415 Public Nuisance Amend YMC 9r t..
CITY OF YELM, WASHINGTON
ORDINANCE NO. 415
AN ORDINANCE Relating to Public Nuisances; Amending and Adding
Provisions to Yelm Municipal Code chapters 9.44 and 9.48; Repealing
Sections - 9.44.030 and 9.44.040; Repealing Yelm Municipal Code
Chapter 9.40 and Declaring an Emergency.
WHEREAS, it is necessary for the public health, safety and
welfare to regulate, prevent and prohibit conditions which may
constitute disorderly, disturbing, unsightly, unsafe, unsanitary,
fly- producing, rat - harboring, and /or disease - causing places,
conditions, or objects; and
WHEREAS, excessive growth of grass and weeds and the keeping
of junk, refuse or litter and depositing the same on public or
private property are hereby found to create conditions tending to
reduce the value of private property, to interfere with the
enjoyment of public and private property, to create and constitute
fire and other safety and health hazards, and generally to create
a menace to the health and welfare of the public and to contribute
to the degradation of the character of neighborhoods and
depreciation of property values; and
WHEREAS, adequate protection of the public health, safety and
welfare requires that such conditions be regulated, abated and
prohibited; and
WHEREAS, the current public nuisance provisions of the Yelm
Municipal Code were enacted in 1977 and significant changes have
occurred both in the law and as the result of growth related
conditions in the City of Yelm; and
WHEREAS, the Yelm city council seeks to modernize, legalize,
update and consolidate its nuisance regulations consistent with the
current needs of the community; and
WHEREAS, there is an existing urgent need for immediate and
effective action to provide for the abatement of existing
conditions that constitute nuisances as defined in this chapter,
and the existing provisions of the Yelm Municipal Code are deemed
to be inadequate for that need;
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THE CITY COUNCIL OF THE CITY OF YELM DO ORDAIN AS FOLLOWS:
Section 1. References to chapters and sections, unless otherwise
specified, are references to chapters and sections of the Yelm
Municipal Code.
Section 2. Section 9.44.010 is amended as follows:
9.44.010 Definitions. The following words and phrases used
in this chapter, unless the context otherwise clearly indicates,
shall have the following meanings:
A. "Abate" means to repair, replace, remove, destroy or
otherwise remedy a condition which constitutes a violation of this
chapter by such means and in such a manner and to such an extent as
the applicable department director 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 city administrator of the
City of Yelm or his or her designee authorized in writing to
enforce this chapter or chapter 9.48 of the Yelm Municipal Code.
D. "Hearing board" or "board" means the Board of Adjustment
of the City of Yelm.
E. "Notice of abatement" or "notice to abate" means a Notice
to Abate Unsafe or Unlawful Condition as provided in this Code.
F. "Person" means and includes, without limiting its
definition in chapter 1.04 of the Yelm Municipal Code, individuals,
firms partnerships, corporations, and all associations of natural
persons, whether acting by themselves or by an agent or employee.
G. "Owner" means and includes without limiting the definition
of that term in chapter 1.04, any agent, lessee, owner, tenant or
other person occupying or having charge or control of any premises.
An owner or agent is deemed to have control if he or she has actual
or constructive knowledge of the maintenance upon the premises of
any nuisance as defined in this chapter.
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 and any lake, river, stream,
drainage way or wetland.
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I. "Public Nuisance" and "Nuisance" each mean and consist of
doing an unlawful act, or omitting to perform a duty, or suffering
or permitting any condition or thing to be or exist, which act,
omission, condition or thing either:
1. Unreasonably injures or endangers the comfort,
repose, health or safety of others, or
2. Offends public decency, or
3. Is offensive to the senses of reasonable persons, or
4. In any way renders other persons insecure in life or
use of property;
Section 3. There is hereby added to the Municipal Code of Yelm
section 9.44.015 which is to read as follows:
9_44_015 Prohibited Conduct. It is a violation of this
chapter for any person to permit, create, maintain, or allow, upon
any premises, any of the acts or things declared in section
9.44.010 or 9.44.020 to be a public nuisance, or to fail to abate
such a nuisance pursuant to lawful notice given under chapter 9.48
of the Yelm Municipal Code.
Section 4. Section 9.44.020 is amended as follows:
_Section 9 44 020 Nuisances Declared The following specific
acts, omissions, places and conditions are declared to be public
nuisances:
A. Erecting, continuing or using any building or other place
in the city for the exercise of any trade, employment or
manufacture, which by occasioning noxious exhalation, offensive
smells or other annoyances, becomes injurious and dangerous to the
health, comfort or property of individuals or the public;
B. Causing or allowing any offal, filth, poison, or noisome
substance to be collected or to remain in any place, street,
highway, or alley in the city to the prejudice of others;
C. Maintaining any house, shop, stable or other structure
which cannot be occupied or rented and which poses danger of
incendiarism and /or injury.
D. All houses or premises kept for the purpose of
prostitution or for the performance of lewd acts as that term is
defined in section 9.16.010;
E. All houses or places where drunkenness, fighting or other
breaches of the peace are carried on or permitted;
F. All dirt, offal, or vegetable matter, the contents of any
hog pen or sty, poultry house, privy, drain or vault, which by
noxious air, poisonous gas, or noise, shall offend inhabitants of
the neighborhood;
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G. Keeping howling or barking dogs or permitting any animal
to run at -large which defiles, injures or destroys lawns, gardens,
trees or shrubbery;
H. Building or maintaining any structure in such condition
as to be dangerous to the health of the citizens of the city;
I. Obstructing or encroaching upon or rendering unsafe for
passage any public highway, private way, street, alley, park,
square, driveway, lake, or stream in the city;
J. carrying on, within the city limits, a business of
manufacturing gunpowder, nitroglycerin,, or other highly explosive
substance, or mixing or grinding the materials therefor, in any
place within two hundred fifty yards of any building in existence
at the time such business may be commenced.
K. Placing, depositing, keeping, having or leaving in or upon
any private lot, building, structure or premises, or in or upon any
street, avenue, park, parkway or public or private place in the
city any one or more of the following conditions, places or things:
1. Any putrid, unsound or unwholesome bones, meat,
hides, skins, or the whole or any part of any dead animal, fish or
fowl,
2. Privies, vaults, cesspools, sumps, pits or like
places which are not securely protected from flies or rats, or
which are foul or malodorous,
3. Filthy or littered trash - covered cellars, house
yards, factory yards, vacant areas in rear of stores, vacant lots,
houses, buildings or premises,
4. Animal manure in any quantity which is not securely
protected from flies and the elements, or which is kept or handled
in violation of any ordinances of the city,
5. Poison oak or poison ivy (whether growing or
otherwise), liquid household waste, human excreta, garbage,
butcher's trimmings and offal, parts of fish, or any other
vegetable or animal matter in any quantity; provided nothing in
this chapter shall prevent the temporary retention of waste in
receptacles in the manner approved by the health officer of the
city or the dumping of nonputrifying waste in a place and manner
approved by the health officer,
6. Tin cans, bottle, glass cans, small pieces of scrap
iron, wire, material, bric- a -brac, broken crockery, broken glass,
broken plaster, scrap building materials, and all such trash or
abandoned material unless the same be kept in covered bins or
galvanized iron receptacles approved by the health officer,
7. Trash, litter, weeds or grass, rags, accumulations
of empty barrels, boxes, crates, packing cases, mattresses
bedding, excelsior, packing straw, or other packing materials, ,
lumber not piled, scrap iron, abandoned stoves, kitchen appliances,
tin and other metal not neatly piled, or anything whatsoever in
which flies or rats may breed or multiply or which may be a fire
danger,
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8. Any abandoned unattended or discarded icebox,
refrigerator, freezer or other container having an air -tight door
or lid and a snap lock or other locking device which may not be
easily released from the inside when such lid or door is in a
closed position.
9. Laying out, exposing or leaving exposed, in an
unenclosed place known to be accessible to domestic animals or
children, any substance or combination of substances known to be a
poison or poisonous if consumed by a human, animal, or fowl;
10. The emitting of loud and raucous noise, from
whatever the source or location, in a manner which, under the
circumstances, unreasonably disturbs others.
11. Causing or allowing any other nuisance as defined in
section 9.44.010 or other provision of the Yelm Municipal Code.
Section 5. There is hereby added to the Municipal Code of Yelm
section 9.48.005 which is to read as follows:
9.48.005 Definitions of terms All definitions in chapter
9.44 of the Yelm Municipal Code shall apply to this chapter unless
the context otherwise clearly indicates.
Section 6. Section 9.48.010 is amended as follows:
Section 9 48,010 Abatement Procedure.
A. Upon receipt of information or upon personal observation
that a nuisance exists as defined in chapter 9.44 of the Yelm
Municipal Code, the enforcement officer shall cause an
investigation of the matter and premises involved. If the
enforcement officer determines that a nuisance exists he or she
shall file a written finding to that effect with the city clerk.
B. After having filed a finding that a nuisance exists, the
enforcement officer shall require the owner of the premises
involved to abate the nuisance at his or her own cost and expense,
in whole or in part. The enforcement officer shall give written
notice to the owner as prescribed in this section, describing the
property involved, the condition to be corrected, and a specified
reasonable time within which the owner must correct the condition,
which shall be not less than five (5) days, or ten (10) days from
the date of service by mail as evidenced by the postmark on the
notice. The notice must further specify (a) that if the owner
fails to abate the nuisance within the specified period of time,
the city shall cause the work to be performed and shall assess all
or any portion of the cost thereof against the owner; (b) that the
owner may be liable for civil penalties for each day or part of day
that the condition continues to exist following the notice, (c)
that the owner alternatively may be liable to criminal prosecution,
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as provided in this chapter; and (d) that the owner has a right to
appeal the notice as provided in subsection E of this section. The
required notice shall be in substantially the following form:
NOTICE TO ABATE UNSAFE OR UNLAWFUL CONDITION (NUISANCE)
(Name and address of person notified)
As owner, agent, lessee or other person occupying or having charge
or control of the building, lot or premises at
you are hereby notified that the enforcement officer of the city of
Yelm has determined, pursuant to chapter 9.48 of the Yelm Municipal
Code, that there exists upon or adjoining said premises the
following condition contrary to the provisions of chapter 9.44 of
the Yelm Municipal Code.
You are hereby further notified to abate that condition to the
satisfaction of the city within days of the date of this
notice. If you do not abate the condition within days the
city will abate the condition at your expense. In addition, your
failure to abate the condition will be considered a violation for
which you may incur monetary penalties as provided in sections
9.44.015 and 9.48.040, Yelm Municipal Code, for each day or part of
day that the condition continues to exist.
Alternatively, failure to abate a nuisance may be prosecuted as a
misdemeanor under section 9.48.050, Yelm Municipal Code.
You have the right to appeal this notice within five (5) days as
provided in section 9.48.010 E, Yelm Municipal Code, or within ten
(10) days from the date of service by mail, as evidenced by the
postmark on the notice.
Thank you for your immediate attention to this matter.
Enforcement Officer
Date
C. The notice given by the enforcement officer to the owner
shall be deposited in the United States mail with a return receipt
requested or shall be personally served by delivering a copy
thereof to the owner or by leaving the same with a person of
suitable age and discretion at the owner's place of residence. If
the owner is not a resident of City of Yelm, the notice shall be
served by leaving the same with the tenant in possession of the
property or, if there is no such tenant, by posting a copy of the
notice in a conspicuous place on the property involved and by
mailing a copy thereof to the owner at his or her last known
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address, if any. Service by mail will be deemed complete at the
end of the third full day following its deposit in the U.S. Mail,
postage prepaid.
D. Upon serving the notice prescribed in this chapter, the
enforcement officer shall file with the city clerk a certificate of
service, in the following form:
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the
attached Notice to Abate Unsafe or Unlawful Condition was served
upon the person (or persons) to whom it was addressed by (check one
or more of the following):
❑ Delivering the copy to each of the addressees personally;
❑ Leaving the copy at the owner's place of residence with a
person of suitable age and discretion; or
❑ Leaving the copy with the tenant in possession of the
property; or
❑ Mailing a copy, certified mail with return receipt requested,
to the owner at his (her) last known address, postage prepaid;
or
❑ Leaving a copy posted on the vacant premises and mailing a
copy, certified mail with return receipt requested, to the
owner (who is not a city resident) at his (her) last known
residence, postage prepaid.
Date Signature
E. A person to whom a notice of abatement has been issued may
appeal the issuance of the notice by filing a written notice of
appeal with the hearing board within five (5) calendar days from
the date of service of the notice or within ten (10) days following
the date of service by mail, as evidenced by the postmark on the
notice. The notice of appeal need not be in a particular form but
must clearly state that the person identified in the notice of
appeal is the person to whom a notice of abatement was given, the
date of the notice of abatement and the notice of appeal, and the
reason or reasons why the person believes the notice to be in
error. The board shall review the appeal and shall make a
determination, after considering all pertinent facts, within ten
(10) days. The procedure for review by the board including rules
of evidence shall follow the rules prescribed for hearings before
that board, insofar as is reasonably possible and appropriate. If
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no such rules exist, the board shall formally adopt as its rules,
insofar as appropriate, the hearing procedures of the Yelm civil
service commission relating to contested cases. The board's
decision shall be in writing, and shall be filed with the city
clerk. A copy of the decision shall be mailed promptly to the
property owner, and, if the decision finds that the nuisance
exists, the decision shall notify the property owner of the amount
of time within which the nuisance must be abated.
F. If the notice is not timely or correctly appealed or if
the appeal fails, and if the nuisance has not been abated within
the time prescribed in the notice, the city shall cause the
nuisance to be abated and shall charge the cost thereof against the
property owner. The charges shall be considered as a personal
obligation of the owner to the city, and shall be enforceable by
the city in the same manner as other monetary claims.
G. The costs of abatement, when borne by the city, may be
assessed against the real property upon which the costs were
incurred unless paid. The enforcement officer shall forward such
costs to the city treasurer, who shall certify them to the county
treasurer for assessment on the tax rolls.
Section 7. Section 9.48.020 is amended as follows:
Section 9,48.020 Liability for Continuing Nuisance, Every
successive owner or occupant of property who neglects to abate a
continuing nuisance upon or in the use of such property caused by
a former owner, is liable in the same manner as the owner who
created it.
Section 8. Section 9.48.030 is amended as follows:
Section 9.48.030 Money Collected for Abatement -- Disposition.
All money collected for abatement purposes as provided in this
chapter shall be paid to the city treasurer, shall be separately
stated and itemized by the treasurer, and shall be credited by the
treasurer to the departments or divisions of the city government
which have incurred the abatement costs.
Section 9. There is hereby added to the Municipal Code of Yelm
section 9.48.040 which is to read as follows:
9.48.040 Civil Penalties,
A. Violations as Civil Infractions. A violation of chapter
9.44 or 9.48 of the Yelm Municipal Code is a civil infraction for
which civil penalties may be assessed for each day or part of day
that the violation continues.
B. Notice of Civil Infraction. In addition to other civil
remedies, the enforcement officer may issue a notice of civil
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infraction to an owner who fails to abate the nuisance within the
amount of time specified in the notice of abatement. The notice
shall be filed with the city clerk and served in the same manner as
that provided in this chapter for the service of a notice of
abatement. The notice shall state that a civil penalty has been
assessed against the person to whom the notice of civil infraction
was directed and shall accrue for each and every day or portion
thereof during which the violation of the notice of abatement
continues, and shall notify the person of a right to appeal. The
amount of the penalty shall be measured daily for each violation as
specified in subsection C of this section.
The notice shall be in substantially the following form:
NOTICE OF CIVIL INFRACTION FOR FAILURE TO ABATE NUISANCE
(Name and address of person notified)
You are hereby notified that your failure to comply with the Notice
to Abate Unsafe or Unlawful Condition (Nuisance) is a violation of
section 9.44.015 of the Yelm Municipal Code, and constitutes a
civil infraction. As provided in section 9.48.040 of the Yelm
Municipal Code, a civil penalty has been assessed against you in
the amount of , and a separate civil penalty in that amount
may be assessed against you for each day or part of day that this
violation continues, commencing , and until the
condition specified in the said notice has been corrected to the
city's satisfaction.
Civil penalties must be paid within thirty days after they have
been incurred. Your failure to pay the assessed penalties when due
may result in a civil suit against you for the amount of those
penalties in addition to court costs and abatement costs incurred
by the city in correcting the condition in question.
You have the right to appeal this notice to the Yelm Municipal
Court as provided in section 9.48.040 D, Yelm Municipal Code,
within ten (10) days, or within thirteen (13) days if served by
mail, as evidenced by the postmark on said notice.
Thank you for your immediate attention to this matter.
Date:
Enforcement Officer
C Civil Penalties Assessed. The amount of civil penalty that
is assessed for each violation per day or portion of day is as
follows:
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(1) First violation: One hundred fifty (150) dollars;
(2) Second violation: Two hundred fifty (250) dollars;
(3) Third violation: Three hundred fifty (350) dollars;
(4) Additional violations in excess of three: Five
hundred (500) dollars.
D. Appeal. A person to whom a notice of civil infraction has
been directed may file an appeal with the Yelm Municipal Court to
contest the issuance of such notice or the amount of any civil
penalty imposed, not later than ten (10) days following the service
of the notice or thirteen (13) days following date of service by
mail as evidenced by the postmark on the notice.
F. Accrual of Penalty Pending Appeal, The civil penalty for
a continuing violation does not accrue during the pendency of a
timely appeal; however, the enforcement officer may impose a daily
civil penalty from the date of service of the notice of civil
infraction if he or she finds that the appeal is frivolous or is
J solely intended to delay compliance, or if the appeal is not
timely.
F. Continuing Duty to Correct. Payment of a civil penalty
pursuant to this chapter does not relieve a person of the duty to
abate a nuisance that was ordered by the enforcement officer.
G. Collection of Ciyil Penalty.
1. The civil penalty constitutes a personal obligation
of the person to whom the notice of civil infraction is directed.
Any civil penalty assessed must be paid to the city treasurer
within seven (7) calendar days from the date of service of notice
of civil infraction or, if an appeal was filed pursuant to section
10, within seven calendar days of the decision of the municipal
court.
2. The city attorney, on behalf of the city, is
authorized to collect the civil penalty by using appropriate legal
remedies, the seeking or granting of which shall neither stay nor
terminate the accrual of additional per diem civil penalties as
long as the violation continues.
H. Other Remedies Preserved
1. The provisions of this chapter are not exclusive of
other rights and remedies of the city under other provisions of the
Yelm Municipal Code.
2. In addition to the city's right to assess costs and
penalties against owners as provided in its ordinances, the city
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shall retain all rights of lien and other rights against the
property in question for costs that remain unpaid, in the manner
and form provided by state law and city ordinances.
Section 10. There is hereby added to the Yelm Municipal Code
section 9.48.050 which is to read as follows:
9 48 050 Criminal Penalties.
A. As an alternative to any other penalty provided in this
chapter or by law, any person who knowingly violates any provision
of this chapter or chapter 9.44 of the Yelm Municipal Code shall be
guilty of a misdemeanor.
B. Any person who knowingly obstructs or hinders or provides
false information to any officer or agent of the City of Yelm or
other governmental unit in the enforcement of this chapter is
guilty of a gross misdemeanor.
C. Any violation that is required by state law to be
prosecuted as a criminal offense shall not be prosecuted as a civil
infraction under this code.
Section 11. There is hereby added to the Municipal Code of Yelm
section 9.48.060 which is to read as follows:
9.48,060 Emergencies, Nothing in this chapter or chapter 9.44
of the Yelm Municipal Code shall prevent the enforcement officer or
any other officer of the City of Yelm or other governmental unit
from taking any other action, summary or otherwise, necessary to
eliminate or minimize an imminent danger to the health or safety of
any person or property, or the unlawful obstruction of any public
way or easement. The city's costs of abating any such nuisance,
summarily or otherwise, shall be recoverable in the same manner and
to the same extent as costs of abating nuisances under any other
provisions of this chapter, in addition to or as an alternative to
any other rights or remedies the city may possess.
Section 12. There is hereby added to the Yelm Municipal Code
section 9.48,070 which is to read as follows:
9.48,070 Safeguards. In any case where a nuisance is abated
the enforcement officer or other officer, agent or employee shall
proceed with due care and without unnecessary destruction of
property. In all cases the enforcement officer shall be authorized
to employ such assistance and adopt such means as may be necessary
to effect the entire abatement of the nuisance.
Section 13, Severability. If any section, sentence, clause or
phrase of this ordinance is for any reason held illegal, invalid or
unconstitutional by the decision of any court, that decision shall
not affect the validity of the remaining portions. The city
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council hereby declares that it would have approved this ordinance
and each section, subsection, sentence, clause and phrase hereof,
irrespective of the fact that any one or more sections,
subsections, sentences, clauses or phrases be declared illegal,
invalid or unconstitutional.
Section 14. The following sections and chapters of the Yelm
Municipal Code are hereby repealed:
Sections 9.44.030 and 9.44.040
chapter 9.40
Section 15, Effective Date. This ordinance shall become effective
five (5) days from and after its passage, approval and publication
as provided by law.
Passed by the city council and approved by the Mayor of the City of
Yelm, Washington, at a regular meeting thereof this 25th day of
Sept. , 1991.
Attest:
City Clerk
Approved as to form:
City Attorney
PASSED: September 25, 1991
APPROVED: September 25, 1991
PUBLISHED: October 3, 1991
EFFECTIVE: October 8, 1991
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