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10/16/2012 12 Action Plan for Graffiti Abatement Enhancements Now Ar. BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: October 16, 2012 ITEM TITLE: Action Plan for Graffiti Abatement Enhancements SUBMITTED BY: Tony O'Rourke, City Manager Joan Davenport, Acting Director of Community Development CONTACT Tony O'Rourke, City Manager PERSON/TELEPHONE: SUMMARY EXPLANATION: The attached memorandum outlines five areas in which enhancements are discussed in the response to graffiti abatement. First is a change in the Yakima Municipal Code Section 11.11 which will refocus enforcement effort to "stop punishing the victim" of a graffiti offense. Other issues discussed in this memorandum include increased police enforcement efforts, the strengthening of the volunteer efforts in graffiti abatement by hiring a targeted coordinator, an enhanced citizen reporting program that is web and mobile device friendly in addressing public property graffiti. Resolution Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR • SUBMITTAL: City Manager STAFF RECOMMENDATION: BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ action plan - ❑ Memo from Kunkler on Graffiti Abatement ❑ Chapter 11.11 YMC Amendment ❑ Form.Graffiti Consent release M EM 0 RANDUM TO: Honorable Mayor Cawley and Members of the City Council FROM: Tony O'Rourke, City Manager Mark Kunkler, Senior Assistant City Attorney Chris Waarvick, Director of Public Works Dominic Rizzi, Yakima Police Chief Joan Davenport, Acting Community Development Director DATE: October 16, 2012 SUBJECT: Action Plan for Graffiti Abatement Enhancement Efforts The following enhancements are proposed to address and improve the notification, response and enforcement of graffiti abatement. 1. Revised Municipal Code Provisions - Attached to this summary report is a memorandum from Mark Kunkler which outlines the proposed changes to and draft text of the Municipal Code with the primary intent that the "victim" of graffiti will not be subject to assessment of fine or penalty. Several other significant modifications are proposed to the Municipal Code. 2. Yakima Police Department Enforcement and Suppression Graffiti is a persistent problem which is extremely annoying to all citizens of Yakima. The Department does have several tools with which to combat graffiti, which have been successful to varying degrees over the past few years. Our plan at YPD is to centralize and intensify our use of these tools. • We will not be able to accomplish our goal alone. We will increase our efforts to involve the community in our anti - graffiti efforts by partnering with the Graffiti Paint - Out program run by the Office of Neighborhood Development Services. There are also community and church groups who engage in volunteer graffiti paint out programs, and we would work with these entities as well. • Several years ago a member of the Gang Enforcement Team was assigned to specialize in the investigation of graffiti crimes in the City of Yakima. The officer so assigned was able to keep track of members of the community who were committing graffiti crimes and successfully brought many criminal graffiti cases to court. This function was eliminated a couple of years ago when the gang unit 'was reduced in size due to budget cuts. Now that we are able to increase the gang unit's size and capabilities, we will reinstate and expand this function. • The officer so assigned would be expected to collect intelligence information on suspects who are committing graffiti crimes, and to pursue prosecution against those suspects for whom probable cause could be developed. Further, the Department currently has about 15 "graffiti cameras" which are being placed by the Community Services Division. In light of the upcoming reduction of officers assigned to Page 1 of 2 Community Services, it would be best to assign the placement and monitoring of the cameras to the officers assigned to graffiti enforcement. 3. Volunteer Coordinator at ONDS One of the programs sponsored by the Office of Neighborhood Development Services (ONDS) is a volunteer coordinator who directs citizen volunteers, as well as persons required to provide "Community Service" assignments. A primary role for these volunteers is graffiti clean -up (other projects may also include neighborhood clean -up efforts such as those sponsored by the City of Yakima Refuse Division). In 2013, the City will fund a temporary employee (and fuel for the vehicle) for a person to supervise a daily graffiti abatement volunteer crew. The addition of a staff person devoted to a graffiti crew will allow ONDS to support an emphasis on graffiti abatement, as well as continue to provide the existing services. The Graffiti Abatement volunteer crew will be available to monitor problem areas as well as respond to new reports of graffiti. Currently, the graffiti abatement program has focused on residential properties. Most often, commercial properties prefer to address graffiti with matching paint. For this program, paint has been donated from the land fill and other sources. The paint color used by the City Volunteer program is a "generic" color. All owners of private properties that have been tagged with graffiti must sign a release to allow volunteers to enter the private property and give permission for the paint -out. The volunteer crews carry the release forms and attempt to get permission on -site prior to painting out the graffiti. The Graffiti Release forms will also be available over the internet. 4. Enhanced Public Reporting System The City of Yakima Information Technology Services staff will soon release a citizen reporting system for graffiti and all other code concerns. The Public Reporting system will be available over the internet for computers and mobile devices. Based on citizen reports, city departments will follow up to investigate and enforce codes. 5. Graffiti on public signs, parks, and other facilities The City has a significant problem with graffiti tags on public signs, poles, dumpsters, and other public facilities. City parks experience routine graffiti assaults. City divisions of Parks, Streets and Refuse respond to address graffiti tags on their facilities. However, manpower limitations may hinder immediate action to remove the tags. Franchised utilities, such as power and telephone systems have a responsibility to clean graffiti from their facilities: However, response times for graffiti removal from these facilities is delayed and sometimes ignored. Assistance from the citizen volunteer graffiti abatement crew may be available for some of the facilities. Assistance to the park facilities would be logical for these volunteers in cooperation with the Parks Division. See Attachment 1 for the Proposed Amendments to the Yakima Municipal Code 11.11 regarding Graffiti Abatement Page 2 of 2 CITY OF YAKIMA LEGAL DEPARTMENT 200 Sout ahird Street, Yakima, Washington 98901 (509)575 -6030 Fax (509)575 -6160 MEMORANDUM September 25, 2012 TO: Tony O'Rourke,. City Manager Jeff Cutter, City Attorney Joan Davenport, AICP, Acting Director, Community Development FROM: Mark Kunkler, Senior Assistant City Attorney SUBJECT: Graffiti Abatement — Proposed Amendment to Chapter 11.11 YMC It is planned to submit to the City Council on October 16, 2012 an Ordinance amending Chapter 11.11 YMC concerning abatement of graffiti. The following is. a discussion of the existing provisions of this chapter, as well as the proposed changes. A. Existing Code. The existing provisions of Chapter 11.11 YMC establish the following general procedures and remedies for the abatement of graffiti • Declaration of graffiti as nuisance • Issuance of "Notice of Intent to Remove Graffiti." Under this provision, the owner of the property is given a notice requiring the owner to paint over or abate the graffiti within 15 days of the date of the Notice. Failure to comply will subject the owner to a $400 civil infraction, abatement by the city, and filing of a lien against the owner's property for the cost incurred by the city for abatement. • • Execution of "Voluntary Correction Agreement." In lieu of a notice to abate, the city could enter into a voluntary correction agreement with the owner. The agreement set a schedule for abatement, required execution of a consent form, and stipulated that the owner would be responsible for any costs of abatement incurred by the city in the event of breach of the agreement. Memorandum to Honorable Mayor and Members of the City Council October 8, 2012 Page 2 • Lien for Costs. The existing code also authorizes the city to file a lien against the owner's property for city costs incurred in abating the graffiti. B. Proposed Amendments. In researching various graffiti abatement codes for other cities, I found the City of Burien's code. It appeared that the City of Burien and the City of Yakima had adopted similar provisions — with the notable exception that the "victim" owner was not made subject to assessment of a fine or penalty. Using this format as a basis, the following general revisions are recommended: • Declaration of Nuisance. This provision is retained. • Issuance of "Notice of Intent to Remove Graffiti." A Notice of Intent to Remove Graffiti is retained, but significantly altered. The recommended Notice removes the $400 penalty and, instead, provides that the owner has five days (as opposed to fifteen days) to (a) remove the graffiti himself or herself; or (b) request assistance through the City of Yakima Graffiti Abatement Program. The Notice advises that if the graffiti is not removed or abated, or if the owner has not contacted ONDS to enroll in the graffiti abatement program, the city will proceed to paint or remove the graffiti. • Description of Graffiti Abatement Program. The "voluntary correction agreement" provision is removed. In its place is a description of the Graffiti Abatement Program and options available under such program. Participation requires execution of a consent and release from liability form enabling city crews or contractor(s) to enter upon the owner's property and paint over or remove the graffiti. • Modified Enforcement. Instead of imposition of a $400 infraction penalty and lien mechanism, the new provisions state that the city may enter upon the owner's property to paint over or remove the graffiti. If consent to enter is withheld, the new provision states that the city may invoke other nuisance abatement provisions available under the municipal code (Chapter 11.10 YMC) or other applicable law. The effect of the proposed amendment is to place greater emphasis on voluntary clean- up and participation in the city's graffiti abatement program. It is anticipated that this emphasis will resolve the great majority of cases. For those situations in which the owner refuses to comply or to allow abatement under the city's graffiti abatement Memorandum to Honorable Mayor and Members of the City Council October 8, 2012 Page 3 program, the city reserves the right and ability to invoke formal nuisance abatement procedures under other codes and state law. The "appeal" mechanism under the existing code is retained with one general change. Instead of appeals going to the City Council, such appeals would go the director of the community development department. The director would then refer the appeal to the City Manager, who would conduct any appropriate hearing and make the decision. Any appeal of the City Manager's decision would go to the Hearing Examiner. Chapter 11.11 GRAFFITI ABATEMENT Sections: 11.11.010 Graffiti deemed nuisance. 11.11.020 Definitions. 11.11 030 Graffiti— Notice to remove. 11.11.035 Graffiti Failure to remove Penalty. 11.11.040 City abatement program — Request for assistance. 11.11.050 Removal by city — Enforcement. 11.11.055 11.11.060 Appeal to city council Stay of proceedings. 1. Removal by city. 11.11.010 Graffiti deemed nuisance. A. Graffiti and other defacement of public and private property, including walls, rocks, bridges, fences, gates and other structures, trees and other real and personal property within the city, constitutes a nuisance. B. Although it is appropriate, where possible, to request that the courts require people who are convicted of acts of defacement and vandalism involving application of graffiti to public or private property to restore the property so defaced, damaged or destroyed, apprehension of persons who commit such acts is difficult because the offenses involved can be committed quickly and surreptitiously so that witnesses to the acts are frequently nonexistent. C. Although the public should be encouraged to cooperate in the elimination of graffiti by reporting the same to the proper authorities, it is also important to eliminate the presence of graffiti from the community so that the product of the illegal acts of those involved in application of graffiti is not visible and the property on which the graffiti is located and surrounding properties do not suffer diminution of value. 11.11.020 Definitions. For the purposes of this chapter, the following words shall have the following meanings: A. "Graffiti" means the defacing, damaging or destroying by painting by whatever means or marking of ink, chalk, dye, or other similar substances or placement of stickers or appliques on public or private buildings, structures and places. B. "Graffiti abatement procedure" means the abatement procedure which identifies graffiti, issues notice to the landowner to abate the graffiti, and cures the absence of response. 1 C. "Private contractor" means any person with whom the city shall have duly contracted to remove graffiti. D. "Director" means the city of Yakima director of community and- esenemic development and t#eif his or her designee. 11.11.030 Graffiti — Notice to remove. A. Whenever the director determines that graffiti exists on any public or private buildings, structures, and places which are visible to any person utilizing any public road, parkway, alley, sidewalk, or other right -of -way within the city, the director shall cause a notice to be issued to abate such nuisance. The property owner shall have fifteen five days after the -data receipt of the notice to remove the graffiti or the same will be subject to abatement by the city. The director may specify a period in excess of f1fteeR five days after the date of notice to remove the graffiti when weather conditions do not permit the painting of exterior surfaces or abatement by other means. B. The notice to abate graffiti pursuant to this section shall cause a written notice to be served upon the owner(s) of the affected premises, as such owners' name and address appears on the last property tax assessment rolls for Yakima County, Washington. If there is no known address for the owner, the notice shall be sent in care of the property address. The notice required by this section may be served in any one of the following manners: 1. By personal service on the owner, occupant or person in charge or control of the property; 2. By registered or certified mail addressed to the owner at the last known address of said owner. If this address is unknown, the notice will be sent to the property address. If notice is served by U.S. first class mail, notice shall be deemed to have been received three days after depositing such notice, postage prepaid, in the United States mail in a properly addressed envelope. C. The notice required by this section shall be in substantially the following form' NOTICE OF INTENT TO REMOVE GRAFFITI Date. To Your property located at , Yakima, Washington, has graffiti in violation of Chapter 11.11 of the Yakima Municipal Code. This Notice is given pursuant to YMC 11.11.030 requiring such graffiti to be removed or painted over, or your participation in the city's graffiti abatement program, within five (5) days of your receipt of this Notice. 2 Within five (5) days of the receipt of this Notice, you must: (a) Paint over or remove the graffiti yourself; OR (b) Contact the City of Yakima Office of Neighborhood Development Services (ONDS) to participate in the city's graffiti abatement program. If your property is eligible for participation, the city or its contractor will perform the removal or painting. (You may provide paint matching the underlying color of the defaced surface; if not, the citv or its contractor will use its own paint.) ONDS Graffiti Abatement Program may be contacted at (509) 575 - 6101. IF THE GRAFFITI IS NOT REMOVED OR PAINTED OVER, OR IF YOU HAVE NOT REQUESTED TO PARTICIPATE IN THE GRAFFITI ABATEMENT PROGRAM, WITHIN FIVE DAYS OF YOUR RECEIPT OF THIS NOTICE, the City of Yakima will paint over or remove the graffiti using materials of its choice. NOTICE IS HEREBY GIVEN that you-arc required, by Chapter -41.11 of the Yakima Municipal Code, at All persons having any objection to, or interest in said matters, are hereby notified to submit any objections or comments in writing to the Director of Community and Economic Development of the City of Yakima within ten (10} eight (8) days from the date of this notice. If no objections or comments to the notice are received by the City, the City will, at the conclusion of the fifteen (15) day period, proceed with abatement of the graffiti inscribed on your property at your expense without further notice. If you cannot afford to remove or paint-ever the graffiti, or arc physically unable to do thc work involved; you may qualify for accictance programs. Plcaec sontast thc City of Yakima Housing Office at (phone it currently 575 6101) to ccc if you qualify. 11.11.040 City abatement program — Request for assistance. Subject to availability of funding and personnel, the city makes available a graffiti abatement program. Owners of property within the city, and any owner who receives a notice issued pursuant to 11.11.030 to remove graffiti, may request assistance from the ciy's graffiti assistance program to abate graffiti placed on their property. Participation in such graffiti abatement program shall include the following: 3 (1) Applicant shall sign a consent and release from liability form approved by the city authorizing city personnel and/or its contractors to enter upon the owner's,property for the purpose of abating the graffiti. Upon execution, such consent and release shall be in effect until revoked in writing by the owner. (2) Applicant may provide paint, brushes and /or equipment to enable city personnel or its contractors to abate the graffiti. If applicant does not provide paint, the city or its contractors may abate the graffiti by application of paint provided by the city or contractor. City and its contractors will attempt to match the paint with the underlying color of the defaced surface, but such matching cannot be guaranteed. (3) For applicants who have received a notice issued pursuant to 11.11.030 to remove graffiti, acceptance into the city's graffiti abatement program shall stay the five -day compliance requirement, or such other compliance deadline established in such notice by the director. The city or its contractors shall not authorize nor undertake to provide for the painting or repair of any more extensive area than the area where the graffiti is located. (5) The city reserves to right to establish, modify and amend its graffiti abatement program, and to define by rule or policy standards of eligibility for participation, methods of abatement and scheduling of abatement activities. som pleted • 191")1-9Pfiat¢ - 4 r n a 11.11.050 Removal by city — Enforcement. Upon failure of persons to comply with the notice by the designated date, or such continued date thereafter as the director approves, or upon failure or refusal of the owner to participate in any available city graffiti abatement program, then the graffiti may be abated by city forces or by private contract, and the city or its private contractor is expressly authorized to enter upon the premises for such purposes during regular business hours or at times mutually agreeable with the property owner or occupant. All reasonable efforts to minimize damage from such entry shall be taken by the city. If the city provides for the removal of the graffiti, it shall not authorize nor undertake to provide for the painting or repair of any more extensive area than the area where the graffiti is located. When graffiti is painted over, the city or its private contractor shall attempt to match the paint with the underlying color of the defaced surface. Property owners in the City of Yakima may consent in advance to city entry onto private property for graffiti removal purposes. If the owner, occupant or other person in control of the private property refuses to permit entry onto the property, the city may seek any available enforcement for nuisance abatement pursuant to chapter 11.10 of this code, or other remedy available under this code or state law. •- -- --," - - - --• _ .._ - - _ -_ _ .•- = - - - • 5 11.11.066 11.11.060 Appeal te- sity -GGIA-11sil Stay of proceedings. A. Upon receipt of a timely written appeal from the owner or person occupying or controlling the premises affected, the director shall, within ten days of receipt of said timely objection or rat appeal forward the objection to the Yakima city council city manager. The Yakima city council city manager shall conduct a hearing. The director or their designee, the owner, and other parties entitled to be served with the notice to abate graffiti may participate as parties in the hearing and each party may call witnesses. Any complainant or person affected by the graffiti may appear and present evidence. The city shall have the burden of demonstrating by a preponderance of evidence that the graffiti at issue is in violation of this chapter and that a determination of hardship should not issue. Following such hearing, the Yakima city council city manager shall: 1. Issue a determination of intent to proceed; 2. Issue a determination of hardship, or 3. Issue a determination of termination of proceedings. that there is a quorum. B. A determination of intent to proceed shall be served in the same manner as the notice to abate graffiti contained in YMC 11.11.030(B).11.11.030. Such determination shall notify the property owner of the city's intent to proceed with the abatement ten days after the issuance of the determination of intent or fifteen days after the issuance of the notice to abate graffiti, whichever is later. C. A determination of hardship shall stay the enforcement of this chapter for a specified period. A determination of hardship shall be issued to give appropriate effect to special and extenuating circumstances which, in order to do substantial justice, warrant the exercise of discretion to adjust the timeframes, standards, and other provisions of this chapter. Examples of circumstances which may 6 warrant such exercise of discretion include, without limitation: medical illness or disability affecting a property owner's ability to comply, absences from Yakima County; and bona fide insurance coverage disputes that create a definite risk that enforcement of this chapter would unfairly result in a substantial economic Toss to the property owner. D. Any person aggrieved by the decision of the city manager may appeal to the Hearing Examiner as set forth in chapter 1.43 of this code and in accordance with the procedures of chapter 15.16 of this code nuisance. The director may sock judicial proses, as is deemed necessary, to carry out the abatement. 7 CITY OF YAKIMA Department of Community Development Office of Neighborhood Development Services (ONDS) 129 North 2nd Street Yakima, Washington 98901 PROPERTY OWNER CONSENT AND RELEASE OF LIABILTY GRAFFITI ABATEMENT I declare that I am the owner of property located at: , Yakima, Washington I acknowledge that I have requested services from the City of Yakima which may require access to the aforementioned premises. I understand that only the area covered by graffiti will be cleaned or painted and not the entire structure. I also understand that there are no promises being made about the color of the paint or quality of the services or materials used in performing this graffiti removal. By signing this form, I give permission to the City of Yakima, its contractors and agents, to enter my property to cover or remove the graffiti using methods that the City and /or its contractors or agents decides. I understand that by signing this form I am granting the City of Yakima, its contractors and agents, permission to remove or cover graffiti from my property, but I acknowledge that they are not obligated to do so. By signing below, I hereby release, discharge and hold harmless the City of Yakima, its elected and appointed officials, employees, contractors, insurers, volunteers and agents from any and all claims, causes of action, demands, rights, damages, costs, loss of service, expenses, legal expenses, including subrogation or liens, for damage caused by or related to actions, services and vehicles of the City of Yakima, its contractors, employees, volunteers and /or agents, while performing the requested services, unless such damage is caused by the active negligence or willful misconduct of the City, its officials, employees, contractors, agents and volunteers. This consent and release of liability shall remain in effect until revoked in writing by property owner. Property Owner: Printed Name Property Owner Signature Date: Witnessed City of Yakima /ONDS