Friday, January 21, 2022

Change Comes to Code Enforcement



By Noelle H. Lowery

Since April, Marco Island’s Code Enforcement Department has been quietly undergoing reconstructive surgery. It started with the assignment of city Environmental Specialist Nancy Richie to the three-person department to carefully examine all means and methods used by enforcement officers. The process will continue through this year as City Manager Roger Hernstadt and the City Council make crucial decisions about hiring a magistrate and organizing a new City Code Advisory Committee.

“Nancy was a good, impartial person to bring in there and examine how (the department) was handling its responsibilities in an unbiased way,” explains Hernstadt. “We had to make some decisions on what to improve and how to improve.”

The changes were sparked by community-wide criticism of the city’s code enforcement practices, with many considering the process as “selective enforcement” where some fines appeared to be arbitrarily mitigated based on no concrete rhyme or reason. Hernstadt says he had concerns as well: “When we started this process and I would have staff meetings with the code enforcement department, I didn’t feel I was getting good clean information. The code board was also being informed at the last minute about cases they were getting ready to hear.”

Hernstadt aims to change the negative perception, and to do that, the department is first getting back to basics. “We are trying to put some structure into the organization,” he says. “We are creating work standards and performance standards, a methodology by which all codes will be enforced.”

This means looking at how cases are being handled when compared to similar cases. For example, how did code enforcement officers handle each complaint about an overgrown lot? Did officers handle each case the exact same way, or did they offer leniency or an extension to one property owner while coming down hard on another? What are the parameters for giving a property owner extra time to comply?

“We want to create a scenario where if people are caught breaking the code we teach them and their whole sphere not to do that…We want to make sure the cases move through the process more systematically,” notes Hernstadt. “We have to develop good processes and procedures for what we do. If we can get to the point where we can look at a case and not know which officer handled it, then we are in good shape.”

The second component will be the magistrate. Two City Council meetings ago, councilors made the decision to migrate from using the Code Enforcement Board to a magistrate, and at the most recent City Council meeting, they agreed to the qualifications for the purposes of running an ad for potential magistrates. The city is considering hiring three magistrates with a legal backgrounds who have experience mediating and adjudicating issues.

“The magistrate ordinance will be the meat and potatoes of how the position will operate,” says Hernstadt, who has worked with both magistrates and code boards during his municipal career. “The magistrate is the most effective and efficient way to handle code enforcement cases. With the board, you get the benefit of the jury of your peers, but a magistrate provides cleaner, more uniform decisions. Plus, a magistrate won’t feel obligated to take the city’s case if it is not well-prepared either. It helps the city get better, and the staff learns from that process and corrects the mistakes.”

Currently, city staff and City Attorney Burt Saunders are working on the ordinance language, and the first reading of the magistrate ordinance is scheduled for a November City Council meeting. When the magistrate is seated — possibly by January — code violations can be appealed in front of the magistrate, or if a citizen has been fined, he or she can ask for it to be reduced. If the citizen remains unhappy with the magistrate’s decision, the only remedy is to go to court.

The final component of the code enforcement overhaul is a new Code Advisory Committee. Like with all city advisory boards, councilors will nominate a person to sit on the committee, and those individuals will be tasked with helping the city write or rewrite the codes that provide the criteria for governing quality of life issues within the city.

“Right now, the code is ambiguous, and if you go to the code, you should be able to know what you can and can’t do to maintain your property,” Hernstadt explains. “We are looking for clarity from the committee…They will go page-by-page through (the code), and help us make it as clear cut as we can make it…It will be a working committee, not sitting up on a dais and judging down.”

During its regular Oct. 6 meeting, the City Council discussed the resolution that would create the Code Advisory Board and provided staff with direction on the issue. The resolution will be presented for final adoption during the Oct. 20 City Council meeting.


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