ALERT: KITSAP COUNTY IS PROPOSING NEW REGULATION TO GOVERN CODE ENFORCEMENT AND HAS PRESENTED THOSE REGULATIONS IN A NEW TITLE OF THE KITSAP COUNTY CODE KNOWN AS TITLE 5

What is Title 5?

Answer:          Title 5 is a proposed section of the Kitsap County Code that will be the place wherein the County places all of the code enforcement provisions found in other titles of Kitsap County Code. Of primary focus are the code enforcement provisions of the following titles:

  • Title 7 –          Animals
  • Title 9 –          Health, Welfare and Sanitation
  • Title 10 –        Peace, Safety and Morals
  • Title 12 –        Storm Water Drainage
  • Title 14 –        Building Construction
  • Title 16 –        Land Division and Development
  • Title 17 –        Zoning
  • Title 18 –        Environment
  • Title 19 –        Critical Areas Ordinance
  • Title 22 –        Shoreline Management Master Program
  • Title 46 –        Motor Vehicles

Each of these Titles have ordinance regulations that have to be enforced to one degree or another. Essentially the proposal for Title 5 is to lift out the procedures governing the way these ordinance provisions are enforced and place them in one place – Title 5 of the Kitsap County Code (KCC). The current draft of those proposed regulations was issued in March of this year (2014).

On the surface such a proposal seems logical, if not a convenient way people can find out what’s required in a code enforcement situation……….right?

Answer: Well not really……..because there is already a separate place in the KCC wherein code enforcement provisions for all codes enforced by Kitsap County are found. Where is that you ask? It is Title 2 – Governance and in the subsection 2.116 entitled “Civil Enforcement.”

What are those existing code enforcement procedures?

While there is some variance in provisions of each of the ordinances, the current method of code enforcement involves the following steps and they are spelled out in detail in KCC 2.116 – discovery, notice of stop work or code violation, proposed voluntary compliance, documentation or showing of proof of a code violation (by Kitsap County), a filing of action in District Court, the issuance of a court judgment, eventual compliance or dismal action and as necessary an appeal to Superior Court.

Typically when County staff believes there is a manifest code violation in a building, a non-compliant property condition, or on-going action that is involves the violation of the provisions of the ordinances found in each Title of the KCC the County will try to achieve code compliance by going through the above mentioned steps. For example, when someone has built or is building a structure without first obtaining a building permit. He, she or they have violated the requirements of the International Building Code (IBC) and are subject to penalties as specified within that code, which is also known as Title 14. When that fact is discovered, the building owner or property owner is given “notice” to bring the building into to compliance with the IBC. This notice is often a “stop work order” or a notice of code violation. The property owner is then given a relative short time frame in which to rectify the code violation. Usually that is ten – 14 days. If more time is required, the clock is stopped with a good faith effort to fix the situation that gives rise to the code violation.

If the building or property owner fails to take any action to address the noncompliant code violation, then he, she or they are subject to whatever fine is specified in the individual ordinance. Typically this is an amount of $500.00 but will usually fall within the $100 – $1,000 range. Such fines can be imposed on a daily basis for whatever length of time the code violator fails to take action to rectify the noncompliant code situation. If the property owner is flagrant in defiance of the County and refuses to take even small steps to resolve the problem, that individual may face jail time. Such defiance is rare, but has happened in the past. Whether a simple failure to address the problem or an “in your face” defiance, the next step is for the County to issue a summons to appear in court.

So who is it that may actually impose a penalty on building or property owners who do not take action to rectify the code violation? With a few exceptions as found in the provisions of Title 9, it is a District Court Judge. In District Court, the County official(s) have to present evidence of the nature of the code violation, the length of time after discovery in which the building or property owner has failed to address the problem and the consequences of such in action. The alleged code violator can then present whatever evidence there might be as to why he, she, or they are not guilty of the alleged code violation, what steps they might have taken or attempted to take to resolve the problem or present the mitigating circumstances for their inaction. The judge can then decide how best to adjudicate the matter.

In some cases that is to impose the fines called for by the ordinance in question. The judge’s decision could be to allow the code violator a set amount of time to bring his, her or their building or property into compliance with the applicable code or find that the County has not provided sufficient evidence of a code violation or that the County officials have not provided sufficient time for the noncompliant code situation to be resolved.

If the County or code violator believes the District Court judge has not rendered a fair decision based on the provisions of the ordinance, the judge’s decision can be appealed to Superior Court for further judicial review. And from there, depending on the issues, to the State Appellate Court and then on to the State Supreme Court if necessary.

So, what is wrong with the present process?

Perhaps nothing………..or at least no data has been presented by Kitsap County to quantify the issues that are faced in getting property owners and building owners to address their code violations and seek the proper permits. The County officials, primarily those in the Department of Community Development list these as problems they face:

  1. The discovery process is “hit and miss.” Most, as in 80+ percent of the code violations that are alleged to exist are a result of a neighbor or several neighbors registering a complaint. The balance are found by county officials in drive-by views or in conjunction with other permit process approvals. According to everybody’s guess there may well be a great number of non-compliant code situations that the County never discovers or may never discover.
  2. They cannot always gain access to property or buildings to properly investigate the possible code violations.
  3. Some people would rather pay the fines (if imposed) rather than fix the code violation(s).
  4. District Court judges do not always understand building code and land use issues (read that to mean they are not always sympathetic to code enforcement complaints).
  5. Individual codes are not consistent in the provisions for code enforcement and do not in some instances such as the Zoning Ordinance specify what measures other than the imposition of fines can be taken to make non-compliant code violations compliant. Also in the case of the Zoning Ordinance there is no reference to Title 2 and its subsection 2.116 Civil Enforcement.
  6. The costs of enforcement incurred by the County are not necessarily mitigated by the fines imposed by District Court. As specified in Title 2.116.160 each party is responsible for its own costs, to include attorney fees, costs of personnel, preparation of exhibits and possibly expert witnesses.

Are these real problems or is it a matter that the County is dissatisfied with the results?

Without substantiating data to document the magnitude of the problem or problems there is no way a person not involved in a code compliance situation can make that judgment. It easy to guess that departmental personal who have allocated staff resources to investigate alleged code violations are looking for ways to off-set their staff costs. The present “go to court system” apparently costs the County money for which there is no direct compensation.

Based on what is contained in the Draft provisions of Title 5 what would be different?

Answer. There are quite a few proposed “new provisions.” Some of the more significant and egregious changes are as follows:

  1. A change from a “Civil Law” proceedings to an “Administrative Law” process. In simple terms, what this means is that instead of going to District Court to argue with the County, the contest would be presented in Kitsap County’s Hearing Examiner decision making process. Among other aspects of the Hearing Examiner process, it allows the County to charge fees for the work of their personnel and to cover the cost of the Hearing Examiner’s public hearing and report preparation. On that score there is no benefit to the person with the alleged code violation issue.

Worse yet is the fact that in the “Administrative Law” proceedings, the burden of proof shifts from the County to the individual with an alleged code compliance issue.

  1. As drafted the propose Title 5 regulations would allow Kitsap County personnel to enter buildings and private property without a “warrant” issued by a judge after a finding of “probable cause.” Again as now proposed that is a clear violation of a person’s rights under the constitutional provisions in both the Washington State and Federal Constitutions.
  2. There is no provision to recognize that buildings and land uses might have been erected or activities conducted consistent with prior code provisions that have been replaced by newer legislation. This “grandfathered right” is one that was established under prior regulations and is allowed to continue as is without a need to comply with whatever new codes and ordinances that might be adopted later.
  3. The proposed March, 2014 Draft Title 5 ordinance would make the buyer of a building or property responsible to cure any noncompliant code conditions rather than the previous property owner.
  4. Any person other than the alleged code violator who might offer an opinion or advice, regardless of professional qualifications or expertise in knowledge of the provisions of particular codes can be construed to be a “consultant.” Consultants are held accountable along with the building or property owner (the existing or the new buyer) for rectifying the noncompliant code problem. As written this also could include incurring a portion of any monetary fines that might be levied against the building or property owner.
  5. The proposed regulations require a notice be placed on the title to property so that buyers might know ahead of time that there is an alleged or actual violation(s) on the property. However, there is no specification as to who is place that notice to title or how it can be removed. Further there is no disclosure process now in place that requires building or property owners to inform buyers as to whether or not their prior activities or building construction took place in conformance with the applicable regulations.
  6. Implied but not addressed in specific terms, the March, 2014 Proposed Title 5 regulations would expand the bureaucratic process for code compliance and the costs to the building or property owner. Case in point, before any property could be sold, someone in Kitsap County’s employ, most likely in the Department of Community Development would have to review all proposed transfers of buildings or property to identify what uses or buildings might have a manifest code compliance problem or an activity that has taken place on the property not allowed by current code. An instance of the latter would be a wetland or stream buffer encroachment. Besides the fact the Department of Community Development is not set up to handle the volume of real estate transactions that occur within the county in any given year, the time delay for such review would adversely impact not just the property owners, the realtors, the home builders, but also lending institutions.

How committed is the County to adopt the Proposed Title 5 regulations? And what can be done to keep the current process in place?

Answer – Quite obviously the Board of County Commissioner are committed to changing their “code compliance” regulations as it is they who instructed the Department of Community Development staff to prepare a draft of the Title 5 regulations for public hearing review and ultimate adoption.

This same endeavor was promoted by the County in 2011 with an even worse proposal. That proposed ordinance was killed at the public hearing the Board of Commissioners held at the time to adopt it. Objections raised by Kitsap Alliance of Property Owners, The Kitsap Association of Realtors and the Kitsap Home Builders caused the County Commissioners to instruct the staff to rework it and bring it back to them later. Now is that later

What can be done to keep the current regulations in place?

There are several actions citizens can take to influence the elected officials, but a lot of people will have to become informed and make their opinions known to the Board of County Commissioners. Also, there is an election process that starts in the month of August and concludes in November. Each candidate needs to be questioned regarding his or her position on the need for and the provisions of the proposed Title 5 regulations.

In the meantime members Kitsap Alliance of Property Owners, the Kitsap Association of Realtors, the Kitsap Home Builders and the Tea Party will be meeting with Department of Community Development staff to review the proposed ordinance in detail. The first meeting has been scheduled for July 23, 2014, from 10:00 AM to 12:00 PM.

Besides addressing the seven issues discussed previously, Kitsap Alliance of Property Owners will be pressing to have the County justify the need for the Proposed Title 5 regulations – especially in light of the fact that sufficient regulations already exist in each of the separate ordinances identified by their Title in the Kitsap County Code and with respect to the fact that Title 2 of the KCC already imposes “Civil Compliance” regulations found in Subsection 2.116.

Failure of Kitsap County’s part to adequately quantify the need for the proposed regulations and to make substantive modifications to the proposed ordinance to address the seven issues identified herein and others not discussed, but of equal importance will cause at least Kitsap Association of Property Owners to help mobilize opposition to the regulations and if necessary challenge them in a court of competent jurisdiction.

Finally, Kitsap Alliance of Property Owners is committed to making sure that its membership and others are well informed and knowledgeable about proposed local and state sponsored legislation that might impinge on rights granted to the people who own and live on their property as provided for in our State and Federal Constitutions. Whenever we can augment our resources with other groups with similar concerns, we will promote those alliances.

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