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OPINION: Nuances of Nuisances |
Rod Proffitt | 7/3/08
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The Schechter Maxim: Economics change faster than perceptions and perceptions change faster than politics. Jonathon Schechter
Zoning as a concept was finally ratified by the U.S. Supreme Court in 1923 because it was a good way to stabilize property values by preventing incompatible land uses coming into close proximity, and better protect the health, safety and welfare of the public by segregating land uses. Generally, this whole thing started out separating industrial areas from residential areas, but as local economies diversified and became more mobile, more and more distinctions in land uses were made, and zoning became a very complicated means to a rather simple end.
 However, zoning did not solve the problem. It was apparent even before zoning that certain uses were incompatible no matter where they were so regulations and criminal laws were needed to cope with “nuisances”. I represented the Town of Crested Butte in its legal fight with AMAX Corporation over mining activities AMAX was conducting within an extra-jurisdictional municipal watershed for the Town. The ordinance passed by the Town was based on a case out of Durango from the 1890’s, which sought to stop an operation upstream from Durango’s water intake that was polluting the stream – a public nuisance argument. Protecting the public’s health, safety and general welfare through a tool like “nuisance” has been around a long time, and has evolved to incorporate modern sensibilities and standards.
Archuleta County is now seeking to pass a nuisance ordinance I drafted initially after reviewing a number of nuisance ordinances passed by local governments. This nuisance ordinance seeks to set high threshold standards to make sure private property owners will not be unduly impaired in using their property; however, at the same time, it follows two separate tracks to assure that uses that adversely impact people and the health, safety and general welfare of the public are corrected and resolved.
This community’s economy is based on its image as a scenic mountain destination, and anything that detracts from that image will adversely impact property values and reduce this community’s ability to attract tourists, visitors and potential businesses/residents. Growth hit a peak in 2006, and those that invested in this community want to do what they can to protect that investment, and assure that the quality of life they expected is maintained. The public has a right to expect standards to be established, but it will be how this process plays out that will determine at what level those standards will be set.
There is a demonstrated need to control “nuisances” in the County, and this community would only be shooting itself in the foot by rejecting the ordinance out-of-hand. What needs to happen is a positive effort that assures passage of an ordinance this community deems appropriate to those needs, and standards the County’s building department and law enforcement officials can adequately implement and enforce. The State has enabling legislation in place that set parameters on just how far a statutory county can go in regulating nuisances, and those statutes are cited in the draft ordinance to assure that the ordinance cannot be interpreted in derogation of that statute. The County has its own practical limitations on just how much time and effort staff can devote to enforcement – implementing a nuisance ordinance costs money.
“In politics you must always keep running with the pack. The moment that you falter and they sense that you are injured, the rest will turn on you like wolves.” R.A. Butler
Drafting a nuisance ordinance was long in coming. Ronnie Zaday sought a nuisance ordinance almost from the day she was elected and she has been the champion for this ordinance ever since. Her concerns emanate from first-hand knowledge and experience, but one does not have to go far to find land uses that would readily meet the criteria for a “nuisance”. Ronnie turned to the County Attorney for assistance in drafting the ordinance, but after years of waiting without result, she turned to the development services department. I was charged with drafting the ordinance not long after I arrived, and floated a preliminary draft for review, within weeks.
There were a number of comments from those that reviewed the preliminary draft, which resulted in a second draft, which was also distributed to a number of people for comments. After receiving a second round of comments, a third draft was developed and that is the draft that was presented to the planning commission. After some discussion and further recommended changes, the planning commission passed the ordinance on to the Board of County Commissioners with a recommendation of approval. I have not followed the process much since, except to take note of comments by Greg Schulte in the Pagosa Springs Sun (June 19, 2008), which eventually led to this article.
Greg stated the ordinance was drafted to maintain the scenic aesthetics of this community. This is not the case. Greg was not here at the time the draft was prepared, and the reasoning for preparation of this ordinance was based on traditional concepts for “nuisance”.
Greg also said the ordinance has some subjectivity, but there is due process. If there is any subjectivity in the draft, it derives from a convoluted reading that is trying to bring aesthetics into the criteria. While there are due process provisions provided in the draft, it is the threshold criteria that is intended to make sure the level of scrutiny of any given land use is done upfront before the process begins. Greg Schulte has no understanding of due process, whether substantive or procedural, and he should not engage in an attempt to voice an opinion on a subject he neither values or understands.
“We must remember always, that accusation is not proof, and that conviction depends upon evidence and due process of law.” Edward R. Murrow
The process to adopt a nuisance ordinance brings home a problem this County has had to deal with in the financial meltdown, and has failed to recognize or rectify. This County operates and relies on statutes few in office have read and even fewer understand, and on an accumulated assortment of ordinances and resolutions passed by the Board of County Commissioners since this County was recognized. There is no system of laws in this County, and as a result, citizens are not informed and have no way to become informed of what they can and cannot do, staff and officials have no clear understanding of what they need to do and how to do it, and the only way one has to find out what the law is requires an informal researching of this whole mess.
The State has statutes for governance of statutory counties that provides limitations on the actions of elected officials, checks and balances to assure that if one official fails then another official is in a position to catch it, and standards for audits, budget reviews, and financial transactions. In the case of Archuleta County, this framework to assure practical standards for conducting the work of the people failed miserably. If I were to point to one key factor in that failure, it was the breakdown in making informed decisions. The same system or lack thereof will be used to implement the nuisance ordinance, and this concerns me.
John Adams in his exposition to justify the Massachusetts Constitution and the principle of separation of power is contained at Article XXX, Part First, which states in part, “…to the end it may be a government of laws and not of man.” So long as this County continues to operate on a statutory framework for a simple rural, low population, local government, that relies on a single county attorney for interpretation and scrutiny, every program like the nuisance ordinance is doomed to failure — this County is a government of (wo)men, and not of laws.
A review of the Home Rule Charters adopted by local governments across Colorado and elsewhere will show two things:
1) the charter is a way to codify the resolutions and ordinances that guide and provide the legal framework for that entity; and
2) where elected officials continue as part of the system of government, hiring standards for staffing in support of that official are enhanced to assure professionalism in that office.
“Democracy is a devise that assures we shall be governed no better than we deserve.” George Bernard Shaw
The breakdown in this government is personal to me because I was one of its victims. On the very day accusations surfaced against me, the decision was made to terminate me. I received no due process, no review, no right to face my accusers, nothing. I was provided a notice that said I had a right to a hearing, but when I notified the County I wanted a hearing, I was denied a hearing within minutes. When I tried to appeal my termination, I was never contacted or given the opportunity to make a case for appeal.
I was charged with the most inane transgressions, based on policies that were never distributed to staff. Far more egregious transgressions occurred prior to the incident with me, but none of those instances were even investigated. I may have lost on one or more points even after receiving due process, but I will always believe that my termination was unjustified and unjustifiable because of the way it was handled.
“All laws must be objective (and objectively justifiable); man must know clearly, and in advance of taking action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it.” — The Nature of Government
The same people who brought this County to its knees financially, and abused its powers so flagrantly in dealing with personnel issues over the last few months, will be the same people implementing the proposed nuisance ordinance. One has to be concerned that the adoption of a good law with good intentions will not be in the public’s best interest under present conditions.
In a previous article submitted to the Daily Post, I conveyed some suggestions going into the process for adopting Home Rule. Now, I offer some suggestions to better assure this County moves away from being a government of (wo)men and toward a government of laws — whether or not it moves forward with a Home Rule initiative. These suggestions may not necessarily help with the Nuisance Ordinance, but the problems it is suffering illustrate the need for changes to assure future efforts see a better process for passage and implementation.
1. Codify County Regulations, Ordinances and Resolutions. When we codified the ordinances for Crested Butte under mandate from the Town’s Home Rule Charter, we learned there were three sets of conflicting regulations for outhouses, which Town ordinance also prohibited. Codification not only brings local government current with State statues, it assures a coherent, readable, and discernable set of laws the public can rely on and be fully informed of to gauge their actions.
2. Provide a coherent legislative process that assures transparency and consistency. The County vacillates on how it moves legislation forward, and often fails to follow its own rules as it works through the process. The “Big Box” ordinance never even got a hearing before the Board of County Commissioners even though the public and staff devoted a great deal of time and attention to the issue, and the Town passed an ordinance on “Big Box” development partly because it expected the County to do so as well. This does not engender confidence in developing a good working relationship with the Town or with constituents.
3. Establish Coherent, Enforceable, Standards for Staff and Elected Officials Conduct. Objective standards for conduct are important in assuring appropriate conduct is maintained, but developing a complaint and disciplinary process for enforcing those standards will assure abuses do not take place. Due process requires more than one person making an accusation, and people need to know they will be treated fairly with the opportunity to defend themselves against baseless charges.
4. Require Elected Officials to Hire Qualified People. The Board of County Commissioners has few controls over other elected officials that share the work of the people with them. The one tool they do have is the budget, and through that budget, they can apply pressure to assure that professionalism is maintained within every office in the County. Checks and balances based solely on statutory mandates have already been shown to be inadequate so the Board needs to take appropriate action to rectify an on-going stalemate they have in dealing with other County officials.
“Prediction is difficult, especially about the future.” Yogi Berra |
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