County continues to review nuisance ordinance

County Attorney John Howard said language in the ordinance that adopted Garland County’s nuisance property regulations is inconsistent with the county code, making enforcement of the regulations problematic.

Discussions to give the ordinance greater enforceability began in March. The conversation during last month’s joint meeting of the Garland County Quorum Court’s Environmental Services, Public Works and Buildings and Public Health, Welfare and Safety committees focused on inconsistencies in the adopted and codified versions of the ordinance.

Howard told justices of the peace the nuisance ordinance the quorum court adopted in August 2007 and the version enshrined in the county code list different conditions that the county can regulate.

The adopted version said the county can regulate “unsafe, unsightly and unsanitary conditions.” As it appears in the county code, the ordinance empowers the county to regulate only “unsightly and unsanitary conditions.”

Inconsistencies also appears within the codified version, Howard said. Below the authorization language, the section listing conditions that qualify as violations stipulate it’s unlawful for property owners to allow “unsafe, unsightly and unsanitary conditions.”

“You have to fix the conflicts,”

Howard told JPs on the two committees. “It’s primed for someone to come along and challenge it and say, ‘Look, your own law conflicts with itself. It conflicts with the ordinance as passed versus the ordinance that’s codified.’ You need to be prepared for a challenge.”

In March, inspectors with the county’s environmental services department asked to change language that requires “unsafe, unsightly and unsanitary conditions” for property to be in violation of the ordinance, requesting only one of the elements be necessary to cite a nuisance property.

Howard told last month’s joint-committee meeting that the enabling state statute doesn’t authorize the county to prove only one element. The statute authorizes counties to remove “unsightly and unsanitary articles.”

“You have no authority to change that language,” he said. “We can’t change it from ‘and’ to ‘or.’ You can’t change it to disjunctive language. That issue is reserved by the statute.”

Howard suggested amending the ordinance to remove unsafe from the list of elements needed to support a nuisance citation.

“One thing you could do is remove the word unsafe,” he said. “In that context, your staff would then have to prove that it was unsightly and unsanitary. Not that it was unsightly, unsafe and unsanitary. If you still want the ability to enforce unsafe conditions, make it a separate section.

“As it sits right now, unsightly and unsanitary is what the state authorizes you to do. It might be a valid use of your authority to make it more restrictive by adding unsafe as a secondary consideration.”

Howard said the detail written into the ordinance makes it difficult to enforce. It lists conditions that qualify as nuisances, binding the county to overly specific descriptions of what constitutes a violation. Howard said the ordinance needs to be more general, using Washington’s County’s nuisance ordinance to illustrate how less specificity can give inspectors greater discretion in enforcing the regulations.

It authorizes the county judge to remove “unsightly and unsanitary” conditions but doesn’t specify the elements that constitute those conditions.

“This is kind of the minimalist approach,” he told JPs. “I think the ordinance you have now is kind of the micromanagement approach. You need something in between, so it’s more enforceable, more flexible and easier to manage. That kind of gives you the extremes and something to shoot at in the middle.”

The two committees plan to reconvene next month for further review of the ordinance.