HomeMy WebLinkAboutord1988-104FILE °f F: 20- 88:ZT/IZO INTRODUCED BY: Consent
PROPOSED BY: Planning'
DATE: D8cember ..,' 1988
1 ORDINANCE NO. 88 -104
2 AN ORDINANCE AMENDING THE TEXT OF TITLE 20, THE OFFICIAL WHATCOM COUNTY
3 ZONING ORDINANCE AND THE INTERIM ZONING ORDINANCE TO PROVIDE A PERMIT
4 REVOCATION PROCEDURE FOR PERMITS GRANTED BY THE HEARING EXAMINER
5 WHEREAS, the Whatcom County Hearing Examiner and Division Of Buildings and,Code
6 Administration, with concurrence of the County Prosecuting Attorney's Office
7 have applied for a text amendment to Title 20 and the Interim Zoning Ordinance to
8 provide a permit revocation procedure for permits granted by the Hearing Examiner.
9 The proposed amendments would affect Chapter 20.92 of Title 20 and Chapter 2.24A.770
10 of the Interim Zoning Ordinance; and
11 WHEREAS, a Determination of Nonsignificance was issued by the Deputy SEPA
12 Responsible Official on November 18, 1988.
13 WHEREAS, pursuant to RCW 36.70.590 and Council directive a legal notice was
14 published in the Westside Record Journal on November 2, 1988, and in the Bellingham
15 Herald on November 5, 1988; and
16 WHEREAS, a public hearing was held before the Planning Commission on this matter
17 on November 15, 1988; and
18 WHEREAS, the Council held a public meeting on December 15, 1988, to consider the
19 Planning Commission's recommendation;
20 NOW THEREFORE BE IT ORDAINED:
21 1. Title 20 and the Interim Zoning Ordinance are hereby amended as follows:
22
ADD:
23
20.92.210 (13)
24
2.24A.770.592 (14)
25
Revocation proceedings involving previously approved
zoning conditional use permits.
26
shoreline management substantial development
permits and shoreline conditional use
27
permits.
28
20.92.250 PERMIT REVOCATION PROCEDURE
29
2.24A.770.625 PERMIT REVOCATION PROCEDURE
30
Upon notification by the Administrator of
the Division of Buildings and Code
31
Administration or his deputy that a substantial
violation of the terms and conditions
32
of any previously granted zoning conditional use, shoreline substantial development
33
or shoreline conditional use permit exists, the
Hearing Examiner shall issue a summons
34
as per 20.92.225 (2.24A.770.660) to the permit holder requiring said permit holder
35
to appear and show cause why revocation of the
permit should not be ordered. Failure
36
of the permit holder to respond may be deemed
good cause for revocation.
FILE REF: 20- 88:ZT/IZO
Page 2
0 20.92.155 PERMIT REVOCATION HEARING
1 2.24A.770.626 PERMIT REVOCATION HEARING
2 Upon issuance of a summons as set forth in Section 20.92.250 (2.24A.770.625) of this
3 ordinance, the Hearing Examiner shall schedule a public hearing to review the alleged
4 violations. The summons shall include notice of the hearing and shall be sent to the
5 permit holder and the Division of Buildings and Code Administration no less than
6 twelve (12) days prior to the date of the hearing. At the hearing the Hearing Examiner
7 shall receive evidence of the alleged violations and the responses of the permit
8 holder, as per the business rules of the Hearing Examiner's office. Testimony shall
9 be limited to that of the Division and the permit holder except where additional
10 evidence would be of substantial value in determining if revocation should be ordered.
11 The Division of Buildings and Code's evidence may include the testimony of witnesses.
12 20.92.620 PERMIT REVOCATION OR GRACE PERIOD
13 2.24A.770.627 PERMIT REVOCATION OR GRACE PERIOD
14 Upon a showing of violation by a preponderance of the evidence as alleged, the Hearing
15 Examiner may revoke the permit or allow the permit holder a reasonable period of time
16 to cure the violation. If the violation is not cured within the time set by the
17 Hearing Examiner, the permit shall be revoked. Where a time to cure the violation has
18 been set out, no further hearing shall be necessary prior to the revocation. The
19 permit holder shall have the burden of proving that the violation has been cured
20 within the time limit previously set. Such evidence as is necessary to demonstrate
21 that the violation has been cured may be submitted to the Hearing Examiner by either
22 the permit holder or the Division of Buildings and Code Administration. Any revocation
23 shall be accompanied by written Findings of Fact and Conclusions of Law. The permit
24 holder shall be notified of any revocation within ten (10) working days of the
25 revocation.
26 2. The Council finds the public health, safety and general welfare are promoted by
27 the above change.
28 3. The Council further makes the following findings as recommended by the Planning
29 Commission:
30 FINDINGS
31 A. Present regulations do not provide an effective system for enforcement of
32 land use permits.
33 B. Using the criminal justice system to obtain enforcement is not an effective
34 method. It over burdens the Prosecutor's Office and the courts. It creates
35 long delays that contribute to the County's lax reputation in regard to
36 enforcing its codes and it has the stigma of a criminal violation for a
37 matter that should be capable of resolution administratively.
38 C. Delays in enforcement encourage infractions and increases the number of
39 complaints which can be burdensome to the staff, the Council and the
40 Executive.
FILE REF: 20- 88:ZT/IZO
Page 3
0 D. The Hearing Examiner has recently introduced a revocation clause that appears
1 on all his permit approvals. However, it does not provide for a formal
2 process, there is a question whether he has the administrative authority to
3 do this, and it does not take care of outstanding permits.
4 E. By introducing the hearing, permit holders are being given an opportunity
5 to be heard. There is also an ability for the applicant to appeal the Hearing
6 Examiner's decision to Council. This affords them due process, not
7 necessarily available presently.
8 CONCLUSIONS
9 A formal revocation procedure would expedite enforcement of code violations. This
10 should have the effect of acting as a deterrent and could reduce the staff work
11 load. In any case it will enhance the County's reputation and provide a better
12 process for all parties involved than using the criminal justice system. It
13 provides an equitable method for establishing the violation and means for a
14 reasonable abatement schedule.
15 4. Adjudication of invalidity of any of the sections, clauses, or provisions of this
16 Ordinance shall not affect or impair the validity-of the Ordinance as a whole
17 or any part thereof other than the part so declared to be invalid.
18 PASSED this 15th day of December , 1988.
19
20
21
22
23 ATTEST:
24
25
26
27
28
29
30
31
32
Clerk of the Council
APP E,D AS TO F(}jtM:
Dave otting am
Civil Deput secuting Attorney
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
WiTliam P. Roehl Chairperson
(--)'APPROVED, % ( ) VETOED
H
X y�
Shirley Van Z nten, C6dnty Executive
Date
November 15, 1988
File Ref: 20- 88:ZT/IZO
WHATCOM COUNTY PLANNING AGENCY REPORT
IN THE MATTER OF AMENDING THE TEXT OF TITLE 20, )
THE OFFICIAL WHATCOM COUNTY_ZONING ORDINANCE AND ) FINDINGS, REASONS
THE INTERIM ZONING ORDINANCE TO PROVIDE A PERMIT ) AND MOTION
REVOCATION PROCEDURE FOR PERMITS GRANTED BY THE )
HEARING EXAMINER )
WHEREAS, the Whatcom County Hearing Examiner and Division Of Buildings &
Code Administration, with concurrence of the County Prosecuting Attorney's Office
have applied for a text amendment to Title 20 and the Interim Zoning Ordinance
to provide a permit revocation procedure for permits granted by the Hearing
Examiner. The proposed amendments would affect Chapter 20.92 of Title 20 and
Chapter 2.24A.770 of the Interim Zoning Ordinance; and
WHEREAS, a Determination of Nonsignificance was issued by the Deputy SEPA
Responsible Official on November 18, 1988; and
WHEREAS, pursuant to RCW 36.70.590 and Council directive a legal notice
was published in the.Westside Record Journal on November 2, 1988, and in the
Bellingham Herald on November 5, 1988; and
WHEREAS, a public hearing was held before the Planning Commission on this
matter on November 15, 1988; and
WHEREAS, after accepting public testimony and due deliberation the Planning
Commission developed findings and conclusions and unanimously moved to recommend
to Council establishment of a formal procedure for revoking permits granted by
the Hearing Examiner;
NOW THEREFORE BE IT RESOLVED:
FINDINGS OF FACT AND REASONS FOR ACTION
1. A quorum of Commission members was present during the hearing and
subsequent discussion (seven Commissioners present).
2. Statutory requirements were met regarding legal notice and SEPA review.
1
Nov,:mber 15, 1988
File Ref: 20- 88:ZT/IZO
3. The Planning Commission accepted the findings and conclusions as developed,
by staff.
4. The Planning Commission unanimously made the following recommendation:
ADD:
20.92.210 (13)
2.24A.770.592 (14)
Revocation proceedings involving previously approved zoning conditional use
permits, shoreline management substantial development permits and shoreline
conditional use permits.
20.92.250 PERMIT REVOCATION PROCEDURE
2.24A.770.625 PERMIT REVOCATION PROCEDURE
the permit should not be ordered. Failure of the permit holder to respond may
be deemed good cause for revocation.
20.92.155 PERMIT REVOCATION HEARING
2.24A.770.626 PERMIT REVOCATION HEARING
be sent to the permit holder and the Division of Buildings and Code
and Code's evidence may include the testimony of witnesses.
20.92.620 PERMIT REVOCATION OR GRACE PERIOD
2.24A.770.627 PERMIT REVOCATION OR GRACE PERIOD
Upon a showing of violation by a preponderance of the evidence as alleged, the
Hearing Examiner may revoke the permit or allow the permit holder a reasonable
period of time to cure the violation. If the violation is not cured within the
November 15, 1988
File Ref: 20- 88:ZT/IZO
time set by the Hearing Examiner, the permit shall be revoked. Where ,a time to
of Fact and Conclusions of Law. The permit holder shall be notified of any
revocation within ten (10) working days of the revocation.
WHATCOM COUNTY PLANNING COMMISSION /
David Simpson, Chair
Daniel W. Taylor, Secretary
Commissioners present at hearing:
SIMPSON, GREER, HEERINGA, HINTON, VAN DALEN, FUNKHOUSER AND FREEMAN
Attachments:
1. Staff Report
2. Draft Ordinance
3
_ File #20- 88:ZT/IZO
No► _..rber 10, 1988 -- Page 1
WHATCOM COUNTY PLANNING DEPARTMENT
STAFF REPORT
APPLICANT: HEARING EXAMINER, DIVISION OF BUILDINGS & CODE ADMINISTRATION
with concurrence of Prosecuting Attorney's Office
REQUEST
The request is for a text amendment to Title 20 and the Interim Zoning Ordinance
to provide.a permit revocation procedure for permits granted by the Hearing
Examiner. These amendments will affect Chapter 20.92 of Title 20 and Chapter
2.24A.770 of the Interim Zoning Code.
LOCATION
Affects all zone districts in Whatcom County.
STATUTORY REQUIREMENTS
Pursuant to RCW 36.70.590 legal notice was published in the Westside Record
Journal on Wednesday, November 2, 1988, and in the Bellingham Herald on Saturday,
November 5, 1988. SEPA review will be completed prior to Council action.
REGULATORY EFFECTS OF THE REQUEST
This request will establish a formal revocation procedure to deal with the
extreme cases of zoning or shorelines violations. Present regulations provide
no recourse except criminal prosecution.
ANALYSIS
Under the existing regulations if a complaint is received regarding violations
of permits issued by the Hearing Examiner there is no reasonable internal
procedure to deal with it. The Division of Buildings & Code Administration
receives the complaints and spends considerable staff time verifying and
documenting them. They then go through a series of letters to the individual in
violation. If they are not successful in getting corrective action, the file is
turned over to the Prosecutor's Office for criminal prosecution. This creates
several problems. It over burdens the courts and Prosecutor's Office. It creates
such long delays in action that the County on the one hand loses its credibility
and on the other continues to have to deal with complaints on the same violation
which takes up staff time and can be burdensome to Council and the Executive.
It uses the criminal justice system to resolve issues that should be able to be
dealt with administratively.
In the last one and a half years the Hearing Examiner has been putting' a
revocation clause on all permits he issues. However, there is some question of
whether he actually has the legislative authority to do that. In any case this
does not cover old permits.
File #20- 88:ZT/IZO
No,, _,,fiber 10, 1988 -- Page 2
The proposed revocation procedure introduces a middle step in the enforcement
process that should resolve almost all of the cases without involvement of the
Prosecutor's Office. It also sends a message to the community that the County
will seriously pursue flagrant violations of the zoning and shoreline
regulations.
When Buildings and Code's staff exhaust their administrative remedies, they will
notify the Hearing Examiner who will issue a summons to the permit holder to
prove why his permit should not be revoked. The Hearing Examiner will also
schedule a hearing that will allow the staff, permit holder and in some cases
the complainants to have ,their position heard. If it is determined that a
violation exists, the Hearing Examiner can revoke the permit, or allow time for
a cure.
With the proposed system it is estimated that very few permits will actually have
to be revoked, perhaps one in five years. However, having the formal process
provides an effective deterrent and provides a mechanism to work out steps for
compliance that does not involve the cumbersomeness or the stigma associated with
the court system.
FINDINGS
1. Present regulations do not provide an effective system for enforcement of
land use permits. Because the County has a bad history of code enforcement,
the Division of Buildings and Code Administration is often not successful
in obtaining compliance administratively.
2. Using the criminal justice system to obtain enforcement is not an effective
method. It over burdens the Prosecutor's Office and the courts. It creates
long delays that contribute to the County's lax reputation in regard to
enforcing its codes and it has the stigma of a criminal violation for a
matter that should be capable of resolution administratively.
3. Delays in enforcement encourage infractions and increases the number of
complaints which can be burdensome to the staff, the Council and the
Executive.
4. The Hearing Examiner has recently introduced a revocation clause that appears
on all his permit approvals. However, it does not provide for a formal
process, there is a question whether he has the administrative authority to
do this, and it does not take care of outstanding permits.
5. By introducing the hearing, permit holders are being given an opportunity
to be heard. There is also an ability for the applicant to appeal the Hearing
Examiner's decision to Council. This affords them due process, not
necessarily available presently.
CONCLUSIONS
A formal revocation procedure would expedite enforcement of code violations. This
should have the effect of acting as a deterrent and could reduce the staff work
load. In any case it will enhance the County's reputation and provide a better
process for all parties involved than using the criminal justice system. It
File #20- 88:ZT/IZO
No►_,nber 10, 1988 -- Page 3
provides an equitable method for establishing the violation and means for a
reasonable abatement schedule.
RECOMMENDATIONS
The Planning Department recommends adoption of the following proposed changes
to Title 20 and the Interim Zoning Ordinance: ADD THE FOLLOWING:
20.92.210 (13)
2.24A.770.592 (141
Revocation proceedings involving previously approved zoning conditional use
permits, shoreline management substantial development permits and shoreline
conditional use permits.
20.92.250 PERMIT REVOCATION PROCEDURE
2.24A.770.625 PERMIT REVOCATION PROCEDURE
Upon notification by the Administrator of the Division of Buildings and Code
be deemed good cause for revocation.
20.92.155 PERMIT REVOCATION HEARING
20.24A.770.626 PERMIT REVOCATION HEARING
and Code's evidence may include the testimony of witnesses.
20.92.620 PERMIT REVOCATION OR GRACE PERIOD
2.24A.770.627 PERMIT REVOCATION OR GRACE PERIOD
Fh a #20- 88:ZT/IZO
No. - .,jber 10, 1988 -- Page 4