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SUBJECTS › LEGAL › NUISANCES › Nuisance Code Enforcement
Updated 10/06

General Code and Nuisance Code Enforcement

Contents

Comment on Code Enforcement

After many years of abating nuisances, Bill Cameron, the former City Attorney of Kennewick, noted that nuisance abatement is a human problem. It is the people who create the nuisance that are the problem, not the nuisance itself. Local officials need to keep in mind that the persons creating a nuisance may have mental problems; many have little money. When the method of abatement is chosen, the circumstance of the person creating the nuisance should be taken into consideration. Humane treatment is a moral imperative. Other government agencies may be of assistance. Child protective services, adult protective services, and the local health district may be a valuable resource. People are all individuals and remedies must be tailored to the individual. Experience and judgment are the only guides. People can be stubborn. Sane, but stubborn people are often quite receptive to a citation. The reality of fines, jail and attorney fees are a wake up call. Complicated people seem better dealt with in Superior Court.

Most code enforcement programs are complaint driven. Complaints result in an inspection and a warning letter to the violator, followed by a notice of citation if action to correct the violation have not been taken by the property owner. This is followed by official abatement proceedings if the violator still has not take care of the problem within a specified period of time. As an alternative to abatement, some cities use neighborhood mediation centers and voluntary agreements. Except for situations of imminent or immediate danger, the enforcement of nuisance provisions is a policy issue dependent on the level of service a community can provide with available resources.

Several communities have developed proactive code enforcement programs. Others only deal with nuisances when they become a serious health or safety problem. Many local governments simply do not have adequate funding to make code enforcement a priority. The courts have recognized that governments generally do not have sufficient resources to hire staff to seek out violations of all regulations. It is common practice for cities and counties to enforce zoning ordinances, animal control, and nuisance ordinances on a complaint-only basis. See Frame Factory v. Ecology, 21 Wn.App 50, 57 (1978).

Enforcement Responsibility - Code Enforcement Officers

The enforcement of nuisance codes is often neglected, because the task can be onerous. Having a single person or department responsible for the enforcement of nuisance regulations can be beneficial, as it allows a jurisdiction to address nuisance problems globally; promotes accountability; and helps end confusion by directing public contact to a single location, instead of being fragmented over several departments. Enforcement should be assigned to a diligent, motivated employee - someone who is good at working with problem people. The job should be given the priority that it deserves, and the code enforcement employee should have the support and resources necessary to do the job right.

Ideally, this should be a building inspector or fire marshal and preferably someone that carries a badge and can issue citations. In some cities assigning a police officer to deal with nuisance complaints may be appropriate. While some police officers might consider it beneath their dignity to chase trashers, the social harm that can be caused by a nuisance is far greater than that caused by many criminals. In his 1997 Legal Notes article, Bill Cameron, former Kennewick City Attorney ironically noted that "We will go to practically any expense to arrest a kid because he stuck-up a 7-Eleven store and made off with 50 bucks, but we are unwilling to go after the trasher who has peeled a half million dollars off the value of his neighborhood."

The responsibility and specific procedures for handling complaints differ among jurisdictions. For example, Bremerton's code enforcement program is carried out by the building department. In Port Angeles it is the public works department. In Lakewood it is the department of community development. In Ellensburg it is the police department.

Sample Code Enforcement Provisions

Sample Job Descriptions for Code Enforcement Officers

Right of Entry Abate a Nuisance

Discussion on Right of Entry

Consensual searches are not unreasonable and do not require a warrant. However, it is now advised that a warrant be obtained to enter property when permission is not obtained. In a Ninth Circuit Court case involving the City of Santa Ana, Connor v. Santa Ana, 897 F.2d 1487 (9th Circuit 1990), the court held that a warrant was required prior to entering property to inspect for a nuisance violation. This was based on the fourth amendment of the U.S. Constitution due process clause. See Summary of case..

A warrant may not be needed for a nuisance that is located in plain view, such as in an open front yard. This is the holding in Ninth Circuit Court of Appeals case, Schneider v. County of San Diego, 28 F.3d 89 (9th Cir.1994). In this case the court addressed the legality of the county abating a nuisance on private property, after all the proper notices had been given to the property owner. The court recognized an exception in regard to searches on private property where the activity takes place in open fields, where there is no recognized expectation of privacy. Summary of case.

Equipment Useful to Abate a Nuisance

No discussion of nuisance abatement is complete without a list of the equipment that is necessary to do the job. The most important pieces of equipment are a bucket loader and a dump truck or a contractor that has them. Add to this a mowing machine and most any problem can be addressed.

As nuisances are encountered and processed, it is important to record what is there and what is going on. Bill Cameron, the former Kennewick City Attorney, advises that code enforcers should have and use frequently, a decent 35mm camera with a fine grain color print film such as Kodak Gold 100 (400 indoors). An inexpensive Polaroid is useful just for taking a picture or two on the way to court. "You will be surprised at what tales do not get told when you have a ten minute old photograph in your hand." [From Nuisance Abatement, by William L. Cameron, City Attorney of Kennewick. Information Bulletin No. 497 (1997), Legal Notes, Proceedings of April 23-25, 1997, pp. 17-1 -17-28; presentation also given in 1999]

Enforcement Programs and Information

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