by arel lynn hunt
(afton, lincwyomingoln county, )
Visitor Question: The town I live in is not enforcing the written codes such as parking lot requirements and snow removal. Does the written code have to be followed or do they have the discretion to not enforce the written code at all? Also can mayors and employees be taken to civil court to make them follow codes?
Editors Reply: It is fairly common for towns not to follow their own codes (laws). This occurs in towns and cities of all sizes, but it is especially frequent in smaller towns "where everyone knows each other." Large cities that are understaffed and overwhelmed with serious life-threatening problems are also prone to this malfunction.
You ask if lack of enforcement is legal. Think about the analogy of a patrolman who does not stop every car that is speeding. So yes, there is discretion in many aspects of enforcement.
This is especially true if the situation is fairly ambiguous. One of your examples is snow removal. How soon after the snow stops must it be removed? If the ordinance does not say, there is some discretion involved. What if the snow was removed once, but then overnight it snows another inch? What happens if an 8 foot wide path was scooped but the rest of the snow remained in place? These would be other instances for discretion.
Parking lot requirements might be easier to enforce, if you are speaking about the amount of parking that is required. Usually that would be regulated when there is a zoning approval, if your town has zoning, or when a business license is granted. In this case, a requirement typically would be met once, and therefore should not be subject to interpretation.
We offer these examples simply to help you think through what is happening in your town.
As for taking the mayor or paid staff to court in a civil case, that is something to discuss with an attorney. Some would say that anything can become the subject of a suit, but only an attorney licensed in your state could tell you whether this is practical based on state law and legal precedents.
In general as planners, we think the lawsuit avenue would be difficult, expensive, and unlikely to produce the result you want. We think the political route would be better for you.
If your town has meetings where the public is allowed to speak, get together with a few neighbors and plan to attend the next meeting. Research what ordinances are in place that are not being enforced, and select a spokesperson if your town council, or equivalent, is likely to limit you to only one speaker. Explain what you are observing, how the lack of enforcement is harmful, and request the enforcement of the town's own laws.
Before the meeting, try to think through the likely motivations for the lack of enforcement. Is it just laziness or conflict avoidance? Is there a lack of staff to follow through on the enforcement if the property owners in question resist? Does the mayor not believe in the law in question? Does the staff think violations are trivial? Is the staff discouraged because judges do not deal out any punishment after the staff member has done a lot of work to file and support the complaint?
If you don't know the answer to some of these questions, these are good ones to ask when you attend the meeting.
If by chance your town does not have open public meetings where people are allowed to ask questions and make comments, that is another problem altogether. In that case, your first step would be to check on your state's open meetings law and then send a letter to the mayor, with a copy to the city attorney and one to the state's attorney general or equivalent, demanding that meetings be open and allow for public input.
We hope these general comments will be helpful to you in figuring out how to deal with this problem.
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