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LEGAL ISSUES: TOOLS FOR CODE ENFORCEMENT August 12, 2009

LEGAL ISSUES: TOOLS FOR CODE ENFORCEMENT August 12, 2009. Presented by: Brandon L. Bowen Jenkins , Olson & Bowen, P.C. 15 South Public Square Cartersville, Georgia 30120-3350 (770) 387-1373 bbowen@joandb.com. Sources of Law. Georgia Constitution State Law International Model Codes

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LEGAL ISSUES: TOOLS FOR CODE ENFORCEMENT August 12, 2009

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  1. LEGAL ISSUES:TOOLS FOR CODE ENFORCEMENTAugust 12, 2009 Presented by: Brandon L. Bowen Jenkins , Olson & Bowen, P.C. 15 South Public Square Cartersville, Georgia 30120-3350 (770) 387-1373 bbowen@joandb.com

  2. Sources of Law • Georgia Constitution • State Law • International Model Codes • Minimum Standard Codes • DCA Georgia Amendments • Permissive Codes • Local Ordinances

  3. Georgia Constitution • Counties can adopt “clearly reasonable ordinances”. Art. 9, § 2, ¶ 1(b) • Counties and cities have supplemental authority to: provide for police protection; adopt building, housing, plumbing and electrical codes; address other similar matters Art. 9, § 2, ¶ 3

  4. Georgia Constitution, continued… • The zoning power is directly vested in cities and counties. Art. 9, § 2, ¶ 4. • The General Assembly only provides for procedure (by way of the Zoning Procedures Law)

  5. STATE MINIMUM STANDARD CODES • Prepared by the International Code Commission • Commonly used throughout the country

  6. The following state minimum standard codes have state-wide application (mandatory codes); any structure built in Georgia must comply: 1. International Building Code (ICC 2006 Ed.) 2. National Electrical Code (NFPA 2005 Ed.) 3. International Fuel Gas Code (ICC 2006 Ed.) 4. International Mechanical Code (ICC 2006 Ed.)

  7. 5. International Plumbing Code (ICC 2006 Ed.) 6. International Residential Code for One and Two-family Dwellings (ICC 2006 Ed.) 7. International Energy Conservation Code (ICC 2006 Ed.) 8. International Fire Prevention Code (ICC 2006 Ed.) O.C.G.A. § 8-2-20, 8-2-25

  8. Each Code also has Georgia Amendments adopted by the Department of Community Affairs • Since Georgia law gives the enumerated codes statewide applicability, local governments should not adopt the mandatory codes themselves. • Local governments should, however, adopt reasonable administrative procedures in order to enforce them (e.g., hearings, appeals)(O.C.G.A. § 8-2-26). • Further, the local government can choose which of the mandatory codes it wishes to locally enforce.

  9. The local government can only amend a standard minimum code if “not less stringent”. O.C.G.A. § 8-2-25(c) • Must be based upon local climatic, geologic, topographic or public safety factors. • Must be reviewed, but not necessarily approved, by the DCA before adoption.

  10. The following codes are enforceable bya city or county if specifically adoptedby the local government (permissive codes); notify DCA of adoption: 1. International Existing Building Code (ICC 2003 Ed.) 2. International Property Maintenance Code (ICC 2003 Ed.) O.C.G.A. § 8-2-25

  11. UNFIT PROPERTY ORDINANCES A county or city may take action against such buildings or structures which “are unfit for human habitation or for commercial, industrial, or business occupancy or use and not in compliance with the applicable state minimum standard codes as adopted by ordinance.” O.C.G.A §41-2-7

  12. ADOPTION OF ORDINANCESRELATING TO UNFIT BUILDINGS City or county may adopt ordinances providing for unfit property. Unfit property means a dwelling, building or structure unfit for: a. human habitation; or b. commercial, industrial or business use; or c. which is vacant or being used for commission of drug crime; or d. which constitutes endangerment to the public health or safety as a result of unsanitary or unsafe condition.

  13. Mandatory Contents of Unfit Property Ordinance(O.C.G.A. § 41-2-9) A finding that unfit property conditions exist in the community. That each property owner has a duty to maintain his property in conformity with the standard minimum codes. Designate a public officer to exercise the powers prescribed by ordinance.

  14. Mandatory requirements continued… • Provide for an investigation of property upon the filing of complaints of unfitness by at least 5. • If the public officer’s investigation finds property to be unfit, he may issue a complaint.

  15. Powers of Public Officers in regardto Unfit Housing • To investigate the dwelling conditions (regarding fitness for use and regarding drug crimes) • To enter upon premises to make such examination • In a manner causing the least possible inconvenience

  16. DETERMINATION BY PUBLICOFFICER THAT DWELLING ORBUILDING UNFIT FOR USE Determination that building unfit by public officer may rest upon, though not necessarily, the following conditions: Defects increasing hazards of fire or accidents Lack of adequate ventilation and light or sanitary facilities Dilapidation Disrepair Structural defects Uncleanliness O.C.G.A. §41-2-10

  17. The Unfit Housing Complaint • The Complaint is an “in rem” action filed in Court. This means it is against the property itself. • If in a city, file in the municipal court. • If in the county, file in the magistrate court.

  18. Service of the Complaint • On the property owner, by certified and first class mail. • On the property itself, by posting. • On the world, by filing a lis pendens in the deed records.

  19. The Court is required to have a hearing between 15 and 45 days after the filing of the complaint. • The Court may order the owner to repair or demolish, depending upon the relationship of the cost of repair to the value of the property.

  20. If the owner fails… • The public officer may repair or demolish. • Proceeds from salvage should be applied to cost of demolition. (Without liability) • Costs of demolition shall be a lien on the property. • It is the tax commissioner’s duty to collect.

  21. Appeal of unfit property action. • Directly to the Superior Court. • Superior Court has power to stay the abatement during the appeal. • De novo review.

  22. ABATEMENT OF PUBLIC NUISANCESO.C.G.A §41-2-1 et seq.

  23. WHAT IS A NUISANCE? Anything that causes hurt, inconvenience, or damage to another May be nuisance even though otherwise lawful activity Must affect ordinary, reasonable person O.C.G.A. §41-1-1 May be more precisely defined by local ordinance.

  24. Public vs Private Nuisance • A public nuisance effects the community generally, and should be addressed by the community. • A private nuisance effects particular individuals, and should considered a private disputed.

  25. LAWSUIT TO ABATEPUBLIC NUISANCE May be filed by district attorney, solicitor-general, city attorney, or county attorney O.C.G.A. §41-2-2 May only be filed by a private citizen if there is “special injury”.

  26. ENJOINING NUISANCE TO BEERECTED OR COMMENCED If cause irreparable damage and is to reasonable degree certain, injunction may issue to restrain nuisance before completed O.C.G.A. §41-2-4

  27. A public officer may issue complaint against the building or structure in city or magistrate court, whichever is appropriate, or superior court After notice and hearing, if a dwelling or building is found unfit for human habitation or as otherwise provided by code, the court shall state its findings of fact in writing and issue upon the owner an order, as follows: If repair can be made at reasonable cost an order may require repair within a specified time to bring within full compliance of the applicable code.

  28. If repair or improvement cannot be made at reasonable cost, the owner may be ordered to demolish or remove the dwelling, building or structure and all debris from the property If the owner fails to comply with the order to repair or demolish the building, the public officer may cause such dwelling or building to be repaired or demolished O.C.G.A. §41-2-9 If the city or county demolishes or repairs the building, the cost shall be a lien against the property O.C.G.A. §41-2-9

  29. ZONING ORDINANCE PROVISIONS 1. Appearance of Property: junk, trash, debris, tall grass and vegetation. 2. Junk, inoperative, untagged vehicles. 3. Storage, storage containers, vehicles as storage. 4. Residential living: no RVs, no tents, etc.

  30. Subdivision Ordinances • Regulate divisions of property • Prevent illegal subdivides • Provide engineering requirements • Roads • Utilities • Monuments

  31. Tree Ordinance • Protect Specimen Trees • Prevent clear cutting • Protect Tree Density

  32. Sign Ordinances • Prevent and regulate sign blight. • Traffic safety. • Regulate the number and size of signs. • First Amendment considerations. • Content neutral / time, place. and manner.

  33. Sign Ordinances • Prevent and regulate sign blight. • Traffic safety. • Regulate the number and size of signs. • First Amendment considerations. • Content neutral / time, place. and manner.

  34. Adult Entertainment • Regulate sexually oriented businesses, and the people that work in them. • Either group together, or separate. • Provide distinct zoning classifications. • First Amendment considerations. • Regulate the secondary effects.

  35. HEALTH DEPARTMENTS Failing septic systems, surfacing effluent. Health department can enforce state law and state agency regulations relating to public health.

  36. Courts and Enforcement • Superior Court Injunctive authority Magistrate / Municipal Court Code Enforcement Boards

  37. MUNICIPAL COURTS Authority to try offenses against municipal laws Violation of municipal law is misdemeanor O.C.G.A. §36-32-5

  38. MUNICIPAL COURTS:POWER TO PUNISH Impose fines- up to $1,000.00, unless general law says otherwise. O.C.G.A § 36-35-6 Other punishment if fine not paid, including up to six months in jail, unless a general law says otherwise. O.C.G.A. § 36-35-6 Sentence to community service work O.C.G.A. §36-32-5

  39. MUNICIPAL COURTS: TRIALS Jurisdiction over misdemeanor offense or ordinance violations Violation may be tried upon uniform traffic citation (UTC), summons, citation, or an accusation O.C.G.A. §36-32-10.2 Appeals via writ of certiorari, unless otherwise provided by law.

  40. Local Government CodeEnforcement BoardO.C.G.A. Chapter 36-74 A local government may appoint one or more code enforcement boards. Members are residents of the municipality or county.

  41. Powers of the Enforcement BoardsO.C.G.A. § 36-74-26, -46 1. Adopt rules for the conduct of hearings. 2. Subpoena alleged violators and witnesses to its hearings. 3. Subpoena evidence to its hearings. 4. Take testimony under oath. 5. Issue orders to command whatever steps necessary to remedy a violation.

  42. Administrative FinesO.C.G.A. § 36-74-25, -45 1. Can be imposed after hearing, order, and failure to comply with order. 2. For health and safety violations, up to $1000 per day. 3. For other violations, up to $1000 total. 4. Can be recorded as lien, levied upon. 5. De novo appeal to superior court (formerly writ of certiorari).

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