The purpose of this chapter is to establish an efficient procedure for enforcement of zoning and subdivision code violations which provides due process of law for violators, ensures the city's ability to require corrective action and to impose penalties in appropriate circumstances.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

The procedures set forth in this chapter shall be utilized to enforce violations of this title and the city's Shoreline Master Program.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

It is unlawful for any person to initiate, maintain, or cause to be initiated or maintained the use of any structure, land or property within the city without first obtaining the permits or authorizations required for the use by the applicable provisions of this title and the Shoreline Master Program.

B.

It is unlawful for any person to use, construct, locate, demolish, or cause to be used, constructed, located, or demolished any structure, land or property within the city in any manner that is not permitted by the terms or conditions of any permit or authorization issued pursuant to the applicable provisions of this title or the Shoreline Master Program.

C.

In addition to the above, it is unlawful to:

1.

Remove or deface any sign, notice, complaint or order required by or posted in accordance with this chapter;

2.

To misrepresent any material fact in any application, plan, environmental checklist, or other information submitted to any city official for the purposes of obtaining any permit, approval, or other authorization pursuant to this title or the Shoreline Master Program;

3.

Fail to comply with any of the requirements of a stop work order or emergency order issued under this chapter;

4.

Fail to comply with any of the applicable provisions of this title or the Shoreline Master Program; and

D.

Each violation of a specific provision of this title or the Shoreline Master Program, and each violation of a specific term or condition of any permit, approval, or authorization issued thereunder, shall constitute a separate violation for purposes of enforcement action, and each day or portion of a day that a violation occurs or continues to exist shall also constitute a separate violation.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

The building official, city engineer, and city planner shall each have the responsibility for enforcement of this chapter and shall each be collectively referred to herein as "enforcement officer." These officials may call upon the police, fire, building, public works or other appropriate city departments to assist in enforcement. As used in this chapter, "building official," "city engineer" and "city planner" shall also mean his or her duly authorized representative.

B.

This chapter shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.

C.

It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, occupier or other person responsible for the condition and use of the land, buildings, and other structures or facilities within the scope of this title.

D.

No provision of or any term used in this chapter is intended to impose any duty upon the city or any of its officers or employees which would subject them to damages in a civil action.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Right of Entry. Upon presentation of proper credentials, the enforcement officer may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any real property, building, or premises subject to the consent or warrant, in order to perform the duties imposed by this chapter.

B.

Investigation. The enforcement officer shall investigate any structure or use which the enforcement officer reasonably believes does not comply with the applicable standards and requirements of this title or the Shoreline Master Program.

C.

Citizen Complaint. The enforcement officer shall review every citizen complaint that has been properly submitted and verified pursuant to Section 15.28.060 and shall determine whether the allegations of the complaint, if true, are probable to constitute a violation. If the enforcement officer determines that the allegations, if true, would be probable to constitute a violation, the enforcement officer may commence an investigation.

D.

Commencement of Enforcement Action. If after investigation, the enforcement officer determines that there is substantial evidence that a violation exists, the enforcement officer may commence an enforcement action as authorized by this chapter or by the shoreline master program, where applicable.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Initiation. A citizen complaint may be initiated by written complaint filed on behalf of at least two aggrieved persons residing in separate residences within city limits. The complaint shall be filed with the city planner.

B.

Contents. The complaint shall contain the following information:

1.

The names and addresses of the citizens making the complaint;

2.

An identification of the location of the land or structure(s) upon or within which a violation is alleged to have occurred or to be occurring;

3.

An identification of the owner(s) of such land or structure(s), and/or the person(s) believed to be responsible for the violation;

4.

A specific identification of the nature of the violation and the date(s) and time(s) upon which the violation is alleged to have occurred or to be occurring;

5.

A statement of the reasons for which the citizens believe they are aggrieved or adversely affected by the violation;

6.

The signatures of the aggrieved citizens.

C.

Verification. Each citizen complainant shall verify, by written signature, the allegations set forth in the complaint in substantially the same form as the following:

I/We declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Issuance. Upon determining that there is substantial evidence that a violation of this title or of the terms and conditions of any permit, approval, or authorization issued thereunder, exists or has occurred, the enforcement officer may issue a notice of violation pursuant to this section.

B.

Contents. The notice of violation shall contain the following information:

1.

A description of the nature and extent of the violation(s);

2.

A separate statement of each standard, term, condition, code provision, requirement, or regulation violated;

3.

The date(s) and location(s) of the violation(s);

4.

A statement of what corrective action, if any, is necessary to cease the violation and/or comply with the applicable standard, term, condition, code provision, requirement, or regulation violated;

5.

A reasonable time for compliance as determined by the enforcement officer pursuant to the criteria set forth in subsection H of this section;

6.

Notice of the manner in which to contact the enforcement officer;

7.

Notice of the procedure to request an extension of the compliance date for good cause;

8.

An order imposing civil penalties in the amount determined by the enforcement officer pursuant to Section 15.28.013(A) for each violation and each day thereof;

9.

A statement that the civil penalties imposed will continue to accumulate for each day, or portion thereof, for which a violation occurs or continues to exist;

10.

A statement that failure to cease the violation and/or complete the required corrective action by the compliance date specified will result in further enforcement action, including but not limited to the accumulation of additional civil penalties, criminal prosecution, or civil injunction and/or declaratory relief;

11.

Notice of the procedure to request a mitigation of the civil penalty amount;

12.

Notice of any applicable administrative appeal provisions as authorized by this chapter or the Shoreline Master Program.

C.

Service. The notice shall be served on the owner, tenant or other person responsible for the violation, by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after reasonable efforts are made to obtain service, the whereabouts of the person(s) is unknown or service cannot be accomplished, and the enforcement officer makes an affidavit to that effect, then service of the notice upon such person(s) may be made by:

1.

Publishing the notice once each week for two consecutive weeks in a legal newspaper of general circulation within the city; and

2.

Mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known, or if unknown, to the address of the property involved in the proceedings.

D.

Posting. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.

E.

Other Actions May Be Taken. Nothing in this section shall be deemed to limit or preclude any other enforcement action or proceeding, as otherwise authorized pursuant to this chapter or any other applicable provision of local, state, or federal law, including but not limited to: issuance of a stop work order or emergency order; criminal prosecution, and/or injunctive and declaratory relief.

F.

Optional Notice to Others. The enforcement officer may mail, or cause to be delivered to any or all residential and/or nonresidential rental unit(s) in the structure or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, and the applicable requirements and procedures.

G.

Amendment. A notice may be amended at any time in order to:

1.

Correct clerical errors; or

2.

Cite additional authority for a stated violation.

H.

Determination of Compliance Date. When calculating a reasonable time for compliance, the enforcement officer shall consider the following criteria:

1.

The type and degree of violation cited in the notice;

2.

The stated intent, if any, of a responsible party to take steps to comply;

3.

The procedural requirements for obtaining a permit to carry out corrective action;

4.

The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and

5.

Any other circumstances beyond the control of the responsible party.

I.

Immediate Compliance Date Authorized. Notwithstanding the provisions of subsection H of this section, the enforcement officer may establish an immediate compliance date upon determining that any one of the following circumstances exists:

1.

The violator has previously been subject to an enforcement action for the same or substantially similar violation within the preceding two years;

2.

The violation has a significant probability of placing any person in imminent danger of substantial bodily harm, injury, or death;

3.

The violation has the significant probability of causing imminent substantial adverse impacts to the natural or built environment;

4.

The violation has the significant probability of causing substantial physical damage or harm to the property of another in an amount exceeding one thousand dollars.

J.

Notice Becomes Final Order Unless Appealed. Unless an appeal to the hearing examiner is commenced in accordance with Section 15.28.100, the notice of violation shall become the final order of the city. A copy of the notice shall be filed with the county department of records and elections. The enforcement officer may choose not to file a copy of the notice if the notice is directed only to a person responsible for the violation, other than the owner of the property.

K.

Request for Extension of Compliance Date. A request for extension of the compliance date specified in the notice of violation may be filed at any time prior to expiration of such compliance date. Such request shall be in writing and state the factual basis or grounds for the request. The extension request shall be filed with the city planner. The enforcement officer or city planner shall respond to a request for extension within ten days of receipt of the request by the city planner. The date for compliance established in the notice of violation shall not be tolled or stayed during review of the request for extension. Provided that, should the compliance date established in the notice of violation expire prior to a response to the request for extension, such compliance date shall be stayed from the date of expiration to the date of the enforcement officer's response to the extension request. Where the extension request is denied, the original compliance date as established in the notice of violation shall remain in effect for purposes of determining whether civil penalties are applicable. The decision of the enforcement officer on the request for extension shall be a final administrative decision that is not subject to further administrative appeal. The enforcement officer may grant an extension upon determining that any one of the following criteria have been demonstrated by substantial evidence. The violator shall have the burden of proof to establish any one of the following criteria:

1.

That compliance within the date specified is impracticable or improbable because of the complexity of the required corrective action;

2.

That compliance within the date specified is impracticable or infeasible because of seasonal considerations, the lack of available materials or labor, inability to gain access to the property or structure, or the time reasonably necessary to obtain any required permits, approvals, or authorizations;

3.

That compliance within the date specified is impracticable or infeasible because of any factors or circumstances beyond control of the violator.

L.

Duty to Comply, Verification of Compliance. It shall be the responsibility and duty of the violator to cease the violation and complete any required corrective action prior to the compliance deadline established in the notice of violation to avoid the imposition and collection of civil penalties. Upon cessation of the violation and/or completion of the required correction action, the violator shall notify the enforcement officer and request inspection and verification that the violation has ceased and/or the required correction action completed. The violation shall be deemed to exist or continue until such time as the inspection and verification has been completed. For purposes of imposing and collecting civil penalties, the date upon which compliance is achieved shall be the date of actual compliance as determined by the enforcement officer following inspection and verification.

M.

Assessment of Civil Penalty. Upon verification that the violation has ceased and/or any required corrective action completed, the enforcement officer shall determine whether any civil penalties should be imposed and collected in accordance with the notice of violation. Civil penalties may be imposed and collected wherever the enforcement officer determines that the date of actual compliance exceeded the compliance deadline set forth in the notice, unless an extension has been granted pursuant to subsection K of this section. Upon determining that civil penalties are to be imposed and collected, the enforcement officer shall notify the violator, in writing, of the basis for the imposition of the civil penalty, the date of actual compliance as determined by the enforcement officer, and the amount of the penalty. The amount of the civil penalty shall be the total cumulative penalty as determined from the daily civil penalty amount as specified in the notice of violation. Such written notice of civil penalty amount shall be served upon the violator in the same manner as provided in subsection C of this section.

N.

Payment of Civil Penalties. Every civil penalty imposed under this section shall become due and payable thirty days following the later of:

1.

Service of the notice of civil penalty amount provided for in subsection M of this section;

2.

A final administrative decision upon a timely filed request for penalty mitigation pursuant to subsection O of this section;

3.

A final administrative decision upon an appeal to the notice of civil violation pursuant to Sections 15.28.100 or 15.28.120.

O.

Request for Mitigation. The violator may request mitigation of the civil penalty amount by filing a written request with the city planner within fourteen calendar days following service of the notice of civil penalty amount as provided in subsection M of this section. Upon receipt of such request for mitigation, the city planner shall schedule a hearing before the hearing examiner. The mitigation request shall be heard and decided by the hearing examiner at a public hearing, and the hearing examiner may mitigate the civil penalty upon the violator's demonstration that the criteria for mitigation, as set forth in Section 15.28.013(A)(4), have been established by substantial evidence and justify the requested mitigation. The decision of the hearing examiner on the mitigation request shall constitute final administrative action on behalf of the city and shall not be reviewable by the city council or subject to judicial review.

P.

Appeal. Appeals to the issuance of a notice of violation shall be made pursuant to Section 15.28.110.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

Whenever a violation of this title will materially impair the city's ability to secure compliance with this code, or when the violation threatens the health or safety of the public or the environment, the enforcement officer may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. The stop work order shall be posted upon the property and served upon the parties responsible for the violation in the same manner as provided in Section 15.28.070(C) and (D). The failure to comply with a stop work order shall constitute a violation of this chapter. A stop work order may be issued in conjunction with any other enforcement action authorized by this chapter.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Whenever any use or activity in violation of this title threatens the health and safety of the occupants of the premises or any member of the public, the enforcement officer may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health and safety be corrected. The emergency order shall specify the time for compliance and shall be posted upon the property and served upon the parties responsible for the violation in the same manner as provided in Section 15.28.070(C) and (D). Failure to comply with an emergency order shall constitute a violation of this chapter. An emergency order may be issued in conjunction with any other enforcement action authorized by this chapter.

B.

Any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the city manager, with the assistance of the city attorney, is authorized to abate such nuisance summarily by such legal means as may be available. The cost of such abatement shall be recovered from the owner or person responsible or both in the manner provided by law.

(Amended during 2001 codification; Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Any person subject to a notice of violation issued pursuant to Section 15.28.070 may request an appeal hearing within fourteen calendar days after service of the notice of violation. When the last day of the period so computed is a Saturday, Sunday or federal or city holiday, the period shall run until five p.m. on the next business day. The request shall be in writing and shall contain at least the following information:

1.

The name and address of the appellant;

2.

An identification of the notice of violation appealed;

3.

A statement of the grounds for appeal and the factual or legal basis therefor;

4.

A request for compliance date extension, if any;

5.

A request for penalty mitigation, if any.

6.

The signature of the person filing the appeal.

B.

The written appeal shall be filed with the city planner, and upon receipt of the appeal request, the city planner shall schedule an appeal hearing before the hearing examiner. Notice of the date, time, and location of the appeal hearing appeal shall be served upon the appellant and/or the person(s) named on the notice of violation, and to any citizen complainant if the enforcement action was initiated by citizen complaint, pursuant to the procedures described in Section 15.28.070(C).

C.

The hearing examiner shall conduct a open record public hearing on the appeal. The appellant shall have the burden of proof to establish that the issuance of the notice of violation is arbitrary and capricious, unsupported by substantial evidence, erroneous as a matter of law, procedurally deficient, or violates constitutional rights.

D.

The public hearing before the hearing examiner shall be an "open record" hearing and the applicant and the enforcement officer shall be entitled to present testimony and other evidence in support or in opposition to the appeal. In addition, any citizen complainant, where applicable, who is present at the hearing may be allowed to present testimony or evidence to the hearing examiner, at the discretion of the board.

E.

Upon completion of the public hearing, the hearing examiner shall decide whether to:

1.

Sustain the notice of violation;

2.

Withdraw the notice of violation;

3.

Continue the review to a date certain for receipt of additional information;

4.

Modify, amend, or omit any violation(s) specified in the Notice, and/or any required correction action(s);

5.

Extend the compliance date specified in the notice upon demonstration by substantial evidence that the criteria in Section 15.28.070(0) have been established; and

6.

Mitigate the amount of the civil penalty specified in the Notice upon demonstration by substantial evidence that the criteria in Section 15.28.130(A)(4) have been established.

F.

The hearing examiner shall issue a written decision within fourteen calendar days of the date of the completion of the public hearing and shall cause the same to be sent to the person(s) named on the notice of violation under the same procedures described in Section 15.28.070(C), to be mailed to any citizen complainant, where applicable, and to be filed with the county department of records and elections.

G.

The decision of the hearing examiner shall be final and conclusive unless timely and properly appealed according to the procedures in Section 15.28.110.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Any party of record with standing, including the enforcement officer, may seek city council review of a final administrative decision by the hearing examiner upon an appeal filed pursuant to Section 15.28.100 or a permit revocation or modification request pursuant to Section 15.28.140. Such review shall be conducted by the city council in a "closed record" public hearing.

B.

The request for city council review shall be in writing and shall be filed with the city manager within fourteen calendar days following the issuance of the hearing examiner decision. The appeal shall contain the following minimum information:

1.

The name and address of the party requesting review;

2.

An identification of the hearing examiner decision to be reviewed;

3.

A statement of the grounds for review and the factual or legal basis therefor;

4.

A statement demonstrating the standing of the party requesting review;

5.

The signature of the party requesting review.

C.

Upon receipt of a properly filed request for review, the city manager shall schedule an appeal hearing before the city council. Notice of the date, time, and location of the review hearing shall be served upon the parties of record to the hearing examiner decision pursuant to the procedures described in Section 15.28.070(C).

D.

Council shall conduct a closed record public hearing review of the hearing examiner decision. The party requesting review shall have the burden of proof to establish that the hearing examiner decision is arbitrary and capricious, unsupported by substantial evidence, erroneous as a matter of law, procedurally deficient, or violates constitutional rights.

E.

The public hearing before the city council shall be an "closed record" review hearing and no new or additional testimony or evidence shall be presented or heard. Council review shall be limited to the record created before the hearing examiner. Council may, at its discretion, allow the presentation of argument on the record and/or the merits of the decision from the parties to the review hearing.

F.

Upon completion of the public hearing, the city council shall decide whether to:

1.

Affirm the decision of the hearing examiner;

2.

Reverse the decision of the hearing examiner in whole;

3.

Reverse the decision of the hearing examiner, in part, and remand the matter back to the hearing examiner for a modified or amended decision;

4.

Continue the review hearing to a date certain for receipt of additional information.

G.

The city council shall issue a written order within fourteen days of the date of the completion of the public hearing and shall cause the same to be sent to the parties of record to the hearing examiner decision, in accordance with the same procedures described in Section 15.28.070(C).

H.

The decision of the city council shall be the final and conclusive decision of the city.

(Amended during 2001 codification; Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

Any aggrieved person with standing to appeal a final administrative decision with respect to the issuance of a notice of violation pursuant to Section 15.28.070, the imposition of civil penalties pursuant thereto, or the revocation or modification of a permit pursuant to Section 15.28.140, may file a land use petition with the Superior Court, as provided in Chapter 36.70C RCW, within twenty-one days of the issuance of a final administrative decision of the city. The cost of transcription of all records ordered certified by the court for such review shall be borne by the appellant, as provided in RCW 36.70C.110.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Civil Penalties.

1.

Any person violating or failing to comply with the provisions of this title, including this chapter, shall be subject to a cumulative penalty in an amount not exceeding five hundred dollars per day for each violation from the date set for compliance, until compliance with the notice of violation or order is achieved;

2.

The penalty imposed by this section shall be collected by civil action brought in the name of the city. The enforcement officer shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the city manager, take appropriate action to collect the penalty.

3.

In determining the amount of civil penalty to be imposed, the building official or shall consider the following criteria:

a.

The nature of the violation;

b.

The extent of damage or potential risk to public health and safety caused or resulting from the violation;

c.

The existence of knowledge, intent, or malice on behalf of the violator;

d.

The economic benefit or advantage that accrued to the violator as a result of the violation;

e.

The estimated costs of the corrective action necessary to repair or minimize any damage or potential future risk to public health and safety;

f.

Whether the violator has previously been subject to enforcement action for the same or similar violation within the preceding two years;

g.

Whether the violation has or had the probability of placing any person in imminent danger of death or substantial bodily harm;

h.

Whether the violation has or had the probability of causing substantial physical harm to the property of another in an amount exceeding one thousand dollars.

4.

The following criteria may be used by the enforcement officer or hearing examiner to mitigate the amount of civil penalty imposed:

a.

That the violation was caused by or resulted from the wilful act, or neglect, or abuse of another for which the violator has no legal responsibility;

b.

That the violation was caused by or resulted from the ordinary negligence of the violator;

c.

That the presence of other mitigating circumstances and factors were not considered at the time the civil penalty amount was set;

d.

That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the defendant.

B.

Criminal Penalties.

1.

Any person who willfully, intentionally, recklessly, or maliciously violates or fails to comply with any of the applicable provisions of this title, including this chapter, or the terms and conditions of any permit, approval, or authorization issued thereunder, shall be guilty of a misdemeanor, except as otherwise provided in this section or title. Upon conviction, the violator shall be fined in a sum not exceeding one thousand dollars or be imprisoned for a term not exceeding ninety days, or be both fined and imprisoned. Each day of noncompliance with any of the applicable provisions of this title shall constitute a separate offense;

2.

Any person who willfully, intentionally, recklessly, or maliciously violates or fails to comply with any of the applicable provisions of this title, including this chapter, or the terms and conditions of any permit, approval, or authorization issued thereunder, and who has had a judgment or order imposing civil penalties entered against him or her pursuant to Section 15.28.070 or its predecessors, or a conviction under subsection (B)(1) of this section, within the past five years, shall be guilty of a gross misdemeanor Upon conviction, the violator shall be fined in a sum not exceeding five thousand dollars or be imprisoned for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance with any of the applicable provisions of this code shall constitute a separate offense;

3.

Any wilful, intentional, reckless, or malicious violation of a stop work order issued pursuant to Section 15.28.080 or an emergency order issued pursuant to Section 15.28.090 shall constitute a gross misdemeanor and shall punishable as provided for in subsection (B)(2) of this section;

4.

Any violation that creates or presents a substantial imminent threat to the public health and safety shall constitute a gross misdemeanor and shall punishable as provided for in subsection (B)(2) of this section;

5.

The commencement of any criminal prosecution authorized by section shall not be a prerequisite for, nor preclude the commencement of, any other enforcement measure otherwise authorized by this chapter. In addition to any criminal penalty which may be imposed by the city, a violator may also be liable for damages and costs of restoration described in Subsection 15.28.130(F).

C.

Additional Relief. The city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this title. The issuance of a notice of violation or commencement of criminal prosecution shall not be prerequisite for, nor preclude the commencement of, any suit for legal or equitable relief to effect compliance.

D.

Subdivision Violations. Any person, firm, corporation, or association or any agent of any person, firm, corporation, or association who violates any provision of Chapter 58.17 RCW or Sections 15.16.300 through 15.16.498 of this code, which relates to the sale, offer for sale, lease, or transfer of any lot, tract, or parcel of land, shall be subject to prosecution under this chapter for a gross misdemeanor. Each sale, offer for sale, lease or transfer of each separate lot, tract, or parcel of land in violation of any provision of Chapter 58.17 RCW or Section 15.16.300 through 15.16.498 shall be deemed a separate and distinct offense.

E.

Shoreline Master Program Violations. Civil and criminal penalties and additional enforcement actions for violations of the Shoreline Master Program shall be in accordance with this chapter, except as specified in the Carnation Shoreline Master Program, WAC Chapter 173-27, or the Shoreline Master Program, in which case, the procedures and penalties provided in the Master Program, WAC Chapter 173-27, or the Act shall supersede the provisions and penalties of this chapter.

F.

Recovery of Damages. In addition to any civil or criminal penalty which may be imposed by the city, a violator may also be liable for damages and costs of restoration for damage to public or private property and for any costs or expenses incurred by the city in responding to an immediate threat to public health and safety caused by or resulting from the violation. The city attorney is authorized to bring suit to recover such damages and costs, including reasonable attorneys' fees and costs associated with the recovery of such costs.

(Amended during 2001 codification; Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)

A.

Upon application by the enforcement officer, the hearing examiner shall have the authority to revoke or modify any permit, approval, or other authorization issued pursuant to this title.

B.

Upon determining that there is credible and substantial evidence to indicate that the criteria in subsection J of this section has been established, the enforcement officer may recommend to the hearing examiner that an existing permit or approval be revoked or modified. Upon recommendation of revocation or modification to the hearing examiner, the city planner shall schedule a public hearing before the hearing examiner.

C.

The enforcement officer shall provide written notice to the permit or approval holder, and all parties of record to the permit or approval, of the request to revoke or modify the permit or approval within five days of making such request to the hearing examiner. Notice shall be made to the permit or approval holder(s) pursuant to the procedures set forth in Section 15.28.070(C). The notice shall contain at least the following information:

1.

An identification of the permit or approval holder, the permit sought to be revoked or modified, and the location of the project or development site;

2.

The specific facts alleged by the enforcement officer to constitute substantial evidence that the criteria in subsection J of this section have been established;

3.

Where applicable, a statement of all permit terms and conditions, policies and regulations of this title, or any other local, state or federal laws and regulations, that the enforcement officer alleges have been violated;

4.

A statement identifying the particular criteria in subsection J of this section that the enforcement officer alleges has been established;

5.

A statement that the permit holder must immediately cease and desist further development activity and/or the continuation of a use or activity upon the site, in accordance with subsection D of this section;

6.

A statement that the failure to immediately cease and desist development activity and/or the continuation of a use or activity upon the site shall result in further enforcement action, including but not limited to the imposition of civil penalties and/or criminal prosecution;

7.

Notice of the date, time, and location of the public hearing scheduled before the hearing examiner.

D.

Upon completion of notification as provided in subsection C of this section, the permit holder shall immediately cease and desist any construction or other development activity upon the development site, and/or cease any use or activity, as otherwise authorized by the permit or approval for which revocation or modification is sought. Provided, that the permit holder may take such actions that are necessary to secure the development site and protect the environment and public health and safety from imminent threat or harm during the period for which development activity shall be suspended pursuant to this section. For example, the implementation of temporary erosion control measures and temporary security fencing may be approved to protect the environment and public health and safety. Prior to commencing such actions to provide for security and protection upon the development site, the permit holder shall request authorization in writing from the enforcement officer. The enforcement officer shall review the request for authorization and shall notify the permit holder within three days of the request as to whether the requested security and protection measures are approved. The permit holder may commence such security and protection measures immediately upon approval by the enforcement officer. Except as specifically authorized by the enforcement officer, the continuation or commencement of construction or other development activities, and/or of any uses or activities, as formally authorized by the permit sought to be revoked or modified, shall constitute a violation of this chapter and subject the permit holder to further enforcement action.

E.

The hearing examiner shall conduct a public hearing to determine whether there is substantial evidence to support the requested revocation or modification of the permit or approval. The administrator shall have the burden of proof to establish by substantial evidence that the criteria of subsection J of this section have been established. The hearing examiner may request from the enforcement officer, or permit holder, such additional information, studies, or reports as is necessary to evaluate whether the permit should be revoked or modified.

F.

Where the hearing examiner determines to revoke or modify the permit, the examiner may order that the permit holder undertake mitigation, restoration, or rehabilitation activities upon the site for areas that have been adversely impacted by the actions of the permit holder. Such order shall specify a date for commencement and completion of such mitigation, restoration, or rehabilitation activities. The order of the examiner shall be specifically enforceable, and the permit holder's failure to comply with such order shall constitute a violation of this chapter.

G.

The hearing examiner shall impose any additional reasonable conditions in connection with permit modification, as necessary to ensure that the conditions of the original permit and the standards and regulations of this title are met. Such additional conditions may include, but are not limited to:

1.

Conditions relating to mitigation sequencing and implementation;

2.

Conditions relating to permit expiration and/or construction schedule and timing;

3.

Conditions relating to the restoration or rehabilitation of areas adversely impacted by the actions of the permit holder;

4.

Conditions relating the prohibition of identified construction or development activity practices or materials;

5.

Conditions relating to the requirement for the use of best management practices or certain identified construction or development practices or materials;

6.

Conditions relating to the posting of bonds or other financial security to ensure that mitigation sequencing, restoration and rehabilitation, and/or other conditions are fully implemented.

H.

The hearing examiner shall prepare and adopt written findings of fact and conclusions in conjunction with its determination to revoke or modify a permit or approval. Such written findings of fact and conclusions may constitute the written decision of the examiner. The examiner's written findings of fact and conclusions should establish the basis for the determination upon the revocation or modification request, and the effect of the determination, including but not limited to the following:

1.

An identification of the permit holder, the permit sought to be revoked or modified and the location of the project, and the location of development site;

2.

A statement of the specific facts determined to constitute substantial evidence that the criteria in subsection J of this section has been established;

3.

Where applicable, a statement of all permit terms and conditions, standards and regulations of this title, or any other local, state or federal laws and regulations, with which the contested use, activity, or development has failed to comply;

4.

A statement identifying the particular criteria in subsection J of this section that the examiner concludes has been established;

5.

A statement that the permit holder must permanently cease and desist any further development activity and/or the continuation of a use or activity upon the site, that has been determined to be inconsistent with, or in violation of this title, or any other local, state or federal laws and regulations;

6.

A statement that the failure to permanently cease and desist prohibited development activity and/or the continuation of a prohibited use or activity upon the site shall result in further enforcement action, including but not limited to the imposition of civil penalties and/or criminal prosecution;

7.

Any required mitigation, restoration, or rehabilitation activities imposed pursuant to subsection G of this section.

8.

A statement of the applicable administrative appeal procedures.

I.

The examiner shall issue a written decision and findings of fact and conclusions (if separate) within fourteen days of the date of the examiner's final action taken at the public hearing. Provided, that the examiner's final action shall take effect immediately upon adoption at the public hearing. Upon issuance of such written decision and findings of fact and conclusions, the enforcement officer shall serve a copy of the decision upon all parties of record to the revocation or modification hearing in accordance with the procedures set forth in Section 15.28.070(C).

J.

A permit may be revoked or modified by the examiner upon demonstration by substantial evidence that any one of the following criteria has been established:

1.

The original permit application and/or SEPA checklist contained false, inaccurate, or misleading representations of fact, whether intentional or negligent, and such misrepresentations were material to the determination to approve and/or condition the permit in accordance with the applicable criteria and standards;

2.

The permit holder has engaged in construction or other development activity and/or commenced or continued any use or activity, that is inconsistent with, or in violation of, any applicable permit term or condition or the standards and regulations of this title, or any other applicable local, state, or federal laws and regulations; and that such use, activity, or development is probable to cause significant adverse impacts to the environment or the public health an safety.

K.

The final written decision of the hearing examiner may be appealed to the city council for closed record review in the manner provided in Section 15.28.110. Unless appealed, the decision of the hearing examiner shall be the final and conclusive decision of the city.

(Ord. 610 § 2 (Attach. B) (part), 2000: Ord. 587 § 2 (part), 1999)