Memorandum

City of Lawrence

Legal Services

 

TO:

Toni Ramirez Wheeler, Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

October 5, 2009

 

RE:

Ordinance 8467 --  Environmental Code Revisions

 

The City of Lawrence’s Environmental Code, Article 6 of Chapter IX of the City Code, is the City’s primary means of preventing the accumulation of abandoned vehicles and trash on property throughout the City.  It also contains the provisions that lead to the repair of dilapidated or deteriorating structures, but does not include those ordinances dealing with the demolition of buildings.

 

Employees of Planning and Development Services typically enforce the Environmental Code.  They send required notices, have contact with property owners, testify in Municipal Court for offenses that go to trial, and arrange for the abatement of violations.  This hands-on experience often enables these employees to recognize deficiencies in our current law and to suggest changes.  Ordinance 8467 contains amendments to the Environmental Code that were suggested by these employees who work with the Environmental Code.  The Community Development Advisory Committee reviewed these changes on January 28, 2010, and voted unanimously to recommend the changes to the City Commission.

 

In the following sections, each of the suggested changes will be discussed.

 

Community Development Advisory Committee

 

Last year, Planning and Development Services implemented a new Citizens Participation Plan through the passage or Ordinance 8335.  Part of that plan renamed and reconstituted the former Neighborhood Resources Advisory Committee, which became the Community Development Advisory Committee.

 

The Neighborhood Resources Advisory Committee served an important role in the operation of the Environmental Code, acting as an appeal board for notices of violation, a step that occurs prior to abatement or the filing of charges in Municipal Court.  Therefore, it is necessary to update the Environmental Code references to Neighborhood Resources Advisory Committee to reflect the title of its successor, the  

Community Development Advisory Committee.

 

Clarification of Definitions

 

As a result of the review, two definitions were clarified in the amended ordinance.  First, the definition of “structure” was changed to explicitly state that driveways are not structures under the Environmental Code.  This change addresses the effect of previous Municipal Court rulings that included driveways within the definition of structure.  The effect of those rulings was to exempt abandoned vehicles parked on driveways from the reach of the ordinance, a result I do not believe was the legislative intent.  This is the case because it is illegal to park an abandoned motor vehicle in a yard, which is defined as the area of a property with no structure.  It is not, however, illegal to house an abandoned vehicle in a structure such as a garage.  The revised ordinance directly states that driveways and other roofless areas used to park cars are not structures. 

 

Second, the definition of “refuse” was amended to make it more inclusive.  The current definition mirrors the one found in Section 9-402(B), the refuse collection section of the City Code.  Their purposes, however, are substantially different.  The Article 4 definition of refuse is meant to exclude a variety of items from regular pick up by the City’s solid waste personnel.  Section 9-410(B) prohibits putting out for collection materials not defined as refuse.  There is no reason to exclude these things, like bricks, tires and household hazardous waste, from the definition of refuse in the Environmental Code.  These items can pose the same or more substantial problems than the things not exempted from the term refuse.

 

Even though it is generally good policy to attempt to keep definitions fairly consistent across different articles or chapters of the City Code, in this instance in order to be true to the substantial policy justifications for the Environmental Code, these previously exempted items should be included within the definition of refuse.

 

Enforcement Standards

 

There are two primary types of violations under the Environmental Code that deal with the exteriors of property – Exterior Conditions (yards/porches) violations and Exterior Conditions (structure) violations.  Also, failure to have conspicuous house numbers on a house and certain acts surrounding the collection of trash are illegalized by the Environmental Code.  Under the current ordinance, a violation of any of these prohibitions may only be successfully prosecuted if “conditions exist of a quality and appearance not commensurate with the immediately surrounding properties. 

 

I believe the purpose of this provision is to allow individual parts of the City to retain their individual character.  Unfortunately, this provision creates an enforcement nightmare in certain circumstances as people who receive notices of violation drive around their neighborhoods looking for similar instances to document as a means of excusing their own potential violations.  It creates an argument similar to one sometimes made in speeding ticket prosecutions -- that because everyone on a given road is speeding and the police cannot stop them all that it is unfair to stop anyone.  That argument does not carry the day in a speeding ticket trial but it may well under the Environmental Code. 

 

While this may be an acceptable result for exterior condition (structure) violations because the calculus takes into account the age and character of a neighborhood, and perhaps the economic resources of the average neighborhood resident, I do not believe it makes equal sense for exterior condition (yards/porches) violations.  Under the current ordinance if everyone in a neighborhood decides to allow trash to accumulate on their front yards or everyone decides to keep wrecked cars out in the open on their property then there is no way to address the problem under the Environmental Code.  For instance, if an entire block of people in the Oread neighborhood decided to have parties in their yards and nobody cleaned the mess up, the Environmental Code might not be enforceable on that block for trash violations on anyone’s property because there was trash on everyone’s property.  While this may be an unintended consequence of the current language, it is a real one.

 

The proposed ordinance tries to reconcile these competing interests.  It substantially preserves the current rule for Exterior Condition (structure) violations, requiring that a violation be for a condition not commensurate with the condition of surrounding properties, while making that rule ineffective for all other types of violations such as trash violations.  The idea is that the age, economic and social character of various neighborhoods might influence what is considered a dilapidated or deteriorated structure in a given neighborhood but that anyone should have the same obligation to clean up trash from their yards or avoid parking abandoned vehicles there regardless of where they live.  Also, the revised ordinance sets the lower limit for acceptable levels of deterioration or dilapidation.   Deterioration or dilapidation becomes a violation regardless of the condition of surrounding properties when the conditions threaten the health, safety or welfare of any person. 

 

These changes result in a more enforceable ordinance.  Another option favored by many members of the Planning and Development Services enforcement staff would be to eliminate the current rule and impose one set of minimum standards for the entire City.  If the Governing Body wishes to take this approach, the ordinance could easily be changed in time for second reading.  

 

Service of Notices of Violation by Certified Mail

 

Last year, Ordinance 8280 was passed by the City Commission.  The purpose of the ordinance was to accelerate the abatement of trash nuisances under the Environmental Code.  The ordinance changed the way notices of violation are served under the Environmental Code.  Instead of having all such notices served by certified mail, it required that the property be posted and follow-up notice be sent by first class mail.

 

Members of the Planning and Developmental Services Zoning Enforcement staff have informed me that some Environmental Code notices of violation that do not pertain to trash abatement are more conveniently and efficiently served by certified mail.  They requested that Section 9-607 of the City Code be amended to include certified mail as an alternative means of serving notices of violation, allowing them to choose the method of service that best fits the individual situation at hand.  For example, trash abatement would continue to be done with property posting and first class mail follow-up while structure violations might instead be served by certified mail. 

 

The proposed ordinance amends Section 9-607 to incorporate this change.

 

 

Language Improvements

 

The language of the Environmental Code was reviewed and, where necessary, it was amended to clarify its meaning, improve interoperability with other provisions that had been amended subsequent to its initial passage, and to eliminate ambiguity.  These changes are not aimed at amending the substance of the existing law.

 

Conclusion

 

The proposed changes make the Code more understandable, easier to use and increase its enforceability.  For this reason, City staff would recommend the passage of the amended ordinance.  If I can provide any further assistance in this matter, please let me know.