Full Text
9.48 - 1 CHAPTER 9.48 NUISANCES SECTION: 9.48.010: Public Nuisance and Other Terms Defined 9.48.020: Enforcement, Authority and Administration 9.48.030: Notice and Order 9.48.035: Abatement – Vehicles 9.48.040: Abatement – Failure – Civil Penalties 9.48.045: Criminal Penalties 9.48.050: Abatement – Immediate 9.48.055: Maintaining a Weed Hazard 9.48.060: Abatement By City – Safeguards 9.48.070: Abatement – Cost 9.48.010: Public Nuisance and Other Terms Defined: Every act unlawfully done and every omission to perform a duty, which act or omission does any of the following, shall constitute a public nuisance: Annoys, injures, or endangers the safety, health, comfort, or repose of the citizens of the City; or Offends public decency; or Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, a public park, street, alley, highway, or other public area; or In any way renders any citizens of the City insecure in life or use of property. The following acts, in addition to any others in violation of subsection of this Section, shall constitute a public nuisance: Throwing, depositing, exposing, or causing to be disposed of, in any street or other public place within the City, any garbage, waste, refuse, litter, debris, or other offensive material, unless the disposal of such items in such place is specifically authorized by law; Causing or allowing garbage, waste, refuse, litter, debris, or other offensive materials, to be collected or deposited, or to remain in any place in the City, to the annoyance of any person, unless otherwise permitted by law; Erecting, continuing, or using any building, room, property, or other place in the City for the exercise of any trade, employment, or manufacture which results in offensive odors or other annoyances being released, and which annoys, injures, or is offensive or detrimental to the health of the individuals there employed or residing, or to the public; Burning of refuse or other material in such a manner as to cause or permit the smoke, ashes, soot, or gases arising from such burning to become discomforting or annoying, or to injure or endanger the health of any person or neighborhood; Any building, house, room, or other structure or vehicle, maintained or used for the purpose of lewdness, assignation, or prostitution; ---PAGE BREAK--- 9.48 - 2 All houses, rooms, booths, or other structures used as a place of resort where disorderly persons are allowed to congregate, or in which drunkenness is carried on or permitted; Any pit, basin, hole, or other excavation which is unguarded and dangerous to life, or has been abandoned, or is no longer used for the purpose for which it was constructed, or is maintained contrary to law; All obstructions to streets, rights of way, or other public ways in the City, and all excavations in or under the same, which are by ordinance prohibited, or which may be made without lawful permission, or which, having been made by lawful permission, are kept and maintained after the purpose thereof has been accomplished, or for an unreasonable length of time; 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, but not limited to, the following conditions or things: Any unsound, putrid, or unwholesome bone, meat, hides, skin, or the whole or parts of any dead animal or fish, or any unsound, putrid, or unwholesome substance; or the offal, garbage, or other offensive parts of any animals; or any noxious, offensive, dangerous or otherwise injurious chemicals or other materials such as oil, grease, poisons, explosives, radioactive materials, and other similar substances in such a manner as to be offensive or injurious to public health, or unpleasant or disagreeable to the adjacent residences or persons, (ii) Any cellar, vault, drain, sewer, or septic tank to become, from any cause, noxious, foul, offensive, or injurious to public health, or unpleasant or disagreeable to the adjacent residences or persons, (iii) Any noxious, foul, or putrid liquid or substance, or any liquid or substance likely to become noxious, foul, offensive, or putrid, to be discharged, placed, or thrown upon, or to flow from or out of, any premises into, or upon, any adjacent premises, or any public street or alley, or to stand, remain, or be upon any premises. All premises, buildings and vehicles whereon or wherein intoxicating liquor is manufactured, sold, bartered, exchanged, given away, furnished, disposed of, consumed, or permitted to be consumed, in violation of the laws of the State and the ordinances of the City; All vacant, unused, or unoccupied buildings and structures within the City, which are allowed to become or remain open to entrance by unauthorized persons or the general public, because of broken, missing, or open doors, windows, or other openings, so that the same may be used by vagrants or other persons in a manner detrimental to the health and welfare of the inhabitants of the City; An attractive nuisance, whether in or on a building, a building premises or unoccupied lot and whether realty, fixture or chattel, which might reasonably be expected to attract children of tender years and constitute a danger to them; including, but not limited to any refrigerator, icebox or deep-freeze locker having a capacity of one and one-half (1½) cubic feet or more or any other container manufactured, custom-made or homemade designed for storage which is discarded, abandoned or left in any place accessible to children and ---PAGE BREAK--- 9.48 - 3 which has not had the door or latching mechanism removed to prevent the latching or locking of the door; abandoned wells, shafts, basements or other excavations, abandoned or inoperative vehicles or equipment, structurally unsound fences or other fixtures, lumber, fencing, vegetation, or other debris; Any sign, poster or other advertising matter of any nature placed upon a telegraph, telephone or other poles, trees, sidewalks, streets, signs, traffic signs or other traffic-control devices or other structures or places within streets, alleys or other public places or rights of way; All buildings, or parts thereof, vehicles, or other structures, wherein any gambling, as defined by RCW 9.46.020, may be found, and any gambling device, as defined by RCW 9.46.020, may be found, except as licensed and within the scope of the license required under State law and by Chapter 3.60 of this Code; The depositing or allowing of irrigation or other water to run by any street, alley, or other public place, in such manner as to cause settling or damage to the street, alley, or other public place, or to cause annoyance, damage, or hazard to any user of the street, alley, or other public place; Graffito or graffiti; Light trespass as defined in KMC 18.76.020(11). Open storage of materials and furnishings. No person shall openly store or keep outside on their property any equipment, materials or furnishings; or any item that creates an condition or one that promotes urban blight. This may include, but is not limited to, indoor furniture, household appliances, auto parts, shopping carts or building materials. Exception: Building materials neatly stacked and stored for no more than sixty (60) days for a construction project permitted within the City. The material must be weather protected, shall not be placed within property setbacks or placed in such a manner that would create a danger to property, health and/or safety. Fencing. The existence of any fence, other structure or thing on private property abutting or fronting upon any public street, sidewalk, or place, which is sagging, leaning, fallen, decayed, or is otherwise dilapidated and creating an unsafe condition or which vertical structural members list, lean or buckle to such an extent that a plumb line passing through the center of gravity falls outside the middle third of its base. Vehicle and equipment repair on residential premises. Servicing, repairing, assembling, modifying, restoring, or otherwise working on any vehicle on any residential premises shall be subject to the following: Work shall be limited to the repair and maintenance of vehicles, equipment, or other conveyance currently registered as specified in the Washington Vehicle Code to the occupant or a member of the occupant’s family. (ii) Work is limited to the approved parking surface or garage or approved accessory structure; at no time can repairs be made on the lawn, sidewalk, planting strip or street. (iii) Only minor repairs such as an oil change, tire repair, small parts change, or minor routine maintenance may be performed outside of a garage or approved accessory structure and only then on an approved parking surface. The associated vehicle(s) in which such minor repairs ---PAGE BREAK--- 9.48 - 4 exceed seven days shall be moved inside of a building that meets applicable code and zoning requirements or be properly “screened.” The accumulation of “junk” as defined in this Section. Maintaining a “Weed Hazard” as defined in this Section is hereby declared a public nuisance. Maintaining a “Marijuana Nuisance” as defined in this Section is hereby declared a public nuisance. Violate any provision of Titles 9, 13, 15 and 18. “Junk” means scrapped, broken, or neglected items and materials. Junk includes items such as plastic, cloth, glass, rags, paper or metals that can be converted into usable articles or stock, or articles that have outlived their usefulness in their original form. Examples of “junk” include, but are not limited to, empty bottles and jars; empty metal, plastic or paper products; discarded engine or motor parts; automobile and truck parts of all descriptions; used tires, wheels and inner tubes; discarded batteries; discarded or broken shopping carts; cardboard; discarded and/or pre-used building materials; discarded and/or pre- used electrical and plumbing materials; broken pieces of concrete; discarded, broken, or neglected electrical, gas or hand-operated appliances; previously used packing materials; discarded, broken, or neglected household goods and furnishings; or any household items located outdoors that are designed for indoor use; as well as parts and pieces of any of the foregoing. “Weed Hazard” means grasses, weeds, or other vegetation which have grown and died or which are not irrigated and which exceed twelve inches in length. Public parks, public facility and open space zones, areas of pristine vegetation and natural habitats for indigenous wildlife and agriculturally used property are not weed hazards. “Marijuana Nuisance” means the production or processing of marijuana or marijuana-infused products, or the storage or growing of marijuana plants where any portion of such activity can be readily seen by normal unaided vision or readily smelled from a public place or the private property of another “housing unit” as defined in this Section. “Housing Unit” means a house, an apartment, a mobile home, a group of rooms, or a single room that is occupied as separate living quarters, in which the occupants live and eat separately from any other persons in the building, and which have direct access from the outside of the building through a common hall. ”Director” means the Director of Planning, his authorized deputies and representatives, including but not limited to Code Enforcement Officers, the City Building Official, the City Fire Official or their designee. (Ordinance 5659 Sec. 1, 2016: Ord. 5513 Sec. 1, 2013: Ord. 4099 Sec. 1, 2003: Ord. 3507 Sec. 2, 1994: Ord. 3060 Sec. 2, 1987: Ord. 2385 Sec. 9, 1979: Ord. 2089 Sec. 2 (part), 1977) 9.48.020: Enforcement, Authority and Administration: In order to discourage public nuisances and otherwise promote compliance with applicable code provisions, the Director may, in response to field observations, determine that violations of KMC Titles 9, 13, 15, and 18, have occurred or are occurring, and may: Enter into voluntary compliance agreements with persons responsible for code violations as provided in KMC 9.44.075 Issue notice and orders, assess civil penalties, and recover costs as authorized by this chapter; Require abatement by means of a judicial abatement order, and if such abatement is not timely completed by the person or persons responsible for a ---PAGE BREAK--- 9.48 - 5 code violation, undertake the abatement and charge the reasonable costs of such work as authorized by this chapter; Order work stopped at a site by means of a stop work order, and if such order is not complied with, assesses civil penalties as authorized by this chapter; Suspend, revoke, or modify any permit previously issued by the City or deny a permit application as authorized by this chapter when other efforts to achieve compliance have failed; Forward a written statement providing all relevant information relating to the violation to the office of the City Attorney with a recommendation to prosecute willful and knowing violations as misdemeanor offenses; and File an infraction complaint in District Court and pursue a civil fine. The procedures set forth in this chapter are not exclusive. These procedures shall not in any manner limit or restrict the City from remedying or abating violations of this title in any other manner authorized by law. In addition to, or as an alternative to, utilizing the procedures set forth in this chapter, the City may seek legal or equitable relief to abate any conditions or enjoin any acts or practices which constitute a code violation. In addition to, or as an alternative to, utilizing the procedures set forth in this chapter, the City may assess or recover civil penalties accruing under this chapter by legal action filed in Benton County District Court or superior court by the office of the City Attorney. The Director or his or her designee is the chief administrative officer for the purposes of this chapter, and shall determine, based upon information derived from sources such as field observations, the statements of witnesses, relevant documents, and data systems for tracking violations, and applicable City codes and regulations, whether or not a violation has occurred. (Ord. 5659 Sec. 2, 2016: Ord. 3671 Sec. 1, 1995: Ord. 3274 Sec. 10, 1990: Ord. 3060 Sec. 2 (part), 1987: Ord. 2089 Sec. 2 (part), 1977) 9.48.030: Notice and Order: When the Director has reason to believe, based on investigation of documents and/or physical evidence, that a code violation exists or has occurred, the Director is authorized to issue a notice and order to any person responsible for a code violation. The Director shall make a determination whether or not to issue a notice and order within 45 days of determining that a violation exists. A notice and order represents a determination that a violation has occurred, that the party to whom the notice is issued is a person responsible for a code violation, and that the violations set out in the notice and order require the assessment of penalties and other remedies that may be specified in the notice and order. The Director is authorized to impose civil penalties upon a determination by the Director that a violation has occurred pursuant to a notice and order. The notice and order shall contain the following information: The address, when available, or location of the violation; A legal description of the real property or the Benton County tax parcel number where the violation occurred or is located, or a description identifying the property by commonly used locators; A statement that the Director has found the named person(s) responsible for a violation and a brief description of the violation(s) found; A statement of the specific provisions of the ordinance, resolution, regulation, public rule, permit condition, notice and order provision, or stop work order that was or is being violated; ---PAGE BREAK--- 9.48 - 6 A statement that a civil penalty is being assessed, including the dollar amount of the civil penalties, and that any assessed penalties must be paid within 15 days of service of the notice and order; A statement advising that any costs of enforcement incurred by the City shall also be assessed against the person to whom the notice and order is directed; A statement that payment of the civil penalties assessed under this chapter does not relieve a person found to be responsible for a code violation of his or her duty to correct the violation and/or to pay any and all civil penalties or other cost assessments issued pursuant to this chapter; A statement of the corrective or abatement action required to be taken and that all required permits to perform the corrective action must be obtained from the proper issuing agency; A statement advising that, if any required work is not commenced or completed within the time specified by the notice and order, the City may proceed to seek a judicial abatement order from Benton County superior court to abate the violation; A statement advising that, if any assessed penalty, fee or cost is not paid on or before the due date, the City may charge the unpaid amount as a lien against the property where the code violation occurred if owned by a person responsible for a violation, and as a joint and several personal obligation of all persons responsible for a code violation; A statement advising that any person named in the notice and order, or having any record or equitable title in the property against which the notice and order is recorded, may appeal from the notice and order to the hearing examiner within 14 days of the date of service of the notice and order; A statement advising that a failure to correct the violations cited in the notice and order could lead to the denial of subsequent City of Kennewick permit applications on the subject property; A statement advising that a failure to appeal the notice and order within the applicable time limits renders the notice and order a final determination that the conditions described in the notice and order existed and constituted a violation, and that the named party is liable as a person responsible for a violation; A statement advising the person responsible for a code violation of his/her duty to notify the Director of any actions taken to achieve compliance with the notice and order; and A statement advising that failure to comply with the notice and order may be referred to the office of the City Attorney for appropriate legal action. Service of a notice and order shall be made on a person responsible for code violation by one or more of the following methods: Personal service of a notice and order may be made on the person identified by the Director as being responsible for the code violation, or by leaving a copy of the notice and order at the person’s house of usual abode with a person of suitable age and discretion who resides there; Service directed to the landowner and/or occupant of the property may be made by posting the notice and order in a conspicuous place on the property where the violation occurred and concurrently mailing notice as provided for below if a mailing address is available; or ---PAGE BREAK--- 9.48 - 7 Service by mail may be made for a notice and order by mailing one copy, postage prepaid, by ordinary first class mail to the person responsible for the code violation at his or her last known address, at the address of the violation, or at the address of the place of business of the person responsible for the code violation. The taxpayer’s address as shown on the tax records of Benton County shall be deemed to be the proper address for the purpose of mailing such notice to the landowner of the property where the violation occurred. Service by mail shall be presumed effective upon the third business day following the day upon which the notice and order was placed in the mail. Appeals to the Hearing Examiner shall follow requirements and the process noted in KMC 9.44.090(2)-(6). The decision of the Hearing Examiner shall be in writing, including findings and conclusions, and shall bear the same legal consequences as the order issued by the Director. The Hearing Examiner shall render a final decision within ten (10) business days following conclusion of the hearing. (Ord. 5659 Sec. 3, 2016: Ord. 3753 Sec. 4 (part), 1997: Ord. 3507 Sec. 3, 1994: Ord. 3060 Sec. 2 (part), 1987: Ord. 2089 Sec. 2 (part), 1977) 9.48.035: Abatement - Vehicles: The Chief of Police or Director of Planning may order the removal of junk motor vehicles or parts thereof along with other incidental machinery, scrap and parts from public or private property if it constitutes a nuisance as defined in Section 9.48.010 or is maintained in violation of the City’s Zoning Ordinance, Title 18. If the Director or Chief finds the vehicle or parts thereof to be a nuisance or maintained in violation of the Zoning Ordinance, they may send the last registered and legal owner of the vehicle, if that can be determined, and the property owner of record a notice of the violation. The notice must inform the owners that they are entitled to a hearing in accord with Section 6.01.120 of the Kennewick Municipal Code. The notice must specify that if no request for a hearing is received, the vehicle will be removed and the costs assessed against the registered owner and landowner. If any request for a hearing is received, a notice giving the time, location and date of hearing and the question of abatement and removal of the vehicle or part thereof must be mailed, by certified mail with a five day return receipt request, to the owner of the land and the last registered and legal owner of record unless his identity cannot be determined. The owner of land shall not be held liable for the costs of removal if he demonstrates that the vehicle or parts thereof were placed on his land without his consent and he has not subsequently acquiesced in their presence. Any vehicle or parts thereof found to be a nuisance or maintained in violation of the Zoning Ordinance will be turned over to a registered disposer. (Ord. 5659 Sec. 4, 2016: Ord. 3753 Sec. 4 (part), 1997: Ord. 3660 Sec. 6, 1995: Ord. 3328 Sec. 3, 1991: Ord. 3060 Sec. 5 (part), 1987: Ord. 2936 Sec. 1 (part), 1985) 9.48.040: Abatement - Failure – Civil Penalties: Civil penalties for code violations shall be imposed for remedial purposes for violations identified in a notice and order, pursuant to the following schedule: Notice and Orders – basic initial penalty: $500.00 Second violation: $1,000.00 (ii) Each subsequent violation (two or more): $1,500.00 Breach of Voluntary Correction Agreement penalty: $1,000.00 ---PAGE BREAK--- 9.48 - 8 Civil penalties shall be paid within 15 days of service of the notice and order if not appealed. Payment of the civil penalties assess under this chapter does not relieve a person found to be responsible for a code violation of his or her duty to correct the violation and/or to pay any and all civil penalties or other cost assessments issued pursuant to this chapter. The City may use the services of a collection agency in order to collect any civil penalties, fees, costs and/or interest owing under this chapter. (Ord. 5701 Sec. 1, 2017: Ord. 5659 Sec. 5, 2016: Ord. 3060 Sec. 2 (part), 1987: Ord. 2089 Sec. 2 (part), 1977) 9.48.045: Criminal Penalties: In addition to any other judicial or other administrative remedy, after three or more violations of Section 9.48.010 at the same property, the City may forward to the office of the City Attorney a detailed factual background of the alleged violation with a recommendation that a misdemeanor charge be filed against the person(s) responsible for maintaining a public nuisance as defined in Section 9.48.010. (Ord. 5659 Sec. 6, 2016) 9.48.050: Abatement - Immediate: Whenever any nuisance is within a public way or easement; or of such a character and so situated that it can be abated without the invasion or destruction of property or the prejudice of any right, and the further continuance is likely to result in expense to the City or injury to any person or property, the Chief of Police or other proper officer of the City may abate and remove the nuisance summarily. (Ord. 3060 Sec. 2 (part), 1987: Ord. 2089 Sec. 2 (part), 1977) 9.48.055: Maintaining a Weed Hazard: It is unlawful for any person, by himself or by his agents or employees, or as the agent or employee of another person, firm or corporation to permit a Weed Hazard to exist upon any premises over which he has control. If the owner or agent of any premises has actual or constructive knowledge of the maintenance on or in his premises of a Weed Hazard, as defined in this chapter, he or she shall be deemed one of the persons in control of the premises. Any person violating this Section is guilty of a Class 1 civil infraction and shall be subject to a penalty of $250.00 plus all costs and assessments. (Ord. 5659 Sec. 7, 2016) 9.48.060: Abatement by City - Safeguards: In any case where a nuisance is to be abated by the Chief of Police or any other proper officer it shall be the duty of such officer to proceed with due care and without unnecessary destruction of property. He shall in all cases be authorized to employ such assistance and adopt such means as may be necessary to effect the entire abatement of the nuisance. (Ord. 3060 Sec. 2 (part), 1987: Ord. 2089 Sec. 2 (part), 1977) 9.48.070: Abatement - Cost: Every person, firm, or corporation maintaining a nuisance, or permitting, allowing, or suffering a nuisance to be maintained, as prohibited by this Chapter or otherwise, shall be liable for all costs and expenses for abating the same when the nuisance has been abated by any officer of the City. The costs and expenses may be assessed as a part of any prosecution against the party liable and may be recovered as other costs are recovered after they have been assessed; provided, that in such cases, the City shall have been liable in the first instance to pay all costs of the abatement. In all cases where the Chief of Police, the Planning Director or their designee, abates any nuisance he shall keep an account of all expenses attending such abatement and, in addition to other powers given in this Chapter to collect such other costs and expenses, may forthwith bring suit for recovery of the costs in any ---PAGE BREAK--- 9.48 - 9 court of competent jurisdiction, in the name of the City, against the person maintaining, keeping, creating, or permitting, allowing, or suffering the nuisance abated, and, upon the collection of the costs by such suit, he shall pay the same to the City Treasurer. In the event the City obtains a judgment for abatement costs in a court of competent jurisdiction, the Planning Director, the City Treasurer or their designee are hereby authorized to use any lawful means to collect said judgment to include the use of a collection agency. The provisions of this Chapter relative to the abatement of nuisances are not exclusive, and all other rights or remedies of the City, or any citizen thereof, relative to abatement of nuisances, are declared to remain in full force and effect. (Ord. 5513 Sec. 2, 2013: Ord. 3060 Sec. 2 (part), 1987: Ord. 2089 Sec. 2 (part), 1977)