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Zoning Codes, Nuisances Codes, And Others (The Really Challenging Stuff)

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Presentation on theme: "Zoning Codes, Nuisances Codes, And Others (The Really Challenging Stuff)"— Presentation transcript:

1 Zoning Codes, Nuisances Codes, And Others (The Really Challenging Stuff)

2 What’s Wrong With This Picture?

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13 Overview Why the increased interest in zoning, nuisance, and property maintenance codes? Why the increased interest in zoning, nuisance, and property maintenance codes? Enabling Statutes. Enabling Statutes. Authorizing Ordinances. Authorizing Ordinances. Typical codes in Wyoming cities/towns. Typical codes in Wyoming cities/towns.

14 Overview Zoning law “language.” Zoning law “language.” Thoughts on handling these types of cases. Thoughts on handling these types of cases. An example or three. An example or three. Questions. Questions.

15 Why So Much Interest? 30 year sea change. 30 year sea change. (Zoning: Four letter word? Or sacred cow?) (Zoning: Four letter word? Or sacred cow?) “Quality of Life.” (Courts are taking note of.) “Quality of Life.” (Courts are taking note of.) Information Age. Information Age. More travel. More travel. NIMBY’s. NIMBY’s. Economic Development! Economic Development! Crime Prevention/Prevention of Decay. Crime Prevention/Prevention of Decay.

16 The “Broken Window” Theory Developed by James Q. Wilson & George Kelling Developed by James Q. Wilson & George Kelling Premise: Accumulated trash, broken windows, deteriorated building exteriors cause area residents to feel more vulnerable, and begin to withdraw. They become less willing to intervene to maintain public order. Premise: Accumulated trash, broken windows, deteriorated building exteriors cause area residents to feel more vulnerable, and begin to withdraw. They become less willing to intervene to maintain public order.

17 The “Broken Window” Theory Unattended broken windows, accumulated trash, abandoned/junk vehicles – cause a downward spiral. Unattended broken windows, accumulated trash, abandoned/junk vehicles – cause a downward spiral. The theory has its critics. The theory has its critics. It also has its supporters. It also has its supporters.

18 Enabling Statutes 15 ‑ 1 ‑ 103. General powers of governing bodies. 15 ‑ 1 ‑ 103. General powers of governing bodies. (xiv) Regulate or prohibit animals running at large. (xiv) Regulate or prohibit animals running at large. (xix) Declare and abate nuisances and impose fines. (xix) Declare and abate nuisances and impose fines. (A) The municipal court of the city or town has jurisdiction to punish any violator of the ordinances of the city or town governing those areas; (A) The municipal court of the city or town has jurisdiction to punish any violator of the ordinances of the city or town governing those areas;

19 Enabling Statutes Continued continued: continued: (xxiv) Prevent … dangerous construction…; (xxiv) Prevent … dangerous construction…; (xxv) Prescribe the thickness, strength and manner of constructing any buildings … and provide for their inspection; (xxv) Prescribe the thickness, strength and manner of constructing any buildings … and provide for their inspection; (xxvi) Provide for the repair, removal or destruction of any dangerous building or enclosure; (xxvi) Provide for the repair, removal or destruction of any dangerous building or enclosure;

20 Still More Enabling Statutes (xxxvi) Require all buildings to be numbered … and in case of failure to comply with such requirements, cause the numbering to be done and assess the costs against the property or premises numbered; (xxxvi) Require all buildings to be numbered … and in case of failure to comply with such requirements, cause the numbering to be done and assess the costs against the property or premises numbered;

21 Even More Enabling Statutes (xli) Adopt ordinances, resolutions and regulations… necessary for the health, safety and welfare of the city or town, enforce all ordinances by imposing fines not exceeding seven hundred fifty dollars ($750.00), or imprisonment not exceeding six (6) months, or both. (xli) Adopt ordinances, resolutions and regulations… necessary for the health, safety and welfare of the city or town, enforce all ordinances by imposing fines not exceeding seven hundred fifty dollars ($750.00), or imprisonment not exceeding six (6) months, or both.

22 Are You Tired of Enabling Statues Yet? (xliv) Take into custody abandoned, or junk motor vehicles and parts or remains thereof which are nuisances and are on public property or on public streets, alleys and ways… (xliv) Take into custody abandoned, or junk motor vehicles and parts or remains thereof which are nuisances and are on public property or on public streets, alleys and ways… (Definitions of “junk vehicle,” “abandoned vehicle,” etc., can be critical.)* (Definitions of “junk vehicle,” “abandoned vehicle,” etc., can be critical.)*

23 And Still Even More Enabling Statutes Cities/towns authorized to regulate: Cities/towns authorized to regulate: Building height; Building height; Maximum lot coverage; Maximum lot coverage; Size of yard & open spaces; Size of yard & open spaces; Population density; Population density; Separation of uses/occupancies; Separation of uses/occupancies; Setbacks. Setbacks.

24 And still more… Cities/towns authorized to: Cities/towns authorized to: Divide city/town into various zoning districts; Divide city/town into various zoning districts; Regulate construction; Regulate construction; Zoning regs to be made in accordance with Master (Comprehensive) Plan & designed to: Zoning regs to be made in accordance with Master (Comprehensive) Plan & designed to: Promote health, safety and general welfare; Promote health, safety and general welfare; Consider character of the district and its suitability for particular uses; Consider character of the district and its suitability for particular uses; Conserve value of buildings; Conserve value of buildings; Encourage most appropriate use of land; Encourage most appropriate use of land; Preserve historical intergrity. Preserve historical intergrity.

25 Yep – Even Still More Enabling Statutes Authorized cities/town to adopt building, fire, electrical, plumbing and other similar codes Authorized cities/town to adopt building, fire, electrical, plumbing and other similar codes. Local ordinances typically empower building official/building inspector/code compliance officer to enforce construction codes. Local ordinances typically empower building official/building inspector/code compliance officer to enforce construction codes. Enforcement issue: Does the building inspector/code compliance officer have legal authority to issue citations? Enforcement issue: Does the building inspector/code compliance officer have legal authority to issue citations?

26 On-line Source for Municipal Codes

27 Who Typically Handles… Animal Control? Animal Control? Nuisance Abatement? Nuisance Abatement? Building Code Enforcement? Building Code Enforcement? Zoning Code Enforcement? Zoning Code Enforcement?

28 Typical City Ordinances Municipal Court Municipal Court Created and established. Created and established. There is created and established in the town a municipal court for the trial of all offenses arising under the ordinances of the town. The office of police justice (municipal judge) is established to preside over the municipal court. (Ord. 343 Art. 8, Ch. 1, § 1-1, 1981) There is created and established in the town a municipal court for the trial of all offenses arising under the ordinances of the town. The office of police justice (municipal judge) is established to preside over the municipal court. (Ord. 343 Art. 8, Ch. 1, § 1-1, 1981)

29 Typical Municipal Codes Business Taxes, Licenses, and Regulations Business Taxes, Licenses, and Regulations Transient Merchant’s Licenses Transient Merchant’s Licenses Contractor’s Licenses Contractor’s Licenses Enforcement * Enforcement *

30 Typical Municipal Ordinances in Wyoming Animals Animals Animals at Large Animals at Large Harboring or keeping of vicious animals Harboring or keeping of vicious animals Licensing Licensing Conditional Use Permits for keeping certain animals Conditional Use Permits for keeping certain animals Certain animals prohibited (exotics, snakes, etc.) * Certain animals prohibited (exotics, snakes, etc.) *

31 Typical Municipal Ordinances Health & Safety Health & Safety Property Maintenance & Nuisance Abatement Regulations Property Maintenance & Nuisance Abatement Regulations Accumulation of garbage, refuse, debris & junked vehicles; * Accumulation of garbage, refuse, debris & junked vehicles; * Weeds; ** Weeds; ** Interior sanitation (typically processed very carefully); Interior sanitation (typically processed very carefully); Structure exteriors, accessory structures, fences and walls; Structure exteriors, accessory structures, fences and walls; Dilapidated structures. Dilapidated structures.

32 Example – Douglas Municipal Code Property Maintenance and Nuisance Abatement Property Maintenance and Nuisance Abatement Includes (partial list): Includes (partial list): Power to declare Power to declare Purpose Purpose Applicability and Enforcement Applicability and Enforcement Investigations and Inspections Investigations and Inspections Right of Entry Right of Entry Notices and Orders - form Notices and Orders - form

33 Property Maintenance & Nuisance Abatement - continued Method of Service Method of Service Correction or Abatement by City – Recovery of Costs Correction or Abatement by City – Recovery of Costs Actual costs plus administrative fee up to 50% of actual cost Actual costs plus administrative fee up to 50% of actual cost Penalty for non-compliance Penalty for non-compliance Can be fined not more than seven hundred fifty dollars ($750.00) for each separate offense. Every twenty-four (24) hour period after the time specified in the written notice in which such person refuses or neglects to correct or abate the violation shall be an additional offense and subject to the same penalty. (Ord. 744 (part), 2005) Can be fined not more than seven hundred fifty dollars ($750.00) for each separate offense. Every twenty-four (24) hour period after the time specified in the written notice in which such person refuses or neglects to correct or abate the violation shall be an additional offense and subject to the same penalty. (Ord. 744 (part), 2005)

34 Enforcement – Notices & Orders Shall be issued by code compliance officer or building official; Shall be issued by code compliance officer or building official; Notices, Orders and Citations must: Notices, Orders and Citations must: A. Be in writing; A. Be in writing; B. Include a description of the real estate sufficient for identification; B. Include a description of the real estate sufficient for identification; C. Include a statement of the violation(s) and why the notice and order is being issued; C. Include a statement of the violation(s) and why the notice and order is being issued; D. Allow reasonable time to make the correction(s) specified to bring the premises or structure into compliance with this chapter. (Ord. 744 (part), 2005) D. Allow reasonable time to make the correction(s) specified to bring the premises or structure into compliance with this chapter. (Ord. 744 (part), 2005)

35 Method of Service Such notice shall be deemed to be properly served if a copy thereof is: Such notice shall be deemed to be properly served if a copy thereof is: A. Delivered personally; A. Delivered personally; B. Sent by certified mail to the last known address; or B. Sent by certified mail to the last known address; or C. Posted in a conspicuous place upon the premises affected by such notice. C. Posted in a conspicuous place upon the premises affected by such notice. (Sometimes the officer will use two or even all three methods.) (Sometimes the officer will use two or even all three methods.)

36 Typical Municipal Codes in Wyoming Buildings and Construction Buildings and Construction Adoption of ICC Codes by local jurisdictions (under ) Adoption of ICC Codes by local jurisdictions (under ) Enforcement alternatives: Enforcement alternatives: Correction Notices Correction Notices “Stop Work” Orders “Stop Work” Orders Withholding of Certificate of Occupancy Withholding of Certificate of Occupancy Citation Citation

37 Zoning Cases Types: Types: Lawsuits (civil); Lawsuits (civil); Violations of local zoning ordinances (criminal?). Violations of local zoning ordinances (criminal?).

38 Typical Municipal Codes Zoning Zoning Includes (partial list): Includes (partial list): Definitions (Very Important!) * Definitions (Very Important!) * Various Zoning Classifications Various Zoning Classifications Sign Codes Sign Codes Off-street Parking Requirements Off-street Parking Requirements Supplemental Regulations (fences; exceptions for lots of record; nonconforming uses, etc.) Supplemental Regulations (fences; exceptions for lots of record; nonconforming uses, etc.)

39 Zoning Can Be Different Language Language Prohibitive v. Permissive Prohibitive v. Permissive Example: Example: Assault and battery. Assault and battery. A. It is unlawful for any person, having the present ability to do so, to attempt or threaten to unlawfully touch another in a rude, insolent, or angry manner. A. It is unlawful for any person, having the present ability to do so, to attempt or threaten to unlawfully touch another in a rude, insolent, or angry manner. B. It is unlawful to touch another in a rude, insolent or angry manner. B. It is unlawful to touch another in a rude, insolent or angry manner.

40 Prohibitive v. Permissive Language R-1 Residential Zone – Regulations Designated R-1 Residential Zone – Regulations Designated A. Uses permitted: A. Uses permitted: 1. Single-family residence; 1. Single-family residence; 2. Public schools; 2. Public schools; 3. Home occupation; 3. Home occupation; 4. Accessory building use. 4. Accessory building use.

41 Sometimes It Can Be Both… Example: Example: Permitted Use: Permitted Use: Accessory building and uses; Accessory building and uses; Animal clinic; Animal clinic; Arena, commercial; Arena, commercial; Auto repair shop; Auto repair shop; Auto storage, but not salvage; Auto storage, but not salvage;

42 Permitted Uses “Permitted uses – does not mean they have a paper “permit” for the use/occupancy (key terms there), but rather the use/occupancy is “allowed.” “Permitted uses – does not mean they have a paper “permit” for the use/occupancy (key terms there), but rather the use/occupancy is “allowed.” Typical argument: “So I should be able to run a business on my property – the code doesn’t say I can’t.” Typical argument: “So I should be able to run a business on my property – the code doesn’t say I can’t.” The only “legal” uses (occupancies) are those specifically listed under the particular zoning classification. The only “legal” uses (occupancies) are those specifically listed under the particular zoning classification.

43 Exceptions Conditional Permitted Uses Conditional Permitted Uses Requires going through the C.U.P. process Requires going through the C.U.P. process Any other similar use which conforms to the general purpose and intent of the R-1 residential district and which will be no more injurious, economically or otherwise, to property or improvements in the surrounding area than would any use generally permitted in the district; Any other similar use which conforms to the general purpose and intent of the R-1 residential district and which will be no more injurious, economically or otherwise, to property or improvements in the surrounding area than would any use generally permitted in the district; Burden of proof is on the property owner. Burden of proof is on the property owner. “There shall be no right of appeal from a decision of the city council denying a conditional use permit. The decision of the city council shall be final and exclusively within the province of the city council.” “There shall be no right of appeal from a decision of the city council denying a conditional use permit. The decision of the city council shall be final and exclusively within the province of the city council.”

44 Typical Arguments “I can do whatever I want, it’s my property!” (Funny how that changes when it’s the neighbor that wants to do something with his property.) “I can do whatever I want, it’s my property!” (Funny how that changes when it’s the neighbor that wants to do something with his property.) This position is not supported by case law. This position is not supported by case law. Owner is entitled to “reasonable” use of enjoyment of his property, not the most profitable, nor every possible use. Owner is entitled to “reasonable” use of enjoyment of his property, not the most profitable, nor every possible use.

45 Zoning Cases - Suggestions Remember: Remember: Permissive v. Prohibitive Language Permissive v. Prohibitive Language Consult the Definitions Section Consult the Definitions Section May be helpful to consult Community Development (Master) (Comprehensive) Plan May be helpful to consult Community Development (Master) (Comprehensive) Plan Master Plans have carried great weight in appellate level court decisions Master Plans have carried great weight in appellate level court decisions

46 Actual Cases Animals: Animals: Keeping a raccoon in city limits. Keeping a raccoon in city limits. Vicious dog – fence in public r.o.w. Vicious dog – fence in public r.o.w. Key points: Key points: Fenced yard Fenced yard Signs – “Beware of Dog” Signs – “Beware of Dog” Fence located in public r.o.w. Fence located in public r.o.w.

47 Actual Cases Nuisance abatement: Nuisance abatement: An expensive lawn mowing job An expensive lawn mowing job $350 fine, plus reimbursing city for cost of mowing. $350 fine, plus reimbursing city for cost of mowing. Karl’s whole house abatement. Karl’s whole house abatement. Interesting idea Interesting idea 4’ X 8’ sign identifying property owner 4’ X 8’ sign identifying property owner

48 Actual Cases Zoning: Zoning: Operating a “non-permitted” business (Auto repair shop & “salvage yard”) Operating a “non-permitted” business (Auto repair shop & “salvage yard”) Key points: Key points: Located in General Business District Located in General Business District Permitted uses include: Permitted uses include: Auto repair shop; Auto repair shop; Auto storage, but not salvage Auto storage, but not salvage (Industrial zone permits Auto Salvage & Junk Yards) (Industrial zone permits Auto Salvage & Junk Yards)

49 Zoning Case - continued Key points: Key points: Definition: Junk Yard Definition: Junk Yard Place where junk…discarded or salvaged materials are bought, sold, exchanged, stored…or handled, including automobile wrecking yards…but not including…used vehicles in operable condition, used or salvage materials as part of manufacturing operations. Place where junk…discarded or salvaged materials are bought, sold, exchanged, stored…or handled, including automobile wrecking yards…but not including…used vehicles in operable condition, used or salvage materials as part of manufacturing operations. Manufacturing not permitted in General Business Zone – has to be in Industrial Zone Manufacturing not permitted in General Business Zone – has to be in Industrial Zone

50 Zoning Case…continued Key points: Key points: Another definition – Garage, Automotive Repair Another definition – Garage, Automotive Repair Any building or premises used for the repair of vehicles for profit. Repair activity shall be conducted in enclosed places or screen(ed) from public view. Any building or premises used for the repair of vehicles for profit. Repair activity shall be conducted in enclosed places or screen(ed) from public view.

51 Zoning Case - continued Key points: Key points: Prosecution arguments. * Prosecution arguments. * Defense arguments. * Defense arguments. * Testimony & photographic evidence. * Testimony & photographic evidence. * Defense response to ruling. Defense response to ruling.

52 Questions? Good Luck! Good Luck!


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