Pro's & Con's of Weston's Proposed Chronic Nuisance Law

Wow, what an eventful week!

On Tuesday in Sun Prairie there was a meeting of Apartment Associations. There are three large apartment associations in the state and we don’t always agree on things and worse, we have issues in communicating with each other. We met nearly 18 months ago and the only decision that was made after 3 hours of discussions, was to meet again.

On the drive down there, I had a long telephone discussion with Nick Halter, a reporter from the Wausau Daily Herald to discuss my thoughts on Weston’s new Chronic Nuisance Ordinance that was going to be given to the Public Safety Committee later this week (tonight actually).

The original draft that was on Weston’s website had been modified slightly and after a telephone conversation with Weston Administrator Dean Zuleger yesterday, he provided me with the (then) current draft.

As I said, this will be presented to the Public Safety committee at their meeting at 6 PM tonight for their consideration. In talking to Dean, he doesn’t want them to necessarily approve it tonight. Although there is no requirement for a public hearing on an ordinance such as this, my impression from the conversation is that Dean would favor having a public hearing held for additional input from taxpayers and citizens.

What follows is a summary of the draft that was provided to me and my personal thoughts on it as just one property owner. I plan on attending the meeting tonight, but have no idea if I will be allowed to address the committee, that is a decision of the committee chair. However, if allowed to address them, the points that I want to make are going to basically be the same points that are in this blog post.

SUMMARY

Chronic Nuisance ordinances are becoming quite popular throughout the country. The theory is that some properties create a disproportionate level of police activity and in the concept of “fairness”, those people who use more than “their fair share” of public services should have to pay more. Some ordinances look only at rental properties, but the better ones look at all properties, including commercial and owner-occupied. Some will argue that larger properties such as apartment complexes already pay more for police services. In theory, a 70-unit apartment complex with a tax value of over $2,000,000 is paying over 13 times more than a single-family home with a $150,000 value, so it only makes sense if they have greater need for those services. In our local area, Wausau has such an ordinance. (By the way, as a rental property owner, the Wausau ordinance is probably one of the best, most well written ones that I have seen.)

In Weston’s proposal, a “Chronic Nuisance Premises” is a low density housing unit (12 units or less) that generates 3 enforcement actions within 30 days. An enforcement action is the police being called and when they respond, they actually issue a citation or make an arrest. If the police are called, and there is not a problem that warranted some type of citation or arrest, then that call wouldn’t count against the three. Also, this goes beyond police calls and could include calls to the inspection department. A write-up for a building code violation would count the same as a police issued citation.

In the case of larger multi-family developments; which include apartment complexes 16 units or more, mobile home parks and gated communities, it will be deemed a “Chronic Nuisance Premises” when 15 enforcement actions occur within 30 days. Also, nuisances committed within these types of developments “shall be considered the responsibility of the owner of the real property.”

In the case of a business property (to include bars and taverns), the threshold would be 5 enforcement actions within thirty days. Although this aspect should concern bars and taverns, in talking with Dean Zuleger, in a review of the 5 Weston properties that require the largest amount of police resources, 2 of those 5 are commercial properties and not who you would expect. One is a retail establishment and one is a gas station.

According to the draft ordinance, if an enforcement action happens on a property but has nothing really to do with the owners or occupants of the property, that wouldn’t count. (For example, someone stole a car and during the pursuit, the arrest happened to be made on your property, you are not going to get a strike against you for something like that – unless of course the car thief lived at the property where they made the arrest.) Also, the Weston does have the ability to look at the nature and circumstances of the enforcement action and can use some judgment in NOT labeling the property a chronic nuisance, even if the number of enforcement actions has been met.

Once the property is a “Chronic Nuisance”, the property owner will need to submit an abatement plan on how they plan to reduce or eliminate the numbers of enforcement actions that are taking place. If the property owner refuses to make such a plan, if the plan is not acceptable to Weston, or if the plan just simply doesn’t work, the Village has the right to start charging property owners for the cost of the resources sent to their property. In addition, there is language in the draft ordinance about fines that could range from $50 to $2,500 per occurrence or per day.

Once a property has gone 6 months with no enforcement action, the property is no longer a “Chronic Nuisance” and starts again with a clean slate.

MY THOUGHTS ON THE ORDINANCE AS PROPOSED

This ordinance is clearly in draft stage. I understand the problem that this ordinance is designed to address. However, if it sloppily written, my favorite rule (the rule of unintended consequences) will rear its ugly head. Loopholes in the law could mean that sometime in the future, the law could be used for things it was never intended to be used for. Also, by not being clear enough in the law, if the Village pursued an action against a property owner, a good lawyer could find enough ambiguities and missed details to make this thing completely unenforceable. Having a law that is misused by a municipal entity, or could not be used at all doesn’t help anyone.

My first issue is that separate “dwelling units” or “business entities” are not the basis of the complaint. A single family home has a threshold of 3 strikes. A duplex (2 housing units), has 3 strikes (or 1.5 strikes each). A 12 unit apartment building has a total of three strikes, or 1 strike for each four units. How is this fair? Weston for a long time has tried to convince me they don’t have a negative bias toward multifamily properties. However, let’s look at this from a practical standpoint.

I have a 9-unit townhouse in the Village of Weston that would be allotted a total of 3 enforcement actions before it hits Chronic Nuisance stage. That is one strike per three units. That property is currently assessed at around $300,000. If we assume the average single-family property is assessed at $150,000; that means I already pay twice as much for service. That means that I should be entitled to twice as many calls.

Here is another way to look at it: let’s say a single family home has 2 enforcement actions in it in one month. And, let’s say their neighbors, in the same month, also have 2 enforcement actions. Neither property is a Chronic Nuisance. These could be two rental properties owned by the same owner. However, if those two properties share a common wall (i.e. duplex), this same situation WOULD be a Chronic Nuisance. Again, it shows (whether intended or not) a bias not only against multifamily properties, but the people who live in them.

In the case of the larger apartment complexes, 16 units or more. There is really no definition of what is a complex. I have a “complex” that consists of 76 total rental units. However, those units are in 6 different buildings with 6 different street addresses. Each building has between 11 and 13 units. Without this clearly defined, a good lawyer could say that I in fact have 6 smaller apartment complexes and not 1 large one.

Also, the enforcement action threshold number for these larger complexes (15) does not necessarily address chronic problems. If I have one single apartment in that 70+ unit complex that generated 10 police enforcement actions in one month…. I don’t know about you.. but I would call that a problem… maybe even a “chronic” problem. However, under this ordinance it would not be a problem because we are still 5 shy of that 15 threshold so if no other apartment has any issues, 10 per month at one apartment is okay.

So, in the interest of fairness… I think that 3 is a good number, but it needs to be defined by dwelling unit. In Wausau, each dwelling unit has three months to generate those calls, so if there is one call a month in one specific apartment every month, after three months in Wausau, that is a problem. In Weston, that would never be a problem as drafted.

Also, the devil is in the details. The 3 calls per month threshold applies to single family, duplex, or 4-12 unit multi-family. The 15 calls per month threshold applies to multi-family of 16+ units. So basically, if I have a 3-plex, this ordinance doesn’t apply to me. Also, my 13-unit apartment buildings (as well as any buildings that might have 14 or 15 units) don’t fall under this as well. How cool is that? How would this ordinance impact zero-lot line duplexes or small unit condos (which are duplexes that are not rental properties, each half is owner-occupied, they are basically two owner-occupied homes that share a common wall).

Also, the property owner is ONLY on the hook for the cost of police service in the larger multi-family properties, mobile home parks, and gated communities. As a property owner, I would not be on the hook the way this is drafted for my 8-9 unit townhome buildings or an 8-plex that I have. (And of course, a good lawyer could probably argue the case that my 11 & 13 units fall under that as well.)

Because of all of these what if’s, I am a big fan of K.I.S.S. (Keep It Simple, Stupid). If you just say three per dwelling unit… how much simpler can you get? Plus, it’s fair. Plus it addresses those specific apartments, homes, mobile homes that are actually the cause of the problem.

The exclusion for enforcement actions that have nothing to do with the property is a great exclusion, but two others are missing.

A great exclusion in Wausau is for calls that originated with the property owner. One thing that the Village should be encouraging, is cooperation between the police department and property owners, for them to work together to solve these problems. That is what the abatement plan is! It forces property owners to work with the PD. Right now, the corporate culture of EMPD is already there. For as long as I have been doing this job, EMPD has been great to work with, letting us know when there is a problem, and willing to work with us to make the problem go away. One of the things I really liked about the Wausau ordinance is it forced the police department to work with property owners. Wausau will almost never tell us we have a problem. Neighbors will tell us the police were there, we then need to call the Wausau PD to confirm this so we can take action. Wausau PD may or may not choose to confirm this, and if they do, there is normally a $2 fee. That’s what I call working together.

By excluding calls that the property owner makes, it shows that the PD wants to help the property owner if they think there might be a problem. However, if I know that there were two enforcement actions at one of my duplexes, and now I think something is going on in the other half of that duplex that I really want to work with the police on, I may hold off involving the police because I don’t want that to be my third strike. You are discouraging property owners from contacting Everest Metro. You are tampering with the GREAT working relationship that property owners have created with EMPD after all these years. Do you really want the corporate culture of EMPD to move toward that property owners often experience from Wausau’s PD?

Also, police calls that deal with domestic violence are not addressed here. Weston has taken a strong stand on the domestic violence issue with the Everest Men Respect Women campaign. However, the third time a woman calls and her partner is arrested, that property is a Chronic Nuisance. The fear of being charged for future police calls could inhibit someone from calling the police when such an abusive situation persists. For this reason, a state law was passed earlier this year that prohibits charging for police calls in domestic violence issues. As a matter of fact, landlords can no longer have language in their leases that would make a police call a breach of lease. The state wanted to go out of their way with this law to make it clear that nothing can be done to inhibit a victim’s willingness or ability to contact the police. In the spirit of Everest Men Protect Women, this domestic violence exclusion should also be clearly spelled out.

I just noticed that this is the 5th page of this blog entry, so I am not even going to get started by the ambiguity in the ordinance on these fines that could range from $50 to $2,500 per occurrence, because isn’t the fine charging for the police action?

This thing needs work. I don’t think they need to start over, but they could really simplify things and make it more clear, and more effective if some of these suggestions were taken to heart. Some of these suggestions actually work against me, and I get that. But when talking about city ordinances, I am not looking out what’s best for me personally… I speak on what I think is in the best interest of the community as a whole, and, more importantly, what is fair for all.

Tonight on 93.3 FM, WNRB-LP at 5 PM there will be a shortened version of the Dr Rent Radio Show. This will be my show topic. I will cut the show off at 5:30, a half hour early so that I can be at the Weston Public Safety Committee meeting by 6 PM.

I know I never did my summary statement of last week’s show, I will probably do that this weekend for those interested…. So until later tonight.. HAPPY RENTING!

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About drrent

Wausau, Wisconsin Landlord, past president of the Wisconsin Apartment Association, Host of the Dr Rent Radio Show on WNRB-LP, 93.3 FM, Wausau, WI
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One Response to Pro's & Con's of Weston's Proposed Chronic Nuisance Law

  1. Great analysis John.

    These chronic nuisance ordinances can be so vague that they do more harm then good.

    Here in Milwaukee they do not take into consideration the size of the property at all. My home gets 3 “strikes” and sodoes the large apartment complex down the block — its all the same.

    We also see instances of neighbors and even tenants seeking retailiation against landlords by calling the police just so the landlord ‘s property becomes a “chronic nuisance.”

    Another concern is what the ordinance defines as a “nuisance activity” — Milwaukee has basically listed everything under the sun as a nuisance activity such that if a person walking by my property drops a McDonald’s hamburger wrapper in my yard a neighbor calls that in to the building inspector (Department of Neighborhood Services in Milwaukee) that can count as one strike.

    Here is a list of everything that is considered a nuisance activity in Milwaukee – does it leave out anything except maybe sneezing or blowing your nose (even that could be considered a nuisance activity if it was too loud : )

    “Nuisance activity” means any of
    the following activities, behaviors or conduct
    whenever engaged in by persons associated
    with a premises:
    b-1. An act of harassment as defined in
    s. 947.013, Wis. Stats.
    b-2. Disorderly conduct as defined in
    s. 106-1 of the code or s. 947.01, Wis. Stats.
    b-3. Battery, substantial battery or
    aggravated battery as defined in s. 940.19, Wis.
    Stats.
    b-4. Indecent exposure as defined in
    s. 106-5 of the code or s. 944.20(1)(b), Wis.
    Stats.
    b-5. Keeping a place of prostitution as
    defined in s. 106-3 of the code or s. 944.34,
    Wis. Stats., or leasing a building for the
    purposes of prostitution as defined in s. 106-4
    of the code.
    b-6. Littering of premises as defined in
    s. 79-12.
    b-7. Theft as defined in s. 110-16 of the
    code or s. 943.20, Wis. Stats.
    b-8. Arson as defined in s. 943.02, Wis.
    Stats.
    b-9. Possession, manufacture or
    delivery of a controlled substance or related
    offenses as defined in ch. 961, Wis. Stats.
    b-10. Gambling as defined in ss. 107-1
    and 2 of the code or s. 945.02, Wis. Stats.
    b-11. Crimes of violence as defined in ch.
    940, Wis. Stats.
    b-12. Crimes involving illegal possession
    or use of firearms as defined in ch. 941 and s.
    948.60, Wis. Stats.
    b-13. Keeping a prohibited dangerous
    animal as defined in s. 78-25.
    b-14. Trespass to land as defined in s.
    943.13, Wis. Stats., or criminal trespass to
    dwelling as defined in s. 943.14, Wis. Stats.
    b-15. Any act of aiding and abetting, as
    defined in s. 50-18 of the code or s. 939.05,
    Wis. Stats., any of the activities, behaviors or
    conduct enumerated in subds. 1 to 12.
    b-16. Any conspiracy to commit, as
    defined in s. 939.31, Wis. Stats., or attempt to
    commit, as defined in s. 939.32, Wis. Stats.,
    any of the activities, behaviors or conduct
    enumerated in subds. 1 to 14.
    b-17. Discharge of a firearm as defined in
    s. 105-35.
    b-18. The production or creation of
    excessive noise as defined in s. 80-63.
    b-19. Loitering as defined in s. 106-31.
    b-20. Public drinking as defined in s.
    106-1.8.
    b-21. The sale, offering for sale,
    bartering or giving away of any intoxicating
    liquors or fermented malt beverages without a
    license as provided in s. 90-3-1 of the code or
    s. 125.04(1), Wis. Stats.
    b-22. The operation of a convenience
    store in violation of any provision of s. 68-4.3.
    b-23. The possession of counterfeit
    items as defined by s. 132.02, Wis. Stats.
    b-24. Selling or giving away tobacco
    products to persons under the age of 18 as
    defined in s. 106-30-2.
    b-25. The possession, possession with
    intent to sell or deliver, or delivery of drug
    paraphernalia as defined in s. 106-36.
    b-26. Owning, keeping, having or
    harboring any bird or animal that causes a
    disturbance of the peace as defined in s. 78-29.
    b-27. Misuse of emergency telephone
    numbers as defined in s. 105-77.
    b-28. Illegal sale, discharge and use of
    fireworks as defined in s. 105-47-1.
    b-29. Loitering-illegal drug activity as
    defined in s. 106-35.6
    b-30. Truancy and contributing to truancy
    as defined in ss. 106-23.1 and 106-23.3.
    b-31. Underage alcohol activities, as
    defined in s. 90-18.
    b-32. Adult contributing, allowing,
    providing alcohol to underage persons

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