Perspectives: Code enforcement versus property rights

OPINION – One of the best things about local government is that it’s possible to go for days, weeks, or even months without really feeling its influence in our lives.

Outside of paying our utility bills, most of our encounters with municipal government are purely voluntary, as they should be. For a free people, that’s about as good as it gets. But vigorous code enforcement brings city government into our lives as a solution looking for a problem.

One of the highlights of the recent municipal election cycle was the topic of code enforcement finally getting a thorough discussion. It’s a shame that it took a lawsuit filed by the CAITS Institute against the City of St. George and various officials to get this long overdue dialogue started.

At its heart, code enforcement is an official mechanism to maintain cleanliness and order within a municipality. These are desirable attributes, but there are some questions that must be answered. For instance, do the ends always justify the means? Put more bluntly: How many of our rights are we willing to sacrifice for the sake of appearance?

Our sense of aesthetics, however refined, should not justify the use of government force against a neighbor who doesn’t share our high standards. Our disapproval over weeds, junk, or other eyesores does not equate with a legally actionable injury to our person or property.

A common justification for strict code enforcement is concern that an eyesore will drain the value from the properties around it. But unless those complaining are actively trying to sell their property at that moment, they’re asking that someone be punished for an injury that hasn’t yet happened.

Where is the harm in taking a concern to one’s neighbor or even offering to help clean up a substandard property? Once government gets involved, it’s too easy to switch off our consciences thereby absolving ourselves of personal responsibility. Our inner tyrant prefers using authority to force people to do what we want rather than persuading them to correct a problem.

This mindset of coercion creates a divide between neighbors where cooperation could build bonds.

Proponents of code enforcement maintain that we’d all be living next to slaughterhouses and toxic waste dumps if not for comprehensive codes and rigorous enforcement. We seem to presume the worst about others when the city is willing to play the heavy for us.

But often what began as well-meaning guidelines gradually morphs into a tangle of newly manufactured offenses to extract money from or exert power over property owners. The professed aim of helping homeowners starts looking more like a contrived—though ostensibly legal–means of collecting revenues.

Even the process by which a property owner can address a code enforcement complaint is hopelessly stacked against the accused. When they enter the administrative court established to handle such complaints, the judge and the code enforcement officer represent the interests of the city. But who represents the interests of the accused property owner?

If the goal was to find a win-win outcome for such disputes, the city might be more willing to grant a variance, or a conditional use permit on a case-by-case basis. But typically the only options for the accused are to cough up the money demanded and comply with the regulation they’re accused of breaking.

Property owners on the receiving end of code enforcement may better understand one of the complaints leveled against King George in the Declaration of Independence:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

John Locke defined tyranny as power exercised beyond right. The legal principle that our home is our castle has been a recognized part of jurisprudence since the 17th Century. When code enforcers presume to enter our property without invitation for the sole purpose of finding a reason to initiate legal action against us this principle is violated.

None of us signed a social contract waiving our property rights simply because we chose to live within a given municipality.

A person who has unlicensed vehicles on their property, too little shrubbery in their landscaping, or too many weeds is harming no one in any objectively provable way. But by threatening fines, confiscation, or the placing of liens or other legal action against a homeowner’s property, municipal governments overstep their proper limits.

Nuisances will still arise, but there are better ways to handle them than resorting to petty tyranny.

 

Bryan Hyde is a news commentator and co-host of the Perspectives talk show on Fox News 1450 AM 93.1 FM. The opinions stated in this article are his and not representative of St. George News.

Email: bryanh@stgnews.com

Twitter: @youcancallmebry

Copyright St. George News, SaintGeorgeUtah.com LLC, 2013, all rights reserved.

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22 Comments

  • Outsider November 6, 2013 at 8:52 am

    Some things are harmful to neighboring properties. For example, I once had a neighbor who had large stacks of wood in his yard. He didn’t have a stove or fireplace; this wood, which had been there for years and was rotting, was from a tree he had cut down. Houses in the neighborhood, especially near that person with the stacks of wood, began having termite infestations. The city found a huge nest of termites in that stack of wood. Cost me over over $1,000 to treat my house and shed in the back yard.

    Also, when I bought my first house, I remember looking at other houses. I toured through one particular house that I liked. However, when I looked out the bedroom windows, the view was of the neighbor’s back yard which was full of old rusted cars. Not just one or two cars, a whole backyard full of old cars. Needless to say, I was no longer interested in that house. I imagine the realtor had a tough time selling a house next to a junk yard.

    • Daniel November 6, 2013 at 2:15 pm

      I think the author made a good point that is applicable to you in your situation with the neighbor and the stack of wood when he said: “Where is the harm in taking a concern to one’s neighbor or even offering to help clean up a substandard property? Once government gets involved, it’s too easy to switch off our consciences thereby absolving ourselves of personal responsibility. Our inner tyrant prefers using authority to force people to do what we want rather than persuading them to correct a problem.” Would you or anyone else have had the termite problem if you had worked with your neighbor to burn/remove the pile of wood before it sat there for years? No, you would not have. Always leaning on government to do things for you will only leave you with more problems. Personal responsibility is what we need.

      • Ken November 6, 2013 at 9:26 pm

        The majority of people who live with trash filled yards usually don’t want help! Also a lot of the time a mental issue is involved which must laymen can’t help. Why is it my personal responsibility for others behaviors and actions?

  • Lonni Clarke November 6, 2013 at 9:36 am

    Thank you Bryan. It has been an irony to me that throughout this zoning controversy my agricultural property owning neighbors in Little Valley were absolutely serene with the area’s multiple sins of weeds, cars under construction, roaming critters, and unlicensed horse trailers. In fact, for me, stricken with Lyme disease and at times bedridden, they have appeared in my yard and charitably dealt with my problems rather than calling out the zoning officers. The City, however, has not been so kind or prudent. They have sown suspicion and ill feelings amongst neighbors by lodging anonymous complaints up and down every street in the area, scarcely missing a single house. They have levied fines for matters so petty that no one on an acre of agricultural property even cares, like an unregistered horsetrailer parked in the backyard portion of an acre lot.

    Which made me think of the time I spent living in various neighborhoods in New York City. They are diverse, not only ethnically and representing various strata of wealth, but also in attitudes- the free spirited Bohemian arts districts versus the manicured and liveried Park Avenue billionaires’ row. Each has its own flavor indicated by the look of its inhabitants, the local businesses, the cars on the streets, the behaviors tolerated, and yes, the standards of cleanliness and upkeep. Hell’s Kitchen’s streets don’t look like Park Avenue’s. In the first place they can’t afford to, but most importantly, they wouldn’t want to, even if they could.

    There’s a lesson there for our City Council. I believe that they need to allow the residents of neighborhoods to determine the flavor and standards of their own neighborhoods without constant government hovering and meddling. Not to mention that government meddling keeps otherwise responsible people squabbling, tattling, and seeking revenge. I live on agricultural property because I like that lifestyle. If I wanted the neat and tidy lifestyle offered by a townhouse next to a golf course, I would buy that. I don’t. My neighbors do a pretty good job of sorting out what is reasonable and accepted among us. The City…. well, a class action lawsuit and the end of a 20 year mayoral incumbency ought to tell the City something.

  • Jay November 6, 2013 at 9:37 am

    I agree and disagree Mr. Hyde. I do agree there should be attempts by the neighbors to assist in cleaning up the offending yard the best you can. Obviously prior to contacting the city for help. This assuming you have the neighbors approval. As to your comments about it not actually effecting your property unless your attempting to move, I disagree with.
    Yards that are full of weeds, garbage, old cars etc, attract unwanted guests such as mice, roaches, spiders not to mention the crap that blows into neighboring yards during our frequent wind storms. Not just garbage, weeds but also the occasional odor. Although unintentional these conditions cost neighbors money as they attempt to maintain their own property. If they could find a way to keep their crap on their own yard I would agree with you there as well. But that’s not reality. The wind isn’t going to stop blowing, the mice and insects we spend a lot of money trying to control are not learning where the lot lines are. I think for most of us we would just like to enjoy are own property that we maintain without the neighbors mess violating our rights. There are plenty of places to live where that type of “landscape” would be considered acceptable but not when it negatively effects your neighbor.

  • annoyed November 6, 2013 at 9:57 am

    Well, I personally think it is rediculous that a code enforcement officer can tell me how to take care of my property, and fine me when I pay property taxes but yet when there is an issue which is the city of St.George’s problem to fix..it never gets done! I love how the city is all over writing out citations for rediculous matters and fining you but can’t fix real problems as in streets and sidewalks
    I was out of town for a week..only to return to another week of rain. Within that time received a letter from the city informing me I needed to now the weeds on the side of my house or pay a fine! I. Sorry that I wasn’t home, and if you want to come now my yard in the rain feel free! I was so irritated of the lack of patience. People do actually go on vacations and weather doesn’t always co operate with your codes you so love to enforce.

  • My Evil Twin November 6, 2013 at 10:31 am

    Quoting Mr. Hyde here: “Nuisances will still arise, but there are better ways to handle them than resorting to petty tyranny.”

    OK, so you have a neighbor whose property has not only become an eyesore, but is a hazard to the community in one way or another, say providing what is called “an attractive nuisance.” Perhaps because of the way debris and junk are scattered around along with trash and garbage, making a breeding ground for rats and other undesirable animals. Then throw in a few old cars sitting there, inviting kids to play in them.
    You approach the property owner, who tells you to “take your complaint to the beach and pound sand.”
    So, because we cannot resort to “Petty Tyranny,” here what would you suggest doing about it.
    I guess you could kill the property owner, or burn him out. Do you think that would be better than “petty tyranny.”

    • Bryan Hyde Bryan Hyde November 6, 2013 at 11:50 am

      There is another option that you haven’t considered. It’s the realization that we don’t always get our way in life. Children throw tantrums over this reality. Many adults aren’t much better about it.
      .
      Save the government coercion for actual crimes with a victim and be the best neighbor you can. You might be surprised what that can accomplish.

    • agricola October 13, 2014 at 8:12 pm

      Late reply but here it is, an alternative to legal prosecution of the owner, and to murder.

      Prosecute the land. This is called “action in rem”, claims against things not persons. This attempt to criminalize some imaginary relationship between people and stuff is the root problem here. All enforcement used to be strictly civil- prove to the courts there is a problem, get an order allowing entry and abatement of the nuisance. The fines and costs are then levied against the parcel on the public record, becoming a judgment lien. Remember, fi es are per diem- that adds up fast.

      Maybe with enough dings against a property there can be a foreclosure… pay up or go to sheriff sale.

      Too real and not dramatically cartoonish enough for todays customer, no doubt. but that’s how this works, traditionally.

  • Chris November 6, 2013 at 12:38 pm

    Bryan, suppose the owners of the home at 2183 W. Meadow St. erect a sexually explicit sculpture in their backyard, in full view of the young children playing next door. After expressing your displeasure to the owners, they are unsympathetic to your concerns, and the sculpture remains. Would you then complain to the municipal authorities, or would you live with it out of respect for the neighbor’s inalienable property rights?

    • Bryan Hyde Bryan Hyde November 6, 2013 at 1:22 pm

      Feel free to indulge your fantasies, Chris, but your kinky hypothetical is purely a product of your imagination.

    • klem November 6, 2013 at 6:13 pm

      Its the right of the property owner to do what ever they want with the property they own. Get over tour selfs. Kids see way worse things on tv and the interweb than a sexual sculpture in some dudes yard.

  • Sweet Jude November 6, 2013 at 2:21 pm

    You guys seem create the biggest mountains over tiny, small, tiny – er, molehills.

  • Joe November 6, 2013 at 5:06 pm

    Longtime admirer of your efforts, Bryan. I used to listen to “Perspectives” when I was a kid, though I’ve since moved away, so I don’t have the pleasure.

    I agree wholeheartedly with your views on this topic. But, I would like to know your opinion in cases such as some of those mentioned above where a neighbor’s activities on their own property do result in quantifiable harm to the neighbors and/or their property, such as pest infestations (mosquitoes, termites, mice, etc come to mind), strong odors, etc. Certainly, there is room in such cases where there is legitimate damage to the property or health of others for the victim to appeal to the law or a civil court on a case-by-case basis. What do you think? At any rate, I totally agree that any time the law crosses the property line, and more especially the walls of a home, we ought to have a very large, brightly colored, red flag go up in our heads.

    • Bryan Hyde Bryan Hyde November 6, 2013 at 6:55 pm

      You stated it best when you described quantifiable harm. That’s something that can be objectively proven and it may merit a civil action to recoup damages. Like you noted, solving nuisances without involving the state is usually the best approach.

  • Joe November 6, 2013 at 5:08 pm

    In regards to my previous comment, of course such action should take place only after trying to resolve the situation through other means, and if not, it should be the first order of the court to demand that such attempts be made by the supposed victim.

  • Ken November 6, 2013 at 9:11 pm

    I’d bet Mr Hyde would be blowing a different tune if it was his neighbors. Since when does the property rights of one trump those of another?

    • Bryan Hyde Bryan Hyde November 7, 2013 at 7:53 am

      Think about the question you just posed. If you wish to be secure in your property rights rather than subject to the whims of others, then you must allow them to be secure in their property rights. It cuts both ways.

  • Aaron Fabio November 7, 2013 at 1:22 pm

    I’m a Property Maintenance Inspector for the City of Charlottesville, VA. It sounds to me that St. George, Utah goes about code enforcement the wrong way. We look for compliance of the code, not revenue generation. I have been in the profession for five years and have only had to take one person to court over code enforcement. The first question I ask someone when a complaint is logged is, “Have you tried talking to your neighbor?” Usually the response is a solid, “No.” and later the comment of, “I want to remain annonymous.

    I agree with many of your comments, especially about not running to the government first thing. Complaints are the bane of my existance in this profession.

  • Sharon Holley, CEP November 14, 2013 at 7:49 am

    The firs thing that comes to mind is it is quite obvious as to the intentions of the Code Enforcement Officer just by the wording Inspect & Fine. Really? I have been in Code Enforcement for 15 years and it is still amusing to me that others do not understand that if you wave a red flag at a bull he will charge. Understand? Come on people a litle common sense goes a long way in this profession. Yes, you have a job to do, but your job can be done you can get compliance just by not being intimidating. Oh, yes there may be times when we have to show our authority to get compliance, but the old terminology “MY Way or the HIghway” is no longer acceptable to our society or local government. Therefore, if you are a Code Enforcement Officer and you use this type of influence to get compliance, you may need to look for a different profession.

    • Angela November 5, 2015 at 6:00 am

      Sharon Holley, thanks for commenting. I wish we had a code enforcement officer like you. Intimidation and punishment seems to be the hammer that’s used these days by authoritative figures. I loved your comment that “….the old terminology “MY Way or the HIghway” is no longer acceptable to our society or local government. Therefore, if you are a Code Enforcement Officer and you use this type of influence to get compliance, you may need to look for a different profession.” You really seem to understand the human factor in this situation, thanks for that. We need more like you.

      Bottom line, we are all just neighbors playing court in our town, so intimidating a neighbor whom lives closely to you just seems counterproductive.

  • Angela November 5, 2015 at 5:46 am

    Bryan, thank you so much for putting exactly how I feel about this subject into such gorgeously crafted words. I just couldn’t agree more.

    Our tiny town of only about 1,300 in PA has a FULL TIME Code & Zoning Officer (CZO) who brought the “QUALITY OF LIFE” ordinance to our borough council in May of this year. After reading this ordinance I saw several other issues in addition to NO APPEALS PROCESS (like vague to no specified rules of enforcement), so we brought our concerns to June’s borough council meeting. We were basically told they weren’t going to discuss the ordinance and nothing was done. Then come to past in July, CZO TOOK OUT THE APPEAL’S PROCESS, council adopted this ordinance into law , then CZO began enforcing it. Then a wk later, we got a $100 ticket for having our car in our driveway without a valid inspection sticker. Our car hadn’t been inspected because my husband was waiting for the part to come via mail so he can get the car ready for inspection. Being that we believed this ordinance to be in violation of our constitutional/due process rights we decided not to pay the ticket. We tried talking to borough council again at the August meeting where we were each given 2 mins to speak then was told to leave and nothing was done, again. My hearing was September 28th, wherein after hearing my case, a district court judge found this ordinance to be unconstitutional and threw out my case and 2 subsequent to mine. The borough has stated there’s no way in hell they are apologizing to us and not only are they NOT reprimanding the CZO, but renewing her contract for another year. Abusive power – you think? What happens when your council no longer represents you, instead represents the person you are paying with your tax dollars?

    Bryan, your question stated, “How many of our rights are we willing to sacrifice for the sake of appearance?”, begs another question “WHICH RIGHTS are we willing to sacrifice…?”. Are we willing to give up our property rights to make sure all of ours and our neighbors cars are inspected? Why is this not being discussed nationally? This goes to the very core of what the Constitution was fought for.

    Sorry for the rant. Bryan, thank you once again for your very well written article on this subject.

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