legal issues: tools for code enforcement georgia institute of community housing

LEGAL ISSUES: TOOLS FOR LEGAL ISSUES: TOOLS FOR

CODE ENFORCEMENTCODE ENFORCEMENT

Georgia Institute of Community HousingGeorgia Institute of Community Housing

Presented by:

Brandon L. BowenJenkins , Olson & Bowen, P.C.

15 South Public SquareCartersville, Georgia 30120-3350

(770) 387-1373bbowen@joandb.com

• Georgia Constitution

• State Law

• International Model Codes

– Minimum Standard Codes

– DCA Georgia Amendments

– Permissive Codes

• Local Ordinances

Sources of Law

• Counties can adopt “clearly reasonable ordinances”.

Art. 9, § 2, ¶ 1(b)

• Counties and cities have supplemental authority to:

provide for police protection;

adopt building, housing, plumbing and

electrical codes;

address other similar matters Art. 9, § 2, ¶ 3

Georgia Constitution

• The zoning power is directly vested in cities

and counties. Art. 9, § 2, ¶ 4.

• The General Assembly only provides for

procedure (by way of the Zoning Procedures

Law)

Georgia Constitution, continued…

STATE MINIMUM STANDARD CODES

• Prepared by the International Code Commission

• Commonly used throughout the country

The following state minimum standard codes have state-wide application

(mandatory codes); any structure built in Georgia must comply:

1. International Building Code (ICC 2006 Ed.)

2. National Electrical Code (NFPA 2005 Ed.)

3. International Fuel Gas Code (ICC 2006 Ed.)

4. International Mechanical Code (ICC 2006 Ed.)

5. International Plumbing Code (ICC 2006 Ed.)

6. International Residential Code for One and Two-family Dwellings (ICC

2006 Ed.)

7. International Energy Conservation Code (ICC 2006 Ed.)

8. International Fire Prevention Code (ICC 2006 Ed.)

O.C.G.A. § 8-2-20, 8-2-25

• Each Code also has Georgia Amendments adopted

by the Department of Community Affairs

• Since Georgia law gives the enumerated codes

statewide applicability, local governments should

not adopt the mandatory codes themselves.

• Local governments should, however, adopt

reasonable administrative procedures in order to

enforce them (e.g., hearings, appeals)(O.C.G.A. § 8-

2-26).

• Further, the local government can choose which of

the mandatory codes it wishes to locally enforce.

• The local government can only amend a

standard minimum code if “not less stringent”.

O.C.G.A. § 8-2-25(c)

• Must be based upon local climatic, geologic,

topographic or public safety factors.

• Must be reviewed, but not necessarily

approved, by the DCA before adoption.

The following codes are enforceable bya city or county if specifically adoptedby the local government (permissive

codes); notify DCA of adoption:

1. International Existing Building Code (ICC 2003 Ed.)

2. International Property Maintenance Code (ICC 2003 Ed.)

O.C.G.A. § 8-2-25

Manufactured Housing

The difference between mobile homes, manufactured

homes and industrialized housing.

Regulation by age and SB 384

OCGA 8-2-171

a) On and after September 1, 2010, any person who is the owner of real property or who has a right to the use of real property may install and occupy a pre-owned manufactured home on such property, provided that such pre-owned manufactured home is in compliance with the provisions of this part and any applicable county or municipal zoning ordinances.

(b) No county or municipality shall impose any health and safety standards or conditions based upon the age of a manufactured home.

(c) A county or municipality may establish health and safety standards and conditions and an inspection program for pre-owned manufactured homes which are relocated from their current locations.

(d) Neither a county or municipality nor any inspector thereof inspecting a pre-owned manufactured home pursuant to this Code section shall be liable for any injuries to persons resulting from any defects or conditions in such pre-owned manufactured home.

UNFIT PROPERTY ORDINANCES

• A county or city may take action against such buildings or structures which “are unfit for human habitation or for commercial, industrial, or business occupancy or use and not in compliance with the applicable state minimum standard codes as adopted by ordinance.” O.C.G.A §41-2-7

ADOPTION OF ORDINANCESRELATING TO UNFIT BUILDINGS

City or county may adopt ordinances providing for

unfit

property. Unfit property means a dwelling, building

or

structure unfit for:

a. human habitation; or

b. commercial, industrial or business use; or

c. which is vacant or being used for commission of drug crime; or

d. which constitutes endangerment to the public health or safety as a result of unsanitary or unsafe condition.

Mandatory Contents of Unfit Property Ordinance(O.C.G.A. § 41-2-9)

A finding that unfit property conditions exist in the

community.

That each property owner has a duty to maintain his

property in conformity with the standard minimum codes.

Designate a public officer to exercise the powers

prescribed by ordinance.

• Provide for an investigation of property upon

the filing of complaints of unfitness by at least

5.

• If the public officer’s investigation finds

property to be unfit, he may issue a complaint.

Mandatory requirements continued…

Powers of Public Officers in regardto Unfit Housing

• To investigate the dwelling conditions (regarding

fitness for use and regarding drug crimes)

• To enter upon premises to make such examination

– In a manner causing the least possible

inconvenience

DETERMINATION BY PUBLICOFFICER THAT DWELLING OR

BUILDING UNFIT FOR USE

• Determination that building unfit by public officer may rest upon, though not necessarily, the following conditions:

– Defects increasing hazards of fire or accidents– Lack of adequate ventilation and light or sanitary

facilities– Dilapidation– Disrepair– Structural defects– Uncleanliness

O.C.G.A. §41-2-10

The Unfit Housing Complaint

• The Complaint is an “in rem” action filed in

Court. This means it is against the property

itself.

• If in a city, file in the municipal court.

• If in the county, file in the magistrate court.

Service of the Complaint

• On the property owner, by certified and first

class mail.

• On the property itself, by posting.

• On the world, by filing a lis pendens in the

deed records.

• The Court is required to have a hearing

between 15 and 45 days after the filing of the

complaint.

• The Court may order the owner to repair or

demolish, depending upon the relationship of

the cost of repair to the value of the property.

If the owner fails…

• The public officer may repair or demolish.

• Proceeds from salvage should be applied to

cost of demolition. (Without liability)

• Costs of demolition shall be a lien on the

property.

• It is the tax commissioner’s duty to collect.

Appeal of unfit property action.

• Directly to the Superior Court.

• Superior Court has power to stay the

abatement during the appeal.

• De novo review.

ABATEMENT OF PUBLIC NUISANCESO.C.G.A §41-2-1 et seq.

WHAT IS A NUISANCE?

Anything that causes hurt, inconvenience, or damage to another

May be nuisance even though otherwise lawful activity

Must affect ordinary, reasonable personO.C.G.A. §41-1-1

May be more precisely defined by local ordinance.

Public vs Private Nuisance

• A public nuisance effects the community

generally, and should be addressed by the

community.

• A private nuisance effects particular individuals,

and should considered a private disputed.

LAWSUIT TO ABATEPUBLIC NUISANCE

May be filed by district attorney, solicitor-general, city attorney, or county attorneyO.C.G.A. §41-2-2

May only be filed by a private citizen if there is “special injury”.

ENJOINING NUISANCE TO BEERECTED OR COMMENCED

If cause irreparable damage and is to

reasonable degree certain, injunction

may issue to restrain nuisance before

completed O.C.G.A. §41-2-4

• A public officer may issue complaint against the building or structure in city or magistrate court, whichever is appropriate, or superior court

• After notice and hearing, if a dwelling or building is found unfit for human habitation or as otherwise provided by code, the court shall state its findings of fact in writing and issue upon the owner an order, as follows:

– If repair can be made at reasonable cost an order may require repair within a specified time to bring within full compliance of the applicable code.

– If repair or improvement cannot be made at reasonable cost, the owner may be ordered to demolish or remove the dwelling, building or structure and all debris from the property

– If the owner fails to comply with the order to repair or demolish the building, the public officer may cause such dwelling or building to be repaired or demolished O.C.G.A. §41-2-9

• If the city or county demolishes or repairs the building, the cost shall be a lien against the property O.C.G.A. §41-2-9

ZONING ORDINANCE PROVISIONS

1. Appearance of Property: junk, trash,

debris, tall grass and vegetation.

2. Junk, inoperative, untagged vehicles.

3. Storage, storage containers, vehicles as

storage.

4. Residential living: no RVs, no tents, etc.

Subdivision Ordinances

• Regulate divisions of property

• Prevent illegal subdivides

• Provide engineering requirements

– Roads

– Utilities

– Monuments

Tree Ordinance

• Protect Specimen Trees

• Prevent clear cutting

• Protect Tree Density

Sign Ordinances

• Prevent and regulate sign blight.

• Traffic safety.

• Regulate the number and size of signs.

• First Amendment considerations.

• Content neutral / time, place. and manner.

Adult Entertainment

• Regulate sexually oriented businesses, and the people that work in them.

• Either group together, or separate.

• Provide distinct zoning classifications.

• First Amendment considerations.

• Regulate the secondary effects.

HEALTH DEPARTMENTS

Failing septic systems, surfacing effluent.

Health department can enforce state law and

state agency regulations relating to public

health.

Courts and Enforcement

• Superior Court

Injunctive authority

Magistrate / Municipal Court

Code Enforcement Boards

MUNICIPAL COURTS

Authority to try offenses against municipal laws

Violation of municipal law is misdemeanor O.C.G.A. §36-32-5

MUNICIPAL COURTS:POWER TO PUNISH

Impose fines- up to $1,000.00, unless general law says otherwise. O.C.G.A § 36-35-6

Other punishment if fine not paid, including up to six months in jail, unless a general law says otherwise. O.C.G.A. § 36-35-6

Sentence to community service work O.C.G.A. §36-32-5

MUNICIPAL COURTS: TRIALS

Jurisdiction over misdemeanor offense or ordinance violations

Violation may be tried upon uniform traffic citation (UTC), summons, citation, or an accusation O.C.G.A. §36-32-10.2

Appeals via writ of certiorari, unless otherwise provided by law.

Local Government Code

Enforcement Board

O.C.G.A. Chapter 36-74

A local government may appoint one or

more code enforcement boards.

Members are residents of the

municipality or county.

Powers of the Enforcement BoardsO.C.G.A. § 36-74-26, -46

1. Adopt rules for the conduct of hearings.

2. Subpoena alleged violators and witnesses to its hearings.

3. Subpoena evidence to its hearings.

4. Take testimony under oath.

5. Issue orders to command whatever steps necessary to remedy a violation.

Administrative FinesO.C.G.A. § 36-74-25, -45

1. Can be imposed after hearing, order, and failure to comply with order.

2. For health and safety violations, up to $1000 per day.

3. For other violations, up to $1000 total.

4. Can be recorded as lien, levied upon.

5. De novo appeal to superior court (formerly writ of certiorari).