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Nuisance Abatement

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ENACTING AN ENABLING ORDINANCE AND A PUBLIC OFFICER

THE SCOPE OF NUISANCE ABATEMENT


NUISANCE ABATEMENT PROCEDURE


USING NUISANCE ABATEMENT STRATEGICALLY

A nuisance as a legal term is a condition or use of a property that interferes with neighbors’ use or enjoyment of their property, endangers life, health or safety, or is offensive to others. Under the Abandoned Property Rehabilitation Act, abandoned properties are presumed to be nuisances, because of their “negative effects on nearby properties and the residents or users of those properties.” Because of the harm they do to others, New Jersey law authorizes local governments to use their police powers to compel the owners of nuisance properties to correct those conditions. If the owner fails to do so, the municipality can step in and correct, or abate, the conditions itself. This process is known as nuisance abatement.

There are many abandoned property situations where it is far better to attempt to get the owner to correct or abate nuisance conditions, or to have the municipality abate the conditions directly, than to go through the often arduous process of taking title to the property.  Nuisance abatement can be part of a strategy to prevent abandonment, particularly where it is combined with incentives for property owners, and/or part of a strategy to address properties that have already been abandoned, and are being neglected by their owners. Neighborhood organizations and block groups need to understand the nuisance abatement laws, so that they can effectively press city government to take action to address nuisance conditions in their communities. CDCs may be able to partner with the municipality, where the municipality uses its legal tools in conjunction with the CDC providing incentives or technical assistance to help property owners repair or rehabilitate their properties.

Nuisance abatement, with particular reference to buildings that are abandoned or in severe disrepair, is authorized under the general powers of municipal government, in N.J.S.A. 40:48-2.3 through 2.12. These sections of New Jersey law establish an administrative procedure by which municipalities in the person of the public officer can abate nuisance conditions on problem properties. Over and above the provisions of the statute, local officials also have recourse to the courts, particularly in emergency situations, to address nuisance conditions.

This section will describe the powers of the municipality under those sections of the New Jersey statutes to abate nuisances with respect to such buildings, and the procedures that it must follow to exercise those powers.


ENACTING AN ENABLING ORDINANCE AND A PUBLIC OFFICER

In order to exercise the powers authorized under the statute, the municipality must enact a nuisance abatement ordinance specifying which of the powers permitted by the statute will be exercised by the municipality, and designating a public officer to carry out the municipality’s responsibilities under the ordinance. While the public officer can be any “officer, officers, board or body” of the municipality, given the nature of the public officer’s duties, the municipality will probably find it more efficient to designate a specific officer to serve in that role, rather than a board or agency.


The ordinance must be preceded by a governing body resolution finding that building conditions potentially leading to nuisances exist in the municipality.

The public officer has certain fundamental responsibilities under any ordinance implementing the state statute:
  • To issue complaints against owners, either on his or her own motion or in response to petitions from others
  • To hold hearings on complaints
  • To issue orders requiring owners to repair, vacate or demolish properties as appropriate
  • To take action to repair, vacate or demolish properties, if the owner fails to do so (N.J.S.A.40:48-2.5)

The municipal ordinance may grant the public officer additional responsibilities and powers, including:
  • To investigate building conditions in the municipality and determine which buildings are unfit for human habitation or use;
  • To administer oaths and affirmations, take testimony and receive evidence;
  • To enter upon premises for purpose of investigation;
  • To appoint subordinate officers, agents and employees; and
  • To delegate any functions and powers to such officers and agents (N.J.S.A.40:48-2.9)

The use of the term “agents” in 40:48-2.9 indicates that the public officer may delegate certain of his or her powers or responsibilities to non-governmental entities as well as other governmental officials.


The authority vested in the public officer, as well as the potential for legal challenges to his or her actions, demands that the municipality appoint an individual who is both responsible and highly qualified. In most cities, the public officer is the head of the department of inspections or the equivalent.

THE SCOPE OF NUISANCE ABATEMENT
THE NUISANCE ABATEMENT THRESHOLD
The basic legal threshold that triggers nuisance abatement action is that the building must be “unfit for human habitation, occupancy or use.” The provisions of the law apply to any building used by people, for non-residential as well as residential purposes, occupied or vacant. This phrase appears repeatedly, in slightly different contexts, in N.J.S.A. 40:48-2.3 through 2.12. Although the phrase, to the layman, might imply a building that is on the verge of collapse, the standards for determining what meets that test are quite broad. As defined in subsection 2.6 of the act, they include:

(1) The conditions must be “dangerous or injurious to the health or safety of the occupants of such building, the occupants of neighboring buildings or other residents of such municipality; and
(2) Such conditions “shall be deemed to include (without limiting the generality of the foregoing) defects therein increasing the hazards of fire, accident or other calamities; lack of adequate ventilation, light or sanitary facilities; dilapidation; disrepair; structural defects; uncleanliness; failure to comply with the requirements of the building code or the certificate of occupancy.”  This section permits municipalities to provide additional standards beyond those cited above “to guide the public officer…in determining the fitness of a building for human habitation or use.”

Similar language appears in other parts of these statutes. While the scope of what constitutes unfitness is broad, it is clearly not designed to address trivial or minor violations.
When applied to an occupied property, the law clearly implies that the defects must be such that if not repaired, the building may have to be vacated in order to protect the health and safety of the occupants.

The standard for a vacant property is much clearer. Given the “presumptive nuisance” (section 2.C) language of the Abandoned Properties Rehabilitation Act, as well as the broad language of the nuisance abatement law, any vacant property in need of repair can be considered presumptively subject to the municipal nuisance abatement procedure.

NUISANCE ABATEMENT REMEDIES
The threshold remedy for a nuisance is for the public officer to order the owner to abate the nuisance; that is, to repair those conditions that have led a property to be deemed a nuisance.

The order requires the owner to make the repairs or take other action within a “reasonable time” set by the public officer. With respect to an occupied building, since the purpose of nuisance abatement is to abate the condition, rather than to affirmatively mandate the rehabilitation of the property, the owner is given the choice of repairing the conditions or vacating the building within the same time period (N.J.S.A.40:48-2.5[c] and [d]).

The scope of potential remedies is similar for vacant buildings. The public officer can require the owner to “repair, alter or improve” the property. If the building is “in such a condition as to make it dangerous to the health and safety of persons on or near the premises”, the public officer can order the owner either to repair the building, or demolish it.  Under the nuisance abatement law, the public officer cannot prevent the owner from demolishing the building, even if the municipality would prefer that it be rehabilitated and reused.



Where the municipality considers it unacceptable for a particular building to be demolished, it should either take the property through spot blight eminent domain, or, if there is no abandoned property list in place in the municipality, pursue the vacant property receivership procedure established in the Abandoned Properties Rehabilitation Act.

If the owner fails to take appropriate action within the time allowed by the public officer, the public officer may act to remedy the conditions that led to the property being deemed a nuisance, and to the issuance of the order. While the public officer is not legally obligated to take action, inaction in a case involving the health and safety or residents or neighbors is hard to justify. For that reason, whenever the public officer issues an order to an owner, she must recognize that there is a significant likelihood that she may have to act to remedy the nuisance.

Depending on the circumstances, the public officer’s actions may include:
  • Repair, alteration or improvement of the structure to render it suitable for human habitation or use, or to eliminate the nuisance conditions
  • Vacating and closing the building
  • Demolition of the building
Within the framework of the initial order, the public officer has broad discretion to determine what action to take. While the public officer may not be able to compel the owner to pursue a more expensive alternative when the nuisance can be abated through a less expensive action; e.g., rehabilitating a property rather than vacating or demolishing it, the public officer is not similarly constrained in her own actions, resources permitting.


The public officer, under the optional powers of 40:48-2.9, might also delegate responsibility to a CDC or similar entity to act as the public officer’s agent to carry out the “repair, alteration or improvement” of properties where the owner failed to act pursuant to an order by the public officer.  Since it would be acting as agent for the public officer, all of the costs incurred by the CDC to repair the property would become a municipal lien on the property.


This creates a potentially valuable opportunity for partnerships between the municipality, acting through the public officer, and community-based organizations such as CDCs with strong capabilities in the area of property rehabilitation.

NUISANCE ABATEMENT PROCEDURE
The procedure through which a nuisance abatement action takes place is set forth generally in N.J.S.A.40:48-2.5.  As noted earlier, it is triggered by the adoption of a municipal ordinance designating the public officer and granting her the powers set forth in state law. As with any legal procedure affecting property, the action takes place through a series of steps designed to ensure that parties receive notice, and have the opportunity to challenge the process.



The procedure described here is for non-emergency situations. In the case of an emergency, such as a structurally unsound building in imminent danger of collapse, the public officer has the power to shortcircuit the process and seek a summary order from the court giving her the power to abate the nuisance forthwith.


Step 1: The public officer can act on complaints from citizens charging property nuisance conditions, or can act directly on conditions she has identified.  Where there is a basis for charges, the public officer issues a complaint stating the charges. The complaint must be served on all parties with a legal interest in the property, including the owner and any lien or mortgage holder.


If the public officer receives a petition signed by at least five residents of the municipality charging nuisance conditions in a particular building, she must conduct a preliminary investigation, and if the investigation discloses a basis for the charges, must issue and serve a complaint on the owner of the property (N.J.S.A.40:48-2.5[b]).


The complaint must be served on the parties personally or by registered mail, posted on the premises affected by the complaint, and filed with the county recording officer. If any parties cannot be found, publication in a newspaper is also required (N.J.S.A.40:48-2.7).

Step 2: The public officer must hold a hearing on the complaint no less than seven and no more than 30 days after serving the complaint
, at which the owners and parties in interest can contest the findings in the complaint. If, after the hearing, the public officer “determines that the building under consideration is unfit for human habitation or occupancy or use,” she must issue written findings of fact, and serve an order on the owner and parties in interest.



Although the statute does not explicitly address the point, there appears to be no reason that parties other than the owner and parties in interest cannot participate in the hearing, which is not bound by court rules of evidence. Neighborhood and civic organizations should track such hearings, and ask to be heard in matters regarding buildings in their neighborhoods.


Step 3: The order is served on the parties in the same manner as the complaint.  The order must specify:
  • The actions that the owner must take to abate the nuisance
  • The time period the owner is given to take action
An owner or party in interest has 30 days from the service of the order to seek an injunction barring the public officer from carrying out the order.

Step 4: The owner either carries out the steps required by the order during the time permitted, or fails to do so. It is reasonable to assume that the public officer can extend the time for good cause, although it is not explicitly provided in the statute. In so doing, however, the public officer must carefully weigh the impact of allowing the nuisance conditions to continue against the good faith effort of the owner.

If the owner abates the nuisance, the matter is at an end. As noted above, however, if the nuisance is abated by vacating a previously occupied property, without repairing the conditions that led to the order, the owner is potentially subject to further municipal action, beginning six months after the property has been vacated, under the provisions of the Abandoned Properties Rehabilitation Act.

Step 5: If the owner fails to abate the nuisance in timely fashion, the public officer must determine whether to act; and if so, what action to take.
This is a critically important step. All too often, in this situation the public officer will routinely have the building vacated, if occupied, or demolished, if vacant, and will not seriously investigate the feasibility of having the building repaired or improved. While there are many situations where there is no realistic alternative to vacating or demolishing a building, it must also be recognized that vacating a building will in many cases only hasten its further deterioration, while demolition may permanently eliminate a building with potential reuse value.

The decision to repair rather than vacate or demolish is based on financial considerations, in two respects. One is the cost of the repairs, and whether they can be justified by the present or future value of the property. Second, even if the cost is reasonable, the public officer needs to have a source of funds that can be speedily accessed to carry out the repairs.

One way local governments can deal with the latter issue is to enact a landlord security deposit ordinance. Under such an ordinance, owners of rental property are required to put



Each municipality should have a procedure for evaluating the feasibility of rehabilitation or repair before the public officer makes a final decision to vacate or demolish a building under a nuisance abatement order. The procedure must be a speedy one, in order not to lead to delays in addressing health and safety issues, but should involve a number of parties, including municipal housing and planning personnel, and representatives of neighborhood organizations or CDCs active in the area of the building under consideration.


up funds—in the form of cash or a bond—which the municipality can draw upon to make repairs in the event the owner fails to do so. The ability of a municipality to enact such an ordinance was upheld in a case involving the town of Ridgefield as a legitimate use of the municipal police power.  While state law does not give municipalities explicit authority to enact ordinances imposing fees or other obligations on property owners to address nuisance conditions, the Ridgefield decision indicates that such ordinances may be found to be within the municipal police power. In light of the compelling evidence that abandoned properties impose increased costs on the municipality, imposing a fee on the owners of abandoned properties might well withstand legal challenge.36 Another route, described below, is to create a revolving fund for nuisance abatement, which could use funds from the municipal budget or from a city’s Community Development Block Grant allocation.

Step 6: The public officer places a lien on the property for the cost of the action. The municipality can seek to recover of its costs for abating the nuisance by placing a lien on the property. The lien can include both the actual cost of the repair, vacating or demolition, as the case may be, as well as any associated costs of litigation, title searches, and the like incurred by the municipality. The lien is a municipal lien, and as such has the same priority as tax liens over any private lien or mortgage on the property (N.J.S.A.40:48-2.5[f]).

The Abandoned Properties Rehabilitation Act significantly strengthened the municipality’s ability to recover nuisance abatement costs. Under N.J.S.A.55:19-100, if the lien is not paid, the municipality has recourse against any asset of the owner of the property.  The municipality’s recourse extends to any asset of any partner if the building is owned by a partnership, and any asset of any owner of a 10% interest or greater if the owner is any other business organization or entity recognized pursuant to law, including corporations or limited liability companies.

USING NUISANCE ABATEMENT STRATEGICALLY

A municipality can use its nuisance abatement powers sparingly, by limiting its activities to responding to complaints or emergencies, or it can use them in more strategic fashion, as part of a larger strategy to stabilize neighborhoods and address the community’s problem properties. A community that wants to adopt a strategic approach to nuisance abatement must begin by putting the following elements in place:
  • The public officer must take an active role identifying and initiating the abatement process against problem properties, rather than simply responding to complaints from others.
  • Financial resources must be identified to carry out repairs, as well as closure and demolition activities, where the owners fail to carry out the conditions of nuisance abatement orders.
  • Capable firms and individuals must be engaged to carry out repairs, closure, securing and demolitions in timely and competent fashion.
  • A property information system should be developed to track properties subject to nuisance abatement orders, their status and disposition.
  • Aggressive cost recovery enforcement, including in personam actions against other assets of owners of properties on which liens have been placed, should be systematically carried out.
In assembling the capacity to carry out necessary activities, the public officer can work through:
  • In-house crews.
  • Contracts with qualified contractors.
  • Relationships with qualified CDCs, acting either as contractors or as the public officer’s agents.
By assembling a pool of financial resources and capable crews, contractors or agents, the city can carry out efficient nuisance abatement on a substantial number of properties within a short period, thereby permitting a strategic approach.


Since a combination of aggressive lien enforcement and in personam actions can make it possible to recapture a substantial part of the funds expended for nuisance abatement activities, cities should consider creating a nuisance abatement revolving fund. Potential sources might include municipal bonding, federal Community Development Block Grant funds, or other available resources.


Once the pieces are in place, the next step is to determine the most strategic approach.
In a city with large numbers of problem properties, they cannot all be addressed at once.
In this situation, the city should focus on strategic targeting of problem properties, in which nuisance abatement is directed to properties or geographic areas selected for particular reasons, such as:
  • Properties within a neighborhood targeted for preservation or revitalization activities, particularly properties that have a disproportionate impact on the properties around them.
  • Properties in strategic locations, such as gateways.
  • Properties in historic districts.
  • Properties adjacent to, or in close proximity to, ongoing or planned redevelopment or reuse projects.
In each of these cases, the city can leverage its ability to carry out nuisance abatement by linking those activities to other resources and activities being carried out by the municipality, CDCs, developers and others.

The strategic targeting of nuisance abatement resources must be limited by the recognition that the public officer must continue to address complaints and respond to emergencies elsewhere in the municipality. The office responsible for nuisance abatement should seek to pull together enough resources and capacity to be capable of strategically targeted efforts, while still being able to respond to complaints and deal with emergencies.


 
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