Loading...
HomeMy WebLinkAboutHandouts_Special Meeting_Tab 02_06/29/2015 (2) ��N R6ETT W�-IITE Co , , �� DAVIS AN�� ASHTON, t�A. KEITH W. DAVIS ATTORNEY AT LAW Bonrd Certified i�i City, Co�enh� axd Local Goverrt�nent Lazu MEMORANDUM TO: Mayor Brennan and Town Council Members CC: Village Manager Couzzo FROM: Village Attorney Davis DATE: June 25, 2015 RE: Code Compliance and Community Appearance In response to concerns regarding general community appearance and the Village's code compliance process which have been raised by members of the Village Council, and with direction from the Village Manager, I have prepared this Memorandum to offer explanations and suggestions regarding these topics. First is an overview of the Village's code compliance processes. Second is a review of two scholarly articles that focus on improving compliance with local codes. Third are suggestions which could be implemented to expedite the Village's compliance process, and enhance general community appearance. Florida's statutory code enforcement process Chapter 162, Florida Statutes, provides a uniform code enforcement process for local government. Most local (municipal and county) jurisdiction, utilize this uniform process, which provides that code compliance proceedings are to be heard by a code enforcement board or special magistrate. The fundamental elements of this process require the provision of due process, compliance with the essential requirements of law, and the presence of competent, substantial evidence to support the findings of the special magistrate. The enforcement procedure and notice requirements for local code enforcement proceedings are found at sections 162.06 and 162.12, Florida Statutes. These sections provide that once a"violation of the codes is found, the code inspector shall notify the violator and give him or her a reasonable time to cure the violation (emphasis added)". The first notice of a violation may be provided by certified mail' to the address listed in the county property appraiser's database. The notice should describe the violation and give the violator a reasonable opportunity to correct the violation. It should also advise ' Local government is not required to send notice via certified mail, return receipt requested. Section 162.12(1)(a), Florida Statutes (2015), provides that notice via certified mail is sufficient. Notice via certified mail, return receipt requested, is "an option of the local governmenY' Id. KeithC�3CWDA-legal.com 1111 H�policxo Road, Suite 207 urunu.CWDA-legal.corn Lnntnnn, Florida 33462 TELEPHONE: (561) 586-7116 FAX: (562) 586-9611 the violator that a failure to comply within the time provided may result in the case being presented to the special magistrate who may levy fines against the property. If notice is sent by certified mail and is not signed as receiving within 30 days after the postmarked date, notice may be effected via posting on the subject property and at Village Hall. Alternatively, notice may be effectuated via hand delivery at the violator's usual residence with any person that resides there and is over fifteen years of age, or leaving the violation with the manager of a commercial business. Notice by posting may occur simultaneous with attempts to provide notice via certified mail or hand delivery. Proper notice, coupled with an opportunity to be heard by the decision- making authority constitute due process for purposes of code compliance proceedings. The case may be heard by the special magistrate if the violation is not remedied as provided in the notice of violation. Notice of the hearing before the special magistrate must be provided to the violator in the same manner as the notice of violation. At the hearing, the violation is presented to the special magistrate. The government presents its evidence and the respondent is likewise given an opportunity to present a defense. At the conclusion of the hearing, the magistrate will issue findings of fact and an order granting the proper relief. Typically, this order will include a notice that it must be complied with by a specified date, and will describe that a fine may be imposed if the order is not complied with by the date specified. If the order is not complied with by the set time, the special magistrate may order the violator to pay a fine for each day the violation continues past the date set-out in the order. Village of Tequesta's code enforcement process The Village utilizes the uniform method of code comptiance described above. Our code compliance process is codified at Chapter 2, Article IV of the Village Code of Ordinances. In addition, prior to implementing the above process, violators are issued a "friendly notice of violation", which provides a short time for the violator to achieve compliance, before being issuing the formal notice of violation. The formal notice of violation gives the violator a reasonable time to achieve compliance and provides notice to the violator that the Village may bring the matter to the special magistrate if compliance is not achieved within the time provided. If the violation is not remedied in the reasonable time provided in the formal notice of violation, as determined by the code compliance officer, a notice of hearing is served on the violator as described above. Village code comp{iance hearings are held on the fourth Thursday of each month. Alternate methods of code enforcement Section 162.The law allows a local government to create its own alternate method of code enforcement which differs from the uniform method descried above. However, any process for enforcing local codes must contain the fundamental elements noted above (the provision of due process, compliance with the essential requirements of law, and the presence of competent, substantial evidence to support the findings of the special magistrate). Since the uniform method of code enforcement utifized by the Village has been judicially tested and approved in terms of these fundamental elements, it is recommended that the process remain as currently adopted. Scholarly views on improving compliance with code enforcement Code violations and code compliance are a widespread problem that receives little attention. The article that was reviewed for this memo includes notes that "until the 2 study reported in this article, no systemic nationwide research ha[d] examined compliance with building and development-management codes." The traditional view of code enforcement is that community aesthetics suffer when {ocal government lacks capacity to compel code comp{iance by identifying violations and prosecuting violators. This view is known as systemic code enforcement. The alternative perspective is that code compliance can be maintained through creating an environmer►t where violations are less likely to occur. The latter view is achieved by a facititative code enforcement philosophy; reward good behavior and punish the knowing and repeat offenders. Administrators must decide which of these views to emphasize when crafting a successful code enforcement program. Systematic code enforcement emphasizes deterrence via enforcement as the method to achieve voluntary compliance. Proponents of systematic code enforcement feel compliance occurs only when the cost of disobeying the law exceeds the cost of noncompliance; a market approach. Deterrence is achieved through an ingrained desire to comply with local code due to the financial costs of cvmpliance. Facilitative code enforcement does not adopt the market approach of systematic code enforcement. Research shows that a market approach may not be best. Noncompliance is often a result of ignorance of the code, negligence, incompetence, and principled disagreement with the requirements of ordinances and permits. Proponents of facifitative code enforcement train inspectors to use cooperative approaches to deal with code enforcement violations. These approaches include: using flexible guidelines when assessing comptiance; explaining the sections of code violated to violators, advising how to fix the violations, and bargaining with violators to agree on a compliance schedule; using incentives to reward violators that make an honest effort to comply; and providing technical assistance in interpreting the code to residents and businesses. In tmproving Compliance With Regulations: Choices and Outcomes For Local Govemmenf , Burby et al. gathered and analyzed data on compliance with building codes to determine whether systemic code enforcement, facifitative code enforcement, or a mix of both yielded higher levels of compliance. Burby et al. also analyzed which policy decisions and actions created higher levels of code compliance. The study was based on an empiricaf anafysis of data from 9901ocal governments of a1i sizes. In evaluating enforcement philosophies, Burby et al. determined that a facilitative approach was most important to creating an environment of voluntary compliance. This approach was meaningless without proaetive agency leadership and adequate legal capacity. Proactive leadership and legal support signaled that local government was serious about code enforcement. Effective legal support did not involve throwing the book at viofators; it invo{ved a counselor that staff can turn to and ask when to go easy on violators and when to refer cases for prosecution. Local code inspectors must be able to exercise discretion so violators can engage in a dialogue with inspectors to understand how the code is applied to the context of their property. When discretion is not given to inspectors, violators are less likely to understand the rationale behind the code and willingly comply. Although code is written to be unambiguous and "one size fits all", this not always the case in the field. Increased capacity for compliance had the largest effect on overall compliance. Increased staffing was determined to be the most effective method of increasing capacity, and had the largest effect on overall compliance (voluntary and enforced). 2 Kagan and Scholz 1984 3 American Planning Association. Journal of the American Planning Association; Summer 1998; 64, 3. 3 Highest rates of compliance were achieved when staff capacity was increased, combined with increased efforts devoted to enforcement tasks, and when technical support (via local government staf� was made available to local residents and businesses. Burby et al. concluded that highest levels of compliance required both increased enforcement capacity and fostering a voluntary commitment to comply with code. While adequate capacity to detect and correct code compliance was an important factor, the highest rate of compliance required creating commitment within residents and builders to voluntarily comply with local building and development-management codes. If the voluntary commitment of residents and builders was achieved through a facilitative enforcement approach, then the additional cost of increased enforcement capacity (through higher levels of staffing) could be offset. In conclusion, Burby et al. determined that successful agencies must be dedicated to correcting and preventing violations. Increased capacity for code enforcement through higher levels of staffing had a significant effect on increasing compliance rates. Compliance rates were highest when increased capacity was employed in an agency with a facilitative enforcement philosophy. Facilitative code enforcement philosophies involve: adequate numbers of technically competent staff; strong proactive leadership; adequate legal support; and a strong effort to check building and development plans, inspect building and development sites, and provide technical assistants. Expediting the Village's code enforcement process Any attempt to expedite the code enforcement process must be balanced with the violator's right to due process. Code enforcement proceedings are a quasi judicial proceeding, which require notice and due process. The decision to issue a violation or assess a fine against a violator must be supported by competent substantial evidence. Most Village code enforcement proceedings involve the following procedure: friendly notice of violation, formal notice of violation, notice of hearing, order finding violation, notice of hearing, and order assessing fine. Status hearings, fine reduction hearings, affidavits of compliance, and orders of compliance are not discussed in this memorandum. This process has not been questioned on appeal. The Village's code enforcement process could be expedited by strict adherence to the statutory code enforcement process. Strict adherence to the procedure described in Florida Statutes would eliminate the friendly notice of violation that is issued before a formal notice of violation simultaneous provision of notice of violation and notice of (violation) hearing to violators, and elimination of all hearings subsequent to an order of violation. The double notice currently provided by the Village is bittersweet: it allows for a more friendly, small-town approach to compliance, but the property may remain noncompliant for a greater amount of time. The friendly notice of violation fosters voluntary compliance by violators and creates a facilitative code enforcement environment. If the friendly notice component was removed from the Village code compliance process, then violators would have less time to become compliant and 4 The Village code enforcement officer issues friendly notices of violation at his discretion. Although most violators are provided with a friendly notice of violation, the Village code enforcement officer does not issue a friendly notice of violation for repeat and egregious violators. In these instances, the violator is issued a(formal) notice of violation. The Village code of ordinances allows the code enforcement officer to immediately schedule a hearing after making a reasonable effort to notify the violator when the code enforcement officer has reason to believe a violation presents a serious threat to public health, safety, and welfare. Code 2015, § 2-181(e). 4 effective notice of (formal) violation would become (more) important to assure due process. Many jurisdictions issue simultaneous notices of violation and hearing. Under the Village's current process, a violator is given time to after receiving a friendly notice of violation and additional time to comply after the (formal) notice of violation is issued. If the violator does not comply by the date in the (formal) notice of violation, then the violator is given to appear at a hearing before the special magistrate. If the special magistrate issues an order finding violation, the violator is given additional time to comply before an order assessing fine is levied. The violator is given more than ample time to comply. If a simultaneous notice of violation and hearing is issued, then the time frame to comply is shortened. Additionally, Florida's statutory process does require notice before an order assessing fine is issued. So long as the violator was given notice of the initial hearing and served with the order finding violation that stated a reasonable (and certain) date to comply by, an order assessing fine may be sought without notice. If the property exchanges hands, the new owner must be given notice and reasonable time to comply. If the Village expedites the current code enforcement process, then it must take additional steps to assure that initial notice is effective and due process is provided. Any attempts to expedite the code enforcement process will come with more recalcitrant violators and increased chances of appeals based on due process failures and bitter residents. Increasing code enforcement capacity in Tequesta should increase compliance rates in the community as described by Burby et al. Increasing code enforcement staff (i.e., code enforcement officers) may be the most effective method to increase enforced compliance. Increases in staff should not come with a harsher, throwing the book at violators, approach to code enforcement. Staff should be encouraged to exercise their own discretion in issuing code violations and be available to explain the code of ordinances and development regulations to violators and potential developers. Increased levels of enforcement capacity do not necessarily involve hiring additional code inspectors. In opinion 2002-84, the attorney general concluded that volunteers may be designated as code enforcement officers under Chapter 162, Florida Statutes Section 162.04(2), Florida Statutes, defines code inspector to mean "any authorized agent or employee of the county or municipality whose duty it is to assure code compliance" (emphasis added). Nothing in Chapter 162, Florida Statutes, requires that a code enforcement officer be a compensated employee. Section 2-131 of the Village code of ordinances provides that the code enforcement officer may be any agent or employee of the Village whose duty it is to ensure code compliance. Conclusion In conclusion, the Village may expedite the current code enforcement process by one or more of the following: eliminating the friendly notice of violation, providing simultaneous notice of violation and hearing, and seeking an order assessing find without hearing. Any attempt to expedite the current process will involve a greater need ta assure due process (through effective notice) and risk of recalcitrant residents and appeals to the circuit court. Burby et al.'s study indicates that administration should consider adopting a systemic and facilitative code enforcement philosophy to increase enforced and voluntary compliance. A facilitative and systemic approach to code 5 Opinion 2002-84 does note that section 162.04, Florida Statutes, provides the municipality with the authority to prescribe the training and qualifications of any agent who may be a code enforcement officer. 5 enforcement, combined with increased levels of code enforcement staff will yield the highest levels of overall compliance. 6 -