Memorandum

Memorandum

To:    Mike Wildgen, City Manager

From: Victor Torres, Neighborhood Resources Department Director and

Toni Wheeler, Staff Attorney

Cc:     Debbie Van Saun and David Corliss, Assistant City Managers

Re:     Chapter 9, Article 6 (Environmental Code) Enforcement Standards

Date: July 14, 2004

At its July 6, 2004, meeting the City Commission requested additional information regarding the phrase that appears in Section 9-605 (Enforcement Standards), “conditions exist of a quality and appearance not commensurate with the character of the neighborhood.”  Staff recommended striking the phrase and replacing it with language making enforcement standards for the environmental code uniform throughout the City. 

This memorandum provides a brief history of the current enforcement standard, discusses court cases in which the current language affected the disposition, sets forth the advantages and disadvantages of retaining the existing language, and provides actions for the Commission’s consideration.

Legislative History

The pertinent phrase was added to the Environmental Code by Ordinance No. 5013, adopted in January 1979.  The enforcement standard in Ordinance No. 5013 read:

ENFORCEMENT STANDARDS.  No person shall be found in violation of this article unless the public officer, after a reasonable inquiry and inspection of the premises, believes that conditions exist of a quality and appearance not commensurate with the character of the neighborhood.  Such belief must be supported by evidence of a level of maintenance significantly below that of the rest of the neighborhood.  Such evidence shall include conditions declared unlawful under Section 7A-106 but shall not include conditions which are not readily visible from any public place or from any surrounding private property. 

In 1998, the above cited code section was amended by Ordinance No. 7026.  The sentence, “Such belief (that conditions exist of a quality and appearance not commensurate with the character of the neighborhood) must be supported by evidence of a level of maintenance significantly below that of the rest of the neighborhood,” was removed. 

The minutes of the City Commission meetings in which these amendments were introduced and adopted are sparse.  There is no summary in the minutes of the discussion, if any, of the particular provisions cited above. 

Court Cases

Neighborhood Resources staff recommended this amendment following unsuccessful prosecutions in municipal court in two cases.  The most recent one involved the prosecution of a property owner who was charged with violating Section 9-606.2(A) (deteriorated, dilapidated or dangerous exterior structure) between September 5, 2002 and April 3, 2003.   See the attached photograph.  At trial, the property owner’s attorney argued that the defendant could not be found guilty of the charge because no evidence of the condition of other properties in the neighborhood was presented to support the City’s determination that the condition of the cited property was substandard.  The judge agreed. 

Subsequent to the trial, the same property owner was cited for similar violations.  The property owner appealed to the Neighborhood Resources Advisory Committee.  At the appeal his attorney again argued the property was commensurate with the neighborhood.  The Advisory Committee found that City staff had correctly interpreted the code with regard to the subject property but gave the owner an extension to make the necessary repairs. 

In 2002, another property owner was found guilty of violating section 9-606.1(c), (having items or personal property (appliances, etc.) on the porch.)  On appeal to district court, the property owner’s attorney raised the issue of selective enforcement generally.  The City prosecutor eventually dismissed the charges, citing an error in the notice of violation.   

In addition to the above cases, the department requested the amendment to address the charge that the department selectively enforces the environmental code.  Julie Wyatt, Dan Johnson, and Barry Walthall report that when trying to enforce the code, they often hear conflicting comments like, “We’re not Alvamar.”  “We’re not the Westside.”  “You would not let this condition exist in West Lawrence.”

Advantages and Disadvantages of Retaining the Existing Language

a. Advantages of retaining the existing code language:

1. It has been in the City Code since 1979 and is known to the residents of the community;

2. Having varying neighborhood standards permits the character and diversity of our neighborhoods to be reflected in enforcement;

3. The current standard gives the department greater discretion in enforcing the code (which is also a disadvantage; see below).

4. The phrase, while it presented a problem for our enforcement officers and municipal court prosecutors in one prosecution and one appeal, and has generated some complaints, it has not generated an overwhelming number of complaints from citizens.

b. Disadvantages of retaining the existing code language:

1. A non-uniform standard is difficult to enforce because it requires inspectors to collect and provide evidence of the condition of properties in the neighborhood.

2. The increased subjectivity or discretion afforded the department leads to charges of selective enforcement.

3. The standard is subject to being challenged or misused by the accused property owner.  The accused may point to the condition of a property not included in the department’s analysis that is arguably in a greater state of disrepair. 

4. A review of the on-line codes of Topeka, Manhattan, Wichita, Lenexa, Overland Park, Olathe, Leavenworth, Columbia, Missouri, and Boulder, Colorado found that with the exception of Lenexa, none of the communities had code language similar to what appears in Section 9-605 of our Code requiring the enforcement agency to consider the quality and appearance of properties in the neighborhood.  Lenexa's code does contain similar language as it relates to sidings or exteriors.

Possible Actions

1. Leave the Enforcement Standard provision as it is.

2. Leave the enforcement standard as it is and monitor municipal court actions and environmental code violations prosecutions for twelve (12) months to see if it continues to result in not-guilty verdicts or challenges.  At that time, the provision could be amended, if the Commission so desires.

3. Amend the enforcement standard to narrow the comparison data to immediately surrounding properties rather than the neighborhood.  A “neighborhood” encompasses a much larger geographical area than an area that includes the immediately surrounding properties.  The sentence would read:

“No person shall be found in violation of this article unless the public officer, after a reasonable inquiry and inspection of the premises, believes that conditions exist of a quality and appearance not commensurate with the character of the immediately surrounding properties.”

4.  Amend the enforcement standard but delay its effective date.

5.  Amend the enforcement standard and make it effective upon publishing.