Kentucky has a property problem and Henderson is no exception. Some property owners let their grass grow past 10 inches. They collect appliances and leave them in their yards. Unsafe structures are not secured or boarded up. The list or problems goes on.
At a previous work session, Henderson City Attorney Dawn Kelsey and members from the city's Codes Division presented a solution to the issue before Henderson City Commission. It would involve creating a new governing body.
"These are scenes our code enforcement officers see on a daily basis and they have very few tools in which to work to clean up these situations," said Kelsey. "This is something that not only Henderson has had to deal with but cities all over the country."
Currently the City of Henderson has a Board of Housing Appeals to deal with property maintenance code violators, but that governing body has no teeth. The board can only uphold or overturn a code officer's decision on a property maintenance issue and only meets once every other month. They cannot levy fines. The only option the city has with violators is to lessen or abate the problem, and then the property owner is billed for the cost to fix the problem. If it goes unpaid, a low-priority lien is filed, which often goes unpaid with little or no recovery.
If the city wants more enforcement power, they can go to District Court, which can levy fines. But that process takes time and the city can't go that route on a regular basis.
To remedy this problem, the Commonwealth passed House Bill 422 in 2016. It has an amendment allowing cities to establish a Code Enforcement Board. The law will go into effect in July. If created, this board would meet every fourth Monday of the month with five appointed members. They would be able to conduct hearings with the power to subpoena violators, witnesses and evidence. The board could take testimony under oath and, most importantly, impose fines on violators of property maintenance codes.
With the new board, this is how the process would work:
A code inspector receives a complaint. She goes out to the property, sees a violation and sends a notice to the property owner to remedy the violation in 10 days. According to Kelsey, this is the optional "nice notice." But under a previously established House Bill 318, the codes department is able to skip the step of sending a 10-day notice and instead go directly to the next step of issuing a citation.
"This is at the discretion of the code enforcement officer," said Kelsey. "That comes up in properties that we know are abandoned. Right now the city mows about 77 lots that we know no one is going to mow. It would be crazy for us to send out a notice of violation each time and wait 10 days on property you know isn't going to get mowed. The only ones you would do that on are frequent fliers."
If a notice is sent, the codes inspector will return in 10 days to re-inspect the property. If the violation is fixed, then that's the end of the story. But if it's not fixed, the city will issue a citation to the property owner. At this point, the violator would have three option.
First option: The property owner fixes the problem outlined in the citation within the seven days.
Second option: The property owner could decide not to fight the citation and then a fine would be issued. But the city's decision could be appealed at District Court. At this point, the city could abate or lessen the code violation if it's still not fixed. That's when the city could place a lien on the property for work done. Before HB 422, these liens were low priority, which means it was highly unlikely the city would see any return. But under the new legislation, these liens would take precedent over all other liens, except tax liens. That means the city has a much better chance of seeing money back from these liens.
Third option: If they do respond to the citation and want to contest the issue, then there will be a hearing with the Code Enforcement Board. Then they can make a determination of a final order. If the board finds there has been a violation of a property maintenance code, they can levy a fine against the property owner. If the fine is not paid, a lien would be issued on the property. If the board rules there is no violation, there is no fine.
Fines are lower if the issue is uncontested because property owners would be covering the cost for a hearing if contested. Uncontested fines would vary between $10 and $100 for a first offense, depending on the violation. Second offenses would range between $25 and $125. All other fines would be between $50 and $150. Contested fines would vary between $25 and $200 for a first offense. Second offenses would range between $150 and $750. However, the dollar amounts listed only represent maximum amounts, so the board can set the fine at anything below the maximum price.
Commissioner Brad Staton expressed concern regarding the amount for the fine structure.
"I think we're being way too harsh," said Staton. "If you contest an issue, you have to pay a lot more than uncontested. I'm afraid we'd be sending the wrong message. It's like we're saying we really don't want you to contest it."
Kelsey reminded Staton that the board could set the fine at any amount lower than the one listed. For example, for an unsafe structure violation, the fine is a maximum of $200 if it's a first offense and contested, but the board could decide to only fine the property owner $10 if they chose to.
Along with the new ordinance establishing the Code Enforcement Board, Kelsey and members of the City Codes Department asked that some local property maintenance codes be revised. They asked that the city codes include a violation for outside upholstered furniture that is not intended for outside use. They also asked that a clutter ordinance be enacted that would include an accumulation of certain items listed in the proposed code.
