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874 Enforcement Development Regulations CfTY OF YELM (7RDINANCE NO. 874 AN ORDINANCE ESTABLfSHING A NEW CHAPTER OF THE YELM MUNICIPAL CODE RELATING TO THE ENFORCEMENT OF DEVELOPMENT REGULATIONS AND REPEALING EXISTING ENFORCEMENT PROVISIONS. WHEREAS, the City of Yelm is required to plan under RCW 36.70A.040 of the Growth Management Act; and WHEREAS, the City of Yelm has adopted a Comprehensive Plan that is compliant with the Growth Management Act; and WHEREAS, the City of Yelm has adopted development regulations that implement the policies of the Comprehensive Plan; and WHEREAS, these development regulations contain differing enforcement provisions with differing penalties and remedies; and WHEREAS, the existing enforcement procedures do not contain a standard and predictable process for addressing violations; and WHEREAS, the propased amendments are administrative in nature and do not change the development regulations which implement the policies of the Comprehensive Plan; NOW, THEREF~RE, THE YELM CITY COUNCIL DOES ORDAIN AS F(~LLOWS: Section 1. A new Chapter of the Yelm Municipal Code is hereby established as Chapter 1.16 Enforcement of Development Regulations 1,16.010 Purpose and Intent. A. The purpose of this Chapter is to provide a standard enforcement process for all land use related development regulations adopted pursuant to the Growth Management Act, Chapter 36.7~A RCW. The pravisions of this Chapter appfy to the following development regulations, as codified in the Ye1m Municipal Code: Chapter 5.44 Home Occupations Chapter 5.48 Day-Care Facilities Title 14 Environment Chapter 15.24 Signs Title 16 Subdivisions Title 17 Zoning B. The primary intent of all enforcement actions described in this chapter is to educate the public and to encourage the voluntary correction of violations. Civil and criminal penalties will be used only when necessary to ensure compliance with the provisions of the codes to which this chapter applies. Criminal charges will be brought only when civil remedies have failed to ensure compliance. 1.16.020 Violations. A. It is a violation of this chapter to remove or deface any sign, notice, complaint, or order required by or posted in accordance with this code. B. It is a violation of this chapter to fail to comply with notices or orders issued pursuant to this chapter. 1.16.030 Enforcement and duty to enforce. A. Provisions of the regulations to which the enforcement pravisions of this chapter apply will 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. B. The administrator is authorized to enforce the regulations to which the enforcement provisions of this code apply. The administrator may call upon law enforcement, public works, or other appropriate City departments to assist in enforcement. C. The police and all officers and officials charged with enforcement of the law are authorized to enforce provisions of this code. D. The owner of any real or personal property subject to enforcement action and any person responsible for a violation are liable for failure to comply with the regulations to which the enfarcement provisions of this chapter apply or to comply with notices or arders issued pursuant ta this chapter. E. No provision 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 or the City to damages in a civil action. F. No approval shall be granted for a land use permit, land division, building permit or connection to City services for any lot, tract, or parcel of land on which there is a final determination of a violation of any state law or City Code to which the enforcement provisions of this chapter apply, pertinent to use or development of the property, unless such violations are either corrected prior to application or are required to be corrected as a condition of approval. City approval granted on that basis may be revoked at any time if there is a failure to comply with conditions of approval or violates any state law or City regulation pertinent to use or development of the property. G. Violator's Liability For Damages. Any person who violates any provisions or any permit issued under the Codes to which the enforcement provisions of this chapter apply shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to violation. The City Attorney may bring suit for damages under this section on behalf of the City. Private persons shall have the right to bring suit for damages under this section on their own behalf and on the behalf of all persons similarly situated. If liability has been established for the cost of restoring an area affected by a violation, the court shall make provision to assure that restoration will be accomplished within a reasonable time at the expense of the violator. 1.16.040 Investigation and service of notice of violation. A. The administrator shall investigate any facts which lead the administrator to reasonably believe that a person, use, or condition is in violation of the Godes to which the enforcement provisions of this chapter apply. B. Should the administrator be denied access to such property to carry out the purpose and provision of this section, the administrator may apply to any court of competent jurisdictian for a search warrant authorizing access. 1. The administrator or his or her designee may request the consent to enter property for the purpose of examining property, buildings, premises, records, or other physical evidence, or for conducting tests or taking samples. 2. The administrator or designee may apply for an administrative search warrant to a court official authorized to issue a criminal search warrant. An administrative search warrant may be issued for the purposes described in subsection (B)(1) of this section. The warrant shall be issued upon probable cause. It is sufficient probable cause to show either of the following: a. The inspection, examination, test, or sampling, is pursuant to a general administrative plan to determine compliance with this code; or b. The administrator has reason to believe that a violation of this code or permit issued pursuant ta tMis code has occurred or is occurring. C. If after investigation, the administrator determines that any provision of this code has been violated, a notice of correction letter shall be the first attempt at obtaining compliance. If voluntary compliance is not obtained, the administrator shall serve a notice of violation upon the owner and person(s) responsible for the violation. The notice of violation shall state the following: 1. Description of the activity that is causing a violation; 2. Each provision violated; 3. Any civil penalty imposed; 4. The corrective action, if any, necessary to comply with said provisions; 5. A reasonable time for compliance according to provisions of this section; and 6. That continued or subsequent vioiation may result in enforcement action through a court of competent jurisdiction. D. Foflowing a notice of violation, the administrator and person in violation may develop a mutually agreeable compliance plan. The compliance plan shall establish a reasonable and specific time frame for compliance. No further action will be taken if the terms of the compliance plan are met. If no campliance plan is established, enforcement of the violation will proceed. E. When calculating a reasonable time for compliance, the administrator shall consider the following criteria: 1. The type and degree of violations cited in the notice; 2. The stated intent, if any, of a person responsible to take steps to comply; 3. Procedural requirements for obtaining a permit to carry out corrective action; 4. The complexity of corrective action, including seasonal considerations, construction requirements, and the legal rights and responsibilities of landlords and tenants; or 5. Any other circumstances beyond the control of the party responsible. F. If the administrator believes that the requirements of this section are not being met, the administrator shall, in addition to the notice vf violation, issue appficable stop work or emergency orders. G. The notice of violation, stop work order, or emergency order shall be served upon the owner and person(s) responsible for the violation by personal service, registered maif, or certified mail with return receipt requested, addressed ta the last known address of each such person. If after a reasonable search and reasonable efforts are made ta obtain service, the whereabouts of the person or persons is still unknawn, vr service cannot be accomplished and the administrator makes an affidavit to that effect, then service of the notice of violation may be made by: 1. Publication of the notice once each week for two consecutive weeks in the official newspaper of the City; 2. Mailing a copy of the notice or order to each person named on the notice or order by first class mail to the last knoavn address if any, if known, or if unknown to the address of the property involved in the proceeding; and 3. Mailing a copy to the taxpayer of record. H. A copy of the notice or order shall be posted at a conspicuous pface on the premises, unless posting the notice or order is not physically possible. I. The administrator may mail or cause to be delivered to all residential and nonresidential units on the premises, or to be posted at a conspicuous pface on the premises, a notice which informs each recipient or resident about any notice of violation, stop work order, or emergency order and the applicable requirements and procedures. Notices issued in this manner are sufficient for purposes of due process. J. A notice of violation, a stop work order, or an emergency order may be amended at any time in order to: 1. Correct clerical errors; or 2. Cite additional authority for a stated violatian. K. If the scope of the notice is to be expanded or decreased, then a new notice of violation, a stop work order, or an emergency order shall be issued in order to expand or decrease the scope of the notice or order as consistent with the intent of this section and new timelines may be established pursuant to subsection (D) of this section. L. Nothing in this chapter shall be deemed to limit or preclude any civil or criminal action or proceeding available otherwise. M. Nothing in this chapter shall be deemed to limit or preclude the administrator from seeking the most appropriate course of action deemed necessary in relationship to the severity of the violation. 1.16.050 Stop work arder, emergency, and abatement arders. A. Stop Work Order. Whenever a continuing violation of this code will materially impair the administrator's ability to secure compliance with this code, or when any person is proceeding in defiance of permit requirements, the administrator may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. The stop work order sha11 be served on the person(s) responsible pursuant to Section 1.16.040 YMC and shall be posted in a conspicuous place on the premises, if posting is reasonable and practical. Failure to comply with a stop work order shall constitute a violation of this chapter. B. Emergency Order. 1. Whenever any use or activity in violation of the Codes to which the enforcement provisions of this chapter apply threatens the health or safety of occupants af the premises or any member of the public, the administrator may issue an emergency order directing that the use or activity be discontinued and the condition causing threat to health and safety be corrected. The emergency order shall be served on the person(s) responsible pursuant to Section 1.16.040 YMC, shall specify the time for compliance, and shall be posted in a conspicuous place on the premises, if posting is physically possible. Failure to comply with an emergency order shafl constitute a violation of this chapter. 2. Any condition described in an emergency order which is not corrected within the time specified in the order is a public nuisance. The administrator is authorized to abate said nuisance summarily by such means as the administrator finds reasonable. The cost of such abatement shall be recovered from the owner or the person responsibfe or both in anyr manner provided by law. 1.16.060 Penalties. A. Civil Penalties. Any person violating or failing to comply with any of the provisions of the Codes to which the enforcement provisions of this chapter apply may be subject to a cumulative civil penalty of up to $250.Q0 per day for each active occurrence of violation. B. Additional Penalties. 1. In addition to civil and crimina! penalties, the administrator may seek injunctive relief to enjoin any acts or practices and abate any nuisance or other condition which constitutes or will constitute a violation of the Codes to which the enforcement provisions of this chapter apply when civil penalties are inadequate to effect compliance, or when otherwise appropriate. Owners of real or personal property adversely affected by a violation of the Codes to which the enforcement provisions of this chapter apply may also seek injunctive relief. 2. The administrator may issue a stop work order pursuant to Section 1.16.050 YMC at any time during these proceedings. 3. The administrator may issue an emergency order pursuant to Section 1.16.050 YMC at any time during these proceedings. C. Appeal of the Issuance of Penalties. Within 30 days after the notice is received, the person incurring a penalty under this section may appeal the determination that a violation occurred or may request remission or mitigation of the penalty. Upon receipt of the application, the Hearing Examiner shall hold a closed record hearing pursuant to Chapter 2.26 YMC. If the Examiner determines that a vio{ation occurred, the penalty may be remitted or mitigated for good cause, upon whatever terms the Examiner finds acceptable. D. Innocent Purchaser. No application for a building permit or other development permit for any lot, tract, or parcel of land divided in violation of Chapter 58.17 RCW or Title 16 YMC will be granted without prior approval of the administrator. Approval will only be given if the applicant demonstrates the foflowing: 1. The property will be connected to the City sanitary sewer system and potable water system; 2. The City Development Review Engineer has certified that the proposed lot, tract, or parcel of land is served with an adequately designed means of access, and with adequate drainage facilities, none of which interferes with existing or planned public or private road and drainage facilities in the vicinity; 3. The proposed development will not adversely affect the safety or health of adjacent property owners; 4. The Community Development Director has certified that the proposed land divisian and development conform to the policies and directives of the Camprehensive Plan; and 5. The applicant did not know, and could not have known by exercising reasonable care in purchasing the land, that the lot, tract, or parcel had been part of a larger lot, tract, or parcel divided in violativn of state law or this code. Section 2. Existing enforcement provisions repealed. The following sections of the Yelm Municipal Code are hereby repealed. Chapter 14.08 - Critical Areas and Resource Lands 14.08.080 (E) Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this chapter shall be guilty of a misdemeanor. Each day or portian of a day during which a violation of this chapter is committed or continued shall constitute a separate offense. Any development carried out contrary to the pravisions of this chapter shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this chapter. The civil penalty shall be assessed at a maximum rate of $250.00 dollars per day per violation. Chapter 14.16 - Protection of Trees and Vegetation 14.16.150 Violation - Criminal penalties. A. Any person who violates the provisions of this chapter or fails to comply with any of the requirements shal! be guilty of a misdemeanor and shall be punished by the statutes of the state for the commission of a misdemeanor. Each day such violation cantinues shall be considered a separate, distinct offense. The per- day fine will be assessed as per the city's bail schedule. In cases involving land clearing in violation of this chapter, the clearing of any area up to the first acre shall be considered one offense, and the clearing of each additiona! acre and of any additional fractional portion that does not equal one more acre shall each be considered a separate and distinct offense. B. Any person who commits, participates in, assists or maintains such violation may be found guilty of a separate offense and suffer the penalties as set forth in subsection A of this section. C. Upon determination that a violation af the provisions of this chapter has occurred, the building official shall withhold issuance of building permits for the affected property until corrective action is taken by the responsible party. However, if mitigating circumstances exist and reasonable commitments for corrective action are made, the building official may issue building permits. Such corrective action may include: 1. Restoration and replanting of surface vegetation with plant material similar in character and extent as existed prior to the unauthorized clearing; 2. Implementation of drainage and erosion control measures; 3. Replanting of trees equal in value to those lost through unauthorized clearing. Chapter 15.24 - Signs 15.24.260 Violation - Penalty. A. Violation of the provisions of this code or failure to comply with any of its requirements shall constitute a misdemeanor, and such violation shall be punished as provided by the statutes of the state of Washington for the commission of a misdemeanor. Each day such vialation continues shall be considered a separate offense. B. The erector, owner ar user of an unlawful sign or the owner of the property on which an unlawful sign is located and maintains such violation may each be found guilty of a separate offense and suffer the penalties as provided for in subsection A af this section. Chapter 16.52 - Subdivisions 16.52.010 Generally. Except as provided by RCW 58.17.205, any persan, firm, corporation or association, or any agent of any person, firm, corporation or association, who violates any provisions of this title relating to the sale, offer for sale, lease or transfer of any Iot, tract or parce{ of land, is guilty of a gross misdemeanor, and each sale, offer for sale, lease or transfer of each separate lot, tract or parcel of land in viofation of any provision of this title is a separate and distinct offense. Any other violation of this title shall be considered a misdemeanor and shall be punishable as provided by state law for the commission of a misdemeanor. Title 17 - Zoning 17.81.010 Generally. The approval authority shall be the city administrator or shall be designated by the city administrator and shall administer and enforce this title. If the approval authority finds that any of the provisions of this title are being vialated, he/she shall notify in writing the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it. He/she shall take any action authorized by this title to insure compiiance with or to prevent violation of its provisions. Section 3. Severability. If any provisions of this Ordinance or its application to any person or circumstance is held invalid, the remainder of the Ordinance or the applicativn of the pravision to vther persons or circumstances is not affected. Section 4. The Ordinance shall be in full force and effect and after its passage, approval, and publication as provided by law. PASSED by the City u cil of Yelm this 28t" day of August, 2007. i Ron Hardi , Mayor ATTEST: ' ~ anine Schnepf, Ci lerk. PUBLISHED: Nisqually Valley News, September 7, 2007 EFFECTIVE DATE: September 12, 2007