County reconsiders nuisance ordinance

The nuisance property ordinance Garland County adopted in 2007 is being revisited in response to complaints of unsightly properties the ordinance is ill-equipped to bring into compliance, county officials told a committee of the Garland County Quorum Court Monday night.

Shelly Waddle of the inspections division of the county’s environmental services department asked the Environmental Services/ Public Works and Buildings Committee to consider changing language that requires “unsafe, unsightly and unsanitary conditions” for property to be in violation of the ordinance.

“It’s really hard for us to prove on a nuisance property that it’s unsafe, unsightly and unsanitary,” she told the committee. “Our suggestion is that you change that word from ‘and’ to ‘or.’”

Several justices of the peace said requiring only one element would lead to overregulation and difficulties enforcing the broader standard.

“If we’re going to take things like the word and make it or, what we’re going to do is explode the jurisdiction and complications that arise because of that,” District 9 JP Matt McKee said.

State law empowers counties to regulate “unsightly and unsanitary” articles on property, ultimately investing it with the authority to raze or remove offending structures if the property owner has not complied within 30 days of being notified.

Waddell told the committee that inspections are complaint driven, with inspectors responding to calls and determining if a property meets all three nuisance elements. Letters are sent to owners of property deemed noncompliant. A certified letter is sent if no action

has been taken in 30 days. Property owners are cited if the noncompliance continues to go unaddressed after another 30 days.

The ordinance levies a $20 to $500 fine per offense and a $250 fine per day for each day the property remains out of compliance. The county can take the further step of “abating said nuisance by any means necessary,” including selling, razing or boarding up the offending structure.

Waddell told the committee the maximum fine and reoccurring fine have never been assessed, prompting McKee to question how effectively the existing ordinance is being enforced.

“What that tells me is this ordinance has never been enforced, because we know we have properties that are not complying with this ordinance,” he said. “My first recommendation would be that we work on the enforcement as it exists.”

Prosecuting Attorney Michelle Lawrence told the committee the existing ordinance makes it difficult to regulate unsightly properties.

“This ordinance doesn’t work unless there’s rodents running out, or things of that nature,” she said, referring to a property owner she said has generated numerous complaints for the amount of items piled up outside her home. “I feel like a lot of people calling feel like they don’t have any way to deal with this.”

Waddell referenced a Marion Anderson Road address that’s been the source of numerous complaints. She said inspectors have been unable to cite the property because it doesn’t meet all three criteria.

“When you go look at it, it’s unsightly,” she said. “It’s not unsafe, and it’s not unsanitary. It has a casket on the porch, dog pens out in the yard and a camper trailer with half of the siding coming off of it. It’s on the lake, and the people in the neighborhood are not happy.”

County Attorney John Howard told the committee unsightly is a subjective standard and isn’t defined in the enabling state statute. The ordinance defines unsafe, unsightly and unsanitary conditions as those that cause “a marked detrimental influence on the expected aesthetics, safety and health of the neighboring area.”

Howard said enforcing “expected aesthetics” without enumerating what they entail could be problematic.

“What’s ‘expected?’” he asked the committee. “Hot Springs Village has specific regulations on what you can do and what you can’t do. Those would be expected aesthetics. You don’t have that here. All we have is what the person making the complaint says. It’s defensible, but ultimately the question is, is it arbitrary? Is it capricious?”

The committee agreed to raise the minimum fine to $100. The proposal will be advanced to the Public Health, Welfare and Safety Committee to consider. Howard cautioned against making the minimum too onerous, as district court judges assessing the penalties may rule the violation doesn’t rise to the level of the minimum fine.

“If you set a minimum fine that says the range for this is $250 to $1,000, a lot of times the judge is not going to assess that fine,” he told the committee. “They’re going to say this case doesn’t meet that minimum level. The case that comes before them may not fit what you’re doing.

“You can provide a range and bump the minimum, but if you set it too high you’re going to cut your own throat.”