Proposal would give Community Development and Planning power to levy fines
August 2, 2011 · Updated 9:28 AM
Clarification: The county already has authority to levy civil penalties of up to $1,000 per day, per violation for building code violations, but not for land use code violations.
"It seems a little excessive," said chief building official Rene Beliveau of the existing building code penalties, which he has chosen not to use. "[With the proposed ordinance] we're not asking for more authority – we're trying to put some guidelines." He added that most violations fall under the category of land use, and under current code all land use violation penalties must be authorized by a judge.
A significant policy shift written into the proposed “Code Enforcement” ordinance for San Juan County would give Community Development and Planning the right to levy civil financial penalties for violations of land use code.
Citizens of the Common Sense Alliance are concerned that as presently worded, the ordinance could also significantly expand the CDPD director’s powers beyond the limits of enforcing county code.
“There's no question that some people have felt frustrated by the approach taken under the land use ordinance we have today,” said county prosecutor Randy Gaylord. “The frustration is that the process of addressing a violation takes too long, requires too many visits to the property, and is cumbersome – because of that, violators often believe it is better to violate first and then ask for permission if they get caught … The goal is to make code enforcement effective and done in a timely way.”
County administrator Pete Rose said the county has carried an average of 300 uncleared code enforcement violation cases during the past five years, slogging through three so far this year, and that the council directed the rewrite several years ago.
At present, said Gaylord, the department must issue multiple notices to perceived code violators and make multiple visits to the affected properties before seeking any kind of redress, which must be pursued in court. If a violation is confirmed, the court then issues a fine it deems appropriate.
Common Sense Alliance vice president and lawyer Tim Blanchard is not as concerned about the fines, but says the proposed ordinance could “expand the power of the director [of CDPD] to anything he considers dangerous.”
“It creates a concern that there could be essentially unbridled enforcement discretion,” Blanchard said. The proposal, originally written by former county code enforcement officer Allen Shayo, is now in its second draft at the county planning commission.
Expanding the director’s scope of power?
Sections of the proposed code would give the CDPD director the right to enter property immediately or to issue a stop work order if he believes work is being done in an “unsafe manner” or that conditions create an immediate hazard to person or property.
While the verbiage does not specifically limit these powers to code enforcement, Gaylord says the code's stated purpose of code enforcement binds all later sections within the scope of code enforcement, adding that if a permit is not in place, a warrant must be obtained for entry.
“Local government cannot give a person the authority to violate the constitution,” said Gaylord. Given the availability of the sheriff and fire department, Blanchard asks why a CDPD director would deal with emergencies.
A fee to appeal penalties?
Another concern is that appealing a code violation citation requires the payment of an appeal fee that would be set by the county council. Gaylord said a fee is necessary to prevent frivolous appeals, and that $250 should be the maximum.
Blanchard argues that residents shouldn’t have to pay to defend themselves from criminal charges, and suggests no fee – with a caveat: If an appeal is found to be frivolous, he recommends a stiff $1,000 fine for wasting the hearing examiner’s time.
The proposal states that the director shall bear the burden of proof; but also states that the notice of violation is itself “prima facie” evidence.
“That essentially means, 'because I said so',” said Blanchard. He also said the proposal would not require either the director or any other accusers to be present at the hearing.
“I think it's outrageous – the accused should have the right to confront the accuser,” he said.
Rose said a key advantage of a civil appeal process is that an attorney is not required.
Potential for enormous fines?
In the event that a violation is left uncorrected for over 100 days, and that fine is tripled due a critical areas zone, then doubled for “repeat violators,” there appears to be potential for fines to reach $60,000, plus $1,800 per day beyond that, plus multiple $300 to $1,500 fines for ignored stop work or emergency orders.
“I think it's highly unlikely,” said Gaylord of such figures. “There's a way to sensationalize and use the top numbers... that's just not gonna happen unless you have a repeat offender who really deserves to have that kind of penalty.”
County building official Rene Beliveau’s reply was similar: “We don’t believe it would ever get that high; we’re talking about someone refusing to fix something and taking years and years to fix it,” he said.
Asked about a cap, Gaylord answered, “Yes, there is a cap, and that cap is called reasonableness, and discretion and good judgment on the part of the director to set a fine necessary to assure compliance,” he said.
Blanchard said that in addition to the civil monetary penalties, criminal penalties of up to $5,000 per day and jail time; shoreline criminal penalties of up to $1,000 and jail time; and land division violation fines of up to $250 per day could still apply.
The ordinance also gives CDPD the power to lien a property for penalties and costs of “abating” a violation, and makes such liens “paramount” to all non-governmental liens. Gaylord said that during appeals administrative penalties are often reduced by judges.
Beliveau said that giving CDPD the power to issue fines also allows CDPD to retract them. In contrast, “Right now if we went to the courts and the courts issued a fine we could not modify it,” he said. “Once it’s a court-issued fee, it’s out of my hands.”
Beliveau said the planning commission could request a cap on fines.
Chair Susan Dehlendorf said the county planning commission is now considering a complete list of recommendations submitted by commissioner and Common Sense Alliance president Mike Carlson. Delendorf also said it's likely the commission will open the discussion to public comment again sometime in the future, before submitting the proposal to the county council.
For more information, contact planning commission clerk Lynda Guernsey at 378-2354.