the town of durham new hampshire - code enforcement ......town of durham code enforcement data for...

Town of Durham

Code Enforcement Data for Parking Ordinance, Article XXI, 175-110 and 175-111. January 2018 – April 2019

Audrey Cline and Scott Adkins

5-3-2019

Town of Durham Code Enforcement Data for Parking Ordinance, Article XXI, 175-110 and 175-111. January 2018 – April 2019.

Page 1 of 21

ARTICLE XXI

OFF-STREET PARKING

175-110. Applicability.

This article applies to single-family dwellings, duplex/two-family dwellings, other sites

and conditions that are not subject to site plan review, and exemptions in the Central

Business District (See special provision below).

175-11. General Requirements.

A. Storage. The parking or storage of any truck or truck trailer is excess of one (1) ton

for more than twenty-four (24) hours in any three-day period shall not be allowed in

the front or side yard setback.

B. Design Requirements

1. All parking areas and driveways shall have, at a minimum:

a. A smooth graded stabilized dust-free gravel surface.

b. Adequate drainage to minimize runoff from flowing onto adjacent property,

sidewalks and public roads. The infiltration of stormwater on site is strongly

encouraged.

2. Parking serving single-family and duplex units will be permitted in the front yard

setback for up to three (3) vehicles per household.


Page 2 of 21

INTRODUCTION

The provisions of Durham’s Zoning Ordinance regulate the use of private property for the

purpose of protecting the public health, safety, convenience and general welfare of the residents

of the Town of Durham, in accordance with NH RSA 674:17. Zoning enforcement issues range

from questions concerning individual lots to entire neighborhoods. On occasion, a property

owner may face court action for resolution. Durham’s Code Enforcement staff are available for

discussions regarding any issue of concern.

It's important to view enforcement of any zoning infraction within the larger context of daily

activities and not just in isolation. As calls come in about possible code and ordinance

violations, they are prioritized based on the relative threat to public safety and the resources

available. We endeavor to engage the following four enforcement principles:

Proportionality: We base all enforcement decisions on evidence of non-compliance and in

proportion with the neighborhood risk caused by the violation. This means relating enforcement

activity to risk. When the law requires that risks should be controlled, so far as is reasonably

practicable, the cost of the remedy as well as the degree of risk will be considered. In some

cases, there are specific requirements in the law to take account of the cost of the remedy.

Consistency: We take a consistent enforcement approach in similar circumstances. This does

not mean uniformity of approach, but rather that a similar approach is taken in similar

circumstances to achieve similar ends. Many variables are considered including: the scale of

impact, the attitude and actions of the individuals, and the history of previous

incidents. Decisions on enforcement action are a matter of discretionary judgment.

Transparency: This is important to maintain public confidence in the Town’s ability to regulate

private property. It means helping those regulated, and others, to understand what is expected of

them and what they should expect from us. It also means making it clear why an officer intends

to, or has taken, enforcement action. We will clearly distinguish between legal requirements,

and advice or guidance about what is desirable but not required by Ordinance.

Targeting: We take swift enforcement action to minimize citizen harm after thoroughly

evaluating the evidence and considering mitigating or aggravating factors, and we administer the

appropriate level of discipline to change behavior and deter future violations. This means

making sure that inspections or actions are directed primarily to those activities which give rise

to the most serious risks or where hazards are least well controlled. Inspections of locations are

prioritized according to an assessment of the risk they pose.

This form of 'triage' is a common practice among enforcement agencies. The overall goal of the

Code Enforcement Office is always cooperative compliance with the ordinances adopted by the

Town Council and respective boards. The following report will focus solely on the Town of

Durham’s parking ordinance, Article XXI, 175-110 and 175-111.


Page 3 of 21

EXAMPLES OF VIOLATIONS FROM 2016 - PRESENT

Figure 1 Photograph taken October 15, 2017. Figure 2 Photograph taken October 19, 2017.

Figure 3 Photograph taken November 17, 2017.

This location was identified when a complaint was filed with the Code Enforcement Office by a

concerned citizen. Parking more than three cars in the front setback was first observed by the

Code Enforcement Office in August 2017. After several days of observation, a Courtesy Notice

of Violation was issued on September 6, 2017. When compliance wasn’t established, a Notice of

Violation was issued on November 17, 2017. After ten days, the violations continued and a

second Notice of Violation was issued on November 29, 2017. After the second Notice of

Violation the property owner became involved. The property came into compliance without any

fine being assessed and has continued to be in compliance with the parking ordinance.


Page 4 of 21

Figure 4 Photograph taken on April 13, 2017. Figure 5 Photograph taken September 25, 2017.

Figure 6 Photograph taken October 12, 2017. Figure 7 Photograph taken November 9, 2017.

Figure 8 Photograph taken November 18, 2017. Figure 9 Photograph taken November 21, 2017.

This location was identified as being in violation of the town’s parking ordinance during routine

Code Enforcement activity. In the photographs above, there are as many as eight vehicles

parked at this single-family home. Some of the vehicles are parked in the front set back and

others are parked beyond the front setback with many parked on unapproved surfaces. In the

photograph with the bike rider, the rider stated he only parks there to ride his bike to class. A

Courtesy Notice of Violation was written on April 13, 2017. Compliance was met during the

summer months, but violations were noted again in September 2017. A Notice of Violation was

issued November 8, 2017. In June 2018 the property was sold, and to-date no further violations

have been notated.


Page 5 of 21

Figure 10 Photograph taken April 1, 2016. Figure 11 Photograph taken April 18, 2016.

Figure 12 Photograph taken May 20, 2016. Figure 13 Photograph taken August 2, 2016.

Figure 14 Photograph taken September 30, 2016. Figure 15 Photograph taken December 11, 2017.


Page 6 of 21

Figure 16 Photograph taken June 27, 2018. Figure 17 Photograph taken July 5, 2018.

Figure 18 Photograph taken February 11, 2019. Figure 19 Photograph taken March 30, 2019.

This location has a long-standing history of an abundance of vehicles parked within the front

setback as well as beyond the front setback, and noncompliant with the requirement that all

vehicles be parked on suitable surfaces. The first Courtesy Notice of Violation was issued on

April 18, 2016. This was followed by a Notice of Violation on May 20, 2016. Over the summer

months the activity waned, but on September 29, 2016 an additional notice of Violation was

immediately issued. After a year of no enforcement activity, a third Courtesy Notice of

Violation was needed on September 8, 2018. This was followed by a Notice of Violation on

October 4, 2018. The continuous violations of the town’s parking ordinance led to a suspicion of

over-occupancy. A Notice of Violation for over-occupancy was issued on April 4, 2019. An

internal inspection of this property was conducted based on the Notice of Violation for over-

occupancy and extended enforcement is ongoing.


Page 7 of 21

Figure 20 Photograph taken October 2, 2017. Figure 21 Photograph taken February 2, 2018.

Figure 22 Photograph taken March 19, 2018. Figure 23 Photograph taken May 7, 2018.

This location had a long history of violations. As many as five vehicles were parked in the

driveway with other vehicles parked in the garage, and often vehicles parked in the roadway. On

August 3, 2016 the first Notice of Violation was issued followed by another Notice of Violation

on November 18, 2016. In 2017, a Notice of Violation was issued on November 22 followed by

another on December 29. A Land Use Citation carrying a $275.00 fine was issued on February

26, 2018. The case was settled in court and an agreement was made for a local individual to

watch for and address non-compliant activity on the parcel for the property owner. This location

has complied with town ordinances since the case was settled in 2018.


Page 8 of 21


Figure 26 Photograph taken April 27, 2018.

This location had multiple violations of the town’s parking ordinance. There were often four

cars in the front set back with most of the cars not being parked on approved surfaces. A

Courtesy Notice of Violation was issued on March 25, 2016 followed by a second Courtesy

Notice of Violation on April 4, 2016. A Notice of Violation was issued on September 2, 2016

followed by a second Notice of Violation on September 19, 2016. Failure to come into

compliance led to the issuance of a Land Use Citation with a $275.00 fine on May 3, 2017. The

Land Use Citation fine was paid by the property owner, however, in 2018 a subsequent Notice of

Violation was issued on May 1 followed by a courtesy letter on May 17, 2018. The property has

recently been sold and no further violations are anticipated.


Page 9 of 21

Figure 27 Photograph taken September 2, 2016. Figure 28 Photograph taken October 27, 2016.

Figure 29 Photograph taken November 17, 2017. Figure 30 Photograph taken April 14, 2018.

This location had multiple violations of the town’s parking ordinance. As a duplex, it provides

an example of the need for clear and delineated parking. In some instances, there were as many

as ten vehicles parked in the front set back and beyond with no clear way to determine what

vehicles were parked at which location. A Courtesy Notice of Violation was issued on May 3,

2016. This was followed by Notices of Violation issued on August 29, 2016, September 5, 2016,

and October 28, 2016. A courtesy letter regarding the violations was mailed to the property

owner on November 28, 2016 to allow for additional time to comply with the ordinance. The

violations subsided over the holiday season of 2016 but returned following the new year.

Ultimately a Land Use Citation was issued on May 8, 2017 but was ultimately not served. Since

the Land Use Citation, the property has remained in compliance of the town’s parking ordinance.


Page 10 of 21


Figure 33 Photograph taken April 24, 2019.

This location is an example of current violations of the town’s parking ordinance. A Courtesy

Notice of Violation was issued on March 29, 2016 but no further enforcement action was taken.

Since March 2019 violations of the parking ordinance have begun to occur again. A Courtesy

Notice of Violation was issued on May 6, 2019. Future enforcement action will be determined

by the property owner’s response to the most recent Courtesy Notice of Violation.


Page 11 of 21

Figure 34 Photograph taken September 21, 2016. Figure 35 Photograph taken April 20, 2017.

Figure 36 Photograph taken August 30, 2018 Figure 37 Photograph taken February 28, 2019.

This location serves as a good example of proper and effective enforcement activity including

cooperative compliance from the property owner. A Courtesy Notice of Violation for more than

three vehicles parked in the front setback was first issued on October 4, 2016. This was followed

by a formal Notice of Violation on January 30, 2017. Two additional Notices of Violation were

written on September 9, 2018 and October 26, 2018. When the violation was not corrected, a

Land Use Citation for more than three vehicles parked in the front setback was issued on

November 26, 2018. The fine of $275.00 was paid by the property owner. Unfortunately,

violations of the parking ordinance continued, and the persistent presence of the same vehicles

led to a suspicion of over-occupancy. On April 4, 2019 a Notice of Violation for over-

occupancy was issued. The property owner contacted the Code Enforcement Office and a

cooperative effort for compliance was initiated. An internal inspection was conducting with no

additional evidence of over-occupancy. The property owner was courteous and cooperative in

making every effort to ensure compliance with the local ordinance was met.


Page 12 of 21

METHODOLOGY OF ENFORCEMENT

While there is no specific guidance within Durham Town Ordinances for methodology in

enforcement action, the Code Enforcement Office and its officers utilize a standard operating

procedure for effective and consistent enforcement of local ordinances. While special

circumstances do occur, the application of the procedure provides for officer discretion while

simultaneously applying measures to assure just and consistent enforcement. No two instances

are the same, so the Code Enforcement standard operating procedure remains a living document

which is constantly updated for consistency in enforcement action.

Violations of local ordinances come to our attention in several ways. In some instances,

the violation is reported to the Code Enforcement Office by neighbors or other members of the

community. Other instances may be observed directly by a Code Enforcement Officer during

daily routines or while engaging with the community on a less formal outing. And finally,

violations are discovered during the regular performance of duties by other town officials who

then provide the information to us for evaluation. Each complaint is taken under advisement and

an initial evaluation of the situation is conducted. If the initial evaluation confirms a possible

violation, we begin investigating to determine the best enforcement path. The goal of Code

Enforcement is cooperative compliance with town ordinances.

When cooperative compliance cannot be gained, and enforcement action is required to

correct a violation, the Code Enforcement Office begins to implement the enforcement protocol

associated with the specific violation. All enforcement action is designed to assist citizens in

understanding the ordinance, the violation, and what corrective measures must be taken to reach

compliance. Most enforcement action does not implement fines until the violation becomes a

consistent issue and all previous efforts have failed to correct the violation.

This report will focus on the protocol associated with violations of the town’s parking ordinance.

In nearly every instance, staff makes an attempted to contact the individual thought to be

responsible for the infraction either in-person on the property, by telephone, or by email

communication. When a violation of town ordinance Article XXI, 175-110 and 175-111 is

identified, the first response is known as a “Courtesy Notice of Violation for Parking” or “soft

letter” (see figure 38, page 13). Continued subsequent violations of the ordinance will result in

the second phase of enforcement action, “Notice of Violation for Parking” or “official

notification” (see figure 39, Page 14). If the violation continues with no noticeable effort to

correct the matter and come into compliance, the third and final phase of enforcement action is

taken. This final measure is a “Land Use Citation” which is provided by the New Hampshire

court system (see figure 40, Page 16 and figure 41, Page 17). This is a legal citation which

carries a fine of $275.00 and is filed with the 7th Circuit District Division Court, Dover.


Page 13 of 21

Phase 1: COURTESY NOTICE OF VIOLATION FOR PARKING

“SOFT LETTER”

Figure 38

The Courtesy Notice of Violation is the first phase of enforcement for violation of ordinance

Article XXI, 175-110 and 175-111. This letter is intended to provide an explanation of the

ordinance and to make the property owner aware there is a violation. This enforcement action

does not carry or implement any fine. It is sent to the property owner via United States Postal

Service Certified Mail. Further enforcement action is suspended until the Certified Mail

Domestic Return Receipt is received by the Code Enforcement Office. When the receipt is

received by the Code Enforcement Office, a reinspection of the property will be conducted to

determine if further enforcement action will be required.


Page 14 of 21

Phase 2: NOTICE OF VIOLATION FOR PARKING

“OFFICIAL NOTIFICATION”

Figure 39


Page 15 of 21

NOTICE OF VIOLATION FOR PARKING

“OFFICIAL NOTIFICATION”

The Notice of Violation for Parking is the second phase of enforcement for violation of

ordinance Article XXI, 175-110 and 175-111. This letter is intended to provide the specific

ordinance, remind the property owner of the violation, and provide instruction to assist the

property owner with recommended actions that must be taken to comply with the ordinance.

This enforcement action also explains what additional measures will be taken should the

violation not be corrected. New Hampshire law RSA 676:17 is introduced and explained in this

letter. This enforcement action does not carry or implement any fine but explains what fines will

be associated with this violation if not corrected. The letter also provides for a ten-day period in

which the violation must be corrected. It is sent to the property owner via United States Postal

Service Certified Mail. Further enforcement action is suspended until the Certified Mail

Domestic Return Receipt is received by the Code Enforcement Office. When the receipt is

received by the Code Enforcement Office, the ten-day period to come into compliance begins. If

the expiration of the ten-day period end on a weekend, it is generally rolled over to the following

Monday. A photograph of the violation is generally included with the notice.

Visit http://www.gencourt.state.nh.us/rsa/html/lxiv/676/676-mrg.htm for more information

on New Hampshire Title LXIV Planning and Zoning Chapter 676.

http://www.gencourt.state.nh.us/rsa/html/lxiv/676/676-mrg.htm


Page 16 of 21

Phase 3: LAND USE CITATION

Figure 40


Page 17 of 21

LAND USE CITATION

Figure 41


Page 18 of 21

LAND USE CITATION

The Land Use Citation is the third and final phase of enforcement for violation of

ordinance Article XXI, 175-110 and 175-111. It is issued only when all previous efforts to gain

compliance have failed. This is the first enforcement action which implements a fine as directed

by RSA 676:17. The initial fine is $275.00 with a $550.00 fine per citation for subsequent

offenses for each day the violation continues. The Land Use Citation is sent to the property

owner via United States Postal Service Certified Mail or by Sheriff’s service to the Abode or In-

Hand. Further enforcement action is suspended until the Certified Mail Domestic Return Receipt

is received by the Code Enforcement Office. When the receipt is received by the Code

Enforcement Office, additional fines are leveed in accordance with New Hampshire law. The

Land Use Citation is also filed with 7th Circuit District Division Court, Dover. Collection of the

fine amount is pursued to the full extent of the law. This sometimes leads to court hearings in

which a judgement is determined, and appropriate steps are followed per court direction to

ensure the fine is paid. Instructions for the Defendant are included on page 2 of the Land Use

Citation. For more information on New Hampshire Title LXIV Planning and Zoning Chapter

676, visit http://www.gencourt.state.nh.us/rsa/html/lxiv/676/676-mrg.htm.

The Code Enforcement Office has discretion to waive any fees associated with the Land

Use Citation prior to any court hearings. This is usually the case when the property owner

contacts the Code Enforcement Office to discuss the violation. Every effort is made to work

cooperatively with the property owner to ensure compliance with the ordinance can be achieved.

If the property is identified as a habitual offender of an ordinance, it is not likely the fine will be

waived.

http://www.gencourt.state.nh.us/rsa/html/lxiv/676/676-mrg.htm


Page 19 of 21

Figure 38

The graph in figure 38 reflects all enforcement activity for parking ordinance violations in

calendar year 2018. A total of 34 enforcement communications were issued. While there are 18

Notices of Violation issued with only 10 Courtesy Notices of Violation, it is important to note

only one Courtesy Notice of Violation is issued per location of violation. As the data shows,

there were some locations which received multiple Notices of Violation prior to the issuance of a

Land Use Citation which carries a fine of $275.00 for the first offense and a $550.00 fine per

citation for subsequent offenses for each day the violation continues. A total of six Land Use

Citations were issued totaling $2,750.00 in fines. 50% of the fines issued were collected and

50% were waived with just one $275.00 fine still pending the outcome of the contested case. As

of May 1, 2019, it appears the pending $275.00 fine will be paid without court by the end of May

2019.


Page 20 of 21

Figure 39

The graph in figure 39 reflects all enforcement activity for parking ordinance violations from

January 2019 to April 2019. A total of 6 enforcement communications were issued. While there

are 4 Notices of Violation issued with only 2 Courtesy Notices of Violation, it is important to

note as before only one Courtesy Notice of Violation is issued per location of violation. As the

data shows, there were some locations which received multiple Notices of Violation. As of April

2019, there have been no Land Use Citations for violation of the town’s parking ordinance

issued.


Page 21 of 21

CONCLUSION

The aim of code enforcement is cooperative compliance, not punishment or vengeance. Lack of

compliance can include carelessness or defiance, but primarily violations are due to a lack of

knowledge of the ordinances, uncertainty about how to remedy a situation, or lack of resources.

Effective Code Enforcement begins with transparent and trusted engagement with the

citizenship.

Municipalities adopt ordinances, rules and regulations that take into consideration the safety and

well-being of the public. Enforcement of these ordinances is essential to the provisions of safe

and healthy living and working conditions for the members of the community. While owners

often think activities on their private property is their own business, the impact that neighboring

properties have on one another’s value and enjoyment quickly becomes the business of everyone

in the neighborhood. Citizens make investments in their properties and neighborhoods. When

the integrity of an area is jeopardized due to violations, those investments are at risk.

Code Enforcement can have a major impact on the property values and image of the

community. The content and language included in ordinances drastically impacts Code

Enforcement Officers’ effectiveness. While a lot of what determines successful enforcement

depends on the individual Code Enforcement Officer’s relationship with the community and the

community’s knowledge of local ordinances, the foundation of effective enforcement is complete

and adequate content and language in the ordinance which successfully conveys the intent of the

authors. Without clear and definitively written ordinances, the Code Enforcement Officer will

be hindered in enforcement efforts.

Effective Code Enforcement begins with the ordinance.

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