1 Although Cities Have Been Dealing with Nuisances for Centuries1, In

CODE ENFORCEMENT ABATEMENT OF GENERAL NUISANCES, CHRONIC NUISANCES, AND UNFIT DWELLINGS

ERIK LAMB, DEPUTY CITY ATTORNEY, CITY OF SPOKANE VALLEY

MATT FOLSOM, ASSISTANT CITY ATTORNEY, CITY OF SPOKANE

INTRODUCTION

Although cities have been dealing with nuisances for centuries1, in recent years it seems as though the volume and complexity of public nuisances and nuisance issues have exploded. Although the general municipal authority to address nuisances – the authority to define and abate public nuisances – has not changed in decades, the nuisance issues facing cities has changed dramatically in the last several years. In addition to the “standard” garbage or junk nuisances, cities now face extensive nuisance and code enforcement issues such as abandoned or foreclosed houses, where squatters destroy, misuse, and abuse the property without any regard for legal authority and, until recently, very limited repercussions; properties with deceased owners whose ownership interests have not transferred, leaving the property ownership in a state of uncertainty; residences with extensive business activities; extensive unpermitted construction and building additions rendering residences uninhabitable; individuals with mental illness concerns; and the use of recreational vehicles or structures as illegal permanent residences. Yet despite the increase in the nature and scope of challenges facing cities, the tools to address nearly all of these nuisance problems already exist. This paper and presentation will outline the variety of processes that cities may use to address their particular problems. From “standard” nuisances to more complex unfit dwelling and drug nuisance properties, we will cover a number of options and methods that we have found useful.

In addressing these methods, we’ve included a number of form documents for your future reference. These are representative of the procedures and processes used by the City of Spokane Valley and, where indicated, the City of Spokane, so please do not hesitate to modify these forms or use other processes as may be more appropriate for your city. Although I have attached some example forms used in the City of Spokane Valley, please feel free to contact me, Cary Driskell, or Matt Folsom for further examples or with additional questions.

I. STATUTORY AUTHORITY TO DECLARE AND ABATE NUISANCES

Cities and towns initially derive their authority to declare and abate nuisances under article XI, section 11 of the Washington State Constitution, which provides “[a]ny county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” In addition to the constitutional grant of authority, cities of all classes are granted specific authority to declare what shall be a nuisance and to abate the same.2 Though there has been some debate about potential preemption of local

1 See, e.g., RCW 7.48.130, which defines “public nuisance” and originally appeared in 1875. 2 The statutory authority for cities and towns to declare and abate nuisances is as follows: first class cities: RCW 35.22.280(30); second class cities: RCW 35.23.440(10); towns: RCW 35.27.410; and code cities: RCW 35A.11.020; 35A.21.160; 35.22.280; 35.23.440. 1 nuisance authority by chapter 7.48 RCW, which provides a statutory definition and procedure for abating public nuisances, there does not appear to be a true conflict of local nuisance authority with the State public nuisance provisions. In Heesan Corp. v. City of Lakewood, 118 Wn. App. 341, 354, review denied, 151 Wn.2d 1029 (2003), the court held that RCW 7.48.130’s definition of “public nuisance”3 did not conflict with, preempt, or limit a city’s authority under the Washington Constitution or the Revised Code of Washington. For further discussion on the preemption issue and extent of local authority, see also Michael Kenyon’s excellent discussion in the 2011 Spring WSAMA conference materials.

Some applicable Revised Code of Washington provisions:

First Class Cities (RCW 35.22.280) Any city of the first class shall have power: . . . (30) To declare what shall be a nuisance, and to abate the same, and to impose fines upon parties who may create, continue, or suffer nuisances to exist[.]

Second Class Cities (RCW 35.23.440) The city council of each second-class city shall have power and authority: . . . (10) Nuisances: To declare what shall be deemed nuisances; to prevent, remove, and abate nuisances at the expense of the parties creating, causing, or committing or maintaining the same, and to levy a special assessment on the land or premises whereon the nuisance is situated to defray the cost or to reimburse the city for the cost of abating the same.

Code Cities (RCW 35A.21.160) A code city organized or reorganized under [Title 35A] shall have all of the powers which any city of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities.

Towns (RCW 35.27.410) Every act or thing done or being within the limits of a town, which is declared by law or by ordinance to be a nuisance shall be a nuisance and shall be so considered in all actions and proceedings. All remedies given by law for the prevention and abatement of nuisances shall apply thereto.

Public Nuisances (chapter 7.48 RCW)

RCW 7.48.130 A public nuisance is one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal. See also RCW 7.48.140, which enumerates several specific public nuisances.

3 “A public nuisance is one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.” RCW 7.48.130. 2

RCW 7.48.220 A public nuisance may be abated by any public body or officer authorized thereto by law.

RCW 7.48.260 When, upon indictment or information, complaint or action, any person is adjudged guilty of a nuisance, if it be in superior court the court may in addition to the fine imposed, if any, or to the judgment for damages or costs, for which a separate execution may issue, order that such nuisance be abated, or removed at the expense of the defendant, and after inquiry into and estimating, as nearly as may be, the sum necessary to defray the expenses of such abatement, the court may issue a warrant therefor: PROVIDED, That if the conviction was had in a district court, the district judge shall not issue the order and warrant of abatement, but on application therefor, shall transfer the cause to the superior court which shall proceed to try the issue of abatement in the same manner as if the action had been originally commenced therein.

In addition to the general authority granted to cities to declare and abate nuisances, there are specific statutes granting cities authority to abate junk vehicles (RCW 46.55.240), overhanging or obstructing vegetation (RCW 35.21.310), drug nuisances (chapter 7.43 RCW), and unfit dwellings, buildings, and structures (chapter 35.80 RCW). Further, while not necessarily considered a “nuisance,” cities are required to enforce the State building code, which certainly should be part of a city’s code enforcement program. See RCW 19.27.050.

Collection of Abatement Costs

Abatements can be expensive propositions, costing upwards of tens and even hundreds of thousands of dollars. In addition to general authority to declare and abate nuisances, there are procedures necessary for cities to recover costs. There are many methods by which a city may recover costs: preparing judgments to be filed as liens on the real property (RCW 4.56.190), garnishment of wages, and use of collection companies are examples. The City of Spokane Valley utilizes lien filing as its principal method of cost recovery coupled with voluntary payment plans. “A judgment granted by the superior court creates a lien against the judgment debtor’s non-exempt real property.” Hartley v. Liberty Park Assocs., 54 Wn. App. 434, 437 (1989); RCW 4.56.190.4 Judgments do not have to be recorded to be effective against subsequent purchasers and liens, as the lien commences upon filing of the judgment by the county clerk. See Hartley, 54 Wn. App. at 438; RCW 4.56.200.5 However, to avoid any potential argument regarding lack of notice, we always record final judgments. While there is some lack of clarity on the priority of city nuisance abatement liens, generally, absent direct statutory authority setting such priority (see, e.g., RCW

4 RCW 4.56.190 provides, “The real estate of any judgment debtor…not exempt by law, shall be held and bound to satisfy…any judgment of the supreme court, court of appeals, superior court, or district court of this state, and every such judgment shall be a lien thereupon to commence as provided in RCW 4.56.200 and to run for a period of not to exceed ten years from the day on which such judgment was entered unless the ten-year period is extended in accordance with RCW 6.17.020(3)….” See also BNC Mortgage, Inc. v. Tax Pros, Inc., 111 Wn. App. 238, 46 P.3d 812 (2002), overruled on other grounds by Columbia Cmty. Bank v. Newman Park, LLC, 177 Wn.2d 566, 304 P.3d 472 (2013). 5 RCW 4.56.200(2) provides, “The lien of judgments upon the real estate of the judgment debtor shall commence as follows: Judgments of the superior court for the county in which the real estate of the judgment debtor is situated, from the time of the filing by the county clerk upon the execution docket in accordance with RCW 4.64.030.” 3

84.60.010 setting superior lien priority for general tax liens and RCW 60.04.061 for mechanic’s liens), liens are paid based upon the order in which they were entered or recorded (e.g., “first in time, first in line”). See Mahalko v. Artic Trading Co., 29 Wn. App. 411 (1981). Thus, this highlights one major problem with using judgment liens as a method of cost recovery - a city’s judgment lien will be subject to all prior liens attached to the real property. Note that if you opt to use judgment liens as a method of nuisance abatement cost recovery, there are certain statutory requirements as to what must be in included in the judgment, including a requirement to provide the legal description of the property subject to the judgment. See RCW 4.64.030; CR 54; CR 58.

In order to address the cost recovery issues cities face by only having subordinate lien authority, in 2016 the Washington State Legislature adopted Chapter 100, Laws of 2016. The new lien authority is codified in RCW 35.21.955 and RCW 35A.21.405. Generally, the provisions provide that any city exercising its authority under the general nuisance statutes to abate nuisances may “levy a special assessment on the land or premises where the nuisance is situated to reimburse” the city for the “expense of abatement.” See RCW 35.21.955(2); 35A.21.405(2). The special assessment is “a lien against the property” and “[u]p to two thousand dollars of the recorded lien is of equal rank with state, county, and municipal taxes.” The new lien authority requires a city to “provide prior notice to the property owner that abatement is pending and a special assessment may be levied on the property for the expense of abatement.” RCW 35.21.955(1); 35A.21.405(1). Further, prior to levying any special assessment, the city must notify the property owner and “any identifiable mortgage holder” of the pending assessment and the amount of the assessment. RCW 35.21.955(2); 35A.21.405(2). Notices must be sent by regular mail. Finally, to allow collection, cities may contract with local county treasurers to collect the special assessments. In Spokane County, the County Treasurer has only required a letter notifying of the judgment amount and a copy of any recorded judgments in order to commence collection. This provision was the result of significant efforts from a number of cities, and had to overcome substantial opposition from community banks. To that end, we anticipate that it will continue to be the subject of future legislative discussions in order to increase the amount of the priority lien authority and to make other minor changes to more closely align with other existing priority lien authority in RCW 35.80.030(1)(h).

Another issue to be aware of with judgment liens is that a judgment lien is likely subject to the homestead exemption, which provides that any property used as the primary residence of the debtor-owner is granted a waiver from enforcement of the judgment in the amount of the lesser of $125,000 or the net value of the property which is statutorily defined as “the market value less any liens and encumbrances senior to the judgment being executed on and not including the judgment being executed on.” RCW 6.13.010, .030, .070.

Once a lien is obtained, the city will have to either wait until the property is sold to receive proceeds or foreclose on the property. While a city may execute the lien to force a sale pursuant to chapter 6.17 RCW, Spokane Valley has not done so as we do not wish to take someone’s house away simply for garbage and litter clean-up costs. See RCW 6.17.020 (“…the party in whose favor a judgment of a court has been or may be filed or rendered, or the assignee or the current holder thereof, may have an execution, garnishment, or other legal process issued for the collection or enforcement of the judgment at any time within ten years from entry of the judgment or the filing of the judgment in this state.”). In certain instances, as described below, the City of Spokane has

4 actually used receivership as a means of simultaneously abating and recouping costs on particular chronic nuisance properties.

Specific nuisances: Drug Nuisances, Unfit Dwellings, Blighted Property and Emergency Abatement of Vegetation

Additional consideration should be given to those nuisances specifically called out in State law, such as unfit dwellings, drug nuisances, and overhanging or overgrown vegetation. These require separate local ordinances with specific substantive and procedural requirements. Generally, they do allow additional benefits (e.g., priority lien authority for costs of abatement of unfit dwellings (RCW 35.80.030(1)(h), preliminary injunction and court custody of the building for drug nuisances (RCW 7.43.030-.090)), but care must be taken to ensure the local ordinance is properly adopted and all procedures are followed.

Drug Nuisances

Chapter 7.43 RCW provides authority and procedures for cities to abate drug nuisances. This is a limited use statute, however, as RCW 7.43.010 limits drug nuisances to

“Every building or unit within a building used for the purpose of unlawfully manufacturing, delivery, selling, storing, or giving away any controlled substance as defined in chapter 69.50 RCW, legend drug as defined in chapter 69.41 RCW, or imitation controlled substances as defined in chapter 69.52 RCW, and every building wherein or upon which such acts take place, is a nuisance which shall be enjoined, abated, and prevented, whether it is a public or private nuisance.”

Once a drug nuisance is found, a city may seek a temporary restraining order or preliminary injunction to prevent the defendant and all persons from removing or interfering with the personal property where the nuisance is occurring and for such other equitable relief as is necessary to prevent the continuance of the nuisance until a final resolution is reached. RCW 7.43.030. Preliminary relief requires the posting of a bond of at least $1,000. RCW 7.43.040. A drug nuisance abatement action must be instituted in superior court by a complaint verified or accompanied by affidavit supporting that the owner has been made aware of the nuisance, has had an opportunity to abate the nuisance, and which details the adverse impact of the nuisance on the surrounding neighborhood. RCW 7.43.020. Adverse impact includes and should be supported by police and enforcement records detailing search warrants served, investigative purchases of controlled substances on or near the property, arrests of persons on the property, and the number of complaints made to law enforcement of illegal activity associated with the property. Id. Demonstrating the owner’s knowledge of the nuisance, lack of efforts to abate the drug nuisance, and history of noncompliance is very important, because if the court finds the owner had no knowledge, has been working to abate the nuisance, or will immediately abate the drug nuisance, it may withhold the order of abatement and cancel any prior order of abatement to allow the owner to retake the building. RCW 7.43.080. Thus, working with your police force to not only address the ongoing criminal violations but also contacting owners and attempting to work with them on abating the nuisance is critical for ultimately succeeding in a drug nuisance abatement action.

With a final order, the court must direct removal of all personal property subject to seizure and forfeiture pursuant to RCW 69.50.505, provide for the immediate closure of the building or unit and for keeping it closed for a period of one year, unless released sooner, and state that while the order of abatement remains in effect the building or unit shall remain in the custody of the court. RCW 7.43.090. The city costs of abatement constitute a lien against the building or unit and may be collected by execution. RCW 7.43.080.

When utilizing chapter 7.43 RCW, be aware of potential takings and due process issues, especially when enforcing it against commercial establishments. In City of Seattle v. McCoy, 101 Wn. App. 815 (2000), the Court of Appeals found that the drug nuisance statute was an unconstitutional taking as it applied to the abatement of the owners’ property and the drug nuisance statute violated due process as applied to the owners because the remedy was unduly oppressive. In McCoy, the City of Seattle originally worked with the property owner of a commercial restaurant to eliminate criminal activity that was occurring on the property. Id. at 821-823. The owner was cooperative and prohibited any identified criminals from using the restaurant. Id. At some point, however, Seattle stopped working with the owner and then sought to use chapter 7.43 RCW to shut down the restaurant as criminal drug activity continued to occur. Id. While the Court recognized common law principles that nuisance may be an exception to unconstitutional takings, in this case the Court highlighted the efforts of the owner to remove the criminal activity, both independently and in cooperation with Seattle. Id. at 831. Further, the Court highlighted the complete deprivation of economical use that would occur with abatement under chapter 7.43 RCW. Id. at 829-830. Given the owner’s good faith efforts, the criminal nuisance activity was not intrinsically tied into the business, so if the City completely shut down the restaurant, it would be effecting a taking without the necessary compensation.

While this case may give you pause in pursuing abatement of commercial establishments believed to be drug nuisances, notably the Court found that chapter 7.43 RCW was not facially unconstitutional, so there will be instances where it may be applied constitutionally. Further, it appears as though this case could be distinguished from cases where the owners and operators are intrinsically linked to the ongoing drug activity and the illegal activity is inextricably intertwined with the business. Id. at 831.

In the Spokane area, drug and criminal nuisance properties appear to be a growing problem. Since chapter 7.43 RCW is limited by its terms to those properties involving “controlled substances,” you may wish to consider adopting a “chronic nuisance” or “criminal nuisance” code to supplement it for those properties that involve extensive criminal activity that may not all be drug- related. See the discussion on local “chronic nuisance” codes below.

Unfit Dwellings

One of the primary benefits for utilizing the unfit dwellings procedure set forth in chapter 35.80 RCW is that it allows a city to recover its costs as an assessment lien that is of equal rank with state, county, and municipal taxes. RCW 35.80.030(1)(h); cf. City of Tacoma v. Pierce County, 79 Wn.2d 361 (1971) (prior version of assessment provision set forth in RCW 35.80.030(1)(h) did not expressly provide that the assessment was of equal rank with local and county taxes and thus the assessment did not constitute priority lien to be paid as part of tax foreclosure sale. The statute

6 was subsequently amended to include the language making it of equal rank with local and county taxes). The assessment may include the cost of "repairs, alterations or improvements; or vacating or closing; or removal or demolition." RCW 35.80.030(1)(h). However, chapter 35.80 RCW places a duty on a city, when possible, to "sell the materials of such… [building]…and credit the proceeds of such to the cost." RCW 35.80.030(1)(h).

In order to utilize the unfit dwellings assessment lien process, a city must pass an ordinance. The local ordinance must establish a board or official to officially designate dangerous buildings as "unfit for human habitation or other use" through a public hearing procedure in which the rules of evidence apply. RCW 35.80.030(1)(c). In making this determination, the board or official may consider (without limitation): fire or accident hazards, inadequate ventilation, light or sanitary facilities, dilapidation, disrepair, structural defects, uncleanliness, overcrowding, or inadequate drainage. RCW 35.80.030(1)(d). The ordinance must state “reasonable and minimum standards covering such conditions,” which may include standards contained within other adopted building, use, and occupancy codes. RCW 35.80.030(1)(d), (7)(a). The board or officer further has the authority to declare that the building should be demolished or repaired. RCW 35.80.030(1)(e). There are very specific procedures applying to notice and hearing within RCW 35.80.030, as well as that must be contained within the local ordinance, so review this section closely to ensure procedural compliance. A party of interest has the right to appeal the decision and a municipality is further required to designate or establish an appeals commission. RCW 35.80.030(1)(g). Finally, the local ordinance must provide specific standards on the degree of structure deterioration or the relationship that the estimated cost of repairs bears to the value of the structure in order to determine whether a structure shall be repaired or demolished.

Once abated, the “city treasurer” (or presumably the city finance director) must certify the assessment to the county treasurer, who enters the amount of the certified assessment on the tax rolls against the property for the current year. The assessment then becomes a part of the general taxes to be collected at the same time and with the same interest as provided in RCW 84.56.020 for delinquent taxes. RCW 35.80.030(1)(h).

There are several considerations for adoption and use of the procedures under chapter 35.80 RCW for abatement of unfit dwellings and buildings. First, we believe it is for limited application to unfit dwellings and buildings only and is not available for use on general garbage or junk vehicle nuisance abatements. Secondly, you need to ensure there is no conflict in the standards and procedures adopted within the local ordinance and those set forth in your other enforcement and building codes, such as a different notice or appeal period between the two. Finally, you will need to confer with your local county as some counties have indicated that once the assessment is imposed, they will foreclose on it in the same manner as they would for failure to pay taxes, which may or may not be something your jurisdiction desires. Finally, while chapter 35.80 RCW authorizes abatement without obtaining a court order, as discussed below, we believe it is far safer to obtain a court order to avoid potential constitutional challenges under the Fourth Amendment.

Summary Emergency Abatement of Vegetation

What options does a city or town have with regard to emergency/summary vegetation removal? The city or town may require property owners to remove overhanging or obstructing vegetation if

7 it is obstructing or impairing the free and full use of the sidewalk or roadway by the general public. If the property owner fails to do so, the City may remove such vegetation and the cost may become a charge against the owner of the property and a lien against the property, as provided for in RCW 35.21.310.

The legal underpinnings for this summary process are that the nuisance conditions are hazardous to the life, health, and safety of the general public trying to use the public right-of-way. It is important to note several essential aspects of the process:

1. adoption of a general ordinance prohibiting the maintenance of such conditions; 2. adoption of a resolution specific to each property owner of a violation, with at least five days’ notice of when it will be considered by the city council; 3. the notice shall describe the property (suggest residential address and tax parcel number) and the hazardous condition to be abated (pictures are recommended); and 4. that if the property owner does not abate the problem within an identified timeframe, the city or town will do it and charge the owner, with any unpaid cost becoming a lien against the real property in the nature of a lien for labor and materials, and which can be enforced in the same manner.

Condemnation for Blighted Properties

Although we are not aware of many uses historically, condemnation of blighted properties pursuant to chapter 35.80A RCW is one method cities should consider when dealing with the glut of vacant and abandoned houses we now face. Chapter 35.80A RCW allows cities to condemn properties which “constitutes a blight on the surrounding neighborhood.” Blight on the surrounding neighborhood must meet two of the following three factors:

(1) If a dwelling, building, or structure exists on the property, the dwelling, building, or structure has not been lawfully occupied for a period of one year or more; (2) the property, dwelling, building, or structure constitutes a threat to the public health, safety, or welfare as determined by the executive authority of the county, city, or town, or the designee of the executive authority; or (3) the property, dwelling, building, or structure is or has been associated with illegal drug activity during the previous twelve months. RCW 35.80A.010.

In a relatively recent unpublished case, the court highlighted that a building which may be “lawfully unoccupied” since it could not be lawfully occupied due to stop work orders and determinations of unfitness by the local building official did not defeat a claim that the building was not lawfully occupied for the requisite period. See City of Walla Walla v. Knapp, 190 Wn. App. 1002 (2015) (unpublished). The city must adopt a resolution declaring the acquisition of the real property as necessary to eliminate the neighborhood blight. RCW 35.80A.010. The condemnation of blighted property otherwise follows the procedures set forth in Title 8 RCW for eminent domain. RCW 35.80A.010. Condemnation of property for the purposes set forth in Title 35.80A RCW is declared to be for a public use.

Necessary Local City Provisions?

While State law provides general authority and even some provisions for specific nuisances, we have found it necessary and appropriate to adopt local substantive and procedural nuisance provisions for several reasons. First, there may be specific local circumstances that require local provisions in order to be effectively addressed. Additionally, local substantive nuisance provisions allow a city council to set the appropriate policy direction for the city in specifying what is and what is not a nuisance to be abated by the city. Examples to be considered include the obvious garbage, litter, and other broken materials not in approved containers, junk vehicles, attractive nuisances, odors, noise, and dust. However, consideration should be given to other nuisances that may be handled by other departments or agencies, such as fire hazards (Spokane Valley includes it as a nuisance, though we require independent fire department determination), or weeds (we include it, though we try to work with the local Spokane County Noxious Weed Control Board as they receive specific funding for that very purpose). Further, there may be particular local issues that require creative approaches, such as declaring medical marijuana collective gardens in particular locations to be a nuisance. See, e.g., Cannatonics v. City of Tacoma, 2015 Wn. App. No. 45999-0-II (Wash. Ct. App. Sept. 15, 2015) (unpublished) (note, however, that the analysis focused on review of chapter 69.51A RCW prior to legislative changes set forth in the Cannabis Patient Protection Act, Laws of 2015, ch. 70). Finally, local procedural provisions allow a city to specify its administrative citation process, appeal procedures, and, importantly, penalties and cost recovery, including recovery of attorney fees and other related litigation costs.

Additionally, a city must determine whether nuisance violations will be prosecuted as civil or criminal matters, as both are authorized pursuant to State law. See RCW 7.48.200 (“The remedies against a public nuisance are: Indictment or information, a civil action, or abatement.”). A city may authorize both under its local code as alternative means of enforcement.

Chronic Nuisances

One area that seems to have grown in recent years are increasing number of criminal nuisance properties. A number of cities have adopted local “chronic nuisance” provisions to address these criminal nuisance properties. Both the City of Spokane and City of Spokane Valley have adopted such provisions. See chapter 10.08A SMC; SVMC 7.05.020, .045. Given the extreme remedy – to remove owners from properties for an extended period of time – care should be given to demonstrate the extent of the criminal activity and its link to the property and the property owner, the impact on the neighborhood, extensive notice to the owner of the ongoing criminal activity, and the efforts used by the City to work with the owner to abate the ongoing criminal activity. These nuisances, then, generally require extensive cooperation between code enforcement, law enforcement, neighbors, and the legal office to set up and document properly prior to litigation. Further, as described below, due to constitutional limitations on warrantless search and seizures, we strongly recommend that the process not allow for administrative abatement, but instead require a court order and warrant of abatement.

Generally, a chronic nuisance provision will detail that a certain amount of criminal activity stemming from and centered on a property will render a property as a chronic nuisance. The amount and type of criminal activity is a local policy determination. In the City of Spokane, for

9 instance, the types of activity that qualify is very long and extensive and includes any civil code violation, criminal conduct on, around, near, or having a nexus to a property. SMC 10.08A.020. Further, where the criminal conduct is domestic violence related, there can be no tenancy termination against victims. Spokane Valley specifically excluded domestic violence, since domestic violence generally does negatively impact the surrounding neighborhood in a manner that requires abatement of the property as a chronic nuisance. SVMC 7.05.020. As to what constitutes “criminal activity,” Spokane Valley has a broad definition that includes executing search warrants, arrest, commission of misdemeanors, gross misdemeanors, or felonies, and visits, though visits alone without arrest, service of warrants, or commission of crimes cannot be the sole basis for declaring a property as a chronic nuisance. See SVMC 7.05.020.

On September 13, 2016 the U.S. Department of Housing and Urban Development (HUD) issued a policy paper on the ‘Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence, Other Crime Victims, and Others Who Require Police or Emergency Services.’ In summary, a local government’s policies and practices to address nuisance violates the Fair Housing Act when they have an unjustified discriminatory effect, even when the local government had no intent to discriminate. 24 C.F.R § 100.55; accord Texas Dep’t of Hous. Affairs v. Inclusive Cmtys. Projects, Inc., 135 S. Ct. 2507, 2511 (2015). This comes into play where the enforcement of a nuisance penalizes individuals for use of emergency services or for being a victim of domestic violence or other crime. The local government bears the burden of proving that any discriminatory effect caused by such a policy or practice is supported by a legally sufficient justification. HUD’s recommendation is to conduct an assessment of your nuisance ordinances, crime-free housing ordinances, and related policies or practices, including the processes by which nuisance ordinances and crime free housing ordinances are enforced, and consider how these ordinances, policies or practices may affect access to housing and access to police, medical and other governmental services based on sex, race, national origin, disability, and other characteristics protected by the Act.

For the purposes of chronic nuisance, cities must determine how much criminal activity is necessary before a property may be declared to be a chronic nuisance. Such provisions vary, but generally include a number of activities over a specified period, usually in six-month or 12-month increments. In Spokane, a property may be declared as a chronic nuisance if there are three nuisance occurrences within any sixty-day period, or seven within a twelve-month period, or two search warrants with drug related activity, or any abandoned property where nuisance activity exists. SMC 10.08A.020. In Spokane Valley, there must be either five occurrences of criminal activity during a consecutive 12-month period, or four occurrences of criminal activity and one “standard” nuisance determination during the same period. SVMC 7.05.045.

As indicated above, you must give consideration to due process and takings issues when declaring a property chronic nuisance. Accordingly, most cities build defenses or exemptions into the chronic nuisance code when an owner is cooperating and working with the city to abate the criminal activity and does not allow the activity to continue when they are aware of it. Thus, as evidenced by the McCoy case, it is critical that in carrying out the chronic nuisance provisions, the city timely notify the owners of ongoing criminal activity and that the city work with owners to either require or allow them opportunities to abate such activity. The city must document all of

10 these efforts and further, we believe it is critical to show that the owners are not only failing to abate the activity, but that they are not even attempting to abate the activity or are contributing to the activity. For example, the City of Spokane requires owners to respond to notice of a chronic nuisance and enter into an abatement agreement. SMC 10.08A.040. Failure to do so is a class I civil infraction. Further, the abatement agreement is a negotiated document where the city works with owners to identify corrective action that will assist in abating the criminal nuisance activity and it can include tenant screening, improved lease agreements, physical improvements to the property, extra security, or evicting nuisance-creating tenants.

In effecting chronic nuisance provisions, cooperation between multiple departments or agencies is critical. In Spokane Valley, the City contracts with the Spokane County Sheriff for police services. Thus, the Spokane Valley attorney’s office has a more hands-off approach as we do not have authority to dictate investigative procedures. However, in comparison, the City of Spokane created a civil enforcement unit that has specific neighborhood resource officers, an abandoned property detective, and a dedicated civil prosecutor, all working through community policing to resolve underlying and contributing problems. The City of Spokane’s Civil Enforcement Unit utilizes place-based interventions to build civic engagement and to, hopefully, prevent the next crime.

Restraining Orders and Injunctions for Certain Unfit Dwellings

Recently, the City of Spokane Valley has begun using restraining orders to quickly address the root issues associated with criminal activity at unfit dwellings by closing the property and removing the occupants. In the few instances we have used it, the owners or occupants had not paid for any utilities, and thus the properties were lacking essential electricity, gas, and water services, rendering them unfit for occupancy and thus subject to closure under the City’s building code. Due to the life and health safety issues, the City was able to obtain a restraining order and injunction requiring the owner and occupants to vacate the property and for the property to be secured until it meets building code standards, as determined by the City’s Building Official. While the process could be used in any instance there are occupants in unfit dwellings, the City has used it only in instances with associated criminal activity as it provides a quicker response than the standard chronic nuisance process, and it addresses the cause of the primary criminal activity problem. In every instance so far, the property was subsequently sold and remediated by the new owner.

II. COURT JURISDICTION OVER NUISANCES

The typical procedure to abate nuisances is by filing a complaint in superior court and obtaining an order and warrant of abatement to abate the nuisance. RCW 7.48.260 states that when “any person is adjudged guilty of a nuisance, if it be in superior court the court may . . . order that such nuisance be abated, or removed at the expense of the defendant, and . . . the court may issue a warrant therefor[.]” District courts judges do not have authority to issue orders and warrants of abatement. RCW 7.48.250.

III. OTHER LEGAL ISSUES RELATED TO NUISANCE ABATEMENT

Administrative Search Warrants?

Generally, non-criminal administrative search warrants present substantial risk to cities.6 Municipal courts and state courts of limited jurisdiction do not have inherent authority to issue noncriminal administrative search warrants; the authority is derived from statutes or court rules. E.g., McCready II, 124 Wn.2d at 309. Because of existing statutory authority and court rules, an administrative search warrant may be granted, if supported by probable cause, for the investigation of a criminal violation. RCW 10.79.015; CrRLJ 2.3(b); McCready II, 124 Wn.2d at 310. However, even when supported by probable cause, noncriminal administrative search warrants are invalid under the state constitution7 and the United States Constitution8 absent authority from a statute or court rule. Bosteder, 155 Wn.2d at 23-24; McCready II, 124 Wn.2d at 309. Courts may issue administrative search warrants if the application asserts a code violation which constitutes a crime rather than simply a civil infraction. McCready II, 124 Wn.2d at 310; Exendine v. City of Sammamish, 127 Wn. App. 574, 582 (2005). Furthermore, a “right of entry” provision in building or housing codes is not legislative authorization for a court to issue search warrants. Bosteder, 155 Wn.2d at 30-31.

Washington courts have ruled decisively that an officer may not break open any outer or inner door to serve a civil warrant. State v. Thompson, 151 Wn.2d 793, 92 P.3d 228 (2004). State v. Sleater, 194 Wn. App. 470, 475–76, 378 P.3d 218, 220–21 (2016).9 Building Official Orders, warrants of abatement, and civil trespass directives do not endow upon an officer the authority of a court order akin to a criminal search warrant. Officers are legally required to have a search warrant signed by a judge before they enter a home or they must have an exigency under the Emergency Aid Exception where someone’s life is in imminent threat of harm. These are the only legal bases to force entry for a non-criminal matter. State v. Schultz, 170 Wn.2d 746 (Wash. 2011). Putting officers in the position of removing persons from residences outside the criminal investigative realm puts officers at great risk and elevates the likelihood that there will be a serious use of force situation. This happened in San Francisco a few years ago where the police department

6 City of Seattle v. McCready¸ 123 Wn.2d 260 (1994) (McCready I); City of Seattle v. McCready, 124 Wn.2d 300 (1994) (McCready II); City of Seattle v. McCready, 131 Wn.2d 266 (1997) (McCready III); Bosteder v. City of Renton, 155 Wn.2d 18 (2005), superseded on other grounds by statute as stated in Wright v. Terrell, 162 Wn.2d 192, 195 n.1 (2007). 7 “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” WASH. CONST. art. I, § 7. 8 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. CONST. amend. IV. 9 “The community caretaking function, which is divorced from the criminal investigation, is one such exception to the warrant requirement. This exception allows for the limited invasion of constitutionally protected privacy rights when it is necessary for police officers to render aid or assistance or when making routine checks on health and safety. Such invasion is allowed only if (1) the police officer subjectively believed that someone likely needed assistance for health or safety concerns; (2) a reasonable person in the same situation would similarly believe that there was need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place being searched. Whether an encounter made for noncriminal noninvestigatory purposes is reasonable depends on a balancing of the individual's interest in freedom from police interference against the public's interest in having the police perform a community caretaking function.” Thompson at 802. 12 was assisting Code Enforcement with an inspection. The officers were met with a resistive occupant who fired at them and they shot and killed him. The Ninth Circuit Court of Appeals ruled that the deceased individual had elevated Fourth Amendment rights because the officers were not there to arrest him. The matter was civil and police officers who entered the home of plaintiff's decedent without an arrest warrant could not reasonably have believed that entry to arrest would not violate clearly established law for purpose of qualified immunity defense. 42 U.S.C.A. § 1983; U.S.C.A. Const.Amend. 4. Alexander v. City & Cty. of San Francisco, 29 F.3d 1355 (9th Cir. 1994)10.

Summary Abatement?

To expedite abatement and avoid additional costs, some municipalities might be tempted to try a summary abatement process in lieu of a judicial abatement process. Summary abatement refers to situations where the city abates the nuisance itself or by contract without first obtaining an order and warrant of abatement in superior court pursuant to RCW 7.48.260. Even when a city provides constitutionally sufficient due process (such as a city hearing examiner system), summary abatements still pose significant risks of liability under a successful §1983 action alleging a violation of constitutional rights against unreasonable search and seizure.

The broad authority given to cities to declare and abate nuisances (see Const. art. XI, § 11; RCW 35.22.280; RCW 35.23.440; RCW 35.27.410; RCW 35A.21.160; Heesan, 118 Wn. App. 341, 354, 75 P.3d 1003) does not supersede a citizens’ constitutional rights against unreasonable searches and seizures. As such, summary abatements should occur only in the most extreme situations, such as emergency situations where a nuisance is immediately dangerous or substantially hazardous. Even then, cities should carefully gather evidence to support the determination that there was a nuisance and that it was abated without court order because of the immediacy of the emergency.

A good example of a city’s potential liability in summary abatements under §1983 is Conner v. Santa Ana, 897 F.2d 1487 (9th Cir. 1990). In this case, the court made clear that the warrant requirement of the Fourth Amendment of the United States Constitution (as applied to the states through the Fourteenth Amendment) “applies to entries onto private land to search for and abate suspected [and known] nuisances.” In this case, police officers investigated a nuisance complaint regarding junk vehicles. Without a warrant and without the landowners’ permission, the City’s police scaled the fence on the property and inspected the automobiles, recording the VIN and license plate numbers of the vehicles. The City subsequently mailed the owners a notice of its intention to abate the nuisance by removing the vehicles. The owners requested and received a hearing from the police department, which found the vehicles to be a nuisance. They appealed to the City Council, which affirmed the police department’s determination. The owners chose not to

10 “These cases make it very clear that an administrative search may not be converted into an instrument which serves the very different needs of law enforcement officials. If it could, then all of the protections traditionally afforded against intrusions by the police would evaporate, to be replaced by the much weaker barriers erected between citizens and other government agencies. It is because the missions of those agencies are less patently hostile to a citizen's interests than are the missions of the police that the barriers may be as weak as they are and still not jeopardize 4th Amendment guarantees.” Alexander at 1361. 13 appeal the decision to superior court. The nuisance determination being final, City officials and a towing company entered the property and removed the junk vehicles—without a judicial warrant.

The owners brought a §1983 suit against the City. The owners claimed that the City violated their Fourth Amendment right against unreasonable searches and seizures and their Fourteenth Amendment right of due process. Regarding all due process claims, the district court found in favor of the City. Regarding the officers’ initial entry on the property to retrieve the VIN numbers, the district court found in favor of the City. However, regarding the City’s second entry to abate the nuisance, the district court found against the City. The damages included $71,000, attorneys’ fees, and injunctive relief prohibiting further warrantless entries onto the property.

On appeal, the Ninth Circuit affirmed the district court’s ruling in favor of the City on the due process claims. However, the court overruled the district court’s ruling for the City regarding the officers’ initial entry into the property and remanded that portion to the district court for further proceedings. Finally, it affirmed the district court’s ruling against the city regarding the second entry to abate the nuisance.

Note that, as usual, the Ninth Circuit is in the minority in its view in its rigid requirement for judicial warrant for abatement of established nuisances. See, e.g., Freeman v. City of Dallas, 242 F.3d 642, 644-45 (5th Cir. 2001); Ferreira v. Town of East Hampton, 56 F. Supp. 3d 211, 230 (E.D.N.Y. 2014) (“All other federal Courts of Appeals to have considered the issue have held that government actors need not obtain a warrant before abating an established public nuisance…Although the court concludes a warrant is not required to abate a public nuisance, the seizure of property considered to be a public nuisance, as well as the entry onto private property to accomplish that seizure, must still be reasonable to comply with the Fourth Amendment.”).

Given the result of this case and our City Council’s stated desire to respect private property rights, it is the policy of the City of Spokane Valley to only seek abatement pursuant to court order.

Imposition of Fines – LUPA and Due Process Considerations

Cities should carefully review their enforcement and penalty provisions under the auspices of Post v. City of Tacoma, 167 Wn.2d 300 (2009), to consider whether fines and penalties will be treated as land use actions subject to LUPA and to ensure they comply with due process requirements.

In Post, the City of Tacoma issued multiple notices of violation for repeated violations of the City’s building code. The notices included a “Civil Infraction Penalty Assessment.” While the City’s code allowed a review and appeal of the initial notice and infraction, there were no provisions for the review of subsequent infractions or daily penalties.

Post challenged the fines and penalties, alleging the City’s building code and fines were unconstitutional. The trial court and Court of Appeals found for Tacoma on the grounds that the challenges were barred by chapter 36.70C RCW (LUPA) and that the fines were not unconstitutionally excessive and did not violate Post’s due process rights. The Supreme Court, however, found that due to the nature of the penalties as infractions, the fines were not “land use decisions” and thus the challenges were not subject to the procedural requirements of LUPA. Post,

167 Wn.2d at 311-312. Instead, they were subject to the procedures set forth in chapter 7.80 RCW for infractions.

Further, the Supreme Court found the additional and ongoing daily fines violated Post’s right to due process because it did not provide for an appeal process beyond the initial fine. The Court stated, “[w]here a local jurisdiction assesses civil penalties for noncriminal violations of law but provides no opportunity for civil defendants to be heard, the fundamental due process right to an opportunity to be heard at a meaningful time is violated.” Id. at 314.

Importantly, you should review your current code to determine whether your violation and penalty provisions may be construed as “civil infractions” subject to chapter 7.80 RCW. If so, the defendant’s failure to timely challenge the penalties under LUPA’s 21-day infraction period may not be available as a defense.

Receivership

The City of Spokane has begun using receivership pursuant to chapter 7.60 RCW to turn blighted properties back into useful contributing neighborhood properties.

Cities can use Washington's receivership laws, RCW 7.60, to obtain control of and sell abandoned homes within city limits. RCW 7.06.025(1) does not expressly authorize the appointment of a receiver over abandoned property, but there are three provisions that arguably apply. There are also defenses to the application for appointment of a receiver that should be considered. Once appointed, the receiver has the power to sell property free-and-clear of liens.

Appointment of receiver

Abandoned homes attract squatters, vandals, and other criminal activity, which in turn gives rise to complaints from neighbors, police involvement, and, eventually, intervention of the City's code enforcement process. Abandoned properties become nuisance properties. Receivers can be appointed pursuant to RCW 7.60.025(1)(a) in order to protect and preserve real property. This is true whether the city is a creditor, by virtue of unpaid fees or taxes, or not.

There are three potential instances in which a receiver may be appointed over abandoned nuisance property. First, the city may seek appointment of a receiver under RCW 7.60.025(1)(a) because the property is arguably “in danger of being lost or materially injured or impaired" as a result of its abandonment.

Second, the city may seek appointment of a receiver under RCW 7.60.025(1)(g). That section provides that a receiver may be appointed:

Upon an attachment of real or personal property when the property attached is of a perishable nature or is otherwise in danger of waste, impairment, or destruction, or where the abandoned property's owner has absconded with, secreted, or abandoned the property, and it is necessary to collect, conserve, manage, control, or protect it, or to dispose of it promptly, or when the court determines that the nature of the

property or the exigency of the case otherwise provides cause for the appointment of a receiver[.]

The problem here is the word "attachment". If that legal term applies to the entire paragraph, appointment of a receiver would arguably not be appropriate because the city does not have a judgment against the homeowner and is not legally entitled to attach the homeowner’s property. However, if the phrase "upon attachment" does not modify the clause "or where the abandoned property's owner has . . . abandoned the property, and it is necessary to . . . protect it . . .," then the city has a solid basis for requesting appointment under this provision. There is no case law directly on point here.

Third, the city may seek appointment under the "catch-all" provision of (RCW 7.60.025(1)(nn). That statute provides that a receiver may be appointed "when, in the discretion of the court, it may be necessary to secure ample justice to the parties." Here, the city essentially stands in the shoes of the property's neighbors. The homeowner has abandoned the property, the secured lender has sat on its rights, and so the city has a strong argument that ample justice requires appointment of a receiver.

To get a receiver appointed, the city must demonstrate that no "other available remedies" exist. RCW 7.60.025(1). An objecting owner or creditor could point out that there are other remedies available to the City. Specifically, the City could condemn these properties under the procedures set forth in RCW Title 8. However, the courts generally favor appointment when requested.

Powers of receiver to foreclose and/or sell property

A receiver has the ten enumerated powers set forth in RCW 7.60.060(1), none of which provide for the sale of property. However, RCW 7.60.260(1) specifically allows a general receiver to sell estate property upon court approval after notice and a hearing.

RCW 7.60.260(2) allows such a sale to "be effected free and clear of liens and of all rights of redemption, whether or not the sale will generate proceeds sufficient to fully satisfy all claims secured by the property." However, a sale free-and-clear may not be approved if either "(a) . . . the property is a homestead . . . and the owner of the property has not consented to the sale . . . ; or (b) [t]he owner of the property or a creditor with an interest in the property serves and files a timely opposition to the receiver’s sale, and the court determines that the amount likely to be realized by the objecting person from the receiver’s sale is less than the person would realize within a reasonable time in the absence of the receiver's sale." RCW 7.60.260(2) further provides that all liens against the property attach to the proceeds of the sale.

These two objections should be addressed by the city in its motion to appoint a receiver. As for the homestead objection, a homestead is defined by RCW 6.13.010(1) as "real property the owner uses as a residence.' A homestead is presumed abandoned under RCW 6.13.050 (1) "if the owner vacates the property for a continuous period of at least six months." The city will need to somehow demonstrate the owner has been absent for at least six months.

As for the value received objection, from a practical standpoint, it seems very unlikely that the owner would object if s/he really has abandoned the home. A secured creditor might. But, depending on the numbers involved, that objection may not be enough to negate approval. For example, if the city states in its application for appointment of a receiver that it believes the home can be sold in an amount greater than the liens against it, the secured creditor would need to show some proof that it is "less likely" to receive payment in full through the receivership. Furthermore, in most cases the value of the property continues to depreciate the longer it sits abandoned. Effecting a sale via receivership is often the creditor’s best option to recover their lien.

General receivership issues

Receivership is generally a tool for dealing with the creditor-debtor relationship. In cases where the city is not a creditor of the homeowner, the receivership vehicle could seem dubious to the court and creditors. Specifically, a secured creditor (mortgage lender) would seem to have an argument that selling its collateral through the state court receivership process is an unconstitutional taking without due process of law, causing damages to it. The creditor could also argue that the city is required to go through the eminent domain procedures of Title 8 RCW in order to convert private property to the public good, or to get a lien and foreclose it like every other secured creditor must.

However, it seems unlikely that these objections will be made. In situations where homes have been abandoned but not foreclosed, the mortgage lender is unlikely to respond to legal process regarding its collateral or to have an incentive to oppose it. A receivership sale saves it the time and expense of conducting a foreclosure itself, which it has obviously chosen not to do up to this point. Further, if a sale is consummated, all proceeds in an amount up to the debt owed and secured by liens would belong to, and be paid to, the secured creditors in order of priority.

There are some other practical problems to consider. If the receiver is going to sell real property, it will need to order a title report so it is assured of all of the liens against the property, which it has the authority to do under RCW 7.60.060(h)(3). The receiver would then need to obtain payoff information from the secured lender(s) so the receiver is informed as to the amounts owed against the property. This information should be requested up front as part of the imposition of the receivership, RCW 7.60.200, and could also be compelled by subpoena. RCW 7.60.060(i).

Once all of that information is acquired, the receiver will have to decide how to sell the property. If the receiver opts to sell the property by public auction, the procedures for the auction, including the form of public notice and the auction process itself, should be court-approved. The receiver must decide the sales price as well. Given the secured lenders' ability to object under RCW 7.60.260(2)(b), it would seem wise for the receiver to choose a price above the amount owed to the secured creditors, though that is not required.

The City of Spokane’s receiver has opted to list these properties on the MLS open market. The buyers then literally determine the fair market value. The receiver's goal should be to maximize the return to creditors. If this cannot be done, the receiver is not incentivized to push for a sale. Regardless, participation by a mortgage lender would serve the City's purpose of at least getting something to happen with respect to an abandoned property.

Finally, the receiver is statutorily required to post a bond prior to commencing duties pursuant to RCW 7.60.045. The bonding requirement is routinely waived by the court, even though the statute does not specifically provide for waiver.

Receivership Timing

The receivership statute itself has some built-in timeframes that will dictate how soon a sale can be requested and consummated. At the outset, the applicant must provide 7 days' notice of the application to appoint. RCW 7.60.025(3). Within 20 days of appointment, the receiver must provide notice of the receivership by publication for 3 consecutive weeks. RCW 7.60.200(1). Motions affecting estate property, including a motion to sell free-and-clear requires 30 days' notice to all parties. RCW 7.60.190(6).

If a sale motion is approved, the sale process itself will take time. The receivership statutes do not dictate how a sale is to be conducted. The city can assume the receiver will want at least 60 days to advertise the sale. This timeframe can depend on the receiver and the conditions of the property and the market.

Conclusion

Municipalities can utilize receivership as an effective tool to return abandoned blight to productive use. The process will cost the receiver money. Any sale will take weeks to consummate. The sale will be free-and-clear of liens and achieve the city's goal of getting abandoned homes occupied.

IV. RECENT LEGISLATIVE AMENDMENTS

In 2018, the Washington Legislature passed several amendments that will affect code enforcement and nuisance abatement. Perhaps the most impactful change is chapter 306, laws of 2018, which dealt with a fix to the issues created from Jordan v. Nationstar Mortgage, LLC, 185 Wn.2d 876 (2016). In that case, the Washington Supreme Court found that provisions in a deed of trust that authorized the lender to enter the property and change locks upon borrower’s default violated RCW 7.28.230, which prohibited the lender from taking possession of the property prior to foreclosure. Id. at 886-87. The Nationstar case created significant difficulties for cities, as it left vacated and abandoned nuisance properties in the midst of foreclosure in a limbo “zombie” state, where banks would not respond to requests to clean the property until foreclosure was completed.

In response, the Legislature adopted provisions that allow banks to address abandoned properties with nuisances on them prior to foreclosure. There are two options under the newly adopted chapter 7.100 RCW. First, a city may notify a mortgage servicer that a property has nuisance conditions on it, is abandoned, and is in mid-foreclosure. RCW 7.100.020. After such notice, the mortgage servicer is authorized to enter the property, and in fact must clean and secure the property within the time specified, or the city may abate the nuisances and charge any costs of abatement as an assessment that is a lien of equal rank with state and local taxes. RCW 7.100.050-.070. The second option is for the mortgage servicer to request a determination from the city that a property is abandoned, has nuisance conditions, and is mid-foreclosure. RCW 7.100.030. At that point, the city is required to respond to the request within 15 calendar days with its determination that

18 the property is either abandoned, in mid-foreclosure, and a nuisance, is not abandoned or a nuisance, or that the city does not have adequate resources or is not otherwise able to make such determination. Id. Notices under either provision must include an affidavit or declaration made under penalty of perjury by a city official that the property is abandoned, including at least three indicators of abandonment supported by time and date stamped photographs, a finding that the property is a nuisance, and a finding that the property is mid-foreclosure, with a copy of the notice of default, notice of preforeclosure options, or notice of trustee’s sale attached. RCW 7.100.020; RCW 7.100.030. RCW 7.100.010 helpfully provides 13 examples of indicators that a property is abandoned. Notices must be sent by certified mail to the mortgage servicer. Id.

Clearly, this legislation was a compromise between banks and local government. While it allows banks to take action on abandoned properties in the midst of foreclosure, it places the requirement on cities to determine if a property is mid-foreclosure. There is some protection for cities, as RCW 7.100.040 requires the mortgage servicer to provide a number of notices to the property owners and further requires the mortgage service to immediately leave if the property is not actually abandoned. Finally, there is some limit in liability, as cities are “not liable for any damages caused by any act or omission of the mortgage servicer or its designee.” RCW 7.100.040(8).

V. EXAMPLES OF NUISANCE ENFORCEMENT AND ABATEMENT

In Spokane Valley, the City’s nuisance provisions are located in three primary areas. First, specific nuisances, including chronic nuisances, are identified in chapter 7.05 SVMC. Second, zoning, building, and other applicable land use provisions are located throughout Titles 19 through 24 SVMC. Finally, standardized administrative enforcement procedures are provided pursuant to chapter 17.100 SVMC and standardized administrative appeal procedures are provided in chapter 17.90 SVMC. These apply regardless of the type of code violation. The procedures required to process unfit dwelling and structures pursuant to chapter 35.80 RCW are set forth in chapter 17.110 SVMC. To view Spokane Valley’s code provisions, see http://www.codepublishing.com/wa/spokanevalley.html.

We have included a number of form documents for your reference. City of Spokane Valley attachments include administrative Notice and Order, administrative Voluntary Compliance Agreement, Nuisance Complaint, Memorandum in Support of Summary Judgment, Stipulated Order, Temporary Restraining Order, and Order Granting Summary Judgment and Warrant of Abatement. City of Spokane attachments include pleadings from an abandoned property receivership lawsuit as well as a chronic drug nuisance abatement lawsuit.

We have also included forms provided by MRSC for declarations regarding the determination of abandonment, nuisance, and foreclosure required pursuant to the newly adopted RCW 7.100.020 and 7.100.030.