HomeMy WebLinkAbout2010-018 Chronic Nuisance Properties; YMC Amendment Title 11; YMC Addition 5.01.060 ORDINANCE NO. 2010 -18
AN ORDINANCE relating to abatement of and penalties, including license suspension or
revocation, for public nuisances; amending Title 11 of the Yakima
Municipal Code entitled "BUILDINGS ", adding a new Chapter 11.45
entitled "Chronic Nuisance Properties "; and adding Yakima Municipal
Code Section 5.01.060 as a new Section.
WHEREAS, RCW 35.22.280 empowers first class cities to define and abate
nuisances and impose fines upon persons responsible for creating or allowing nuisances; and
WHEREAS, the Yakima City Council finds that people should be able to enjoy
ownership, use and possession of property without the negative impacts caused by chronic
nuisance properties; and
WHEREAS, some persons who own or control property in the City of Yakima
allow their properties to be used for illegal purposes, with the result that these properties have
become chronic nuisance properties; and
WHEREAS, the current nuisance provisions of Yakima Municipal Code do not
provide adequate tools for abating chronic nuisances resulting from the use of properties for
illegal purposes; and
WHEREAS, chronic nuisance properties present serious health, safety and
welfare concerns and interfere with the quality of life, comfort and solitude of other persons
residing in the neighborhood; and
WHEREAS, chronic nuisance properties cause a financial burden upon the City
by the numerous calls for service to the properties because of the illegal activities that
repeatedly occur or exist on such properties; Now, Therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Section 11.45 entitled "Chronic Nuisance Properties" is added as a new Section
to the Yakima Municipal Code and reads as follows:
CHAPTER 11.45 CHRONIC NUISANCE PROPERTIES
Sections:
. 11.45.010 Definitions.
11.45.020 Violation.
11.45.030 Declaration of Chronic Nuisance Property and Procedure.
11.45.035 Owner Cooperation.
11.45.040 Correction Agreement.
11.45.050 Penalties.
11.45.060 Commencement of Action -- Enforcement.
11.45.070 Burden of Proof.
11.45.080 Remedies.
11.45.085 Additional remedies.
11.45.090. Suspension or Revocation of Business License.
1
•
11.45.010 Definitions For purposes of this chapter, the following words or phrases shall have
the meaning prescribed below:
"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 Chief,of Police determines is necessary in the interest of the general health,
safety and welfare of the community.
"Chief of Police" means the Chief of the Yakima Police Department or his or her designees.
"Control" means the power or ability to direct or determine conditions, conduct, or events
occurring on a property.
"Chronic nuisance property" means:
A. a property on which three or more nuisance activities as described in YMC
11.45.010(5) exist or have occurred during any sixty -day period or seven or more nuisance
activities have occurred during any twelve -month period, or
B. a property which, upon a request for execution of a search warrant, has been the
subject of a determination by a court two or more times within a twelve -month period that
probable cause exists that illegal possession, manufacture or delivery of a controlled substance
or related offenses as defined in RCW Chapter 69.50 has occurred on the property.
"Nuisance activity" includes:
A. a "most serious offense" as defined in RCW 9.94A;
B. a "drug related activity" as defined in RCW 59.18.130;
C. any of the following activities, behaviors or criminal conduct:
Assault, Fighting, Harassment or Reckless Endangerment, as defined in YMC Title 6;
Promoting, advancing or profiting from prostitution as defined in Chapter 9A.88 RCW;
Prostitution, as defined in YMC Title 6;
Permitting Prostitution, as defined in YMC Title 6;
Obstructing pedestrian or vehicular traffic, as defined in YMC Title 6;
Public Disturbance Noise, as defined in YMC Title 6;
Weapons violations, as defined in YMC Title 6 or the Revised Code of Washington;
Drug Traffic Loitering and /or Loitering for purposes of Prostitution, as defined in YMC Title 6;
Criminal street gang - related offense and /or pattern of criminal street gang activity, as defined
in YMC Title 6.
"Owner" means any person who, alone or with others, has title or interest in any property.
"Person" means an individual, group of individuals, corporation, partnership, association, club,
company, business trust, joint venture, organization, or any other legal or commercial entity or
the manager, lessee, agent, officer or employee of any of them.
"Person in charge" of a property means the owner and, if different than the owner, any other
person in actual or constructive possession of a property, including but not limited to, a lessee,
tenant, occupant, agent, or manager of a property under his or her control.
"Property" means any land and that which is affixed, incidental or appurtenant to land, including
but not limited to any business or residence, parking area, loading area, landscaping, building
or structure or any separate part, unit or portion thereof.
"RCW" means the Revised Code of Washington.
"YMC" means the Yakima Municipal Code.
11.45.020 Violation.
A. Any property within the City of Yakima which is a chronic nuisance property is in violation of
this Chapter and subject to its remedies;
B. Owners and other persons in charge who permit property to be a chronic nuisance property
shall be in violation of this chapter and subject to its remedies; and
C. An owner who fails to comply with YMC 11.45.035 is in violation of this chapter and may be
subject to penalties pursuant to YMC Chapter 5.52.
2
11.45.030 Declaration of Chronic Nuisance Property and Procedure.
A. The Chief of Police may declare that a property is a chronic nuisance property, as defined
in this chapter, when there are specific facts and circumstances documenting (1) the
occurrence of three or more nuisance activities on a property within sixty days or seven or more
nuisance activities within a twelve month period, or (2) activity on a property as described in
YMC 11.45.010(4)(b). The Chief of Police shall provide written notice of this declaration to the
persons in charge of the property. The notice shall be sent by first class mail or personally
served, and a copy shall be sent by certified mail. The notice shall contain:
1. the street address or a legal description sufficient for identification of the property;
• 2. a declaration that the Chief of Police has determined the property has become a
chronic nuisance property with a concise description of the nuisance activities that exist or that
have occurred;
3. a notice that the owner and other persons in charge of the property are subject to
monetary penalties as set forth in YMC 11.45.050.
4. a demand that the owner and other persons in charge respond to the Chief of
Police within seven days of service of the notice to discuss a course of action to correct the
nuisance;
5. a notice that, if the person in charge does not respond to the Chief of Police as
required in this section, or if the matter is not voluntarily corrected to the satisfaction of the
Chief of Police, the City may file an action to abate the property as a chronic nuisance property
pursuant to YMC 11.45.060 and /or take other action against the property or person in charge.
B. When a notice is issued pursuant to this section to a person in charge, other than an
owner or an owner's agent, who has permitted . a property to become a chronic nuisance
property, a copy of such notice shall also be sent by first class mail or personally served on the
owner of the property, and a copy shall be sent by certified mail.
C. If the owner or person in charge responds as required by the notice issued pursuant to
YMC 11.45.030A and agrees to a course of action to abate the nuisance activities, a written
correction agreement conforming to the requirements of YMC 11.45.040 shall be executed.
D. If (1) the agreed course of action does not result in the abatement of nuisance activities to
the satisfaction of the Chief of Police within thirty days of issuance of the notice pursuant to
YMC 11.45.030A, or within such longer period as permitted in writing by the Chief of Police or
(2) the person in charge fails to respond as required by the notice, the Chief of Police may refer
the matter to the City Attorney for initiation of proceedings pursuant to YMC 11.45.060.
11.45.035 Owner Cooperation.
An owner who receives a copy of a notice pursuant to YMC 11.45.030B describing a chronic
nuisance property permitted by a person in charge other than the owner or the owner's agent,
shall promptly take all reasonable steps requested in writing by the Chief of Police to assist in
abatement of the nuisance property. Such reasonable steps may include the owner taking all
actions and pursuing all remedies, including pursuing eviction of the person in charge, that are
(1) available to the owner pursuant to any lease or other agreement, and (2) consistent with •
state and local laws, including but not limited to RCW 59.18.580, the Victim Protection
Limitation on Landlord's Rental Decisions.
•
11.45.040 Correction Agreement.
A. A correction agreement is a contract between the City and the person in charge of the
chronic nuisance property in which such person agrees to promptly take all lawful and
reasonable actions, which shall be set forth in the agreement to abate the nuisance activities
within a specified time and according to specified conditions. The agreement shall be signed by
the person in charge and, if different, the owner. The agreement shall include the following:
1. The name and address of the person(s) in charge of the property;
3
•
2. The street address or a description sufficient for identification of the property, building,
structure, or land upon or within which the nuisance is occurring;
3. A description of the nuisance activities;
4. The necessary corrective action to be taken, and a date or time by which correction must
be completed;
5. An agreement by the person in charge that the City may inspect the property as may be
necessary to determine compliance with the correction agreement;
6. An agreement by the person in charge that the City may abate the nuisance and recover its
costs, expenses and monetary penalties pursuant to this chapter from the person in charge for
abating the nuisance if the terms of the correction agreement are not met; and
7. When a person in charge, other than an owner or an owner's agent, has permitted a
property to be a chronic nuisance property, an agreement by the owner to promptly take all acts
and pursue all remedies requested by the Chief of Police pursuant to YMC 11.45.035.
11.45.050 Penalties.
A. Except as provided in this section, in addition to any other sanction or remedial procedure
that may be available, the person in charge is subject to a penalty of up to $500 dollars per day
from the date of the notice issued pursuant to YMC 11.45.030A until the Chief of Police
confirms that the property is no longer a chronic nuisance property.
B. If the agreed course of action results in the abatement of nuisance activities to the
satisfaction of the Chief of Police within thirty days of the notice issued pursuant to YMC
11.45.030A, or such longer period allowed by the Chief of Police pursuant to YMC 11.45.030D,
the matter shall not be referred to the City Attorney and the person in charge shall not be
subject to any penalty pursuant to this Chapter.
C. An owner who fails to comply with YMC 11.45.035 is subject to a civil penalty of up to
$25,000.
11.45.060 Commencement of Action -- Enforcement.
Upon referral pursuant to YMC 11.45.030, the City Attorney may initiate an action in any court
of competent jurisdiction to abate a chronic nuisance property, to impose penalties pursuant to
this chapter, to seek alternative remedies under city or state laws and seek any other relief
authorized by law.
11.45.070 Burden of Proof.
In an action against a person in charge to abate a chronic nuisance property or to recover
penalties authorized by this chapter, the City shall have the burden of proof to show by a
preponderance of the evidence that the property is a chronic nuisance property pursuant to this
chapter.
In an action against an owner to recover penalties authorized by YMC 11.45.050D, the City
shall have the additional burden to prove by a preponderance of the evidence that the owner
failed to comply with YMC 11.45.035. Copies of police incident reports and reports of other city
departments documenting nuisance activities shall be admissible in such actions. Additionally,
evidence of a property's general reputation and the reputation of persons residing in or
frequenting the property shall be admissible in such actions.
11.45.080 Remedies.
A. If the Court determines a property is a chronic nuisance property pursuant to this chapter
the court may order any of the following: (1) order the person in charge to immediately abate
nuisance activity from occurring on the property, (2) order that the Chief of Police shall have the
right to inspect the property to determine if the court's orders have been complied with, (3)
impose a penalty of up to $500 per day against the person in charge for each day from the date
the notice pursuant to YMC 11.45.030A was issued until the Chief of Police confirms that the
•
4
property is no longer a chronic nuisance property, (4) make any other order that will reasonably
abate nuisance activities from occurring on the property, including authorizing the City to take
action to abate nuisance activities from occurring upon the property if other court orders are not
complied with or do not abate nuisance activity on the property and providing that the costs of
such City action are to be paid for by the person in charge of the property.
B. If the court finds that an owner failed to take all reasonable steps requested in writing
pursuant to YMC 11.45.035, the court may impose a civil penalty up to $25,000.
11.45.085 Additional remedies.
A. In addition to the remedies authorized by YMC 11.45.080, if as part of its order abating a
chronic nuisance property, the court orders a person in charge to cease renting or leasing a
property, the court may order the person in charge to pay relocation assistance not to exceed
$3,300 to any tenant (1) who must relocate because of the order of abatement, and (2) the
court finds not to have caused or participated in nuisance activities at the property.
B. For purposes of this section, YMC 11.45.085, the term "tenant" shall have the meaning as
set forth in RCW 59.18.030(8).
11.45.090 Suspension or Revocation of Business License.
In addition to any other remedy that is authorized by this chapter or other laws, upon the
finding by a court that a property is a chronic nuisance property pursuant to this chapter, the
person in charge is subject to the suspension or revocation of a business license or other
license issued by the City and required at such property, including, but not limited to licenses
issued pursuant to YMC Title 5.
YMC 11.45.090 Annual Reporting Required.
The Chief of Police, with assistance of the City Attorney, shall provide an annual report on the
implementation of this ordinance. The report shall list each instance in which the Chief of
Police declared a property to be a chronic nuisance property and provided written notice to the
persons in charge of the property. For each instance, the report shall describe:
A. The location and use of the property (i.e., whether residential or commercial, and if
residential the number of units, and if commercial, the size and nature of the commercial use).
B. The nuisance activities on which the declaration was based.
C. The administrative and legal process resulting from the notice, including:
1) whether the notice resulted in a written correction agreement;
2) whether the notice resulted in the abatement of nuisance activities to the satisfaction of
the Chief of Police; and, if not,
3) whether the Chief of Police referred the matter to the City Attorney for initiation of
proceedings; and, if so,
4) whether the City Attorney initiated proceedings; and, if so,
5) whether a court determined the property to be a chronic nuisance property; and, if so,
6) what orders the court made, including penalties, other orders to abate the nuisance
activities, or relocation assistance to tenants; and
7) whether the City revoked any business licenses on the property.
D. A summary of the consequences of the declaration to date, including actions taken by
persons in charge to abate the nuisance activities, whether these included the eviction of
tenants, and whether the nuisance activities appear to be permanently abated.
The report shall also include brief assessments by the Chief of Police and the City Attorney on
the overall effectiveness of the ordinance in reducing the problems resulting from chronic
nuisance properties.
The Chief of Police and City Attorney shall provide the report to the City Council in February of
each year on the chronic nuisance property declarations in the prior calendar year. Any
5
declarations not fully resolved by the end of the calendar year shall be described again in the
following year's report.
Section 2. Yakima Municipal Code Section 5.01.060 is hereby added as a new Section, to
read as follows:
5.01.060 Business License — Denial, Revocation, or Refusal to Renew — Grounds --
Appeals.
A. The codes administration manager, or his or her designee, has the power and authority to
deny, revoke or refuse to renew any business license issued under the provisions of this Title in
order to further the public interest in public health, safety and welfare. The codes administration
manager, or his or her designee, shall provide notice to said licensee in writing by certified mail
of the denial or revocation of, or refusal to renew, his or her license and on what grounds such
a decision was based. The codes administration manager may deny, revoke or refuse to renew
any license issued under this Title upon a finding that any applicant, licensee, owner, or any
officer or agent thereof:
1. Has omitted to disclose any material fact necessary to make a statement not misleading, in
any application for the license; or
2. Has charges pending against her /him or has been convicted of a crime or offense that
directly relates to the activity for which the license is required, and the time elapsed since the
date of conviction or release from jail or prison, whichever is more recent, is less than ten years;
or has been convicted of several crimes including at least one within the last ten years;
provided, however, that any licensee whose license is revoked because of charges pending
against her /him may engage in the activity for which the license is required, pending a final
decision on the charges; or
3. Has been subject to an adverse finding in any judgment or order which directly relates to
the activity for which the license is required, in any judicial or administrative proceeding in which
fraud, deceit, coercion, breach of trust, unfair method of competition, unfair or deceptive trade
act or practice, or assertion of unconscionable contractual provisions, or other similar act, .
practice, or conduct, on the part of the licensee - applicant is proven, and the time elapsed since
the judgment or order is less than ten years; or
4. Has violated or failed to comply with any applicable provisions of this Code or rule or
regulation prescribed under this Title; provided, that failure to obtain a license shall not be
grounds for license denial; or
5. Is in default in any payment of any fee or tax required under Title 3 or Title 5 of the Yakima
Municipal Code; or
6. Has been subject to an adverse finding in any judgment or order, in any judicial or
administrative proceeding for violation of any provision of a City ordinance or rule or regulation
prescribed thereunder pertaining to fire, building, health, sanitation, zoning, weights and
measures, consumer protection, environmental protection, or any other ordinance or law and
that is applicable to the licensed activity or licensed premises; or
7. Has been determined to have discriminated against any person because of race, color, age,
sex, marital status, sexual orientation, gender identity, political ideology, creed, religion,
ancestry, national origin, or the presence of any sensory, mental, or physical handicap, in the
course of licensed activity, in violation of a City ordinance, law, rule or regulation prescribed
thereunder; or
8. Has violated or failed to comply with any final order of the codes administration manager or
Hearing Examiner; or
9. Has failed to complete the application for a license as required by this Code; or
10. Has failed to obtain a license or permit required by state or other law necessary to .engage
in the licensed activity; or
11. Has failed to comply with RCW Chapters 49.12 and 28A.28, and rules and regulations
promulgated pursuant thereto, regarding employment of minors; or
6
12. Any licensee has permitted or authorized his /her agent to violate or fail to comply with any
provision of this Code; or
13. The property at which the business is located has been determined by a court to be a
chronic nuisance property as provided in YMC Chapter 11.45.
B. No license issued under YMC Title 5 shall be revoked, denied or refused renewal by the
codes administration manager except in accordance with the procedure and on the grounds
provided in this Title. Parties aggrieved by the codes administration manager's decision to
revoke, deny or refuse renewal of a license issued under this Title shall have the same
opportunity for appeal, under the same procedure as is described in YMC 5.52.120.
The period of denial, revocation or non - renewal shall be at least one year, and the licensee or
any person (as defined in YMC Section 5.52.020) in which the licensee is a principal shall not
again be licensed during such period.
C. Appeals. The applicant may appeal the decision of the codes administration manager to
deny, revoke or refuse to renew a business license. An appeal of the administrative official's
decision shall be to the legislative body in accord with the process and procedure set forth in
YMC 15.16.040 and 15.16.050. Decisions of the legislative body may similarly be appealed to
the Yakima County Superior Court in accord with the process and procedure set forth in YMC
15.16.060.
The filing of an appeal shall not stay any actions of the administrative official denying, revoking
or refusing to issue a business license associated with the business license decision being
appealed.
Section 3. Severability. Each separate provision of the ordinances set forth herein shall
be deemed independent of all other provisions. If any provision of YMC Chapters 11.45,
5.01.060 or 5.01.070, or any part thereof, be declared invalid, all other provisions, or parts
thereof, shall remain valid and enforceable.
Section 4. This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 20 day of April, 2010.
4t ibed/k. ( I
ATTEST: Micah Cawley, Y� '►/ ay
or
C
lerk
Publication Date: April 23, 2010
Effective Date: May 23, 2010
7
•
• BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. P
For Meeting Of April 20, 2010
ITEM TITLE: Public Hearing and consideration of a Chronic Nuisance Property Ordinance
SUBMITTED BY: Jeff Cutter, City Attorney
CONTACT PERSON/TELEPHONE: 575 -6030
SUMMARY EXPLANATION: The attached ordinance was prepared in response to the City
Council's direction to provide an ordinance that was modeled after an ordinance recently
enacted by the City of Seattle to deal with properties that were associated with high volumes of
criminal behavior. The proposed ordinance was provided to the Public Safety Committee for
consideration on January 20, 2010. The Committee decided that the ordinance should be
reviewed by the entire Council. On March 30, 2010 the City Council reviewed the proposed
ordinance during a study session and decided to advance the proposal to a public hearing
during the April 20, 2010 City Council meeting. The Memorandum from Jeff Cutter that
• accompanied the ordinance during the study session is included in the packet as a brief
explanation of the content of the ordinance.
Resolution Ordinance X Contract Other(Specify) Memorandum
Contract Mail to (name and address):
Phone:
Funding Source
--- \_Ntik. N -t.
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Determine further action following public hearing
BOARD /COMMISSION /COMMITTEE RECOMMENDATION: On March 30, 2010 Council
approved advancing the ordinance for public hearing and potential adoption.
COUNCIL ACTION:
ill
•
MEMORANDUM
TO: Honorable Mayor Cawley and City Council Members
Dick Zais, City Manager
FROM: Jeff Cutter, City Attorney
DATE: March 25, 2010
SUBJ: Draft Chronic Nuisance Property Ordinance for Council Study Session
The attached Draft Ordinance is provided at the City Council's request for consideration as
a proposed means of addressing the existence of certain properties within the city that have
been associated with recurring illegal or undesirable occurrences. The draft ordinance is
modeled after an ordinance that was recently enacted by the City of Seattle to address
similar concerns. This draft was reviewed by the Public Safety Committee on January 20,
2010 and at that meeting it was decided that the ordinance should be reviewed by the full
Council during a study session. No other recommendation was made by the Committee at
that time. There have been several minor revisions to the draft since that meeting, most
III noteworthy of which is a change in the responsible City official from the Codes Manager to
the Chief of Police.
The proposed ordinance creates a new definition for what are considered "chronic nuisance
properties" and provides a process by which those properties may be abated to stop the
undesirable occurrences that give rise to that classification. It has been the view that these
"chronic nuisance properties" present a public health, safety and welfare concern toward
the City's residents that the City must address. The concepts proposed by this ordinance
are relatively untested within Washington and the opportunity for guidance from Seattle's
experience is limited at this point. The ACLU has initially indicated that its view of the
action proposed by the ordinance is over - reaching.
The draft ordinance provides definitions for its application and interpretation, specific
notice requirements to inform those associated with a problem property of the concerns and
actions necessary to address them, opportunities for the "person in charge" to cooperatively
respond to the problem and ultimately provides remedies, including judicial action, to
address instances where compliance is not accomplished voluntarily. The draft ordinance
also establishes an annual reporting requirement whereby City staff must fully advise the
City Council of the properties subject to the operation of the ordinance during a given year
and what the outcome of the City's action was.
Finally, to address the proposed remedies associated with business licensing and operation
of properties determined to be "chronic nuisance properties" when licensing is required, the
• proposed ordinance adds two sections to YMC Title 5, the business licensing Title, to
1
authorize denial or revocation of a business license if a property owner fails to comply with •
the City's abatement requirements.
It is important to be aware that the utilization of this proposed ordinance will result in
economic and personnel costs associated with the required notices involved, title searches
to identify property owners, and the administrative obligations necessary to comply with
lawful process. Ultimately, litigation is also a distinct possibility as a result of applying the
ordinance.
•
2