Code Challenges in Planning and Zoning

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1 Dilapidated Buildings Weeds and Junk Other Fun Stuff Oklahoma Code Enforcement Association Terry Humphrey, City of Edmond

2 How Does Code Enforcement Fit with Zoning? Zoning and Code Enforcement 101 It s all about health, safety and welfare. Zoning and Code Enforcement are both interpretive functions that rely on expertise and experience. Enforcement component needed for compliance.

3 A Healthy Community It s In the Plan... Most municipalities adopt zoning and public nuisance codes to maintain a safe, healthy and appealing living environment for moderate and high density populations.

4 The Code Enforcement Gospel in Oklahoma... Title 11 O.S Weeds and Trash Title 11 O.S Dilapidated Buildings Title 11 O.S Unsecured Buildings

5 Dilapidation That Run-Down Feeling "Dilapidated Building A structure which through neglect or injury lacks necessary repairs or otherwise is in a state of decay or partial ruin to such an extent that said structure is a hazard to the health, or safety, or welfare of the general public.

6 Abating Dilapidation In Oklahoma... Minimum 10-day notice to property owner of record via certified mail with return receipt. Administrative hearing to determine if proper notice was served and declare dilapidation. Dilapidation order to property owner with minimum 10- day appeal period to governing body. Solicit bids/quotes from demolition contractor and award contract to abate the dilapidation nuisance.

7 Who Pays for Abating Dilapidation... File notice of intent to place lien on property for abatement demolition costs after administrative hearing. Certify abatement costs and send billing to property owner via certified mail with return receipt. If costs are unpaid after six months, file lien for abatement costs with county treasurer. Law allows for pursuit of civil remedies to recover abatement costs.

8 The Realities of Dilapidation Abatement Although process can ideally be completed in about a month s time, reality is often longer. Build in a healthy budget component for abatements. Be happy if you get paid and expect pennies on the dollar. Pay attention to environmental laws and regulations.

9 Weeds and Trash Fun in the Sun Weeds Includes grass higher than 12 inches or other noxious vegetation that hides trash, harbors rodents or otherwise creates a public nuisance. Trash Includes refuse, litter, debris, offal, waste or any other matter of any kind that is uncared for.

10 Abating Weeds and Trash In Oklahoma... Minimum 10-day notice to property owner of record via certificate of mailing. Administrative hearing held to determine public nuisance ONLY if requested by property owner. Assign to city crew or contractor for cleanup. Summary provision allows for re-abatement within sixmonth period without additional notice to property owner even if initial notice resulted in compliance.

11 Who Pays for Abating Weeds and Trash... May file notice of intent to place lien on property upon initiating abatement mowing and cleaning. Certify abatement costs and send billing to property owner via certified mail with return receipt. If costs are unpaid after 30 days, file lien for abatement costs with county treasurer. Costs usually recovered upon owner s payment of property taxes, at a tax sale or when the property sells.

12 The Realities of Weed and Trash Abatement... Actual processes may vary depending on political realities. Pay attention to reliability and trustworthiness of abatement contractors. Payments may be slow. Be proactive nipping weeds and trash in the bud saves resources and adds curb appeal.

13 Other Fun Stuff Inoperable Vehicles... There are no governing state laws directly pertaining to abatement of inoperable vehicle public nuisances. Many municipalities have ordinances prohibiting the parking or storage of inoperable vehicle in open view. Corrective remedies range from municipal court citations to the vehicle and/or property owner to towing and impoundment.

14 Other Fun Stuff Yard Cars... Many zoning codes require vehicles to be parked on a dust-free all-weather surface (asphalt or concrete). Yard car provisions should be enforced with consideration for the age and needs of individual neighborhoods.

15 Other Fun Stuff Recreational Vehicles... Many zoning codes require recreational vehicles to be located on residential properties away from direct view. In most cases, such vehicles need to be parked on a hard surface.

16 Other Fun Stuff Signs... Many municipalities have adopted a sign code as part of their zoning code that regulates the size, location and materials of business and outdoor advertising signage. Code enforcement officers are often tasked with cleaning up the litter on a stick.

17 Other Fun Stuff Property Maintenance... Several municipalities in Oklahoma have adopted and enforce provisions of the International Property Maintenance Code regulating the condition of buildings from plumbing to paint and from rotted wood to roofing. IPMC is particularly beneficial in keeping rental properties maintained to a minimum occupancy and appearance standard.

18 Other Fun Stuff Fences... Many municipalities have fencing regulations adopted as part of their zoning code. Fencing can provide critical screening between properties and uses. However, they do not always make good neighbors.

19 Other Fun Stuff Carports... Most carports are regulated by cities through the building permit and zoning processes to avoid front yard encroachments like this. Most carports require a zoning variance or exception if they are located in a required front or side yard.

20 Other Fun Stuff Required Yards... As part of the building permit process, applicants submit a site plan that provides for required front, side and rear yards. Sometimes, however, the actual building misses the mark and causes an encroachment especially on irregularly-shaped lots.

21 Other Fun Stuff Basketball Goals... Playing basketball in the street can present safety problems. However, that has not stopped citizens from placing portable basketball goals at the curb or in the street. Cities often wrestle with the balance between safety and recreation for neighborhood children.

22 Other Fun Stuff The Bizarre... Oops This is what happens when demolitions go bad One man s humor is another s public nuisance

23 The Fun Is In Making a Difference... Before housing initiative After housing initiative

24 Section XV: Buildings and Zoning

25 Axioms of Buildings and Zoning 1. It s my land, I should be able to build anything I want on it! 2. When it comes to rezoning land, be prepared for NIMBY Not In My Back Yard. 3. The same people who never were notified of a zoning change never picked up their certified mail. 4. If you build it, they will gripe!

26 What It s All About... Zoning regulations are the foundation for planned and orderly communities. They typically define what can be built, where it can be built, and how it must be built. Code enforcement officers in many cities are charged with enforcing provisions of the zoning code. Code officers also perform Certificate of Occupancy inspections for new construction and changes in occupancy.

27 State Law Authority O.S General Powers of Municipalities For the purpose of promoting health, safety, morals, or the general welfare of the community, a municipal governing body may regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.

28 State Law Authority O.S Establishing Zoning Districts (A) The municipal governing body may divide the municipality into districts of such number, shape and area as it deems suitable in carrying out its powers as to buildings, land and structures. Within the districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.

29 State Law Authority O.S Establishing Zoning Districts (B) The municipal governing body may enact nondiscriminatory zoning ordinances regulating the location for the sale for consumption on the premises of low-point beer, as defined in Section of Title 37 of the Oklahoma Statutes, commonly called 3.2 beer; provided, however, that no special or separate classification shall be created only for businesses selling said product. (C) Nothing in this section shall be construed to apply to telephone exchange buildings.

30 State Law Authority O.S Comprehensive Plan Regulation (7) To avoid undue concentration of population; or (8) To facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. The regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the municipality. The governing body shall provide the manner in which regulations, restrictions and district boundaries shall be determined, established and enforced, and amended, supplemented or Changed.

31 State Law Due Process O.S Notice and Hearing Requirements Parties in interest and citizens shall have an opportunity to be heard at a public hearing before any district regulation, restriction, or boundary shall become effective. At least fifteen (15) days' notice of the date, time, and place of the hearing shall be published in a newspaper of general circulation in the municipality. Said notice shall include a map of the area to be affected which indicates street names or numbers, streams, or other significant landmarks in said area.

32 State Law Due Process O.S Zoning Amendments (A) Regulations, restrictions and district boundaries of municipalities may be amended, supplemented, changed, modified or repealed. The requirements of Section of this title on public hearings and notice shall apply to all proposed amendments or changes to regulations, restrictions or district boundaries.

33 State Law Due Process... (B) Protests against proposed changes shall be filed at least three days before the date of the public hearings. If protests are filed by: (1) The owners of twenty percent (20%) or more of the area of the lots included in a proposed change, or (2) The owners of fifty percent (50%) or more of the area of the lots within a three hundred (300) foot radius of the exterior boundary of the territory included in a proposed change; Then the proposed change or amendment shall not become effective except by the favorable vote of three-fourths of all the members of the municipal governing body where there are more than seven members in the governing body, and by three-fifths favorable vote where there are seven or less members in the governing body.

34 State Law Due Process O.S Additional Notice Requirements (A) Except as authorized in subsection B of this section, in addition to the notice requirements provided for in Section of this title, notice of a public hearing on any proposed zoning change, except by a municipality acting pursuant to subsection B of this section, shall be given twenty (20) days prior to the hearing by mailing written notice by the secretary of the planning commission, or by the municipal clerk if there is no planning commission, to all the owners of real property as provided for in Section of this title.

35 State Law Due Process O.S Additional Notice Requirements The notice shall contain the: (1) Legal description of the property and the street address or approximate location in the municipality; and (2) Present zoning of the property and the zoning sought by the applicant; and (3) Date, time, and place of the public hearing. In addition to written notice requirements, notice may also be given by posting notice of said hearing on the affected property at least twenty (20) days before the date of the hearing.

36 State Law Due Process O.S Additional Notice Requirements (B) If a municipality proposes zoning reclassifications in order to revise its comprehensive plan or official map or to identify areas which require specific land use development due to topography, geography, or other distinguishing features, including but not limited to floodplain, drainage, historic preservation, and blighted areas, the governing body may require, in addition to the notice requirements provided for in Section of this title, a sign to be posted on designated properties within the area affected by the proposed zoning reclassification. The sign and the lettering thereon shall be of sufficient size so as to be clearly visible and legible from the public street or streets toward which it faces.

37 State Law Due Process O.S Additional Notice Requirements The notice shall contain the: (1) Date, time, and place of the public hearing; and (2) Who will conduct the public hearing; and (3) Desired zoning classification; and (4) Proposed use of the property; and (5) Other information as may be necessary to provide adequate and timely public notice.

38 State Law Provisions O.S Injunction of Violations If any building, structure or land is in violation of any municipal ordinance or other regulation, the proper local authorities of the municipality, or any other person affected thereby, in addition to other remedies, may institute appropriate action or proceedings to prevent any unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use; to restrain, correct or abate any violation; to prevent the unlawful occupancy of the building, structure or land; or to prevent any illegal act, conduct, business or use in or about the premises.

39 State Law Provisions O.S Governing Act In Case of Conflict Whenever the provisions of a statute, local ordinance or regulation require a greater width or size of yards, courts or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose higher standards than any other applicable statute, local ordinance or regulation, then the provisions of the statute, local ordinance or regulation which impose higher standards or greater restrictions shall govern. In no event shall any provision of this article apply to any property of any railway company or terminal company.

40 What Does This All Mean... A typical rezoning application would follow these steps to adoption: Application made for rezoning specific to a piece or pieces of property. Notice of rezoning published in newspaper, posted upon property and mailed (certified) to all property owners within a 300 ft. radius. Notice time periods apply (15 days for publication, 20 days for mailing and posting).

41 What Does This All Mean... A typical rezoning application would follow these steps to adoption: Hold hearing before zoning commission for recommendation to governing body or denial. If recommended for approval, hold hearing before governing body for approval or denial. Applicant can appeal to governing body if denied by zoning commission. Applicant can appeal denial by governing body to district court.

42 Zoning Enforcement... Most cities assign zoning enforcement duties by ordinance to code enforcement. Become as familiar with the zoning code as the city s code of ordinances. Make a list of common violations. Zoning enforcement is usually done through the criminal citation process. Actual corrections are done through the civil process. Cease and desist orders issued by a city are generally enforced by a district court order. Due process appeals apply to interpretations of the zoning code by a code enforcement officer.

43 Zoning Compliance Reviews... Many cities require building permit applications to undergo a zoning compliance check as part of the plan review process. Zoning compliance reviews typically verify lot size, the building s use classification, minimum required yards, landscaping, height allowances and easements. Some regulated business including car dealerships and alcoholic beverage establishments require a city zoning compliance check as part of their state license. Be wary of differences between state and municipal regulations for uses specifically home day cares.

44 Building Site Plan...

45 Certificates of Occupancy... Typically issued by cities for all new construction and expansion of existing commercial uses. CO inspections for new construction affirms the final building is compliant with the building permit application. Residential CO inspections can include checks for required yards, proper utility installations, completed and approved building inspections, proper sidewalks and driveways, and visible address numbers. Commercial CO inspections can also include parking, screening, lighting, landscaping, drainage and fire safety checks.

46 A Few Final Thoughts... Many of the complaints code enforcement officers receive can be resolved through use of the zoning code. Expenses by a city for corrective zoning actions are not subject to a lien upon the affected property. Zoning is an enforcement concept that is foreign to most municipal judges and prosecutors. Be prepared to educate them on compliance issues. There are many provisions within a city s zoning code that can raise political sensitivities. Check with your city manager and city attorney before enforcing provisions that may seem contrary to traditional political will.