Redevelopment of blighted real estate
Every profession has its own set of regularly occurring frustrating circumstances. For example, a police officer is often forced to abandon an investigation in order to preserve an individual’s right of privacy; the teacher is always required to have the simplest curriculum change make its way through a bureaucratic maze before implementation is permitted; or, the administrator is mandated to take a certain tact due to political factors instead of following a higher set of standards. For a municipal planner, conquering the usual hurdles of political influence—financial limitations, bureaucratic procedures or the continuing objection to change—pales in comparison to the frustrations encountered when attempting to implement a development plan once it has been approved and accepted.
The implementation of a well-planned redevelopment plan most often requires the assembly of property having diversity of ownership to create a parcel of real estate sufficient in size to support new development. Most often the planner is presented with numerous obstacles in the acquisition of property given the constitutional protections afforded to property owners in all states. Most redevelopments in urban areas include property which is blighted and tax delinquent for many years. Given the judicial procedures required to clear title on such land and the serious backlogs which exist in most courtrooms across this country, plans to remove blight and undertake urban redevelopment are often abandoned. It is not uncommon for a redevelopment plan to be set on a shelf given the cost of implementation of zoning changes and enforcement of building codes.
In recent years, state legislatures have found that those jurisdictions (counties and municipalities) which most often enact the legislation controlling land use and conditions which affect the public health, safety and welfare of citizens, should be empowered to enforce such legislative enactments in a cost-effective way. For this reason, many state legislatures have empowered counties and municipalities to create systems of administrative adjudication to enforce local code requirements. The purpose of this article is to review the legislation of several states which has granted local jurisdictions the authority to undertake enforcement of zoning and building codes. The proper establishment and operation of these adjudicatory systems should enhance the ability of planners to proceed expeditiously to deal with blighted properties that often delay, if not destroy, the ability to undertake a development or redevelopment plan and the ability to enforce adherence to the maintenance of the plan after it has been fully constructed and is in operation. The protection of the public health, safety and welfare of citizens can be substantially enhanced by justice systems which can be operated cost effectively and efficiently while affording due process to all parties concerned.
In order for units of local government to protect the health, safety and welfare of its residents, some state legislatures have empowered local units of government with extensive enforcement powers. In 1998, the State of Illinois authorized home rule municipalities to undertake a system of administrative adjudication of local ordinance violations. (See Public Act 90-156, effective January 1, 1998, codified at 65 ILCS 5/1-2.1-1 et seq. (West 2002)). The system established by Illinois law was an adjudicatory hearing process presided over by a hearing officer appointed by the municipality who must be an attorney licensed to practice law in the state for at least three years. The legislation further provides that such hearing officer must have completed a formal training program with instruction on the rules of procedure of the administrative hearings to be conducted, orientation to the area of code violations that will be adjudicated, observation of actual hearings and participation in hypothetical cases.
The hearing officer is authorized under Illinois law to impose penalties, except the penalty of incarceration or a fine in excess of $50,000. The decision of the hearing officer is subject to review under the Illinois Administrative Review Law which is under the jurisdiction of the county courts. Any fine, sanction or cost imposed and not appealed is tantamount to a judgment and enforceable as a judgment which might have been rendered by a court of competent jurisdiction. In the four years that the law has been available to home rule municipalities in Illinois, many jurisdictions have availed themselves of the powers granted. The experience has been that the system permits a more expedient and cost-efficient method to enforce adherence to all zoning requirements and building permits as well as compliance with existing building codes. It has been recommended that building code violations which involve the demolition of a structure still proceed before the county courts in order to avoid any question of notice and due process; however, violations of codes which hamper the implementation of a redevelopment plan or reduce the effect of the benefits of a redeveloped area can be immediately addressed. In addition, since fines imposed by the local jurisdiction are retained by it after collection, the system is not burdensome to a community by its total cost. It is highly recommended that in a system of administrative adjudication, a prosecuting attorney not be utilized so that all matters may be addressed without concerns for the rules of evidence. Regardless of this, Illinois law mandates that a record be kept of the proceedings in order to afford all parties the constitutional guarantees of due process.
In the State of New York, administrative adjudication of code and ordinance violation is authorized in any municipality having the population of more than 300,000 but less than 350,000. The municipalities affected to date in New York are Yonkers, Rochester, Syracuse, Albany and Buffalo. In the case of the City of Buffalo, the legislature gave the City the authority to undertake administrative adjudication in March of 1996.
An example of the implementation of this legislation occurred when the city council of the City of Buffalo established the bureau of administrative adjudication to hear and determine charges of municipal code violations or statutory violations which constitute a threat or danger to the public health, safety and welfare of its citizens. The bureau is headed by a director appointed by the mayor for a term of five years and is the chief administrative law judge of this division of government. The director is authorized to appoint administrative law judges who must be attorneys admitted to the practice in the State of New York for at least three years to hear any infractions of the municipal code or statutory violations within the City of Buffalo. By local ordinance, the bureau of administrative adjudication provides the following services:
• Investigates and issues summonses for municipal code violations that affect the quality of life of residents, such as various street and trash violations, snow violations and illegal dumpings;
• Coordinates enforcement of city ordinances relating to quality of life and nuisance violations with street sanitation, fire, license, inspections, dogs and police departments and process summonses issues by departments;
• Accepts pleas to hear and determine charges of municipal code violations;
• Meets with businesses to discuss city ordinances and various municipal code violations and their compliance with same;
• Meets and discusses quality of life issues with various block clubs and organizations;
• Investigates and responds to citizen services complaints relating to municipal code violations;
• Maintains complete and accurate records of all adjudication summonses and related accounts receivables;
• Accepts testimony and hears and determines disposition of fee disputes for excessive avoidable alarms; and,
• Accepts testimony and hears and determines disposition of fee disputes for $75 inspection fee.
In Indiana, the state legislature has authorized the three cities having the largest populations and counties having a population of more than 400,000 but less than 700,000 to create city courts which are governed by the laws and rules governing the practice, pleading and processes in circuit courts. The law provides that all judgments, decrees, orders and proceedings of the city courts have the same force as those of the circuit court; however, an appeal from a judgment of a city court may be taken to the circuit or superior court of the county and tried de novo. The law further permits a city court to impose a late fee when a judgment has not been paid in full. Unlike other local courts, a party before the city court may demand a jury trial. The jury must consist of six qualified voters of the city and must be summoned by the court’s bailiff by an order issued by the judge. It would appear that the functioning of the city courts in the State of Indiana mirrors those of the circuit and state appellate courts. Unlike Illinois, where formal rules of procedure do not apply to the local adjudication systems established by local units of government, Indiana city courts must abide by the same formal rules as that of the circuit or superior court of the county.
In 2001, the Texas legislature amended the Local Government Code to permit a municipality, by ordinance, to provide for an administrative adjudication process under which an administrative penalty may be imposed for the enforcement of any ordinance. The law requires that any procedure to be put into place must entitle the person charged with violating an ordinance to a hearing before a hearing officer with authority to administer oaths and issue orders, and subpoena the attendance of witnesses and the production of documents. The amount and disposition of administrative penalties, costs and fees must also be established by municipal ordinance. All notifications of a person charged with violating an ordinance must advise the addressee that there is a right to a hearing and must provide sufficient notice of the time and place of the hearing.
At a hearing before the municipal hearing officer, such officer shall issue an order stating whether the person charged with violating an ordinance is liable and the amount of penalty, cost or fee assessed against such person. A copy of this order may be filed with the clerk or secretary of the municipality who shall keep the order in a separate file. This order may be used for the filing of a civil suit for collection of an unpaid penalty or obtaining an injunction that prohibits specific conduct that violates an ordinance or requires specific conduct necessary for compliance with an ordinance. A person found liable may appeal the decision of the hearing officer by filing a petition in the municipal court before the 31st day after the determination has been filed with the clerk of the municipality. An appeal does not stay enforcement and collection of a judgment unless the person found liable posts a bond.
It would appear that enforcement of local ordinances under administrative adjudication in the State of Texas is similar to that utilized in Illinois. The law in Texas, however, does not prescribe the procedures which may be utilized in the conducting of the actual hearing. It is unclear as to whether or not rules of evidence apply in such instances.
One of the best examples of legislation which could assist the planning and development of communities is that found in the State of Arizona which authorizes counties to provide for enforcement of its own ordinance and also authorizes the county to establish civil penalties for the violation of any zoning regulation or ordinance so long as the civil penalties do not exceed the amount of the maximum fine for a second-class misdemeanor.
Arizona law requires that any county establishing a civil penalty for violation of a zoning regulation may appoint hearing officers to hear and determine such alleged violations. The hearing officer must hold the hearing after serving notice on the violator, which notice must be personally served by the zoning inspector at least five days prior to the date set for the hearing. If personal service is not possible, a 30-day service by any other means is required.
At the hearing, the zoning inspector presents evidence showing the existence of a zoning violation and the violator must be given a reasonable opportunity to be heard and present any and all evidence available. The law also provides the county attorney to present evidence on behalf of the zoning inspector. At the conclusion of the hearing, a determination is made by the hearing officer and if a violation is found to exist, the hearing officer is authorized to impose civil penalties.
The hearing officer must be appointed by the board of supervisors who are also authorized to review any decision at the request of any party to a hearing. Rules of procedures for the hearing and a review of the hearing shall also be established by the county board of supervisors. Arizona law also provides that all remedies for abatement of ordinance violations may also be sought to any other appropriate action or proceedings. In other words, ordinance violations are not limited to the hearing process established pursuant to a county ordinance.
The foregoing includes only some of the states which have established and are implementing a hearing process for enforcement of local ordinances. The experience of these local adjudicating systems has been positive and have shown due process has been afforded to the parties while government has been allowed to fairly and efficiently undertake enforcement of legislation enacted for the general good of the community. Since these types of procedures are cost-efficient and expeditious, fairness and the guarantee of due process should be a primary concern to the government of establishment. These systems can effectively permit redevelopment and development of properties without the substantial delays often resulting when a formal court process is required. It is the opinion of this office that such systems would substantially assist all local governments with pursuing a safe and decent quality of life for all of its citizens.
*Kathleen Field Orr is a practicing attorney with offices in Chicago, Illinois, and is a member of the Illinois State Bar Association Business Advice and Financial Planning Section Council. This article was originally published in the ISBA’s The Counselor, June 2003, Vol. 17, No. 4, and is reprinted with permission.