The Kitsap County Department of Community Development is proposing a change to the County’s Kitsap County Chapter 2.116 CIVIL ENFORCEMENT aligning it with the County Kitsap County Chapter 9.56 PUBLIC NUISANCES
“The purpose of this meeting is to initiate discussion on DCD’s interest in an alternate process for civil nuisance abatement and enforcement proceedings. The department proposes limited modifications to principally chapters 2.116 and 9.56 of the Kitsap County Code that establish the importance, uniformity and enforceability of Voluntary Corrective Agreements and actions; that provides an alternative enforcement action to issuing notices of infractions that are heard and resolved through district courts; establishes a process where an administrative law judge independent of DCD hears and decides certain enforcement administrative decisions and actions; and, provides a method to enhance enforcement resources and assures abatement cost recovery.”http://sp.kitsapgov.com/sites/comm/Agenda%20Documents/PM%20Briefings/2015/071315/2015_0713%20Code%20Compliance%20Briefing%20ES%20and%20PP.pdf
So what are the problems DCD desires to correct?
Kitsap County’s sole reliance on issuing infractions for compulsory civil enforcement.
- An infraction that is “found committed” only obligates the violator to paying a penalty.
- Penalties are often reduced or eliminated by court action.
- District courts lack authority to compel violators to stop activities, abate or correct noted violations.
- Issuing an infraction is the only non criminal method available for violations not defined as a public nuisance.
No Voluntary Compliance Agreement exists for other than public nuisances.
- Voluntary Compliance Agreements are detailed only for public nuisance issues and much of the code enforced by the department is outside of the nuisance definition – and no detailed voluntary agreement provision exists.
Penalties for violation are scattered throughout the department’s codes.
- A penalty of $250 per day per violation is established to be assessed by the hearing examiner for public nuisance cases.
- Other monetary penalties are authorized but the method to assess or recover the penalties are not established.
No accelerator exists for penalty assessment for willful, repeat or chronic violators.
- Per day per violation exists the same for all penalties regardless of whether or not it is a repeat or first time issue.
No funding method exists for county abatement.
- Personal obligations are authorized as are liens against properties.
- Fines applied through district courts stay at district court.
Kitsap Alliance of Property Owners Issues
1. Warrantless Search
The current code has provisions for warrantless search.
2.116.040 Investigations – Evidence.
“An authorized official may investigate alleged or apparent violations of this chapter. In the performance of that investigation, an authorized official may enter upon any land and make examinations and surveys, provided that such entries, examinations and surveys do not damage or interfere with the use of the land by those persons lawfully entitled to the possession thereof. “
This violates the US Constitution, the Washington State Constitution and Washington State Law. Law RCW 59 .18.150 Searches by code enforcement officials for inspection purposes (http://apps.leg.wa.gov/rcw/default.aspx?cite=59.18.150)
2. Voluntary Compliance Agreement requires the property owner to admit guilt., and waives the right to appeal.
Proposed Voluntary Compliance Agreement
- 10. An acknowledgment that the person responsible for code compliance understands that he or she knowingly, voluntarily and intelligently waives the right to administratively appeal a citation, notice and order or stop work order for any violation identified in the voluntary compliance agreement.
- D. Upon entering into a voluntary compliance agreement, a person responsible for code compliance admits that the conditions described in the voluntary compliance agreement existed and constituted a civil code violation; and agrees that if the department issues a notice of noncompliance, and if the notice of noncompliance is not successfully challenged through administrative appeal, he or she is liable for the civil penalty available under K.C.C. chapter 23.32. The person identified in the voluntary compliance agreement is liable for the costs incurred by the county to pursue code compliance and to abate the violation, including legal and incidental expenses as provided for in K.C.C. chapter 23.24 and is subject to all other remedies provided for in this title.
3. Replaces District Court with an Administrative Law Judge Hearing Examiner
“Expand the role of the hearing examiner to adjudicate all civil enforcement for the department.”
- The Hearing Examiner needs to be perceived as a neutral third party to be effective. The proposal to make the Hearing Examiner a DCD employee is not helpful.
- “The costs of these services are increasing to the point that serious consideration for hiring a hearing examiner on the county staff may be the most cost effective.” DCD Hearing Examiner Model July 8 2015
- The county DCD maintains that district court judges are inadequately trained in land use issues.
- Hearing examiners give great deference to the county’s action to interpret and enforce county code.
- The Voluntary Compliance statement of guilt, destroys the Property Owner’s Case in District Court.
4. Grandfathering. The Civil Enforcement Code 2.116 allows for the county to cite for any code violation. This means a building built per code can be cited as a violation if the code changes.