Chapter 170 – CODE ENFORCEMENT

Sections:

170.05 User Guide

170.10 Permits Issued by Building Official – Responsibility Prior to Issuance of Permit

170.15 Permits Issued by Building Official – Certificate of Occupancy

170.20 Code Enforcement Officer – Duty To Investigate

170.25 Violation of This Code

170.30 Code Enforcement Officer – Order To Cease Activity

170.35 Code Enforcement Officer – Notice of Violation

170.40 Code Enforcement Officer – Notice of Civil Infraction

170.42 Failure To Satisfy Penalty

170.45 Variance, Permit, Decision or Discretionary Approval – General

170.50 Variance, Permit, Decision, or Discretionary Approval – Voiding

170.55 No Personal Liability for Acts or Omissions

170.60 Interpretations of This Code – General

170.65 Interpretations of This Code – Appeal

170.70 Conflict of Provisions

170.75 Easement Agreements Approved by the City Attorney

170.05 User Guide

This chapter contains a variety of provisions generally pertaining to the administration and enforcement of this code. Specifically, this chapter contains provisions in the following areas:

1.  Code administration.

2.  Code enforcement.

3.  Penalties for code violation.

4.  Status of discretionary decision.

5.  Liability of employees and others.

6.  Code interpretations and appeals.

7.  Conflict of provisions.

8.  Recording of easements.

170.10 Permits Issued by Building Official – Responsibility Prior to Issuance of Permit

1. General – The Building Official may not issue a permit to conduct any activity or to erect or alter any structure that does not conform to this code.

2. Required Information – The Building Official shall distribute to each applicant for a permit issued by that Official a list, prepared by the Planning Official, of all of the information and renderings required by this code.

3. Responsibility of Building Official – Upon receiving an application for any permit that is not exempt under subsection (7) of this section, the Building Official shall send the application and all relevant information to the Planning Department. The Building Official may not issue the permit until the permit application has been signed by the Planning Official.

4. Responsibility of the Planning Official – Upon receiving an application for a permit routed from the Building Official, the Planning Official shall promptly review it and make any necessary field inspection to determine whether the proposed development or activity complies with this code.

5. Additional Information – The Planning Official may require the applicant to provide any information or renderings required by this code, or any other information or renderings that are reasonably necessary to determine if the proposed development or activity complies with the provisions of this code.

6. Authorization by Planning Official – The Planning Official shall sign the permit application if the proposed development or activity conforms to the provisions of this code.

7. Permits Exempted from Review by the Planning Director – The Planning Director may specifically exempt categories of permits issued by the Building Official from the Planning Department review requirements of this section. The Building Official shall review applications for exempted permits for compliance with this code.

170.15 Permits Issued by Building Official – Certificate of Occupancy

1. General – It is unlawful to occupy a building or conduct a use requiring a certificate of occupancy unless the Planning Official has approved the certificate of occupancy for that building or use.

2. Responsibility of Building Official – Upon receipt of a request to issue a certificate of occupancy, the Building Official shall promptly notify the Planning Official of the request. The Building Official may not issue a certificate of occupancy until he/she receives written approval from the Planning Official.

3. Responsibility of the Planning Official – Upon receiving notice from the Building Official of a request for a certificate of occupancy, the Planning Official shall promptly review the request, and if necessary, conduct a field inspection to determine if the structure or use conforms to this code.

4. Issuance of the Planning Official Approval – The Planning Official shall sign and forward to the Building Department the Certificate of Occupancy if the building or use conforms to this code.

170.20 Code Enforcement Officer – Duty To Investigate

1. General – The Code Enforcement Officer shall, either upon a complaint or on his/her own initiative, investigate potential violations of this code.

2. Entrance on Private Property – The Code Enforcement Officer may enter upon private property to investigate potential violations of this code if he/she has a good faith belief that a violation exists or is occurring on the property. Before entering upon private property, the Code Enforcement Officer shall present his/her credentials to the owner or person in possession or charge of the property and demand entry. If entry is refused, the Code Enforcement Officer may use every lawful means and remedy to obtain entry.

170.25 Violation of This Code

1. General – It is a violation for any person to do or cause any of the following to be done contrary to this code, and for the property owner to permit any of the following to be done contrary to this code:

a. Construct, in any way alter, or move any improvement.

b. Engage in any activity.

c. Use or occupy any structure or land.

d. Conduct any use.

e. Create any conditions.

It is also a violation for any person to fail to perform any activity or obligation required by this code. Violation of a provision of this code is a civil infraction for which a monetary penalty may be imposed under this chapter.

2. Monetary Penalty – The amount of the monetary penalty per day or portion thereof for each violation is as follows:

a. First violation: $100.00;

b. Second violation: $200.00;

c. Third violation: $300.00;

d. Additional violation in excess of three: $500.00.

3. Continued Duty To Correct – Payment of a monetary penalty pursuant to this chapter does not relieve a person of the duty to correct the violation as ordered by the applicable department director.

4. Other Legal Remedies – Nothing in this chapter limits the right of the City to pursue other lawful criminal, civil, or equitable remedies to abate, discontinue, or correct unlawful acts under or in violation of this code.

170.30 Code Enforcement Officer – Order To Cease Activity

1. General – If the Code Enforcement Officer determines that any activity being conducted or any improvement being erected or altered:

a. Does not conform to the code, and

b. Such activity (i) involves use of noise-emitting heavy construction equipment or land surface modification, or (ii) poses an immediate threat to the safety, repose or right of quiet enjoyment of neighboring property owners, or to the general public,

he/she may issue an order to cease activity.

2. Posting and Notice – The Code Enforcement Officer shall prominently post this Order on the subject property and shall make reasonable attempts to send this Order on to the property owner, the person in charge of the property, or the person causing the activity to be conducted or the improvement to be erected or altered.

3. Effect – When an order to cease activity has been posted on the subject property, it is a violation for any person with actual or constructive knowledge of the order to conduct the activity or do the work covered by the order until the Code Enforcement Officer has removed the posted copy of the order and issued written authorization for the activity or work to be continued. If an order to cease activity is violated, the Code Enforcement Officer may issue a notice of civil infraction under KZC 170.40 and need not first issue a notice of violation.

4. Appeal – An order to cease activity may be appealed in like manner as a notice of civil infraction to the Hearing Examiner under the provisions of KZC 170.40. If a notice of civil infraction has also been issued and appealed, the appeals shall be consolidated for hearing.

170.35 Code Enforcement Officer – Notice of Violation

1. General – If the Code Enforcement Officer determines that any activity, condition, structure, or use exists that does not conform to this code, he/she may issue a notice of violation. This notice will specifically indicate:

a. The name and address of the property owner or other person to whom the notice of violation is directed; and

b. The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and

c. A description of the violation and a reference to that provision or provisions of this code being violated; and

d. A statement of the action required to be taken to correct the violation as determined by the applicable department director and a date or time by which correction is to be completed, which date shall be not less than seven days after the date of issuance of the notice of violation; and

e. A statement that a monetary penalty in an amount per day for each violation as specified by KZC 170.25 shall be assessed against the person to whom the notice of violation is directed for each and every day, or portion of a day, on which the violation continues following the date set for correction.

2. Notice to Occupant and Owner – The Code Enforcement Officer shall:

a. Leave a copy of this notice with the occupant or person in charge of the property or post it in a conspicuous place on the subject property; and

b. Send a copy of the notice by certified mail to the owner of the subject property.

3. Extension – Upon written request received prior to the correction date or time, the Code Enforcement Officer may extend the date set for correction for good cause. The Code Enforcement Officer may consider substantial completion of the necessary correction or unforeseeable circumstances which render completion impossible by the date established as good cause.

170.40 Code Enforcement Officer – Notice of Civil Infraction

1. General – The Code Enforcement Officer may cause a notice of civil infraction to be issued in either of the following circumstances:

a. There is a violation of a posted order to cease activity.

b. If, after this time specified in the notice of violation, the activity, conditions, structure, or use cited in the notice of violation still does not conform to this code.

2. Issuance

a. The notice of civil infraction will be issued to the owner of the property, the occupant, or person in charge of the property and/or any other person causing or allowing the activity, conditions, structure or use to exist or occur.

b. Notwithstanding the provisions of KZC 170.30 and 170.35, the Code Enforcement Officer may issue a notice of civil infraction without having issued a notice of violation or order to cease activity when a repeated violation occurs within a six-month period of time.

c. A notice of civil infraction represents a determination that a civil infraction has been committed. The determination is final unless appealed as provided in this chapter.

3. Content – The Code Enforcement Officer shall include the following in the notice of civil infraction:

a. The name and address of the property owner or other persons to whom the notice of civil infraction is directed; and

b. The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and

c. A description of the violation and a reference to that provision or provisions of this code which has been violated; and

d. A statement that the monetary penalty in the amount per day for each violation as specified in KZC 170.25 is assessed against the person to whom the notice of civil infraction is directed for each and every day, or portion thereof, during which the violation continues beyond the date or time established for correction in the notice of violation; and

e. A statement that the person to whom the notice of civil infraction was directed must complete correction of the violation and may pay the monetary penalty imposed to the City Clerk or may appeal the notice of civil infraction as provided in this section.

4. Service of Notice – The Code Enforcement Officer shall serve the notice of civil infraction upon the person to whom it is directed, either personally or by mailing a copy of the notice of civil infraction by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address or by posting the notice of civil infraction conspicuously on the affected property or structure. The person who effected personal service shall make proof of service at the time of service by a written declaration under penalty of perjury declaring the time and date and the manner in which service was made.

5. Appeal to Hearing Examiner

a. A person to whom a notice of civil infraction is directed may appeal the notice of civil infraction including the determination that a violation exists or may appeal the amount of any monetary penalty imposed to the Hearing Examiner.

b. A person may appeal the notice of civil infraction by filing a written notice of appeal with the Department of Planning and Community Development within seven calendar days from the date of service of the notice of civil infraction.

c. The monetary penalty for a continuing violation does not accrue during the pendency of the appeal; however, the Hearing Examiner may impose a daily monetary penalty from the date of service of the notice of civil infraction if he finds that the appeal is frivolous or intended solely to delay compliance.

d. The hearing before the Hearing Examiner shall be conducted as follows:

1) The office of the Hearing Examiner shall give notice of the hearing before the Hearing Examiner to the appellant 17 calendar days before such hearing.

2) The Hearing Examiner shall conduct a hearing on the appeal pursuant to the rules of procedure as provided by the Administrative Procedure Act, Chapter 34.05 RCW. The City and the appellant may participate as parties in the hearing and each may call witnesses. The City shall have the burden of proof by a preponderance of the evidence that a violation has occurred.

6. Action of Hearing Examiner

a. The Hearing Examiner shall determine whether the City has proven by a preponderance of the evidence that a violation has occurred and shall affirm, vacate, suspend, or modify the amount of any monetary penalty imposed by the notice of civil violation with or without written conditions.

b. The Hearing Examiner shall consider the following in making his/her determination:

1) Whether the intent of the appeal was to delay compliance, or

2) Whether the appeal is frivolous, or

3) Whether there was a written contract or agreement with another party which specified the securing by the other party of the applicable permit or approval from the City, or

4) Whether the appellant exercised reasonable and timely effort to comply with applicable development regulations, or

5) Any other relevant factors.

7. Notice of Decision – The Hearing Examiner shall mail a copy of his decision to the appellant by certified mail, postage prepaid, return receipt requested.

8. Judicial Review – The decision of the Hearing Examiner may be reviewed pursuant to the standards set forth in RCW 36.70C.130 in King County Superior Court. The land use petition must be filed within 21 calendar days of the issuance of the final land use decision by the Hearing Examiner. For more information on the judicial review process for land use decisions, see Chapter 36.70C RCW.

9. Collection of Monetary Penalty

a. The monetary penalty constitutes a personal obligation of the person to whom the notice of civil infraction is directed. Any monetary penalty assessed must be paid to the City Clerk within seven calendar days from the date of service of notice of civil infraction or, if an appeal was filed pursuant to this section, within seven calendar days of the Hearing Examiner’s decision.

b. The City Attorney, on behalf of the City, is authorized to collect the monetary penalty by use of appropriate legal remedies, the seeking or granting of which shall neither stay nor terminate accrual of additional per diem monetary penalties so long as the violation continues.

c. In the event of failure to appear at a hearing provided in this section, the Hearing Examiner shall assess the monetary penalty prescribed and a penalty of $25.00.

d. In the event of a conflict between this chapter and any other provision of this code or City ordinance providing for a civil penalty, this chapter shall control.

170.42 Failure To Satisfy Penalty

A person who willfully fails to pay a monetary penalty as required by provisions of this chapter may be found in civil contempt of court after notice and hearing.

170.45 Variance, Permit, Decision or Discretionary Approval – General

The City shall enforce the provisions, including any conditions or restrictions, of a variance, permit, decision, or discretionary approval issued under this code as if those provisions are part of this code.

170.50 Variance, Permit, Decision, or Discretionary Approval – Voiding

1. General – Under the provisions of this section, the City may void any variance, permit, decision or discretionary approval granted or issued under this code.

2. Review Process – The City, as the applicant, shall use the same process to determine if a variance, permit, decision, or discretionary approval should be voided as it used to grant the variance, permit, decision, or discretionary approval.

3. Decisional Criteria – The City may void a variance, permit, decision, or discretionary approval only if it finds that:

a. There have been repeated violations of any aspect, including conditions or restrictions, of the variance, permit, decision, or discretionary approval; and

b. The detriment caused by the violations clearly outweighs any public benefit of the variance, permit, decision, or discretionary approval.

4. Effect – If the City voids a variance, permit, decision, or discretionary approval, the City will apply and enforce the provisions of this code on the subject property, as if the variance, permit, decision, or discretionary approval had never been granted.

170.55 No Personal Liability for Acts or Omissions

Each person responsible for the enforcement or administration of this code and each member of a Committee, Board, Commission or Council responsible for making any decision or recommendation under this code is relieved from any personal liability whatsoever from any injury to persons or property as a result of his/her act or omission in the good faith discharge of his/her responsibilities. If the person or member is sued for acts or omissions occurring in the good faith discharge of his/her responsibilities, the City shall defend and provide legal representation to the person or member until final disposition of the proceedings. The City shall reimburse the person or member for any costs incurred in defending against alleged liability for the acts or omissions of the person or members in the good faith discharge of his/her duties.

170.60 Interpretations of This Code – General

1. Criteria – The Planning Director may, acting on his/her own initiative or in response to an inquiry, issue interpretations of any of the provisions of this code. The Director shall base his/her interpretations on:

a. The defined or common meaning of the words of the provision; and

b. The general purpose of the provision as expressed in the provision; and

c. The logical or likely meaning of the provision viewed in relation to the Comprehensive Plan.

2. Effect – An interpretation of this code will be enforced as if it is part of this code.

3. Availability – All interpretations of this code, filed sequentially, are available for public inspection and copying in the Planning Department during regular business hours. The Planning Official shall also make appropriate references in this code to these interpretations.

170.65 Interpretations of This Code – Appeal

1.  Who Can Appeal – Any person who is aggrieved by an interpretation issued by the Planning Director may appeal that interpretation at any time.

2.  How To Appeal – The applicant must file a letter of appeal indicating how the interpretation affects his/her property and presenting any relevant arguments or information on the correctness of the interpretation. The applicant shall include the appeals fee as established by ordinance.

3.  Applicable Procedures – All appeals of interpretations of this code will be reviewed and decided upon using the appeal provisions of Process I, described in Chapter 145 KZC.

4.  Effect – If the interpretation of the Planning Director is modified, the Planning Official shall:

a. Place the modifying decision in the Interpretation File; and

b. Change or remove, as appropriate, the interpretation that was modified; and

c. Change the reference in this code to reflect the modification.

170.70 Conflict of Provisions

The standards, procedures, and requirements of the code are the minimum necessary to promote the health, safety, and welfare of the residents of Kirkland. The City is free to adopt more rigorous or different standards, procedures, and requirements whenever this becomes necessary. If the provisions of this code conflict one with another, or if a provision of this code conflicts with the provision of another ordinance of the City, the most restrictive provision or the provision imposing the highest standard prevails.

170.75 Easement Agreements Approved by the City Attorney

In each case where the City requires an applicant to provide a public walkway, public use area, or other area, facility or structure that is open to the public, the applicant shall execute and record with the King County Bureau of Elections and Records an easement or similar document approved by the City Attorney.