of the public, the enforcement officer may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall
specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible. A failure to comply with an emergency order shall constitute a violation of this nuisance code.
B. Any condition described in the emergency order which is not corrected within the time specified is declared to be a public nuisance and the enforcement officer is authorized to abate such nuisance summarily by such means as may be available. The cost of such abatement shall be recovered from the owner or responsible person or both in the manner provided by law. (Ord. 1207 § 10, 1992).
8.12.110 Summary abatement.
A. The city council may, after a report has been filed by the enforcement officer and the property owner or other responsible person for the condition has had an opportunity to be heard, by ordinance require such person to abate a nuisance by removal and proper disposal of the refuse, or other nuisance listed in BMC 8.12.020, from the property at such person’s cost and expense within a time specified in the ordinance; and if the removal and disposal is not accomplished within the time specified, the enforcement officer may abate the nuisance and recover the cost and expense thereof plus 15 percent in a civil action in municipal court.
B. The enforcement officer may also seek relief in superior court to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of this chapter when the civil or criminal remedies provided in this chapter are inadequate to effect compliance. (Ord. 1207 § 11, 1992; Ord. 1148 § 7, 1989).
8.12.115 Abatement by owner or other responsible person.
If and when an owner or other responsible person shall undertake to abate any condition described in this chapter, whether by order of the enforcement officer or otherwise, all needful and legal conditions pertinent to the abatement may be imposed by the enforcement officer. It is unlawful for the owner or other responsible person to fail to comply with such conditions. Nothing in this chapter shall relieve any owner or other responsible person of the obligation of obtaining any required permit to do any work incidental to the abatement. (Ord. 1207 § 12, 1992; Ord. 1148 § 8, 1989).
8.12.120 Civil penalty.
A. In addition to any other sanction or remedial procedure which may be available, any person violating or failing to comply with any of the provisions of this chapter shall be subject to a cumulative penalty in the amount of $75.00 per day for each violation from the date set for compliance until the order is complied with.
B. The penalty imposed by this section shall be collected by civil action brought in the name of the city. The enforcement officer shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the enforcement officer, take appropriate action to collect the penalty.
C. The violator may show as full or partial mitigation of liability:
1. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or
2. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to gain access to the subject structure, or other condition or circumstance beyond the control of the defendant. (Ord. 1207 § 13, 1992; Ord. 1148 § 10, 1989).
8.12.130 Criminal penalties.
A. Any person violating or failing to comply with any of the provisions of this nuisance code and who has had a judgment entered against him or her pursuant to BMC 8.12.020 within the past five years shall be subject to criminal prosecution and upon conviction of a subsequent violation shall be fined in a sum not exceeding $5,000 or be imprisoned in the city jail for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance with any of the provisions of this nuisance code shall constitute a separate offense.
B. A criminal penalty, not to exceed $5,000 per occurrence, may be imposed:
1. For violations of BMC 8.12.050;
2. For any other violation of this code for which corrective action is not possible;
3. For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements of this code. (Ord. 1207 § 14, 1992).
8.12.140 Additional relief.
The enforcement officer may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of this nuisance code when civil or criminal penalties are inadequate to effect compliance. (Ord. 1207 § 15, 1992).