Memorandum
City of Lawrence
|
TO: |
David L. Corliss, City Manager
|
|
FROM: |
Jonathan Douglass, Assistant to the City Manager Brian Jimenez, Code Enforcement Manager
|
|
CC: |
Toni Wheeler, Legal Director Scott McCullough, Planning and Development Services Director
|
|
DATE: |
November 20, 2008
|
|
RE: |
Sidewalk Snow and Ice Removal Ordinance
|
On November 11, 2008, staff presented three revised sidewalk snow and ice removal ordinances to the City Commission for their review, based on options discussed by the City Commission and members of the public at earlier meetings. At the conclusion of public comment and Commission discussion, staff was directed to provide additional information on due process/notification requirements, whether businesses can be subject to stricter requirements, the costs and logistics associated with the City abating violations, and the designation of pedestrian routes that would receive priority enforcement.
Due Process Questions
The question was raised whether the City can do away with the notification of violation before a fine is levied or a sidewalk is cleared by the City and the cost is assessed back to the property owner. Currently, staff inspects an alleged violation, and if the violation is confirmed, staff mails a notice to the property owner giving him/her five (5) days to abate the violation. If after five (5) days the violation has not been abated the property owner may be subject to a $20 fine.
Eliminating the mailed notification of violation would cut the compliance time and also the staff time needed to enforce the ordinance. However, property owners would not be given the chance to correct the violation once it has been noted by City staff. In the case of weed abatement, the Kansas Legislature has determined that one-time annual notification is sufficient (K.S.A. 12-1617f). The City therefore gives violators of the weed abatement ordinance notice one time per year, and if the same property is found in violation again the City can abate the problem and assess the costs back to the property owner without further notice. The Kansas Legislature has passed no similar legislation regarding sidewalk snow and ice abatement.
Legal staff is of the opinion that the City Commission could authorize inspection staff to issue citations (notices to appear) for sidewalk snow/ice violations, without requiring a notification of violation first. Due process is served through the mechanism of the court, because the alleged violator in effect either pleads guilty/no contest by paying the citation or pleads not guilty by contesting the citation in municipal court. Inspection staff would need to carefully document the date and time that snow/ice accumulation ended and the date, time and condition of the sidewalks when inspected.
Legal staff is not comfortable pursuing abatement and assessment without a notification of violation being sent, unless a formal appeal process could be established which would allow the alleged violator the opportunity to be heard after the abatement but before the assessment is effective.
Commercial vs. Residential Property Owners
Some have questioned whether businesses could be held to a higher standard than residential property owners by giving them shorter deadlines to have sidewalks clear. If the City establishes a rational basis for such a distinction Legal staff believes a legally defensible ordinance could be crafted, perhaps defining by zoning code where sidewalks have to be cleared faster. Staff, however, does not recommend this approach for a few reasons:
§ The bulk of pedestrian travel is in many cases though residential areas on the way to commercial areas, rather than within the commercial areas;
§ Market forces and liability concerns already encourage many commercial properties to keep their sidewalks safe;
§ In Lawrence, where nearly half of all housing units are rentals, many properties in residential areas are actually “businesses” that perhaps should be held to the same standard as commercially zoned properties.
City Cost to Abate Snow/Ice Covered Sidewalks
The cost to the City to abate code violations and assess the cost to the property owners is minimal as long as the amount of the assessment is high enough to cover both the cost of the abatement procedure and the associated administrative/inspection costs. Staff would recommend contracting out the abatement service rather than doing it in house. Because the need for this service is highly unpredictable and time dependent, it makes more sense to contract than to hire staff for the abatement. With existing staff levels, inspectors can inspect and notify violations at the same rate they do currently.
However, staff continues to not recommend abating and assessing for sidewalk snow/ice removal because we fear that adoption of such an approach will create impossible expectations from individuals in the community who feel passionately about the issue of sidewalk snow/ice removal. If such citizens expect that they can call in large numbers of complaints and that all of those sidewalks will get cleared in a timely manner, they are likely to be disappointed when staff is not able to inspect and process for abatement all of the complaints in a timely manner. While sidewalks snow/ice is an important issue for city inspectors, it is not the only code issue they are investigating and is not always the top priority. It is obviously a high priority for those few days following a winter weather event, but the ability to inspect all of the complaints will depend on the number of complaints and the other issues demanding attention at the time.
The cost to the City to take responsibility for clearing certain sidewalks will depend on what areas the City desires to clear. There are at least a couple ways to consider which sidewalks to clear. The City Commission could designate certain “priority pedestrian routes” (see discussion in next section) and have the City take responsibility for clearing those sidewalks, or the City could analyze case statistics from previous years to determine where particular trouble spots are around the community (such as sidewalks that often get re-covered by snow plows or areas whose physical characteristics make it unduly difficult for the property owners to keep clear).
The cost to have a private contractor clear sidewalks can only be determined by soliciting bids for the service. Staff does not recommend taking this responsibility in-house because of the nature of the work – i.e. large numbers of staff and equipment needed for only a few hours/days at unknown times throughout the year. Large numbers of staff members would have to either be hired or diverted from other tasks to do this effectively, and equipment would have to be purchased. Parks & Recreation staff clears a number of sidewalks at City facilities and in other locations already, but there is not additional staff and equipment available to handle other sidewalks. Public Works staff is largely consumed with street snow plowing operations at these times and staff does not recommend diverting these resources to clearing sidewalks.
Priority Pedestrian Routes
An option for focusing enforcement efforts could be to identify “priority pedestrian routes” in the City and make those areas the first priority for inspection. For example, two staff persons currently handle sidewalk snow/ice complaints as well as other code enforcement issues. The City could dedicate one of these inspectors to do proactive enforcement on pedestrian routes and the other inspector to handle complaint based enforcement for a certain time period following a winter weather event.
There are multiple areas which could rationally be considered for designation as priority pedestrian routes including, but not limited to, the following:
If the City Commission were to designate certain sidewalks as “priority pedestrian routes,” a public process for determining those routes may be desirable. The City of Madison, Wisconsin, selected their priority pedestrian routes by determining how much could be inspected in one day, then holding meetings with neighborhood groups to select a certain number of areas that could all be inspected in one day. If new areas are to be added to the list others must be removed so the entire list can be inspected in one day.
It deserves note that the Parks & Recreation Department already clears sidewalks on some pedestrian routes, including sidewalks around many City facilities and a number of recreational and bike trails (see attached list).
Staff does not recommend attempting to designate “priority pedestrian routes” at this time. Instead, staff would suggest that this be a potential future work item after a new sidewalk snow ordinance has been in effect for at least one winter. If the City is going to focus enforcement efforts on certain properties we should carefully establish a strong rational basis for targeting those areas.
Staff recommends adoption of either Version A or Version B of Ordinance No. 8324, amending the Sidewalk Snow and Ice Removal Ordinance. Version A could be considered the more aggressive approach, though both versions are more aggressive than the existing ordinance. The draft ordinances would make the following changes to the existing ordinance:
Version A
Version B
Neither of these ordinances specifically address the circumstances in which a City snow plow re-covers a sidewalk that may have already been cleared by the adjacent property owner. It is generally easy for inspection staff to judge whether this is the case, and they can decline to issue citations in these circumstances. This approach, however, means that such sidewalks will likely not get cleared. In the future, if City resources allow and the City Commission deems it appropriate, the City can analyze case data as well as the experience of snow plow operators to identify and clear these sidewalks using public resources. Staff does not recommend that the City attempt to take on that responsibility at this time, but to wait until the new ordinance has been in effect for at least one winter.