Code Enforcement Remedies

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By Truman Stone

Multiple (and confusing) methods of code enforcement?

Code enforcement typically is related to health and welfare, animals, garbage or other quality of life issues for the community.  After the governing body adopts those standards by legislation, it becomes the responsibility of staff to implement and enforce those codes.  Some of our clients have dedicated code enforcers, some house the function in the police or public works departments, and for some it is just one more responsibility of city management.

If your position includes code enforcement as a duty, you know that it is often easier to pass the code standards than it is to enforce the code standards.  Often the difficulty is the type of people who are unable to comply or are resistant to the code.  However, over the years I have observed that the code itself may make your job harder.

Code enforcement remedies come in several flavors (if you will).  These include: criminal remedies as a misdemeanor or violation; an administrative process with staff or the council; self-help or seizure; imposition of liens; and civil actions in municipal or circuit court.  Like all things in life, each have pros and cons, and no single method is perfect.  Often the code leaves these options to the discretion of the code enforcer without guidance or policies to help evaluate which method is most appropriate.

To the point of this article, because codes are typically adopted piecemeal over many years, the multiple enforcement methods are in the same ecosystem of the code and frequently include multiple cross references.  Those may include confusing or conflicting procedural protections and requirements.  Sometimes we see a client start one process and then switch to another process mid-stream, creating notice or procedural issues.  Sometimes we see multiple remedies pursued simultaneously with conflicting remedies and confusion over jurisdiction.  While most clients attempt progressive steps at enforcement, ratcheting up potential penalties and remedies, it may ultimately be most effective to start with the method that ensures success.

To avoid potential problems, here are some suggestions:

    • Review your code to analyze remedies and familiarize yourself with the options.
    • Check cross references for expired links or inconsistent provisions.
    • Clearly separate criminal remedies from civil remedies.
    • Eliminate remedy provisions which your municipality have never used or are unlikely to ever use.
    • Adopt code provisions or policies that prioritize methods of enforcement.
    • Develop flowcharts or checklists for each method to ensure clarity and compliance.
    • Consider completion of one method (or clear abandonment) as a requirement before attempting another method.
    • The more complexity you introduce into any system the more likely failure will occur in the system (See, Perrow, Charles. Normal Accidents: Living with High-Risk Technologies New York: Basic Books, 1984).
    • Contact your attorney early in the process to weigh pros and cons, and develop a plan to proceed.

It is important to keep in mind that code enforcement must not violate constitutional procedural and substantive due process.  It also must not impose an excessive fine.  Discussion of these areas is complex and beyond the scope of this article.

As noted earlier, code enforcement is difficult at its best because it involves people.  Don’t let an overly complex system make it more difficult.