June 28. 2024
By Cindy Alia
Many counties are in the process of updating comprehensive plans. Part of King Counties Comprehensive Plan Update is an Update to code enforcement in King County.
CAPR has read the Public Notice of Intent to Amend King County Code Titles 9, 12, 17, and 23, and we have provided comment to Summary of Proposed Ordinance relating to King County Code Enforcement Updates 2024. The comments were on the proposed updates after reading both the plain language document, and the proposed changes in the code enforecement draft ordinance.
Please note the email for Tom Campbell, King County Permitting Division, where you can send any comments you may wish to provide to the county:
Email to permittinglegislation@kingcounty.gov
Here below are the comments as provided by CAPR, lengthy, but to the point and as concise as possible!
Comments to Plain Language Summary and draft proposed Updates to Code Enforcement.
Comments of Citizens’ Alliance for Property Rights
Re: Public Notice of Intent to Amend King County Code Titles 9, 12, 17, and 23
Tom Campbell
King County Permitting Division
919 Southwest Grady Way
Suite 300
Renton, WA 98057
Email permittinglegislation@kingcounty.gov
Summary of Proposed Ordinance relating to King County Code Enforcement Updates 2024
Comments in this document are directly in response to the Plain Language Summary of the code enforcement draft ordinance found at this King County Document site:
Comments to Plain Language Summary and draft proposed Updates to Code Enforcement.
First section (un-numbered) Code Section labeled “throughout” Intent/Rationale states “Nonresidential reflects a flexible approach as not all nonresidential uses are commercial. Rather than referring to all nonresidential uses as commercial, it is more appropriate to utilize “residential” and “nonresidential” to describe broad categories of use types.”
What flexibility is needing to be addressed with this language change from commercial to non-residential? What circumstance(s) necessitate this change in language? Why did the county decide to replace commercial rather than simply adding the additional term non-residential?
Not enough information is provided by King County in the plain language document to describe reasoning or intent for the removal of the term commercial and replacing it with nonresidential for use in code.
Section 1. In code chapter 9.12.080 and under current language it is stated Provisions for corrective action, compliance, civil penalties, and liability for any violation of chapter 9.12. Proposed change states “Updates language from responsible parties to any person responsible for code compliance. Adds the alternative to civil penalties though KCC chapter 9.12 and cross-references the code enforcement provisions of KCC chapter 23.20 and 23.32.” The language in the proposed changes is confusing in that while it does add responsibility to a greater list of people such as tenants, lessees, and others, it also seems to allow for penalties to be assessed under both chapter 9 and 23 at the same time, making penalties simultaneous and cumulative. Is this the intent, or should language be more specific as to which chapter (or both) will be applied when assessing penalties?
From proposed language: “3. In addition to the civil penalties authorized under B.1 and B.2 of this section, violations of K.C.C. chapter 9.12 may also be addressed by citations issued in accordance with K.C.C. chapter 23.20 and civil penalties assessed according to the schedule in K.C.C. 23.32.010.A.1., or as otherwise determined by public rule.” (page 4, line 79)
From proposed language: “R. Person responsible for code compliance" means either the person who caused the violation, if that can be determined, or the owner, lessor, tenant or other person entitled to control, use or occupy, or any combination of control, use or occupy, property where a civil code violation occurs, or both. Any person causing or contributing to an action prohibited by this chapter shall be considered a "person responsible for code compliance." ( page11, line 227)
This proposed language provides definition to “any person responsible for code compliance”, and yet does not describe to whom the ultimate responsibility of code compliance will be borne. In the reading, it seems both a tenant or lessee, any person deemed contributing to a violation and a property owner could be held responsible for code compliance. The definition is problematic as it conflicts with other sections of code that place a violation conflict on a property title. Proposed code does not describe how multiple offenders for a code violation would be determined to bear responsibility for the actions of others in the same violation. Would that responsibility include repair and restoration, fines, fees?
Does the “any person responsible for code compliance” definition negate 9.12.090 Construction - Intent. In so far as responsibility laying squarely with the title holder? Should that section also be changed, and/or should the proposed language be more specifically defined in the proposed change?
Section 4. In code chapter 20.22.040 and under current language: Lists the types of issues that are within the hearing examiners’ purview. Proposed change states “Removes the authority of the hearing examiner to make decisions on the appeals of decisions not to issue a citation or a notice and order under KCC 23.36.010.” Intent/Rationale states “Simplifies the appeals process to lessen the burden on county resources”.
Certainly, a burden on county resources represents a burden on taxpayer resources but it must be questioned if the pre-emptive decision making contemplated in code language changes is based in the spirit of law. In the proposed scenario what happens to authority on appeals, to whom does that authority pass regarding appealing a HEX decision? How will county resources savings be served best by eliminating one task of many in code?
The extensive list of the types of issues under the hearing examiners’ purview is indeed exhaustive. (see pages 13- 16, lines 284-358, specifically line 347) It is noticed by the reader of that list there are various types of appeals that might be better served in some fashion other than an appeal, yet the language does not anticipate changes in language that would ease the load of a hearing examiner other than eliminating a hearing examiners’ decision to not make decisions on appeals not to issue a citation or notice under 23.36.010. If reform is the goal, it is curious of all the hearings conducted by a hearing examiner, the one singled out is for the denial of an appeal on a decision to not issue a citation or notice of order is for hearings in 23.36.010.
What alternative is provided in the proposed change for the appeal process of a hearing examiners decision? Please refer to the legal precedent or existing language that would allow in the enabling RCW or WAC this denial of appeal contemplated in the proposed language change for code enforcement?
Appeals of decisions not to issue a citation or notice of order must be treated similarly in legal terms to appeals to issue a citation or notice of order. Equal treatment under the law would require a formal response to appeal for both decisions to not issue and decisions to issue a citation or notice of order.
What is the underlying problem searching for a resolution in this code change language? It is not clear if this proposed language simplifies the appeals process, or simply illegally denies the appeals process based on one-sided criteria.
The county should seek out other ways to lighten the load on hearing examiners, perhaps by transitioning to a system that would segregate into like groups similar types of code violations and providing enough examiners to manage the total load. Another suggestion for simplifying the appeals process would be to eliminate the practice of accepting anonymous code complaints, especially those which are repeated complaints.
The practice of accepting anonymous complaints creates a situation where such complaints are often unreliable and unfounded but require a response from the county which increases the burden on county resources. The complaint process would be perfected if people understood what would or would not qualify as a code complaint perhaps through an arm of the county ombudsman program.
Section 5, 6, and 7 In code chapter 23.01.010 and 23.01.040 under current language: Establishes the purpose of KCC Title 23 for code compliance, and under Proposed Change the statement Adds language recognizing the limits on enforcement, the Intent/Rationale states An approach throughout the update of the code enforcement regulations is to provide flexibility for code enforcement staff to prioritize resources. This change recognizes that there are limits to available code enforcement resources.
The present language in the code should be changed, it has established in 23.02.010.B.1 an uncodified code can exist. The contrary notion to creating a code to establish code need not be codified is beyond common legal sense and reflects a willingness by the county to act in a manner that is outside and above the law in creating codes and regulations. Any update to language should first address this statutory problem. Clarity and codification are a necessary component of a constitutional state and a county law regulatory environment that will provide both the public and governmental agents certainty in compliance with regulation and law. (See page 19, lines 390-393)
Code enforcement resources limitations would be well addressed by ensuring regulations are codified and available to the public and code enforcement agents.
Prioritizing resources by staff should be a method of better using resources and flexibility in decision making by enforcement staff should have a codified and specific metric.
Staff decisions must be recorded and reference to code and staff determinations should be recorded with the final determinations made by staff who shall be named in the recorded document.
Decisions on prioritization of code violations must be subject to appeal, both in the cases of decisions to act on complaint or violation and decisions to not act on complaint or violation decisions. Documentation of a complete resolution or closure of a complaint must be documented in a retrievable format and must be delivered by certified mail to the property owner.
Because proposed language updates to code authorize flexibility in code enforcement decision making, and because of proposed language changes regarding “person responsible for code compliance”, all code enforcement decisions or determinations to prioritize complaints as low, moderate, or high, must require staff to be identified in the record of the determination and this information must be recorded as retrievable documents. The specific determinations must be delivered by certified mail to the property owner. (See pages 24-25, lines 525-560)
Proposed updated language to code would add “voluntary code compliance agreement” and “citation” to document types which can be violated. All such agreements must be documented, including the name of the enforcement staff and agent, in a format that provides for recording as retrievable documents which must be delivered by certified mail to the property owner.
Section 9. Current code in code chapter 23.02.050 provides guidelines for implementing KCC Title 23. The proposed change adds email as an authorized notification method. Simplifies procedural requirements to notify the owner or occupant. The Intent/Rationale Using email is a commonplace method of contact and allows the department to conduct business effectively and with less resources.
Relying on email as an effective method of notification may seem expedient, but it has with it the need for sending as a registered email with receipt acknowledgement which must be recorded in a retrievable format.
Relying on email alone as a method of notification prior to or during any prioritized code enforcement investigation, or for the purpose of posting a notice puts an enforcement agent or officer at risk. Risks include being unaware of animals located on the property, and the purpose or work of those animals which could result in injury or harm to both the animals on the property or to code enforcement staff. A more cautious approach would include waiting for a response from the property owner and allowing time for an appointment for inspection to be established prior to entry on a property by enforcement agents, officers, or staff.
Section 10. Current code in chapter 23.02.070 Provides guidelines and process to identify and investigate code compliance complaints, warn, notify, cite, and seek compliance from owners or occupants. Proposed changes add additional sources of information and evidence to include methods now commonly used including updated map databases and aerial and satellite photos. Stipulates that if a reported violation cannot be verified through reasonable attempts at investigation withing 180 days of the complaint the enforcement case will be closed. Removes a requirement for a warning in cases involving emergencies that pose an imminent threat to environmental health or public safety. Adds an allowance for any department to issue a citation where it is authorized elsewhere. The Intent/Rationale states: There are a number of digital databases that allow for remote research and verification of code compliance complaints and allow inspectors to be more effective with less resources. Provides inspectors with the flexibility to prioritized cases by fiving 180 day to investigate a case and close it if it cannot be verified withing the time frame. Simplifies procedural requirements and clarifies the connecting use of citations authorized in other KCC titles or chapters.
Additional resources to be used as evidence of code violations if not conclusive within 180 days of reasonable attempt of verification should be cause for the closure of a code violation complaint. What is the process for what staff, director, enforcement agent or officer makes this determination on verifiability of a code violation complaint and is responsible for the closure of a violation complaint? This information must be recorded at the county in a retrievable format. Notification of the completion of the process must be delivered to the property owner via certified mail.
For regulatory clarity the term reasonable must be defined. Emergency as used in 23.02.070 must be defined for the terms environmental health, public safety, and imminent threat.
Verbal warnings must be logged and placed in the county record in a retrievable format. The follow up written warning delivered in 2 weeks must also be recorded in county records in a retrievable format and delivered to the property owner by certified mail.
A property owner must be formally notified by certified mail in addition to other methods of notification that a code complaint has been initiated and closed by any county agency or department with enforcement authority that had investigated a code complaint. This information must be placed on county records in a retrievable format. A digital inspection shall not be the sole source to initiate a code violation complaint.
Section 11. Current code in chapter 23.20.01: Describes the authority of the director within the code compliance process. Whenever a director has determined that a civil code violation has occurred, they may issue a citation within 60 days of a complaint. Proposed change Simplifies the process for citing a person for a code violation by giving the director 60 days from determining a violation exists to issue a citation. Intent/Rationale This change moves the timeframe for issuing a citation from 60 days of receiving a complaint alleging a violation to the time of confirming the violation, providing flexibility for the time it takes to conduct a thorough investigation.
The effect of the proposed change allows more time for a director to issue a citation alleging a code enforcement violation. This may make it more comfortable for a director to work on a alleged violation because of a longer time frame to conduct a thorough investigation, but it is not clear how the changes here would increase flexibility or steward resources in a more efficient manner.
The extended timeline proposed in this section must also justify an extended timeline for a thorough response by a person being cited in proposed updates section 12, 23.20.020 17 days is an unrealistic time frame for a person being cited to respond to the county. The time for a response by a person cited should be 45 days rather than the proposed 17.
Section 12. Current code in chapter 23.20.02: Describes the effect of the issuance of a citation. A person to whom a citation has been issued is responsible for code compliance, unless contested as provided in K.C.C. Title 23, which includes: • Payment of civil fines; • Illegal dumping cleanup restitution payments; • Responding to the citation within seventeen days of service; • Failure to respond to the citation within seventeen days renders the citation final and the person cited liable for code compliance; • The prosecuting attorney may collect civil fines on behalf of King County by appropriate legal means; • Issuing a citation does not limit a director's authority to issue a notice and stop work order to the same person; • Payment of a civil fine assessed under a citation does not relieve a person cited of the duty to correct the violation and pay civil penalties accrued under a notice and stop work order. Proposed Change Clarifies that the timeframe to respond to a code violation is seventeen days from the date of service of the citation. Intent/Rationale Provides clarity for King County staff and people who have been cited for a code violation.
E. Failure to respond to the citation within seventeen days of the date of service of the citation shall render the citation a final determination that the conditions described in the citation existed and constituted a civil code violation and that the person cited is liable as a person responsible for code compliance. (see page 31, lines 678-681)
The amending language in E is an inadequate time frame for a response that would, if the timeframe is missed, cause a final determination that conditions described in a citation are true, correct, and that liability for those conditions exists.
A response that would require documentation of the described conditions, and/or legal and land use specialists, or any other assistance required for an adequate and legal response would simply not be possible to attain within 17days. Missing the deadline is essentially in this proposed language an admission of wrongdoing that may or may not be correct. Because of the seriousness of citations, it is imperative the county allow time for professionals to be contacted by “a person responsible for code compliance”. It is suggested this timeline be changed from 17 to 45 days to allow for a complete response to a citation that is accurate, complete, and will not cause additional resources of the person cited, or the agents and staff of the county to be expended unnecessarily. The suggested timeframe for a response does not interfere with issuance of additional orders as per code regardless of the suggested response timeline.
All citations and orders issued by the county in this section must be recorded by the county in a retrievable record and must be delivered to the property owner via registered mail.
Section 13. Current code in chapter 23.32.01: Provides a table that outlines civil fines and civil penalties for code violations. Proposed Change Adds that civil penalties and civil fines for code violations shall be assessed on the basis of whether the civil code violation is a residential or nonresidential violation. Replaces "commercial" with "nonresidential". Increases civil penalties and civil fines for nonresidential violations. The Intent/Rationale states: Distinguishes between residential and nonresidential penalties and increases nonresidential penalties. The changes to the assessment schedule simplify the assessment of penalties by eliminating penalties tied to criteria like economic benefit, public health risk, or environmental risk, which are difficult and time-consuming to verify.
The above plain language published is not accurate in stating “increases civil penalties and civil fine for nonresidential violations”. On page 34, there is a table that reads “(( 2))) b. voluntary compliance agreement and notice and order basic penalty” and “$((25)) 250 per day for residential violation and $500 per day for nonresidential violations.” Clearly, the increase for a residential violation from $25 per day to $250 per day is an extreme increase in that civil fine.
Doubling that amount for nonresidential violation is also extreme. While the table distinguished between residential and nonresidential penalties the extreme increase in expense is an overreach for either type of property owner and is apparently a capricious and arbitrary increase in penalty for a work in progress on a property. Civil penalties and fines must be based in fact to be appropriate as a penalty increases proposed by the county.
Also on page 34, item number 4 “Cleanup Restitution Payment as specified in KCC 23.04.140” has been left blank in the table. On page 35, item “(( (1))) a. first reinspection, which shall occur no sooner than the day following the date compliance is required by the notice and order” and proposed language “$150 for a residential violation, $300 for a nonresidential violation.” appears. It is problematic the proposed language appears as underlined, but the language which would have to be stricken from the document does not appear leaving no opportunity within the table of the document for comparison to present penalties. It is unclear if this is a proposed change in language or new/additional language. The table leaves unclear whether this is a one time penalty or a daily penalty being proposed? The problem of unclear language is continued in items b. “ $300 for a residential violation, $600 for a nonresidential violation.” c.” $((450)) 500 for a residential violation, $1,000 for a nonresidential violation.” d. “$((450)) 500 for a residential violation, $1,000 for a nonresidential violation.”
It cannot be assumed the public in reviewing the proposed changes can be aware of exactly what is meant or being changed without the proper and correct usage of correct legislative code writing. This should be clarified through correction and rewriting. Again, it must be mentioned these are extreme penalties, fines, and fees and must be clearly related to services being provided to the public by the county.
Page 37, lines 721-728: “((E)) F. The director may suspend the imposition of additional civil penalties if the person responsible for code compliance has entered into a voluntary compliance agreement. If the person responsible for code compliance enters into a voluntary compliance agreement and cures the code violations, the director may also waive all or part of the accrued civil penalties in accordance with K.C.C. 23.32.050. Penalties shall begin to accrue again pursuant to the terms of the voluntary compliance agreement if any necessary permits applied for are denied, canceled or not pursued, or if corrective action identified in the voluntary compliance agreement is not completed as specified.”
This policy is coercive, it refers to the director may suspend the imposition of additional civil penalties…if a voluntary compliance agreement has been entered. It is improper and poor policy to leave the suspension of penalties to the discretion of the director. There must be in place a written policy rubric that is clear, distinct, and applied evenly to all citizens or “violators”.
A voluntary compliance agreement carries all the promise and pitfalls of any legal contract if not carefully written. The fact that the agreement carries serious weight and can be the impetus for “Penalties shall begin to accrue again pursuant to the terms of the voluntary compliance agreement if any necessary permits applied for are denied, canceled or not pursued, or if corrective action identified in the voluntary compliance agreement is not completed as specified.” Coercion exists when decision making on the imposition of penalties is discretionary, and when an agreement hinges on permits applied for that can be denied by the county at the same time the permits are required by the county. Specified corrective action must be consistent, in writing, and not discretionary.
Section 14. Current code in chapter 23.32.040: Provides additional requirements for violations involving critical areas. Requires any person responsible for code compliance to restore damaged critical areas and pay a civil penalty for the redress of ecological, recreation, and economic value lost or damaged. Code compliance costs incurred by the county are not to exceed $25,000.00 Proposed change: Increases code compliance costs incurred by the county to $50,000.00 for residential violations and $100,000.00 for nonresidential violations. Intent/Rationale reads: The current amount of $25,000.00 was set several years ago and applies to residential and nonresidential violations. The amount of $100,000.00 for costs of enforcement for commercial violators reflects both cost inflation and removing the incentive to violate critical area requirements as a cost of doing business.
The Increases code compliance costs incurred by the county to $50,000.00 for residential violations and $100,000.00 for nonresidential violations are extreme, doubling the costs to the county for residential violations, and for “nonresidential” violations the costs to the county are fourfold. This kind of huge jump in “compliance costs” is out of touch with the realities faced by those who may find themselves in the position of funding the costs of the county. A small business facing a nonresidential violation could easily be financially ruined if facing huge fines of this magnitude. This monetarily driven policy must consider the kinds of ruin it could cause individual, and a one size fits all cost for costs of enforcement without small business exclusions is unacceptable to the public.
The term “costs of enforcement” is not well defined. If this is for a service provided by the county there must be a direct nexus of the cost to the service. Yet the plain language is quite clear the policy is based not on monetary necessities of the county but is tied to “inflation and removing the incentive to violate critical area requirements as a cost of doing business.” The required direct nexus does not exist for the proposed costs. This prejudicial thinking leading to a pre-supposed costing to forestall a problem that may or may not exist or that some, but not all may engage in leading to costing all for the supposed future activity of some has no legitimate place in policy that dictates fines, fees, and costs for the county.
This proposed policy causes one to question the exorbitant fees and if they are a disincentive for bad actors, or an incentive for the county to cause extreme increases in revenue rather than begin the difficult process of shepherding revenue legally and responsibly while holding bad actors to account in code.
Section 15. Current code in chapter 23.36.010: Identifies those people who may appeal a notice and order or stop work order. Directs to the K.C.C. chapters and sections that are relevant for appealing and responding to a notice and order or stop work order. Proposed changes: Eliminates the provision that would allow a complainant, rather than just the person named in the notice and order or stop work order, to appeal a citation, notice and order, stop work order, or a determination not to issue a citation or order. Intent/Rationales states: Complainants have used this provision to continually appeal department decisions and extend the appeals process, which takes up considerable staff and hearing examiner resources. While rare, prior cases have demonstrated the potential for this provision to be used as a tool for harassment by complainants.
Eliminating the harassment by complainants is a long-standing improvement many citizens of the county have wanted in code. However, eliminating certain persons from the rights to appeal a county decision is not the correct solution. All citizens bear the right to appeal in a court or legal proceeding to have an issue redressed. There are circumstances that require judicial involvement to keep all parties apprised of the legal standards that must be met in any given situation. Decisions to act or to not take action equally bear the dependence of meeting the standards of the rule of law. Eliminating one possible legal action undermines the veracity of the remaining legal action and should not be the policy of the county or the state.
This calls into question the authority of the county to make discretionary decisions, and exhibits why there must be a clearly written and published decision making rubrics for all “discretionary” policies carried out by the officers and agents of the county. A legal path must be followed and followed in a like manner for all regardless of an anticipated outcome of a court or hearing examiner.
A better approach is to cause those filing complaints or requesting an appeal to provide their name in a public forum whether providing a complaint or requesting a hearing. Harassment can only happen when policy allows it to happen through policy that denies an accused of knowing who complained and why a complaint was registered.
Repeated complaints by the same complainant are harassment and anonymity in registering a complaint clearly allows for harassment. A repeat complainant must not be anonymous and a complainant who has previous registered complaints that were not acted on by the county should be recognized and discouraged. Such complaints must have a low priority to avoid the harassment a complainer seeks.
False complaints that are anonymous must be identified and the complainant and/or the county must be liable for damages incurred due to false complaints.
These comments submitted by
Cindy Alia on behalf of
Citizens’ Alliance for Property Rights
718 Griffin Ave # 7
Enumclaw, WA 98022
June 29, 2024