- Slides: 44
Code Enforcement By Nicholle Harris, Esq. Breena Meng, Esq. Luis E. Santaella, Esq.
Code Enforcement � Scope of Presentation: Traditional code enforcement involving public nuisance, property maintenance and zoning violations. � Enforcement ◦ ◦ 1. 2. 3. 4. Mechanisms: Notice of Violations/Compliance Notices Civil Citations Criminal Citations Abatements
Public Nuisance Abatements � Relevant State Statutes: ◦ A. R. S. § 9 -240 (General Powers of Common Council) ◦ A. R. S. § 9 -499 (Primary Abatement Authority) ◦ A. R. S. § 9 -500. 21 (Civil Enforcement of Ordinances) ◦ There are other additional state statutes that give specific authority over certain types of specific nuisances such as property habituality used for criminal activity.
Mosquito Infested Pool
Another Mosquito Infested Pool
Trash and Debris � At a house in Scottsdale.
Inside of Carport
Unfit for Human Habitation � Warning the Next Images May be Upsetting for Some Viewers
Unfit for Habitation
Unfit for Human Habitation
Court Ordered v. Administrative Abatements
Why obtain a court order? � 4 th Amendment � Trespass � Reduces Exposure
Types of Abatement Petitions � EMERGENCY: � The City of Scottsdale (“City”) hereby petitions the Court for an Order allowing the City to enter the property located at 11074 East Cortez Street, Scottsdale, Arizona 85259, to perform an emergency abatement pursuant to S. R. C. §§ 18 -60, 18 -62 and 18 -80 due to an eminent threat to life, health and public safety.
Court Jurisdiction � City court pursuant to ordinance (See A. R. S. § 22 -402). � Superior court jurisdiction over specific types of nuisances pursuant to statute (e. g. A. R. S. § 13 -2908 and A. R. S. § 13 -2917).
Abatements in Scottsdale � Emergency v. Non-emergency
Emergency Abatement Packet � 1. Application and Order � 2. Copy of Notice to Abate � 3. Supporting Affidavit from Code Inspector � 4. Supporting Photos
Procedure for Emergency Abatements � Attorney determines whether sufficient grounds exist to file an emergency petition based on whether it is a violation(s) of Chapter 18 that presents an eminent threat to life, health and public safety. Establishes what time he/she will be able to take completed petition to city court. � Legal Secretary/Assistant contacts city court and obtains case number and advises when attorney will be taking case over. Also informs code inspector what time and where to meet the attorney.
Procedure for Emergency Abatements � Emergency petitions are handled on the city court’s walk-in calendar. Attorney with code inspector takes petition to city court admin office. From there city court personnel will direct them to which court room is handling walk-in matters. � Once called by the judge, attorney and/or inspector may have to establish a factual basis orally, however, some judges establish the factual basis through a review of the written pleadings.
Types of Abatement Petitions NON-EMERGENCY Petitioner, the City of Scottsdale, through the Office of the Scottsdale City Attorney, respectfully submits Petition for Court-Ordered Abatement, as follows: I. This Court has jurisdiction to hear and determine this Petition for Court-Ordered Abatement and to grant the relief requested by virtue of § 18 -60 of the Scottsdale Revised Code. II. This is a civil matter, pursuant to the Scottsdale Revised Code, Chapter 18.
Non-Emergency Abatement Packet � 1. Application, Notice of Hearing and Order � 2. Copy of Notice to Abate including proof of service/mailing � 3. Supporting Affidavit from Code Inspector � 4. Supporting Photos
Procedure for Non-Emergency Abatements � After the notice of hearing has been signed by the judge and the petition has been filed with the city court, a copy of the petition should be given to a process server to be served on the respondent. Code inspector and any other witnesses need to be notified/subpoenaed to attend abatement hearing. � Evidentiary hearing is held. Effective date of any order will be 10 days out to allow filing of appeal. � Copy of the order should left on the property at the time of the abatement.
Code Enforcement from the Small City Perspective
Abatements in Winslow � Mostly administrative � Non-emergency v. Emergency
Issues with Enforcement � Leniency on non-compliance � Out of state property owners � Unknown owners - inability to service notice of violation � Cost of abatement � No civil penalty process
Common Winslow Violations � Weeds � Abandoned vehicles � Dilapidated buildings
Procedure for Non-Emergency Abatements � Code compliance officer prepares a written notice with a brief statement of the violation. Notice also informs person of right to appeal and that failure to comply with notice (within 15 days from service) will cause the City to abate the violation or issue a criminal citation. Winslow City Code Sec. 8. 20. 090 � Notice to abate is served on owner, lessee or person occupying the property or at last known address, if unknown then to the last address on the tax bill. Winslow City Code Sec. 8. 20. 100
Procedure for Non-Emergency Abatements � When owner fails to abate by the date set for compliance, the City may abate. � Upon abatement, City shall prepare an assessment containing a verified statement of the actual cost of such abatement, plus an additional 50 percent of the cost. Notice of assessment is sent to persons whom original notice of violation was sent. � If total assessment is not paid within 30 days City may record a lien against the property.
Procedure for Non-Emergency Abatements � Failure to comply with the notice of assessment will result in civil court action. Winslow City Code Sec. 8. 20. 110 and A. R. S. 9 -499(D) –judicial foreclosure to satisfy lien.
Procedures for Emergency Abatement � When violation poses a substantial and immediate threat of serious harm to the health or safety of any person, the City may immediately enter and take minimum action necessary to relieve threat of serious harm. � Prior to entering City must obtain the consent of the owner or occupant; or a search warrant from the municipal judge. � Municipal judge shall issue an order only upon a showing of probable cause to believe that a violation of the code exist which poses a substantial and immediate threat of serious harm to the health or safety of any person on the property.
Procedures for Emergency Abatement � Any person found to be in violation may be issued a criminal citation for all violations causing the emergency abatement. � Per the code compliance officer, he has never completed an emergency abatement.
Legal Considerations � Use of CDBG funds � Fourth Amendment � Brady, Giglio, and Impeachment Issues � Public Records laws
Price v. City of Stockton, 390 F. 3 d 1105 (9 th Cir. 2004) � City inspections of 32 properties resulted in nine closures, with six on an emergency basis. � HUD relocation statute satisfied Blessing test and created a federal right of action enforceable with section 1983.
Archer v. Gipson, 108 F. Supp. 895 (E. D. Cal. 2015) � Plaintiffs, a married couple, brought suit against a code enforcement officer as well as a private contractor. � Construction materials were at the Plaintiffs’ home for one year prior to search and seizure by the city. � Without a warrant, the construction materials were seized from the property and destroyed. ◦ Warrantless exception?
Warkentine v. Soria, 152 F. Supp. 3 d 1269 (E. D. Cal. 2016) � Plaintiffs owned five parcels, with three located in residential zones and two in light industrial zones. ◦ City manager gave direction to code officers. � Code officers entered onto unfenced, vacant lot without a residential structure. ◦ Search versus seizure � Code officers applied for inspection warrants for four fenced properties. ◦ Warrant defects render the search unlawful � Due process concerns – procedural and substantive
Foor v. Smith, 243 Ariz. 594 (Ct. App. 2018) � Foor kept 41 cats in the backyard of her son’s Phoenix home. � Following cancelled or missed appointments, a Humane Society employee and supervisor removed cats from the home while waiting for police. � Brady and Giglio apply in civil forfeiture actions that do not have a mechanism for a defendant to discover exculpatory and impeachment evidence.
Evolving Issues with Code Enforcement