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 V.14 No.52 | December 29 - January 4, 2006 

Commentary

Is the City Bypassing Eminent Domain?

Eighty crimes, from murder to shoplifting, are included in an amendment introduced by City Council member Craig Loy. Loy feels the current wide-ranging Nuisance Abatement Ordinance needs more teeth. Promoted as a necessary measure to control nuisance properties such as large apartment complexes and places like the Blue Spruce Lounge, the amendment actually includes all real property, both commercial and residential, plus personal property and vehicles.

Adding to the 21 crimes already in place in the ordinance, Loy's amendment further requires that properties found to be nuisances must agree to the use of an onsite security service in order to hold off further actions by the city, such as condemnation of the property and taking it over for redevelopment.

Written in part by Deputy City Attorney Pete Dinelli, head of the Safe City Strike Force, the new amendment states that any parcel of real property, commercial or residential, that is the subject of calls to the police for certain activities will be subject to the Nuisance Abatement Ordinance. Such activities include, but are not limited to, complaints of vagrants, suspicious persons and cars; domestic violence, disputes, altercations, disorderly conduct, loud parties and music, neighborhood complaints, noise ordinance violations and public drunkenness.

In other words, no part of the ordinance applies only to large and troublesome business locations and apartment complexes. It applies to all property. Yours and mine. No discrimination. No limitations. If your property has been involved with any of the above calls for service or complaints, or is subject to any of 101 defined crimes, such as fraud, assisted suicide, conspiracy, forgery, embezzlement, murder or manslaughter, or has any violations of the city housing code, fire code, criminal code, abandoned vehicle code or Weed and Litter Ordinance, the city can condemn your property with only a civil suit. Less proof is required in a civil suit, and is therefore more vulnerable to abuse. The need for an action depends entirely upon the enforcer's interpretation. No limits or protections are included, and around the country, the legal community is already pointing out the need to apply nuisance abatement procedures more fairly and positively.

If the city wants to add parking spaces for a railroad or a stop for bus service, if the city wants to change the character of a neighborhood or increase density of housing in an area, if the city wants to widen a street or build a bridge, it will be easy to find some properties in violation of some crime or ordinance or activity. If the city should want properties, they can define them as nuisances and, theoretically, would not be required to pay you (as is required by eminent domain). Instead, you would be required to pay the city to clean up or remove your property, which would then be turned over to developers. If the city can find a few nuisance homes or businesses in an area, that area is then subject to being declared “blighted” and turned into whatever the city feels is needed. Is this exaggerated and extreme? Maybe, but it all depends on the city's interpretation.

At this point, you may be wondering what powers you're still afforded. For one, you can sue to protect your rights. But the question shouldn't be what you can do, but if you should have to do it.

With this amendment, if you call for help to any law enforcement agency often (how often is not defined) you could be required to sign an agreement with the city, “proving” your cooperation, and then with the amendment also be required to provide onsite security. Or if your property has received some (unknown) number of complaints to any law enforcement agency, again, you must fulfill the city's requirements, and with the new amendment also be required to provide onsite security. In other words, to protect yourself from the city's ordinance, you can't make use of the city's law enforcement agencies. To create havoc on your neighbor or business competitor, be sure to complain about them to law enforcement agencies. The city could readily have the property condemned and put it to whatever use the city decides is necessary. Any protection available from the laws of eminent domain would not be applicable.

The opinions expressed are solely those of the author.

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