Kenai nuisance ordinance passes

Kenai has defined a new type of public nuisance — abandoned residential or commercial structures that are unoccupied or disconnected from utilities for 180 days and are “determined to be a nuisance because it is wrecked, scrapped, disassembled, unusable, burnt, inoperable or unrepairable,” according to an ordinance the Kenai City Council passed Wednesday.

The ordinance also creates a fine of up to $50 per day for violations of the nuisance code and gives property owners up to 180 days to fix or remove structures judged a nuisance. Council members Bob Molloy and Mike Boyle voted against the ordinance. Council member Terry Bookey was absent.

Kenai mayor Pat Porter introduced the first version of the nuisance ordinance on Oct. 7, 2015, originally making it a measure specific to abandoned mobile homes.

On Wednesday, she said her intention was to empower city administrators to clean up structures that may be unsafe or responsible for lowering surrounding property values.

“In various places in our city, our administration is aware of (nuisance structures), but they haven’t had the tools they need to correct the situation,” Porter said. “… We need something that allows us to be able to fix our community and make it a place where people want to drive down the street and say ‘Yeah, I want to live in Kenai!’ We attract a different kind of people here than we did 30 years ago, and it’s important for us to make neighborhoods marketable.”

After planning and zoning commissioners examined the mobile home ordinance in two meetings and took testimony from members of the public — including Sandy Lashbrook, owner of Kenai’s Highland Pride mobile home park — Kenai city administrators rewrote the mobile home-specific ordinance as part of the general nuisance code.

Speaking at Wednesday’s meeting, Lashbrook said she had only three concerns about the ordinance in its present form.

One was the structure of the new definition, which she said could create two alternate conditions for determining whether a structure is a nuisance: being unoccupied and disassembled, or disconnected from utilities.

Under Lashbrook’s interpretation, a structure could be a nuisance if it had utilities but wasn’t occupied or completely assembled. The example she considered was a cabin being renovated, whose owner had installed electricity and water but hadn’t moved in or put the building completely together.

“If it does have electric, obviously someone is intending to use that structure,” Lashbrook said. “It might not be fully assembled, but some one could be working on it.”

Her proposed solution was to change the “or” to an “and,” making lack of occupancy, disassembly, and lack of utilities into three equally necessary conditions for defining a nuisance structure.

Lashbrook’s second objection was to a deadline provision that gave property owners charged with having a nuisance structure “a reasonable time period in which to comply, not to exceed 90 days.” Lashbrook proposed extending the deadline to 180 days per structure.

“A lot of the times there’s a property with multiple structures on it that might be falling apart, dilapidated, and the city would like to abate those structures,” Lashbrook said. “The problem is when there’s just one owner and a whole bunch of structures, and you give that person not to exceed 90 days. It’s not a lot of time to destroy multiple structures and haul them away.”

She used her own experience as an example.

In 2007, two of Lashbrook’s tenants abandoned their mobile homes, creating a pair of empty structures that city administrators ordered her to remove within 45 days.

After the deadline passed, Lashbrook was charged for the removal of the remnants of the structures by a contractor.

Her third objection was to a pre-existing reference in the code to nuisances that “constitute a grave and immediate danger to the public peace, health, safety, morals, or welfare.” Lashbrook said “public morals” could be a dangerously subjective term.

The changes Lashbrook suggested to the definition and deadline provisions of the ordinance were both taken up by council members. Molloy moved to make her proposed change to the definition, and Boyle moved to increase the deadline.

Following Molloy’s redefinition motion, council members debated an ambiguity in the ordinance’s original definition of a nuisance structure. Kenai city Attorney Scott Bloom said his reading of the definition was different from that given by Lashbrook, Molloy, and later Boyle.

Bloom said a nuisance structure must be both disassembled and abandoned, and abandonment is determined by either lacking utilities or lacking occupancy for 180 days.

“Just because it’s abandoned doesn’t make it a nuisance,” Bloom said. “It has to be abandoned and determined to be a nuisance because it’s wrecked, scrapped, disassembled, unusable, burnt, inoperable or unrepairable.”

In Boyle’s reading, the “unoccupied” and “disassembled” requirements were two parts of one condition, with “no utilities” as an alternate condition that would be sufficient alone to abate a structure.

“The way I read this with that ‘or’ is that if someone doesn’t have the structure hooked up to utilities for 180 days, there we are: it’s now a nuisance,” Boyle said.

Boyle also said the standards for abandonment — in his reading, containing both the “unoccupied” and “disassembled” conditions — were subjective.

“I think I hear that if it’s unoccupied for 180 days, somebody who works for a governmental entity can come along and say ‘that’s an abandoned building,’ and because it’s abandoned, it’s now a nuisance,” Boyle said. “That’s where I have the issue. That’s how I see that. I know I’m only one person. But I’m sure there might be others out there, and it might be the person who’s going to make some landowner’s life miserable.”

Molloy’s change of “or” to “and” would have made the three conditions equally necessary: a structure eligible for abatement would need to be without utilities, documented to be unoccupied, and determined to be a nuisance because it’s disassembled.

His redefinition motion failed, with council members Henry Knackstedt, Tim Navarre, Brian Gabriel, and Porter voting against it.

Boyle’s deadline extension proposal would have given landowners ordered to abate nuisance structures between 90 and 180 days to do so. Each structure to be removed would have given the landowner an extra 180 day period for removal. Navarre opposed the “per structure” part of Boyle’s motion and successfully moved to delete it, opposed by votes from Molloy and Boyle.

Before the council voted on the deadline extension, Bloom presented a caveat.

“This section does not just apply to abandoned structures,” Bloom said. “It applies to all nuisances. I just want to be sure you understand — you could be in a neighborhood, and the city wouldn’t be able to respond to a nuisance for at least 90 days.”

The deadline wouldn’t apply, however, to “public nuisances constituting a grave and immediate danger,” on which city staff can take immediate action, according to the code.

Although Boyle’s deadline extension failed — receiving “no” votes from Navarre, Porter, Gabriel, and Knackstedt — the 180 day deadline was unanimously enacted after Navarre offered it in a form that would apply only to structures.

Before the final vote on the ordinance, Boyle advocated separating the nuisance structure provisions from the rest of the nuisance code.

“Because they’re apples and oranges,” Boyle said. “If you have a structure that’s a public nuisance, it’s entirely different than someone’s wild dog that’s a public nuisance… I think we need to look at this some more and separate the structure aspect of this.”

To that end, he proposed postponing the ordinance until the Oct.5 council meeting. Postponement failed with opposing votes by Porter, Navarre, Gabriel, and Knackstedt.

 

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

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