HomeMy WebLinkAbout84-18 - Ord. Amending Mason County Code Title 15 for Hearings Examiner Procedures for Code Enforcement ORDINANCE NUMBER - -I
AMEN DM ENT TO MASON COUNTY CODE TITLE 15
ORDINANCE reinstating previously removed sections of Mason County Code Title 15 Chapter
15.13, Section 15.13.045 relating to Hearing Examiner procedures for Code Enforcement
cases.
WHEREAS, under the authority of the Washington State Planning Enabling Act and Local
Project Review (RCW 36.70 and 36.70B) Mason County is taking legislative action to revise its
development code; and
WHEREAS, Mason County Code Title 15, Section 15.13.045 was removed by Ordinance 49-17
on August 22, 2017 in an effort to streamline code enforcement actions strictly through the
administrative process; and
WHEREAS, the Mason County Community Services code enforcement staff finds there are
cases that are difficult to achieve compliance without the assistance of the Hearing Examiner
process; and
WHEREAS, reinstating the previously removed sections of Title 15, Chapter 15.13 relating to
the Hearing Examiner process and procedures will allow code enforcement to be more
successful in achieving compliance; and
WHEREAS, on October 15, 2018 the Mason County Planning Advisory Commission held a
public hearing to consider the amendment and passed a motion to recommend approval of
said amendment; and
WHEREAS, the Commissioners considered the proposed amendment at a duly advertised
public hearing on December 4, 2018; and
WHEREAS, the Board of County Commissioners took public testimony from interested
parties, considered all the written and oral arguments, testimony and comments presented;
and
WHEREAS, the Board of County Commissioners also considered the Staff Report and
recommendations of the Mason County Planning Advisory Commission; and
WHEREAS, the Board of County Commissioners finds that the proposed amendment to Title
15, Chapter 15.13 complies with all applicable requirements of the Growth Management
Act, the Comprehensive Plan, and the Mason County Code, and that it is in the best public
interest; and
BE IT HEREBY ORDAINED, the Mason County Board of Commissioners hereby approves and
ADOPTS amendments to the Mason County Code Title 15, Chapter 15.13 relating to the
Hearing Examiner process for code enforcement cases as described in Attachment A.
/I w
DATED this 4 day o2018.
BOARD OF COUNTY COMMISSIONERS
MASON COUNTY, WASHINGTON
ATTEST:
zR4Kdy Neatherlin, Chair
Melis a e ry, C erk if the Board
APPROVED AS TO FORM: Terri Drexler, Commissioner
hite ief DPA Kevin Shutty, Co missioner
z
CHAPTER 15.13 ENFORCEMENT
15.13.005 SEVERABILITY
This title shall be governed by the laws of the State of Washington. In the event that any portion or section of
this title be declared invalid or unconstitutional by a court of competent jurisdiction,the remainder of the title
shall not be affected and shall remain in full force and effect.
15.13.010 ENFORCING OFFICIAL; AUTHORITY
A. The Review Authority shall be responsible for enforcing those codes and ordinances to which this title
applies,and may adopt administrative rules to meet that responsibility. The Review Authority may
delegate enforcement responsibility,as appropriate. An employee of one Review Authority department
may commence an enforcement action of violations of codes and regulations of other departments.
B. Inspections: The purpose of these inspection procedures are to ensure that a property owner's rights are
not violated. When it is necessary to make an inspection to enforce the provisions of this Chapter,or
when the Director has reasonable cause to believe that a violation has been or is being committed,the
Director or his duly authorized inspector may enter the premises,or building at reasonable times to
inspect or to perform any duties imposed by this Chapter,provided that if such premises or building be
occupied that credentials be presented to the occupant and entry requested. If such premises or building
be unoccupied,the Director shall first make reasonable effort to locate the owner or other person having
charge or control of the premises or building and request entry. If entry is refused,the Director shall
have recourse to remedies provided by law to secure entry.
15.13.020 PENALTY
A. Non-conforming structures and other non-conforming land modifications shall be a continuing
violation. Every day of violation shall be a separate violation. It shall be a violation to own,use,
control,maintain,or possess a portion of any premises which has been constructed,equipped,
maintained,controlled,or used in violation of any of the applicable provisions,MCC Section 15.03.005,
in this Title. Structures or activities which were made or conducted without a permit,when a permit
was required at the time of first action,do not vest and require current permits. Any person,firm,or
corporation who violates or who solicits, aids,or attempts a violation are accountable under this Chapter
and are subject to the penalty provisions as well as the Hearing Examiner process.
B. Compliance with the requirements of those codes and regulations listed under MCC Section 15.03.005
shall be mandatory,and violations of those codes are within the purview of this Chapter.
C. Any private party who intentionally,recklessly, or negligently violates any of the applicable codes,
regulations and ordinances is guilty of a misdemeanor.This includes,but is not limited to,a violation of
notice and order,a violation of notice of civil violation,a violation of a warning notice,a violation of a
stop work order,violation of a do not occupy order,or failure to comply with orders of the hearings
examiner.Any person convicted of a misdemeanor under this section shall be punished by a fine of not
more than five hundred dollars,or by imprisonment not to exceed ninety days,or by both,unless
otherwise required by state laws. Each such person is guilty of a separate offense for each and every day
during any portion of which any violation of any of the applicable provisions is committed, continued,
permitted,or aided by any such person.
D. Notwithstanding the provisions of any other code,the Review Authority is authorized to issue civil
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infractions for violations of any provision of any code or regulation listed under Section 15.03.005. The
enforcement officer may issue a civil infraction ticket of up to two hundred fifty dollars($250)for the
first violation and up to five hundred dollars($500)for the second and subsequent violations. Second
and subsequent violations refer to any violation of any provision of Section 15.03.005 within two years
of the first violation. A violator is : (1)one who owns the property and knows the violation is
occurring,and fails to take action to abate it; (2)one who causes the violation to occur or solicits,
commissions,requests, or aids the violation; (3)one who has a virtual exclusive right to possess the
land,as in a tenant,equitable title owner,or trust beneficiary,and who aids, abets,commissions,
solicits,requests,or knowingly allows a violation to occur on the land;or(4)to the maximum extent
allowed under Washington law, any company whose employee or employees violates any provision of
Title 15. Proof in District Court shall be by a preponderance of the evidence. To the extent that there is
no conflict with this regulation, all such civil infractions under this regulation shall be governed by the
standards and procedures set forth in Revised Code of Washington 7.80(Civil Infractions). Each day of
the violation shall be considered a separate offense.
15.13.030 APPLICATION
A. This Chapter does not apply to enforcing the Shoreline Management Plan regulations.Except when the
Review Authority has determined that MCC 17.50.500 and part II of WAC 173-27 do not address a
certain aspect of an enforcement procedure.
B. Actions under this chapter may be taken in any order deemed necessary or desirable by the Review
Authority to achieve the purpose of this chapter or of the Development Code.
C. Proof of a violation of a development permit shall constitute prima facie evidence that the violation is
that of the applicant and/or owner of the property upon which the violation exists. An enforcement
action under this chapter against the owner and/or applicant shall not relieve or prevent enforcement
under this chapter or other ordinance against any other responsible person,which,to the extent allowed
by state law, includes an officer or agent of a business or nonprofit organization who,while violating
the applicable provisions, is acting on behalf of,or in representation of,the organization.
D. Where property has been subjected to an activity in violation of this Chapter,the County may bring an
action against the owner of such land or the operator who performed the violation. In addition, in the
event of intentional or knowing violation of this Chapter,the review authority or Hearing Examiner may
deny authorization of any permit or development approval on said property for a period up to ten(10)
years from the date of unauthorized clearing or grading. While a case is pending,the County shall not
authorize or grant any permit or approval of development on the property.
E. Nothing in this chapter shall be construed to prevent the application of other procedures,penalties or
remedies as provided in the applicable code or ordinance.
15.13.035 WARNING NOTICE
Prior to other enforcement action,and at the option of the Review Authority, a warning notice may be issued.
This notification is to inform parties of practices which constitute or will constitute a violation of the
development code or other development regulation as incorporated by reference and may specify corrective
action.This warning notice may be sent by certified/registered mail,posted on site or delivered by other
means.The parties shall respond to the county within twenty(20)days of the postmark,posting on site,or
delivery of the notice.
15.13.040 NOTICE OF CIVIL VIOLATION
A. Authority.A notice of civil violation may be issued and served upon a person if any activity by or at the
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direction of that person is,has been,or may be taken in violation of the applicable codes under Section
15.03.005. A landowner,tenant,or contractor may each be held separately and joint and severally
responsible for violations of the applicable codes and regulations.
B. Notice. A notice of civil violation shall be deemed served and shall be effective when posted at the
location of the violation and/or delivered to any person at the location and/or mailed first class to the
owner or other person having responsibility for the location and not returned.
C. Content.A notice of civil violation shall set forth:
1. The name and address of the person to whom it is directed.
2. The location and specific description of the violation.
3. A notice that the order is effective immediately upon posting at the site and/or receipt by the
person to whom it is directed.
4. An order that the violation immediately cease,or that the potential violation be avoided.
5. An order that the person stop work until correction and/or remediation of the violation as
specified in the order.
6. A specific description of the actions required to correct,remedy,or avoid the violation, including
a time limit to complete such actions.
7. A notice that failure to comply with the regulatory order may result in further enforcement
actions, including civil fines,criminal penalties and/or appearance before the Hearing Examiner.
D. Remedial Action. The Review Authority may require any action reasonably calculated to correct or
abate the violation, including but not limited to replacement,repair, supplementation,revegetation,or
restoration.
15.13.045 HEARING BEFORE THE HEARING EXAMINER
A. A person to whom a notice of a civil violation is issued,and has not been resolved will be
scheduled to appear before the Hearings Examiner after the notice of civil violation is issued.Extensions may
be granted at the discretion of the appropriate Review Authority.
B. Correction of Violation.The hearing will be canceled if the applicable Review Authority
determines that the required corrective action has been completed or is on schedule for completion as set by
the Review Authority at least 48 hours prior to the scheduled hearing.
C. Procedure.The Hearings Examiner shall conduct a hearing on the civil violation pursuant to
the rules of procedure of the Hearings Examiner.The applicable Review Authority and the person to whom
the notice of civil violation was directed may participate as parties in the hearing and each party may call
witnesses.The county shall have the burden of proof to demonstrate by a preponderance of evidence that a
violation has occurred or imminently may occur and that the required corrective action will correct the
violation.A Hearing Examiner's order may prohibit future action,and violations of that order may lead to
penalties under this ordinance. The determination of the applicable Review Authority shall be accorded
substantial weight by the Hearings Examiner in determining the reasonableness of the required corrective
action.
D. Decisions of the Hearings Examiner.
1. The Hearing Examiner shall determine whether the county has established by a
preponderance of the evidence that a violation has occurred and that the required correction
will correct the violations and shall affirm,vacate,or modify the county's decisions regarding
the alleged violation and/or the required corrective action,with or without written conditions.
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2. The Hearing Examiner shall issue an order to the person responsible for the violation which
contains the following information:
a. The decision regarding the alleged violation including findings of fact and
conclusions based thereon in support of the decision;
b. The required corrective action;
c. The date and time by which the correction must be completed;
d. The civil fines assessed based on the criteria in subsection(D)(3)of this section;
e. The date and time by which the correction must be completed;
3. Civil fines assessed by the Hearing Examiner shall be in accordance with the civil fine in
Section 15.13.050.
a. The Hearing Examiner shall have the following options in assessing civil fines:
i. Assess as issued and thereafter; or
ii. Assess civil fines beginning on the correction date set by the applicable
Review Authority or alternate correction date set by the Hearings Examiner
and thereafter; or
iii. Assess less than the established civil fine set forth in Section 15.13.050 based
on the criteria of subsection(D)(3)(b)of this section; or
iv. Assess no civil fines.
b. In determining the civil fine assessment,the Hearing Examiner shall consider the
following factors:
i. Whether the person responded to staff attempts to contact the person and
cooperated with efforts to correct the violation;
ii. Whether the person failed to appear at the hearing;
iii. Whether the violation was a repeat violation or if the person has previously
violated the applicable codes,regulations, and ordinances;
iv. Whether the person showed due diligence and/or substantial progress in
correcting the violation;
v. Whether a genuine code interpretation issue exists;and
vi. Any other relevant factors.
c. The Hearing Examiner may double the civil fine schedule if the violation was a
repeat violation or the person has previous violations of the applicable codes,
regulations,or ordinances.In determining the amount of the civil fine for repeat
violations the Hearing Examiner shall consider the factors set forth in subsection
(D)(3)(b)of this section.
4. Notice of Decision.Upon receipt of the Hearing Examiner's decision.the Review Authority
shall send by first class mail and by certified mail return receipt requested a copy of the
decision to the person to whom the notice of a civil violation was issued.The decision of the
Hearing Examiner shall be rendered within 10 working days of the hearing.
E. Failure to Appear.If the person to whom the notice of civil violation was issued fails to
appear at the scheduled hearing,the Hearing Examiner will enter a default order with findings pursuant to
subsection(D)(2)of this section and assess the appropriate civil fine pursuant to subsection(D)(3)of this
section.The county will enforce the Hearing Examiner's order and any civil fine from that person.
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I . Appeal to Superior Court. See Section 15.11.040 Judicial Appeal
15.13.050 CIVIL FINES
A. Authority.A person who violates any provision of the Development Code,or who fails to obtain any
necessary permit,who fails to comply with the conditions of a permit,or who fails to comply with a
notice of civil violation shall be subject to a civil fine.
B. Amount.The civil fine assessed shall not exceed one thousand dollars($1,000.00)for each violation.
Each separate day,event,action or occurrence shall constitute a separate violation.
C. Notice.A civil fine shall be imposed by an order of the review authority,and shall be effective when
served or posted as set forth in 15.13.040(B).
D. Collection.
1. Civil fines shall be immediately due and payable upon issuance and receipt of order of the review
authority.The Review Authority may issue a stop work order until such fine is paid.
2. If remission or appeal of the fine is sought,the fine shall be due and payable upon issuance of a
final decision.
3. If a fine remains unpaid thirty(30)days after it becomes due and payable,the Review Authority
may take actions necessary to recover the fine. Civil fmes shall be paid into the County's
abatement fund unless otherwise provided by ordinance. The Review Authority, in its discretion,
may determine that assessments in amounts of five hundred dollars($500)or more shall be
payable in not to exceed three equal annual installments. The payments shall bear interest equal to
that charged on delinquent taxes under RCW 84.56.020. Such an account in good standing shall
not be considered as delinquent unpaid fines as provided in subsection(d)(4)of this section.
4. Unpaid fmes shall be assessed against the property and be recorded on the assessment roll,and
thereafter said assessment shall constitute a special assessment against and a lien upon the
property,provided that fmes in excess of the assessed value shall be a personal obligation of the
property owner,and fines assessed against persons who are not the property owner shall be
personal obligations of those persons.
E. Immediately upon its being placed on the assessment roll,the assessment shall be deemed to be
complete,the several amounts assessed shall be payable, and the assessments shall be liens against the
lots or parcels of land assessed,respectively.The lien shall be subordinate to all existing special
assessment liens previously imposed upon the same property and shall be paramount to all other liens
except for state,county and property taxes with which it shall be upon a parity. The lien shall continue
until the assessment and all interest due and payable thereon are paid.
F. All such assessments remaining unpaid after thirty(30)days from the date of recording on the
assessment roll shall become delinquent and shall bear interest at such rates and in such manner as
provided for in RCW 84.56.020,as now or hereafter amended, for delinquent taxes.
G. If the County Assessor and the County Treasurer assess property and collect taxes for this jurisdiction,a
certified copy of the assessment shall be filed with the County Treasurer.The descriptions of the parcels
reported shall be those used for the same parcels on the County Assessor's map books for the current
year.
H. The amount of the assessment lien shall be billed annually by the Treasurer's Office on the date of the
assessment lien until paid and shall be subject to the same penalties and procedure and sale in case of
delinquency as provided for ordinary property taxes.All laws applicable to the levy, collection and
enforcement of property taxes shall be applicable to such assessment.Notwithstanding the previous
provisions,the foreclosure process and sale process may be commenced within a year of the creation of
a lien when the Review Authority or the Hearing Examiner make a written request to the Treasurer's
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Office to commence the process.
15.13.055 COST RECOVERY
A. Authority.Notwithstanding any other code provision,a person who violates any provision of any code
or regulation under MCC Section 15.03.005,or who fails to obtain any necessary permit,or who fails to
comply with a notice of civil violation shall be subject to enforcement,Hearings Examiner, and
abatement costs.
B. Amount.The Review Authority shall keep an itemized account of the time spent by employees of the
county in the enforcement or abatement of any code or any regulation under Section 15.03.005.
C. Notice. Upon completion of the work for which cost recovery is proposed,the Review Authority shall
provide notice by certified mail return receipt requested to the property owner or other person on whose
behalf the costs were incurred.
D. Collection. Costs may be collected as provided in MCC Section 15.13.050(D)through(H)inclusive.
E. Civil fines and funds collected shall be deposited in the abatement fund of the county. If the Director
decides to close the fund,the remaining fund balance shall revert back to the general fund.
15.13.060 ABATEMENT
A. The Review Authority may abate the violation if corrective work is not commenced or completed
within the time specified in a notice of civil violation.
B. If any required work is not commenced or completed within the time specified,the Review Authority
may proceed to abate the violation and cause the work to be done and charge the costs thereof as a lien
against the property and any other property owned by the person in violation and as a personal
obligation of any person in violation.
15.13.070 REVIEW OF APPROVED PERMITS
A. Review: Any approval or permit issued under the authority of the Development Code may be reviewed
for compliance with the requirements of the Development Code,or to determine if the action is creating
a nuisance or hazard,has been abandoned,or the approval or permit was obtained by fraud or deception.
B. Review Authority Investigation: Upon receipt of information indicating the need for, or upon receiving
a request for review of permit or approval,the Review Authority shall investigate the matter and take
one or more of the following actions:
1. Notify the property owner or permit holder of the investigation; and/or
2. Issue a notice of civil violation and/or civil fine and/or recommend revocation or modification of
the permit or approval; and/or
3. Refer the matter to the County Prosecutor; and/or
4. Revoke or modify the permit or approval, if so authorized in the applicable code or ordinance;
and/or
5. Refer the matter to the Hearing Examiner with a recommendation for action.
15.13.075 REVOCATION OR MODIFICATION OF PERMITS AND APPROVALS
[[HANDLED BY APPROPRIATE DEPARTMENTS]]
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A. Upon receiving a Review Authority's recommendation for revocation or modification of a permit or
approval,the Hearing Examiner shall review the matter at a public hearing, subject to the notice of
public hearing requirements(Section 15.07.030). Upon a finding that the activity does not comply with
the conditions of approval or the provisions of the Development Code,or creates a nuisance or hazard,
the Hearing Examiner may delete,modify or impose such conditions on the permit or approval it deems
sufficient to remedy the deficiencies. If the Hearing Examiner finds no reasonable conditions which
would remedy the deficiencies,the permit or approval shall be revoked and the activity allowed by the
permit or approval shall cease.
B. Building Permits. The Building Official,not the Hearing Examiner has the authority to revoke or
modify building permits.
C. If a permit is not acted on within three(3)years of authorization,the permit is automatically revoked.
D. Reapplication. If a permit or approval is revoked for fraud or deception,no similar application shall be
accepted for a period of one year from the date of final action and appeal, if any. If a permit or approval
is revoked for any other reason, another application may be submitted subject to all of the requirements
of the Development Code.
CONSOLIDATED APPLICATION REVIEW CHART
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DECISION TYPE
PRIMARY TYPE I TYPE II TYPE III TYPE IV
DEPARTMENT Ministerial Administrative Quasi-judicial Legislative
DCD-Building •Building Permit •Mason Environmental •Appeal of Type I/II Decisions
Fire Marshal •Septic System Permit Permit for Septic System
Environmental Health •Water Adequacy
•Well Construction
•Land Modification Permit
•Declaration of Parcel •SEPA DNS/MDNS •SEPA EIS •Rezones
Combination •Short Plat and Large Lot •Appeal of Type I/II Decisions •Amendments to the
•Land Modification Permit Subdvision •Preliminary Plat,Final Plat, Comprehensive Plan
•Boundary Line Adjustment and Large Lot Subdivision •Development Regulations,
•Development Regulations •Development Regulations- Shoreline Master Program
Administrative Variance Special Use and Variance
•Resource Ordinance- •Mobile Home/RV Park
Mason Environmental Permit Permit
and Variance •Removal of Platted Utility and
DUD- Planning •Shoreline Master Prgm- Drainage Easement
Admin.Substantial •Resource Ordinance-
Development Permit Variance,Mason Conditional
Environmental Permit,and
Reasonable Use Exception
•Flood Ordinance Variance
•Shoreline Master Program-
Substantial Development,
Conditional Use,and Variance
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