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SubjectsLegalNuisances › Code Enforcement
Updated 02/2014

Code Enforcement

Contents

Introduction

This page covers topics related to code enforcement with a focus on nuisances. Some jurisdictions define all code violations as nuisances. Others select certain code section violations as nuisances to be enforced under a general code enforcement provision. The illustrations on this page are principally those of jurisdictions with general code enforcement provisions that include voluntary compliance, civil infractions, abatement proceedings, and summary abatement. Provisions are also included for dealing with chronic nuisance properties.

About Code Enforcement

After many years of abating nuisances, Bill Cameron, the former City Attorney of Kennewick, noted that nuisance abatement is a human problem. It is the people who create the nuisance that are the problem, not the nuisance itself. Local officials need to keep in mind that the persons creating a nuisance may have mental problems; many have little money. When the method of abatement is chosen, the circumstance of the person creating the nuisance should be taken into consideration. Humane treatment is a moral imperative. Other government agencies may be of assistance. People are all individuals and remedies must be tailored to the individual. Experience and judgment are the only guides. People can be stubborn. Sane, but stubborn people are often quite receptive to a citation. The reality of fines, jail and attorney fees are a wake up call. Complicated people seem better dealt with in Superior Court.

Most code enforcement programs are complaint-driven. Complaints result in an inspection and a warning letter to the violator, followed by a notice of citation if action to correct the violation have not been taken by the property owner. This is followed by official abatement proceedings if the violator still has not take care of the problem within a specified period of time. As an alternative to abatement, some cities use neighborhood mediation centers and voluntary agreements. Except for situations of imminent or immediate danger, the enforcement of nuisance provisions is a policy issue dependent on the level of service a community can provide with available resources.

Several communities have developed proactive code enforcement programs. Others only deal with nuisances when they become a serious health or safety problem. Many local governments simply do not have adequate funding to make code enforcement a priority. The courts have recognized that governments generally do not have sufficient resources to hire staff to seek out violations of all regulations. It is common practice for cities and counties to enforce zoning ordinances, animal control, and nuisance ordinances on a complaint-only basis. See Frame Factory v. Ecology, 21 Wn.App 50, 57 (1978).

Methods of Code Enforcement

Voluntary cooperation

The most desirable course of action is to obtain the voluntary cooperation of the public in seeking the abatement of nuisances. A number of jurisdictions have included voluntary agreements in their nuisance provisions. If voluntary compliance is not forthcoming, the next step may be to issue a citation. Issuing a citation for an infraction (civil offense) or misdemeanor (criminal offense) will often rectify even the worst problem. Citations are most effective when there are clear violations of particular ordinances or the conduct of the violator is patently outrageous.

Civil Infraction

Many jurisdictions have decriminalized nuisance provisions and are using a civil infraction system. In 1987 the legislature established a civil infraction system codified as Ch. 7.80 RCW to allow minor offenses to be decriminalized and to receive a civil fine or infraction. Infractions are defined as a non criminal violation of a local ordinance. The civil infraction system is patterned after the traffic infraction system adopted in 1981. The statute authorizes cities and counties to create civil infractions enforceable in the municipal or district court.

Civil infractions are initiated by the issuance, service, and filing of a notice of civil infraction issued by a person authorized to enforce ordinance provisions. The citing officer can be a law enforcement officer or other official authorized by law to issue notices. Jurisdictions have variations on the process used to obtain compliance before citations are issued. Many jurisdictions issue some sort of warning notice with a deadline for compliance before a notice of infraction.

Abatement

When voluntary compliance and administrative proceedings do not solve the problem, it may be necessary to go to superior court and obtain a warrant of abatement. The warrant authorizes the jurisdiction to enter onto private property, abate the nuisance, and hold the property owner responsible for all of the abatement costs.

If there have been earlier administrative proceedings and there is a clear record that due process has been followed, a petition for a warrant of abatement may be handled expeditiously, particularly when the property owner chooses not to respond to the superior court filing. A civil nuisance abatement case brought in superior court often involves complex factual or legal issues, a large parcel of property (or several properties), or a violator whose attitudes or, in some cases, mental fitness, make it unlikely that the nuisance situation can be resolved without a warrant of abatement. One advantage of court action is that the court discovery rules will allow access to the perpetrator's premises.

Summary Abatement

Summary abatement involves the actual removal of conditions constituting a nuisance by administrative officials without resorting to judicial proceedings. Summary abatement may or may not be specifically authorized by a jurisdiction's ordinance. Sometimes a situation is so dangerous that it should be repaired or eliminated immediately. Open wells, discharges of sewage, abandoned refrigerators and similar types of nuisances are extreme hazards especially in populated areas. If the owner will not fix them upon request or cannot be found, the local government should take it upon itself to make the correction and decide later who should pay.

There is some potential liability exposure for jurisdictions that initiate summary abatement procedures. As a practical matter, the jurisdiction should protect itself by assembling evidence, such as photographs, to support its findings that an emergency exists. If an action were brought against the city or county, and the court determined that the condition abated did not in fact constitute a fire or health hazard, or a nuisance, the city would probably be liable for damages sustained by the property owner.

Administrative Enforcement - Unfit Dwellings, Buildings, and Structures

Administrative enforcement refers to the establishment of a non-judicial hearing and decision-making process for nuisance abatement. An administrative hearing provides the opportunity for property owners to present their side. These proceedings are much less time-consuming and expensive than a full court adjudication. However, because nuisance enforcement and abatement deal with property rights, the process must include a right to appeal any final administrative decision to district or superior court. The hope is that an administrative decision will satisfactorily resolve the issue without an appeal to superior court. If it is clear from the outset that a property owner wants to contest an administrative nuisance action, regardless of cost, it might be wise to initiate the enforcement action through court proceedings.

Sometimes an administrative process will consist of a hearing before an individual or board, followed by an administrative appeal to another board, and then an appeal to district or superior court. If the problem can be resolved through an administrative process (without a judicial appeal) it is generally simpler, faster, and less costly than initiating the enforcement action in court. An example of a full administrative enforcement process, including a level of administrative appeal prior to superior court appeal, is Ch. 35.80 RCW, which establishes a process for dealing with unfit dwellings, buildings, and structures. The key to any administrative nuisance abatement ordinance is a clear and detailed definition of what constitutes a nuisance. Clear and unambiguous administrative procedures must give all those affected an opportunity to have decisions reviewed before any abatement action is taken. See Memphis Light Gas & Water v. Craft, 436 U.S. 1 (1978) Via FindLaw.

Code Enforcement Provisions

The ordinance provisions and webpage links listed below provide illustrations of the methods used for code enforcement discussed above in the Methods of Code Enforcement section. Most of the code enforcement provisions illustrated here apply to several types of regulations including nuisances, building codes, environment, and zoning.

City Provisions

  • Burien Municipal Code Ch. 1.15 - Code Enforcement - Covers Service of documents, violations, infractions, voluntary correction, stop work order, notice of civil violation, response to notice of civil violation, scheduling of hearing to contest or mitigate – Correction prior to hearing, contested hearing – Procedure, mitigation hearing – Covers Procedure, decision of hearing examiner, failure to appear – default order, judicial review, recovery of penalties and costs, abatement, and right of entry.
  • Covington Municipal Code Ch. 1.30 - Civil Code Enforcement - Covers voluntary correction agreement, notice of civil infraction, administrative notice, stop work order, abatement, collection of penalties, lien - uses a hearing examiner
  • Everett Police Department Code Enforcement - Includes brochure, link to violations hearing examiner, rules of procedure, and respondent's motion for reconsideration
    • Everett Municipal Code Ch. 1.20 - Code Enforcement
  • Longview Code Compliance
  • Monroe Code Enforcement
    • Monroe Municipal Code Sec. 6.04.060 -.080 - Abatement of a Public Nuisance (includes form) Costs of Abatement, and Penalty
  • Pasco Code Enforcement - Provides links to the Code Enforcement Board that hears alleged violations of the city code regarding property maintenance standards, to the Municipal Code, and to a Good Neighbor Handbook
    • Pasco Municipal Code Ch. 11.02 - Civil Infractions - Violations and Procedures - Provisions cover: Voluntary correction agreement: contents, administrative review of compliance, extension-modification, abatement, collection of costs; Notice of civil violation: issuance, content, service of notice, extension, monetary penalties; hearing before code enforcement board: prior correction of violation, procedures, decision, penalties, appeal to Superior Court; summary abatement; recovery of costs
    • Pasco Municipal Code Ch. 11.04 - Code Enforcement Board
  • Prosser Code Enforcement
    • Prosser Municipal Code Ch. 1.40 - Code Enforcement - Provisions cover voluntary correction, civil infraction, contents of form, abatement, hearing, appeal, explanation of mitigation of mitigating circumstances, monetary penalty and modification, criminal penalties
    • Prosser Code Enforcement Flow Chart of the Complaint Process
  • Wenatchee Code Enforcement - Covers online complaint form and link to the Code Enforcement Board that reviews complaints and to the Property Maintenance Assistance Guide
    • Wenatchee Municipal Code Ch.2.11 - Civil Infractions - Provisions cover: Voluntary correction agreement: contents, administrative review of compliance, right to a hearing waived, extension – modification, abatement, and collection of costs; Notice of civil violation: issuance, content, service of notice, and extension; Monetary penalty; Hearing before Code Enforcement Board: notice, prior correction of violation or an extension of time, recording of proceedings, procedures, decision of the code enforcement board, monetary penalty, notice of decision, failure to appear, appeal to hearing examiner, administrative review of compliance; Abatement by city
    • Wenatchee Municipal Code Ch. 2.10 - Code Enforcement Board
  • Vancouver Municipal Code Title 22 - Uniform Enforcement Code - Includes correction notice and required elements, notice of civil violation and order. order to revoke permit, service of notice of civil violation and order to revoke Permit. Summary abatement, appeals to the hearing examiner, and appeals to superior court

County Provisions

  • Clallam County Code Title 20 - Code Enforcement - General provisions cover: enforcement authority and administration, conference, guidelines regarding responses to potential violations, investigating potential violations, enforcing civil code violations, Service of citation, notice and order, and stop work order, right of entry and warrants, certificate of correction, limitation of liability, denial of permits. Other provisions: voluntary compliance agreements, citations, notice and orders, stop work orders, penalties schedule, appeals, and liens
  • Clark County Code Title 32 - Enforcement - General provisions cover: administration, declaration of intent, right of entry, misdemeanor penalty, civil penalty, citation, abatement, additional enforcement, special investigation. Notices and orders of the director include: commencement of proceedings, notice and order, method of service, appeals, final order, supplemental notice and order, enforcement of a final order, and settlement of civil penalty claims. Other provisions include: suspension and revocation of permits, recovery of civil penalty and cost of abatement
  • Kittitas County Code Title 18 - Code Enforcement - Provisions include: Order to correct violation: contents, service, extension of time, repeat offense; Notice of violation and abatement: notice, notice of appeal, notice of hearing, hearing, order of hearing examiner, cooperative abatement agreements, cost recovery, special assessment; Notice of infraction: contents, service filing, determination, notice of lien, procedure; Failure to comply; Infraction hearings: contested hearing, mitigation hearing; and penalties
  • Lewis County
    • Lewis County Code Ch. 1.20 - General Penalty and Fines, Civil Penalty and Notices of Violation - Civil enforcement procedures includes: Enforcement, violations - investigations - evidence, notice of infraction contents, filing, response, notice of Failure to Sign, Appear, or Satisfy Penalty, representation by attorney, hearing procedure, explanation of mitigating circumstances, monetary penalties - restitution, court order, and costs and attorney fees
    • Lewis County Code Ch. 1.22 - Abatement of Public Nuisances - Covers summary abatement, recovery of costs and expenses, interference, lien - authorized, removal of evicted personal property and/or solid waste placed onto public access

Abatement Notices

The forms are presented for illustrative purposes and may not currently be in use.

  • Burien
  • Everett Sample Letter to Owner/Resident, Violation Citation, Violations Hearing Examiner
  • Kennewick Sample Notices - Code Enforcement Request for Investigation, Correction Notice, Notice of Civil Violation, Voluntary Correction Agreement
  • Lakewood Sample Letter to Owner/Resident, Enforcement Warning, and Compliance Agreement

Right of Entry

Consensual searches are not unreasonable and do not require a warrant. However, it is now advised that a warrant be obtained to enter property when permission is not obtained. In a Ninth Circuit Court case involving the City of Santa Ana, Connor v. Santa Ana, 897 F.2d 1487 (9th Cir. 1990), the court held that a warrant was required prior to entering property to inspect for a nuisance violation. This was based on the fourth amendment of the U.S. Constitution due process clause.

A warrant may not be needed for a nuisance that is located in plain view, such as in an open front yard. This is the holding in Ninth Circuit Court of Appeals case, Schneider v. County of San Diego, 28 F.3d 89 (9th Cir.1994). In this case the court addressed the legality of the county abating a nuisance on private property, after all the proper notices had been given to the property owner. The court recognized an exception in regard to searches on private property where the activity takes place in open fields, where there is no recognized expectation of privacy.

In City of Pasco v. Shaw, 161 Wn.2d 450 (2007), to address a problem with the poor conditions of some rental units within the city, the city council passed an ordinance requiring landlords, to be licensed by the city, have inspections made of their rental units, and furnish the city with certificates of inspectors certify that their units met applicable building codes. A challenge was brought, arguing that the required inspections constituted improper searches and that the inspection ordinance was too vague to be enforceable. On appeal, the court disagreed.

Chronic Nuisance Properties

Ordinance Provisions

  • Bremerton Chronic Nuisance Property Ordinance
    • Bremerton Municipal Code
        Ch. 9.92 - Chronic Nuisance Properties - Defines nuisance activity, review of complaint by police chief of designee, warning, review by city attorney if no response, review by superior court.
      • Ch. 5.06 - Rental Property Registration - Establishes a program to prevent and correct conditions in residential rental units that adversely affect or are likely to adversely affect the health, safety, and welfare of the public
    • Landlord License Application - Rental housing requires licensing
  • Des Moines
    • Des Moines Municipal Code
      • Ch. 5.60 - Overnight Lodging - Provides additional requirements designed to deter crime in order to obtain or maintain its business license endorsement. The calls for service and crime statistics for each hotel and motel will be compiled for a 12-month period ending June 30th of each calendar year.
      • Ch. 5.64 - Rental Housing - Requires crime free endorsement and provides for every police service call involving gang, drug or vice related activities or any other serious and significant criminal activity as determined by the chief of police, the owner and tenant of the rental unit requiring the police service call shall be assessed, jointly and severally, the actual costs of the police service call or $50.00, whichever amount is greater
  • Everett Municipal Code Ch. 9.64 - Chronic Nuisance Properties - Includes in definition of chronic nuisance properties, nuisance activity on property within 200 feet of nuisance property that involve person in charge of property or associated with person in charge of property.
  • Seattle Municipal Code Ch. 10.09 - Chronic Nuisance Properties - Chronic nuisance property includes 3 nuisance activities within six months or seven nuisance activity within 12-month period. Also includes upon a request for execution of a search warrant, has been the subject of a determination by a court two or more times within a twelve-month period that probable cause exists that illegal possession, manufacture or delivery of a controlled substance or related offenses as defined in RCW Chapter 69.50 has occurred on the property.
  • Spokane Municipal Code Ch. 10.08A - Chronic Nuisance Properties
  • Tacoma Municipal Code Ch. 8.30A - Chronic Public Nuisance
  • Union Gap Municipal Code Ch. 8.21 - Chronic Nuisance Properties - Includes same definition as Seattle provisions re Ch. 69.50 RCW

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