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Tuesday, May 20, 2008
Zoning, Licensing, Nuisances

A recent Deseret News story raises some important issues about certain laws and their enforcement in American Fork.

Apologies for the extended absence from the blogosphere. When LBB includes having a child at Primary Children's Medical Center (PCMC) for about three weeks, the necessary time and energy for blogging fade away. As always, PCMC gets two thumbs up; if I had more thumbs, the ICU nurses in particular would get more. Friends' and neighbors' many kind wishes and acts of service are well appreciated. But back to business.

The Deseret News recently favored us with a story about an American Fork veterinarian who is being persecuted by the City -- or so a few of his friends think, and so the article seems to invite us to think. The Ethan Thomas story raises some issues worthy of discussion. It also makes an important error or two.

Alan Cunningham, a life-long American Forker, is 52 years old, according to the article. Do the math: This means that he remembers the American Fork of the 1960s, which some long-time residents recall with longing. I suspect some of them actually see this distant past when they look at American Fork now, as I confess I do . . . not.

In any case, Cunningham is charged with abuse or neglect of his mother, now deceased; I offer no comment on that. My topic is his other charges, which include, according to the article, "a zoning infraction, an animal-at-large infraction, a violation of a beautification ordinance and operating a business without a license."

That's Nuisance

First, let's get one thing straight. It's not a beautification ordinance. It's a nuisance ordinance. There's a difference. If we have any beautification ordinances in American Fork, I am unaware of them. If you want to paint your house in hideous colors or decorate your lawn with numerous large inflatable, illuminated holiday creatures, or drive a neon pink Hummer, your neighbors may not admire your taste, but they can't claim you're violating any law I know about.

Nuisance ordinances are not designed to enforce some arbitrary standard of beauty. They are designed to protect neighborhoods and property owners from various hazard conditions and from abuses that affect the value or reasonable enjoyment of nearby properties. Accumulations of junk or waste in one's yard are a nuisance to the neighbors; they are unsightly, invite rodent and insect infestations, and may pose other hazards. Tall, unmowed weeds and grass can be a fire hazard. Accumulations of stagnant water smell bad and invite insects and disease. An unused building with unrepaired broken windows or unlocked or missing doors may attract children and teens to unsafe conditions, may harbor criminal activity, and in any case sends a clear and welcoming message to criminals that people in the neighborhood are not vigilant. Violations of animal ordinances may present a variety of hazards to a neighborhood. Parking inoperable vehicles on the street or on one's lawn can affect traffic and pedestrian safety and diminish the value of adjacent property. Other nuisances familiar to some American Fork residents include party houses, drug houses, and oppressive clouds of dust from industry or unlandscaped lots. In none of these cases is the issue some subjective standard of beauty. The issues are posing hazards, attracting further hazards, and diminishing the value and enjoyment of others' property -- in other words, infringing on others' safety and property rights.

For several years I've been a member of American Fork City's Nuisance Abatement Committee -- or the Neighborhood Preservation Committee, as it seems to be called of late. We've been proposing revisions to the City's nuisance ordinances and monitoring enforcement of existing statues. When we started, there was some public pressure but very little official will to enforce the existing statutes. The public pressure has not diminished over the past few years, and a mostly-different batch of elected officials seems willing both to enforce and -- soon -- to improve our statutes. The Committee has consistently urged local lawmakers to define "nuisance" more carefully and a little more broadly, and to establish fines to encourage compliance where reminders and warnings fail. (Right now, the City's only recourse is to haul people into court, which is expensive and rather drastic.) The model the Committee has tended to favor would impose fines where warnings do not produce voluntary compliance. These would be akin to ordinary parking or traffic fines, which do not make an offender a criminal -- unless they go unpaid.

This seems very reasonable to me, not to mention wise and necessary. I lose exactly zero sleep over the fact that some few residents in the city think these opinions make me a fascist. I've studied fascism, and this ain't it.

Old Laws, Newly Enforced

Meanwhile, it's worth noting that the laws Dr. Cunningham is accused of violating are quite typical of cities and towns and are not new in American Fork. We've had zoning laws, animal ordinances, and business licenses for longer than I can remember. We just haven't had leaders willing to enforce them consistently. A year or two ago, when the City started to get serious about business licenses again, it began to try to collect license fees as much as four years overdue. I'm still not persuaded of the official will to clean up American Fork's many zoning violations, but there are signs, including Dr. Cunningham's current headache, that this is improving, too.

It's the Enforcement, Stupid

I know the famous sign in 1992 said it was the economy, stupid, but in these matters, it's the enforcement.

I don't want to engage here in a comprehensive justification of zoning, nuisance, and business licensing laws; any Google novice can find plenty of discussion about that in seconds. I do want to emphasize this point: Having such laws but leaving them unenforced penalizes the law-abiding.

All else being equal, it costs more to locate a business legally in a commercial zone than to locate it illegally in a residential zone in a residence you already occupy. If zoning laws are unenforced, law-abiding business people will obey them anyway, but scofflaws won't, and the scofflaws will have a competitive advantage. Likewise, the law-abiding will pay those business license fees and incur the necessary costs to insure that their places of business pass the necessary inspections. In a place where these laws are unenforced, scofflaws will avoid these costs of doing business.

If a city's animal ordinances require a kennel license if a household has more than two dogs, scofflaws will enjoy the company of more dogs at a lower cost than law-abiding residents, if the ordinances are unenforced, because the latter will pay for the license.

The general principle here is that if a law exists, it should be enforced, and if officials are unwilling or unable to enforce a law, it should be repaired or repealed. I'm not saying there is no room for sound judgment or for mercy and patience in law enforcement. I am saying that refusing or neglecting to enforce existing laws generally places the law-abiding at a disadvantage.

What Would You Tell Him?

I know a man who lives in a small, unincorporated village in a neighboring state. He has lived there for more than three decades. He has about an acre and a half of land, some of which is devoted to a large, well-kept vegetable garden. Until lately the neighbors were uniformly reasonable and conscientious, and they always had animals, including cattle. Fences and chicken coops were kept in good repair, and the animals -- even the chickens -- rarely strayed to others' property. If they did stray, and there was damage, the owners willingly compensated the victims without ever being asked. Then some new neighbors bought and moved into the place next door, which has perhaps three acres of land. They brought with them far more cattle, sheep, goats, and chickens than the acreage can support. Now their chickens roam the neighborhood, destroying vegetable gardens and leaving countless little organic land mines on neighbors' lawns and driveways.

Decent nuisance laws would give the neighbors a reasonable -- and reasonably gentle -- recourse against these fowl depredations, but that community does not have decent nuisance laws.

I have questions for those of you who tell us that such laws are unjust and that we should have none of them in our community. Assume that this man and his neighbors have already spoken repeatedly with the offending landowner, and have even offered to help repair fences and coops, but to no avail.

How would you counsel them to proceed? What should they do? (Does it involve a firearm? If so, why should it have to?)

Should they grin and bear it? Should they eat more chicken? (Why should they have to?)

If they were able to call upon effective nuisance laws, would that amount to persecuting the offending neighbor? What if it were your vegetable garden? What if it were your shoes?

I await your reply.

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