A. Violations of Bothell Municipal Code.
1. Costs. Any party responsible for a violation of the Bothell Municipal Code other than the SMP or BMC Title 15, Subdivisions, may be assessed costs as provided in this subsection.
a. Costs for Investigation and Correction. The director may assess the city’s costs and expenses when the city has investigated and/or corrected a violation under this chapter. These costs may include, but are not limited to, the following:
(1) Billed cost, including labor, overhead, overtime, profit, taxes, and other related costs, for a hired contractor to investigate and/or perform abatement work;
(2) Labor, overhead, overtime, and other related costs for the city staff and crews to investigate and/or perform abatement work;
(3) Time spent communicating with the responsible party, any other enforcing agencies, and the affected community;
(4) Inspections for compliance with the code, documentation of costs, and invoicing the responsible party;
(5) Cost of equipment, materials, and supplies, including all related expenses for purchasing, renting, and leasing;
(6) Laboratory costs and analytical expenses;
(7) Cost of mobilization, disposal of materials, and cleanup;
(8) Any associated permit fees; and/or
(9) Administrative costs, for example to set up contracts and coordinate work, will be billed at 15 percent of total costs, unless the city chooses to calculate specific administrative costs.
b. Costs for Appeal. Should the city’s enforcement efforts be affirmed on appeal to the hearing examiner, the hearing examiner shall assess to the appellant an amount for the costs incurred by the city and the examiner in prosecuting the appeal before the hearing examiner. These costs shall include those expenses incurred in preparing the appeal, issuing public notice as required under BMC 11.20.009(A), general clerical expenses, staff and examiner preparation time, site inspections, city attorney costs, and other expenses incurred by the city. City prosecution costs may be waived should the violator correct the alleged violation 10 or more working days prior to the scheduled appeal hearing; provided, however, correction of the alleged violation prior to the scheduled appeal hearing shall not preclude the city from pursuing imposition of civil penalties at the hearing.
2. Damages. In addition to any penalty or costs that may be imposed by the city, any person violating or failing to comply with any of the provisions of this code, with the exception of violations of the SMP and BMC Title 15, Subdivisions, shall be liable for all loss or damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation. Furthermore, administrative costs will be charged as 15 percent of the total amount of liability for costs, expenses, losses, or damages to the city occasioned thereby. This clause does not establish a cause of action that may be asserted by any party other than the city. Penalties, damage, costs, and expenses may be recovered only by the city.
3. Civil Penalty.
a. Any person violating or failing to comply with any of the provisions of this code shall be subject to a maximum penalty in the amount of $250.00 per day for each violation from the date set for compliance until compliance with the order is achieved, except that the amount of the penalties for violations of the SMP; BMC Title 15, Subdivisions; and BMC 18.04.260 are not subject to this per day maximum and instead shall incur penalties in the amounts provided elsewhere in this section.
b. The director may reduce monetary penalties assessed under this subsection if the violation is corrected and the correction is verified by the department. The responsible person shall have the burden of proof that the violation has been corrected.
(1) The director will consider a reduction upon the responsible person’s submission of a written request for reduction of monetary penalties. The written request must contain:
(A) The date of correction;
(B) A request for verification of the correction by the department;
(C) An explanation of the circumstances surrounding the commission of the violation; and
(D) A description of the acts taken to correct the violation.
(2) The director may also consider a reduction in monetary penalties on the director’s own initiative.
(3) The director may base the decision to reduce a monetary penalty on an evaluation of individual circumstances, including but not limited to:
(A) Severity of the violation;
(B) Impact to neighbors and the community;
(C) Duration of the violation;
(D) Cost to the city;
(E) Public interest being protected; and/or
(F) Cooperation of the person responsible for the violation.
(4) Nothing in this section shall obligate the director to impose less than the maximum monetary penalties or to reduce any monetary penalties.
c. The violator may show as full or partial mitigation of:
(1) That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or
(2) That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition of the property or circumstance beyond the control of the defendant.
d. Effect of Payment of Penalties. The payment of a monetary penalty pursuant to this title does not relieve the person to whom a notice or order is directed of the duty to take corrective action to correct the violation(s).
4. Special Penalties for Noise and Construction Work Hour Infractions.
a. Civil Noise Infraction. Any person violating or failing to comply with the provisions of Chapter 8.26 BMC shall be subject to a civil noise infraction for which a monetary penalty may be assessed and a stop work order issued. Penalties shall be as follows:
(1) First Offense. If a person has not violated the provisions of Chapter 8.26 BMC during the one-year period preceding the most recent violation, a warning shall be given and no monetary penalty shall be assessed.
(2) Second Offense. If a person has violated the provisions of Chapter 8.26 BMC within the one-year period preceding the most recent violation, a citation shall be issued assessing a monetary penalty in the amount of $250.00 and a stop work order shall be issued.
(3) Third Offense. If a person has violated the provisions of Chapter 8.26 BMC twice within the one-year period preceding the most recent violation, a citation shall be issued assessing a monetary penalty in the amount of $250.00, plus issuance of a stop work order. During the stop work period the violator shall submit a plan that includes the methods and operational changes to be implemented to prevent any future violations. The plan shall be reviewed and approved by the public improvements director prior to rescinding the stop work order.
(4) Fourth Offense and Any Additional Offense. If a person has violated the provisions of Chapter 8.26 BMC three or more times within the one-year period preceding the most recent violation, criminal penalties, as outlined in this section, shall be assessed.
5. Special Penalties for Violations of BMC 18.04.260.
a. Each action or omission taken in violation of BMC 18.04.260 shall constitute a separate violation. Additionally, each day or portion thereof during which a violation of the title exists is a separate violation of the title.
b. Any person who aids or abets the violation shall be considered to have committed the violation for purposes of assessing fines.
(1) A property owner is presumed to have aided or abetted any violation occurring in whole or in part on private property.
(2) “Aids or abets” means to assist, facilitate, promote, or knowingly permit.
c. Basic Penalty. Fines shall be administered per violation. Fines for a violation shall be determined using Table 1, the surface water enforcement matrix, and Table 2, which details the penalty points rating and corresponding penalty amount. Once the total amount of penalty points is determined using the matrix in Table 1, a corresponding penalty amount is established using Table 2. The maximum penalty per violation is $10,000.
d. Surface Water Enforcement Matrix.
Enforcement Evaluation Criteria
1) Perceived Public Health Risk?
2) Environmental Damage?
3) Impact to Municipal Storm Drain System?
4) Willful or Knowing Violation?
5) Unresponsive in Correcting Action?
6) Improper Operation or Inadequate Maintenance?
7) Economic Benefit to Noncompliance?
e. The surface water enforcement matrix (Table 1) is comprised of a set of criteria formulated as questions for the director or designee to evaluate and answer. The director or designee uses the guidelines below to determine the total points to be assessed according to the violation. The surface water fine(s) is determined by the total score of the matrix.
(1) Did the violation result in a public health risk?
(A) Answer “no” if there is no evidence to support a claim of public health risk or adverse health effects.
(B) Answer “possibly” if evidence supports a claim of public health risk and there is a plausible connection between this violation and health effect.
(C) Answer “definitely” if there is direct evidence linking public health risk or adverse effects with the violation.
(2) Did the violation result in environmental (e.g., physical, chemical, or biological) damage?
(A) Answer “no” if there is no evidence to support a claim of environmental damage.
(B) Answer “possibly” if environmental damage can be reasonably inferred from evidence or knowledge of the effects of the violation.
(C) Answer “definitely” if there is direct evidence linking environmental damage with the violation.
(3) Did the violation impact the municipal storm drain system?
(A) Answer “no” if there is no evidence to support a claim of impact to the municipal storm drain system.
(B) Answer “possibly” if the impact to the municipal storm drain system can be reasonably inferred from evidence or knowledge of the effects of the violation.
(C) Answer “definitely” if there is direct evidence linking municipal storm drain system impacts to the violation.
(4) Was the action a willful or knowing violation?
(A) Answer “no” if the violator obviously did not know that the action or inaction constituted a violation.
(B) Answer “possibly” if the violator should have known.
(C) Answer “definitely” if the violator clearly knew or was previously informed of the violation by the city’s inspectors or by permit conditions.
(5) Was the responsible party unresponsive in correcting the violation?
(A) Answer “no” if the violation was corrected as soon as the responsible party learned of it.
(B) Answer “possibly” if the violation was corrected in a less timely and cooperative fashion.
(C) Answer “definitely” if the responsible party made no attempt to correct the violation.
(6) Was the violation a result of improper operation or inadequate maintenance?
(A) Answer “no” if the violation was not the result of improper operation or inadequate maintenance.
(B) Answer “possibly” if operation and/or maintenance was completed but a violation still occurred.
(C) Answer “definitely” if the violation was a result of improper operation or inadequate maintenance.
(7) Did anyone benefit economically from noncompliance?
(A) Answer “no” if it is clear that no one gained an economic benefit.
(B) Answer “possibly” if someone might have benefited.
(C) Answer “definitely” if the economic benefit is quantifiable.
f. Corresponding Fine. The total amount of penalty points constitutes the rating in Table 2. The rating shall be used to determine the appropriate, corresponding surface water fine amount.
g. Assessment of Fines. The director or designee shall assess the surface water fine against any responsible party in a written notice that sets forth the nature of the violation and the determination of the amount of the fine.
h. Triple Fines. Fines may be trebled for a repeat violation, which means an additional violation of a requirement of this title in any location in the city for which the responsible party has been previously requested to comply or was issued a notice of violation where the responsible party failed to correct the violation by the compliance date, was issued a cease activity order, or was issued an emergency order.
i. Reduction of Fines. Fines imposed for violations of BMC 18.04.260 may be reduced or eliminated based upon one or more of the following mitigating factors, in addition to the circumstances described in subsection (A)(3)(b) of this section:
(1) The responsible party immediately self-reports violations to the city at (425) 806-6750.
(2) Another responsible party was the primary cause of the violation.
(3) The responsible party was unaware of the violation and had not acted negligently or recklessly.
(4) The responsible party installs, upgrades, or otherwise invests in operational and/or structural source control BMPs found in the current city of Bothell surface water design manual that will prevent future illicit discharges from pollutant generating sources associated with existing land uses and activities.
j. Penalty for Significant Violation. Responsible parties for violations causing significant harm to public health, safety, or welfare, to the environment, or to public or private property shall be assessed the penalties set forth in the schedule above or shall be assessed an amount equivalent to the economic benefit the responsible party derived from the violation, whichever is greater. “Significant harm” is harm that cannot be fully corrected or mitigated by the responsible party and that cannot be adequately compensated for by assessment of penalties, costs, expenses, or damages under this chapter. Economic benefit may be determined by an increase in market value of property, value received by the responsible party, savings in costs realized by the responsible party, increased income to the responsible party, or any other method reasonable under the circumstances.
k. Additional Enforcement Options for Violations of BMC 18.04.260.
(1) This subsection is intended to emphasize but not limit the generally applicable enforcement provisions of this chapter.
(2) Corrective Action and Summary Abatement. In addition to surface water fines, the city may require the responsible party to take corrective action to cease violating BMC 18.04.260, including, but not limited to, requiring the responsible party to fully remove pollutants from private and public storm systems. In the event the responsible party fails to take necessary corrective action in a timely fashion, the city may take summary abatement action in accordance with BMC 18.04.260.
(3) Real Property Owner Liability. Where a violation of BMC 18.04.260 has occurred at least in part on private property, and when more than one party is responsible for fines and/or costs under this subsection, the director or designee may determine that the owner of the real property where the violation occurred shall be jointly and/or severally liable for all of the fines and/or costs assessed against each responsible party.
6. Criminal Penalties.
a. Any person violating or failing to comply with any of the applicable provisions of this code, with the exception of the SMP and BMC Title 15, Subdivisions, and who has been the responsible person named in a final order or decision under this chapter, as described in BMC 11.20.006(C) or 11.20.009 or its predecessors, within the past five years shall be subject to criminal prosecution and upon conviction of a subsequent violation shall be fined in a sum not exceeding $5,000 or be imprisoned for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance with any of the applicable provisions of this code shall constitute a separate offense.
b. The above criminal penalty may also be imposed:
(1) For any other violation for which corrective action is not possible; and
(2) For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements.
c. In addition to any criminal penalty which may be imposed by the city, a violator may also be liable for damages and costs of restoration described in this section.
7. As an alternative to any other enforcement provision of this code, any enforcement officer designated by the director of the community development department or the city attorney or their designee may issue a civil infraction as provided herein for a violation of this chapter and/or any nuisance violation as defined in this code and any such violation shall be enforceable as a civil infraction in the manner provided in the Washington State Infraction Rules for Courts of Limited Jurisdiction:
a. Authority to Issue – Code Enforcement Official. Whenever the designated code enforcement official determines that a violation has not been corrected following the issuance of a notice of violation in the form as prescribed in BMC 11.20.005, the code enforcement official shall be authorized to issue a notice of infraction, on an appropriate form for filing with the municipal court, to the property owner(s) and/or tenant(s) and/or to any person(s) causing or allowing or participating in the violation.
b. Authority to Issue – City Attorney. Alternatively, upon probable cause after review of the relevant facts, the city attorney or designee may issue a notice of civil infraction to the property owner(s) and/or tenant(s) and/or to any person(s) causing or allowing or participating in the violation. Notice of infractions issued by the city attorney shall be issued pursuant to the authority provided by the Infraction Rules for Courts of Limited Jurisdiction.
c. Infraction Process. Once the notice of infraction has been filed with the municipal court, it shall be sent in the normal course to the property owner(s), tenant(s) and/or to other person(s) causing or allowing or participating in the violation, and thereafter processed for court proceedings in accordance with applicable rules and procedures.
d. Infraction Penalty. Violations charged under this section shall be infractions and shall carry a maximum penalty of $250.00. Each day, location, violator and incident shall constitute a separate civil infraction.
e. Subsequent Violation Charged as Misdemeanors. It is provided, however, that if the same violator has been found, in any court of competent jurisdiction, to have previously committed an infraction violation for the same or similar conduct three or more separate times, with the infraction violations occurring at the same location and involving the same or similar sections of the Bothell Municipal Code, or other similar code or statute or regulation, any further violations shall constitute misdemeanors, punishable as provided in Chapter 1.24 BMC. For the purposes hereof, it shall be prima facie evidence that the same violator has previously been found to have committed any infraction if a certified copy of the judgment, docket or other court document showing that such violation was found committed is filed with the court.
8. Additional Relief. The director may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this code and/or the Bothell Municipal Code Appendix when civil or criminal penalties are inadequate to effect compliance.
9. Assessment and Collection of Costs and Penalties.
a. With the exception of penalties or costs imposed through the criminal or infraction processes, all penalties and costs assessed by the city in connection with a notice of violation, cease activity order, or emergency order pursuant to this chapter may be assessed and collected as provided in this subsection. Losses or damages incurred by the city may also be assessed and collected under this subsection.
b. Penalties, costs, losses, or damages may be assessed directly in a notice of civil violation, cease activity order, or emergency order. Alternatively, where circumstances do not warrant assessment simultaneously with issuance of a notice of violation, cease activity order, or emergency order, penalties, costs, losses, or damages may be assessed by separate invoice and demand for payment after issuance of the notice or order. The following are non-exhaustive examples of circumstances warranting assessment by separate invoice:
(1) It would be an inefficient use of staff time to calculate penalties during an emergency situation;
(2) Amounts accrue after the date of the notice or order;
(3) The penalty calculation needs to be corrected; and/or
(4) Additional losses or damages result from the violation.
The director may also issue a separate invoice and demand for payment when the responsible party has failed to pay a penalty by the deadline in a notice or order and has failed to file an appeal within the required time periods.
c. An invoice should include, as appropriate:
(1) The amount of the city’s investigation and correction costs;
(2) Either a legal description of the property corresponding as nearly as possible to that used for the property on the rolls of the county assessor or, where available, the property’s street address;
(3) Notice that the responsible party may request an appeal before the hearings examiner pursuant to this chapter;
(4) Notice that if the amount due is not paid within 30 days from the date of mailing of the invoice, the unpaid amount may be collected in any manner identified in this section; and
(5) Notice that interest shall accrue on the unpaid balance if not paid within 30 days from the date of mailing of the invoice.
d. The monetary penalty, costs, and damages assessed under this section constitute a personal obligation of the person to whom the associated notice of civil violation, cease activity order, or emergency order is directed.
e. Where monetary penalties, costs, and/or damages assessed by the city or imposed in a court order or judgment are not timely paid, the director shall notify the city attorney and provide assistance to the city attorney in taking appropriate action. The city attorney or designee is authorized to take any appropriate action to collect the assessed penalties, costs, and/or damages, including by civil action brought in the name of the city. The city may contract with a collection agency for this purpose.
B. Shoreline Master Program (SMP) Violations.
1. Civil Penalty. Any person who shall fail to conform to the terms of a permit issued under the Bothell SMP or who shall undertake development on the shorelines of the state without first obtaining any permit required under the SMP shall also be subject to a civil penalty not to exceed $1,000 for each violation. Each permit violation and/or each day of continued development without a required permit shall constitute a separate violation.
2. Criminal Penalty. In addition to incurring civil liability under this section, any person found to have willfully engaged in activities on the shorelines of the state in violation of the provisions of the SMP, the Shoreline Management Act, Chapter 90.58 RCW, or any rules or regulations adopted thereto shall be guilty of a gross misdemeanor, and shall be punished by a fine of not less than $25.00 nor more than $1,000, or by imprisonment for not more than 90 days, or by both such fine and imprisonment; provided, that the fine for the third and all subsequent violations in any five-year period shall not be less than $500.00 nor more than $10,000.
3. Damages, Attorneys’ Fees and Costs. Any person subject to the SMP who violates any provision of the Shoreline Management Act or permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to violation. The city attorney may bring suit under this section on behalf of the city of Bothell. In addition to such relief, including money damages, the court in its discretion may award attorneys’ fees and costs of the suit to the prevailing party.
C. Subdivision Violations.
1. Any person, firm, corporation, or association or any agent of any person, firm, corporation, or association who violates any provision of Chapter 58.17 RCW or BMC Title 15, Subdivisions, relating to the sale, offer for sale, lease, or transfer of any lot, tract, or parcel of land, shall be guilty of a gross misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. Each sale, offer for sale, lease or transfer of each separate lot, tract, or parcel of land in violation of any provision of Chapter 58.17 RCW or BMC Title 15, Subdivisions, shall be deemed a separate and distinct offense.
2. Whenever land within a subdivision granted final approval is used in a manner or for a purpose which violates any provision of Chapter 58.17 RCW, any provision of BMC Title 15, Subdivisions, or any term or condition of plat approval prescribed for the plat by the local government, then the prosecuting attorney, or the attorney general if the prosecuting attorney shall fail to act, may commence an action to restrain and enjoin such use and compel compliance with the provisions of Chapter 58.17 RCW or BMC Title 15, or with such terms and conditions. The costs of such action may be taxed against the violator. (Ord. 2259 § 1, 2018; Ord. 2238 § 8, 2017; Ord. 2045 § 2 (Exh. B), 2010; Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1649 § 1, 1996; Ord. 1628 § 1, 1996).