HANSVILLE — Prosecuting Attorney Russell D. Hauge said Oct. 10 that provisions of a draft code-enforcement chapter in the county code are unconstitutional.
Speaking at a candidates forum at the Hansville Community Center, Hauge said the Department of Community Development “didn’t follow proper procedure” and submit the draft Title V to his department for legal review before it was circulated. Hauge said some of the provisions “violate the state and federal constitutions.”
The document, which reportedly appeared briefly on the county’s website in May, drew concern from members of the Kitsap Association of Realtors and the Kitsap Property Owners Alliance and became a campaign issue.
According to the proposed code, if the code compliance officer or “other authorized County staff” has reasonable cause to believe a code violation exists, they are authorized “to enter the structure or premises at reasonable times to inspect or to perform the duties imposed by this title …” The provision does say that the enforcement officer must present his or her credential to the occupant and request entry. If the property is unoccupied, the enforcement officer “shall first make a reasonable effort to locate the owner or other person having charge or control of the structure or premises and request entry.”
If entry is refused, Kitsap County “shall have recourse to the remedies provided by law to secure entry.” Jeff Rowe, assistant director of the Department of Community Development, said “recourse” means getting a warrant, in compliance with state and federal constitutions.
But Hauge said the draft, as worded, implies that if a property owner does not give the code compliance officer permission, “they are going to do it anyway. I’m not sure they would do that, but it could be read that it gives them that right. And if nobody is there to give them permission, they do not have the right, absent permission, to enter that property.”
Hauge said the state Supreme Court ruled on code compliance searches in another case. Code enforcement rules in a local jurisdiction in King County gave the fire inspector there the authority to enter buildings to look for fire safety issues. “The state Supreme Court said that just saying there may be a fire safety issue does not relieve the government of the fundamental requirement that a warrant [must be obtained],” Hauge said.
The department has backed off on the draft. On Oct. 14, the department announced it had been directed by the County Commission to take “more time in its code development efforts related to county code compliance.”
Commissioners reportedly asked the department “to return during the first quarter of 2015 with a clear problem statement and compounding issues related to the current code enforcement processes,” according to a Department of Community Development email. “Commissioners also want a better idea of the magnitude of the code compliance case load, and alternative strategies to update the code.”
Hauge has other concerns regarding the draft. “One big concern is the provision that makes the purchaser of a piece of property the guarantor that everything about the property is compliant with relevant building codes,” he said. That means, if someone buys a home in which an unpermitted issue, such as an addition, was overlooked, the buyer “is automatically liable for that violation,” he said. “That’s not something we recommend.”
In addition, the draft moved suspected code violations from District Court to the hearing examiner, proposed fines of up to $1,000 for each day in violation, and proposed a penalty of up to $1,000 and 90 days in jail for refusing to provide identification to the code compliance officer or county inspector.
“It is heavy handed,” Hauge said. “Our advice is that it not be.” He said the county can’t impose “a more stringent burden” than the state. “We’d want to make sure any penalty provisions are consistent with what is in state law.”
Rowe said the document was “a very rough draft” that was developed by a Department of Community Development advisory group appointed by the Board of County Commissioners. “It was distributed as if it were something we were taking to the commissioners,” Rowe said. (Hauge said he received an apologetic phone call from “someone at DCD” after the draft was released.)
“It’s intent was, if I’ve added another bedroom or added onto the kitchen without a permit, if i sell my home to you, it doesn’t clear that issue,” Rowe said. “This draft was trying to give us some better tools [to resolve issues].”
Rowe said the goal is voluntary compliance; in the draft Title V, a property owner that agreed to voluntarily comply with an order could have penalties waived.
The draft states, “It is the policy of Kitsap County to emphasize code compliance by education and prevention as a preferred first step. This policy is designed to ensure code compliance and timely action that is available to all persons and uniform in its implementation. While warnings and voluntary compliance are desirable as a first step, enforcement and civil penalties should be used for remedial purposes as needed to assure and effect code compliance, abatement or remediation should be pursued when appropriate and feasible.”