By Janet Alderton
Tim Blanchard’s Guest Opinion on the Proposed Code Enforcement Ordinance is inaccurate. To check his facts you must first find the proposed ordinance on the County website: https://www.co.san-juan.wa.us/
A stronger system of code enforcement is needed in San Juan County because the current system is dysfunctional. It is widely known that codes and regulations are rarely enforced. Monetary penalties are minimal to non-existent. Therefore, the codes, regulations, and permit parameters are widely ignored. For example, many docks have been built significantly larger than permitted.
Fact checking Tim Blanchard’s opinions:
1. No appeal fee (of $2300 or other value) is listed in the proposed ordinance.
2. A “Warning Notice,” with an opportunity to correct the violation by a certain date, is given before the “Notice of Violation.” There are no monetary penalties during this phase.
3. After a “Notice of Violation,” 30 days are given to file an appeal. There are no monetary penalties accruing during the appeals process. If the property owner looses the appeal before the Hearing Examiner, then monetary penalties begin to accrue from the date of the decision.
4. The “over $30,000 per day” number would be for a violation that was uncorrected for more than 200 days. As explained in point number two, above, the are no monetary penalties during the “Warning Notice” period.
5. As for entering your property, “without even asking first,” this applies only if there is an immediate danger to people or property caused by the violation. Otherwise the Constitution and laws of the United States and the state of Washington apply for entry onto your property. The Fourth Amendment to the United States Constitution is part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.
6. The penalties are not designed to “provide a potential source of revenue for the county.” The penalties are designed to increase compliance with our county regulations and codes. In other counties, such a system of monetary penalties has resulted in a rapid increase in code compliance and an insignificant increase in county revenues in the long-term.
I can’t speak to most of what is written above, but the authors view that the 4th amendment has any sway is sadly antiquated. The county assessores are free to roam about your property uninvited and examine whatever they wish to. Or at least that was what was explained to me by their office. So it wouldn’t surprise me if the inspectors were as well. I think you’ll find that much of our rights to privacy and protections from the excesses of our government have been greatly eroded.
Ms. Alderton, a board member of the “Friends” of the San Juans states that the code enforcement proposal that the friends support is not a money-making scheme, yet that is exactly how the Department has described it on several occasions. See Ord. Staff Report, p. 3 (“potential source of revenue”). Ms. Alderton claims that “A stronger system of code enforcement is needed in San Juan County because the current system is dysfunctional.” It’s dysfuunctional because the department spends all its time “planning” our future in minute detail and little, if any, in enforcement. How many of the 17 or 18 paid professionals of CDPD are engaged in enforcement? Less than one full-time permanent position. How many times has the CDPD identified a violator and been unable to stop or penalize them? Where are the examples that would justify this heavy-handed, unprecedented change in our code enforcement laws? BTW, in the name of fact-checking, under the new proposed regime, there are indeed appeal fees: Section 12 (1): “any required fee must be paid at the time of delivery to the Director for the appeal to be accepted.” Ord. 34-2010, appeal of CDPD administrative determination = $2300. This is a classic campaign of a thousand little cuts (and some pretty sizable gashes) to weaken and eliminate the use of property in San Juan County. Once again, we ask: What is the problem? Why won’t the County use its existing authority to enforce the code against alleged violators? There is ALREADY available in County law a system of fines and orders and injunctions against landowners who violate the codes. The County has simply failed to take much, if any, action to enforce them. Rather than expend this effort, the Department has proposed (and the Friends has championed) this new proposal that greatly expands the Director’s power, from simple code enforcement to any “safety” “emergency,” shifts the burden of proving no violation to the landowner, and allows the Planning Department to decide whether the 4th Amendment allows them to enter your land without permission. The Planning Department has proven itself incapable of interpreting the building code (see for example Craftsman Corner dispute); how are they to become Constitutional scholars?
The questions I raised, which are not the only problems with the proposed Code Enforcement rules, do not misrepresent any facts. Let’s check Ms. Alderton’s fact checking point-by-point:
1. The CDPD Code Enforcement proposal would allow penalties based on administrative determinations of the Director of CDPD and current County Ordinance No. 34-2010 sets the fee “Appeal of Administrative Determination” at $2300. In any event, I believe that it is inconsistent with fairness and fundamental due process to require a fee to defend oneself against governmental allegations of wrongdoing.
2. The CDPD proposal actually states only that “the Director may provide a warning notice,” but no notice is actually required by the proposal. See proposed Section 7(1) (emphasis added). Our current code requires warning, but the CDPD proposal is seeking to eliminate this important protection. See current SJCC 18.100.010 and 18.100.040.
3. This statement is accurate, but does not appear to relate to any of the questions that I suggested.
4. This statement is accurate, but does not address my questions. If we are really concerned about the violations, why not seek injunctive relief to stop or prevent them instead of seeking money penalties while allowing an alleged violation to continue? Indeed, if Ms Alderton is correct that “[i]t is widely known that codes and regulations are rarely enforced,” it proves too much. Why aren’t they being enforced?
5. Our current code allows the County to seek an search warrant only after it has been denied access to the property, see SJCC 18.100.040(B), but the CDPD wants to eliminate that protection an allow the Director to seek a warrant without first asking for permission and allow the Director to enter immediately without the constitutional protection of a warrant by simply alleging “an immediate hazard to . . . property.”
6. I do not know the source for the assertions in Ms. Alderton’s point number 6, but the quote in my question comes from the CDPD Staff Report to the Planning Commission dated May 6, 2011. Nothing in the staff report explains how the proposed level of penalties was determined, however, or why the current penalties of “up to $1000 per day” would not be sufficient if the County were actually seeking to enforce our current rules. See SJCC 18.100.060(A).
I hope that this exchange of questions is helpful. More important, I believe that it demonstrates that additional public questions and comments are warranted regarding this proposal and I hope that the Planning Commission with recognize this and agree to reopen public testimony so that it can have the benefit of public comment regarding how we want to treat our neighbors in San Juan County.
I urge anyone with concerns regarding the pending proposal to attend the Planning Commission Meeting on Friday. They may not let you testify, but you can let them know that they should by being there.
I just received a note from Lynda Guernsey in CDPD (LyndaG@sanjuanco.com) indicating that the meeting place has changed:
“Subject: Change of Location for 7.22.11
Hi,
Due to some confusion, the location of the Planning Commission’s continued for deliberations only meeting regarding Code Enforcement amendments, scheduled for Islander’s Bank Annex, has been changed to the San Juan Island Grange, 152 First Street, Friday Harbor. The start time is the same, 8:30 a.m.
We have contacted the press, changed the agenda on the County website, posted signs at the bank and county offices. It should be on the County website under Notices as soon as our Information person can do that. We have also told some folks who have called or come in.”
This is an interesting debate. If CP&D had less planners and more code enforcers; minimum one for each island, perhaps it all would be different.
ONE code enforcement officer (living on San Juan Island) for ALL of San Juan County is absurd. Not only do we have only one; he must enforce ALL the codes in the county, from sign ordinance to “peddlers” (!) ordinance to land use violations. He CAN’T do his job; never could, never will be able to, as it’s humanly impossible. Add to that the fact that many people hide what they’re doing until the 21 day period to contest it is over. Then his permit is protected under LUPA (Land Use Petition Act). There’s no follow-through for violations that go uncorrected and unresolved (the owner of Craftsman Corner, for instance still has not fixed any of the many violations that he was ordered to fix).
This system does not work, and everyone knows it, and there are some developers and landowners who would, and do, take advantage of this common knowledge. You can’t legislate honesty and decency; all you can do is enforce when code violations continue unchecked, and give incentives for people to do the right thing.
I have a better idea; let’s make a petition to repeal the LUPA law, get 250,000 signatures statewide, get it on the ballot, and repeal LUPA! That would be a start.
The current process of code enforcement does not work well because violations are considered criminal, and they must work their way through the prosecuting attorney’s office. There at best a fine might be imposed but all too often this complex process tends to lead to accommodations and the violations remain once established. The proposed County Code Enforcement Ordinance is similar to the Town of Friday Harbor’s more effective ”Ticketing Ordinance.” It is true that one code enforcement officer is not adequate to cover all our many islands.
The proposed ordinance’s purpose is unlikely to make money for the county because after several violations are fined under the more efficient ordinance, word will spread that violations will result in significant penalties. Planning Director Ron Hendrickson testified at a 2009 Planning Commission Hearing that in other counties that adopted similar “ticketing style” ordinances, compliance with the codes and regulations increased dramatically. Monetary penalties could not be relied upon to finance county operations.
The appeal fee of $2300 is set by a different ordinance, 34-2010. This fee covers part of the county’s costs of administering the appeal and is similar in purpose to the well-established “court costs” levied by courts of law. The $2300 fee is waved if the property owner wins the appeal. If one finds this fee too high, then a different ordinance, 34-2010, would need to be changed.
The issue of entry onto a property by the Director when there is probable immediate hazard to person or property is common in public ordinances that deal with such issues as unsafe structures following earthquakes, fires, or the potential collapse of derelict buildings.
Every one who has written here agrees that the existing system for code enforcement by using the criminal process has not worked. We know that where a ticketing ordinance is used instead code compliance goes up. If we want to have a county where the codes mean something, the path forward is clear. We need a process where proven violations are actually challenged and corrected.