Kenai could fine more for public nuisances

Editor’s note: This story has been changed to include the city of Kenai’s practice of assessing its $500 nuisance fine daily.   

A proposed Kenai ordinance would create stricter nuisance enforcement.

Kenai Mayor Pat Porter introduced nuisance code changes to create a $50 per day fine, remove the Kenai City Council’s role in determining when the nuisance code should be enforced and add a new definition of abandoned structures as nuisance at the council’s Aug. 17 meeting.

Kenai’s Planning and Zoning Commission members unanimously endorsed the changes at their Wednesday meeting. Kenai City Planner Matt Kelley said he plans to schedule a public hearing and city council vote on the changes at the council’s Sept. 7 meeting.

Nuisances presently listed in Kenai code include places of gambling and prostitution, fire hazards, dangerous holes, standing water in which mosquitoes can breed, selling obscene media, the public exposure of a person having a contagious disease, places for “the sale or offering for sale of unwholesome food or drink” and “the continued making of loud or unusual noises which annoy persons of ordinary sensibilities, or the keeping of an animal which makes such noises.”

Present revisions began with an ordinance Porter introduced on Oct. 7, 2015 to create a $100 per day fine for “mobile homes that are wrecked, scrapped, disassembled, unusable, burnt or are in an inoperable or unrepairable state.”

At Planning and Zoning Commission work sessions on Porter’s proposal held Dec. 9, 2015 and Jan. 27, 2016, the commissioners decided on a more general revision of the nuisance code.

“Through those work sessions it was discussed about revising the nuisance abatement ordinance in its entirety, rather than singling out mobile homes specifically,” Kelley said.

Mobile Homes

Mobile homes have been the subject of previous Kenai ordinances. A 1985 ordinance allows mobile homes only in certain designated areas. More recent legislation includes a 2006 ordinance that created construction standards for mobile homes and imposed a $100 inspection fee.

Sandy Lashbrook, owner of Kenai’s Highland Pride Mobile Home park, claims her park was singled out as a target of the 2006 ordinance. On May 30, 2007, two mobile homes in Lashbrook’s park were condemned under the standards adopted in the 2006 ordinance and Lashbrook was given 45 days to remove them.

Lashbrook said she began demolition of the two homes, but a machinery failure prevented her from finishing. In August 2007, a city contractor removed the remnants of the homes to the Central Peninsula Landfill.

Lashbrook said both mobile homes she was ordered to destroy in 2007 could have been repaired and used. A Kenai zoning code prohibited spending more 10 percent of the homes’ value on repair because they were nonconforming structures grandfathered into the zone surrounding them.

Lashbrook said the present ordinance “can force us to remove a mobile home that can be repaired and can be rehabilitated for pretty cheap.”

“There’s a dearth of housing on the market in the Kenai-Soldotna area,” Lashbrook said. “Why dispose of a property if it can salvaged, repaired, and put to use? It keeps the landfill from filling up and puts another affordable house on the market.”

Although Kenai’s present list of nuisances includes “any building or structure which is dangerous to the public health or safety because of damage, decay, or other condition,” the revision adds a new definition of nuisance structures that would include less-damaged uninhibited buildings.

The new definition, which Kelley called “the premise of the entire ordinance,” targets structures left without electricity or water for longer than 180 days or documented by city personnel to have been unoccupied for longer than 180 days, and are “wrecked, scrapped, disassembled, unusable, burnt, inoperable or unrepairable.”

In an accompanying memo, Porter wrote that the proposed definition differs from the present one “in that the abandoned structure need not be ‘destroyed’ to be a nuisance if it has been abandoned and meets other criteria that are targeted towards the structure being an attractive nuisance or unlikely to reasonably be repaired.”

“Attractive nuisance” is a legal term referring to structures attractive to children which could injure them, for which an owner can held liable. Danger to exploring children is one detrimental effect of abandoned mobile homes cited in the ordinance text, alongside decreased property values, the accumulation of standing water or sewage and flammable gasoline.

Lashbrook, who lives in Wasilla, didn’t testify to the present version of the ordinance on Wednesday, but in January sent a 14 page letter of opposition to its mobile home-specific version. She said targeting mobile homes is classist and that the ordinance is redundant — the code had authority to prosecute her for mobile home violations in 2007 and doesn’t need new code for similar actions now.

Enforcement changes

Some proposed new elements of the nuisance code change its enforcement.

For nuisances to be removed under the present code, a Kenai official must recommend it to the city council for a vote on “whether or not the alleged public nuisance is a public nuisance in fact.”

The council can order nuisances to be removed or repaired and set a time requirement, or have the city administration remove the nuisance at the owner’s expense if the deadline passes or if it’s an emergency.

Other than potential removal costs and code violation fine of up to $500. Kenai City Attorney Scott Bloom said the city’s usual practice is to consider each day of the nuisance’s existence as a separate violation, assessing the fine each day. 

One of Porter’s changes creates a $50 daily fine. Violators with annual income less than the federal poverty line — $25,200 for a family of three in Alaska — would have the fees waived. Fees would also be reduced according to income for those under 200 percent of the federal poverty line.

Before sending workers to private property for nuisance removal, city officials would need to go to court to seek a right of entry. The ordinance would also allow a person accused of nuisance violations to appeal the decision to the city council — official designated in this case as a Board of Adjustment.

Speaking to the Planning and Zoning Commission Wednesday, Bloom said fines and removals would be a last resort.

“There is a collaborative process up front,” Bloom said of code enforcement. “We don’t just hit people right away with a fine. It’s our policy or practice to work with people, and only after we find we’re not getting cooperation or response, we’d go through with the fines or potentially the court process.”

Kenai Planning and Zoning Commissioner Jim Glendening asked Bloom whether the land owners of a mobile home park would be held responsible for an abandoned mobile home on their property owned by someone else.

Bloom said the owner of a nuisance structure and the owner of the land beneath it would both be vulnerable to a fine and removal responsibilities.

“I think that’s a common process,” Bloom said. “The property owner is responsible for whatever’s on their property.”

The situation isn’t a hypothetical one. In 2012 Lashbrook was given a condemnation order for a mobile home abandoned by a tenant she’d evicted. She appealed the condemnation in an unsuccessful Board of Adjustment hearing.

In her January letter Lashbrook wrote that she supported the general goal of removing wrecked and unsanitary structures, and said there are abandoned buildings in Kenai that she thought should removed. However, she said the code proposed in the present ordinance could be open to abuse because it is imprecisely worded. Lashbrook said the ordinance, which in its code portion refers only to “structures” rather than mobile homes, could be unevenly enforced to target lower-income homes. She suggested a strict interpretation of the new uninhabited structures definition could also include poorly maintained summer homes.

“A lot of people aren’t in Alaska for those 180 days (required to claim a structure is abandoned),” Lashbrook said. “They’re snowbirds. But I bet you won’t see any of those riverside homes demolished because of this.”

 

Reach Ben Boettger at ben.boettger@peninsulaclarion.com.

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