Towards A More Effective Code Enforcement Strategy

Towards A More Effective Code Enforcement Strategy

Dale Powers, MA, AICPIndependent Code Enforcement Consultant

Clear Lake, Minnesota [email protected]

SOUTH DAKOTA ASSOCIATION OF CODE ENFORCEMENTInformation and Training Conference

Mitchell

About Dale Powers• BA in Geography; MA in public administration• City administrator, code enforcement agent, city/county planner,

city coordinator, HOA executive director, and city council member

• 20+ years experience in the areas of zoning and property maintenance code enforcement

• Brought numerous properties into compliance – 3% through non-voluntary methods

• Called in when “traditional” ways haven’t worked – usually uses that require a permit

• Had a gun pulled and cocked on me during an enforcement visit

About this presentation

• The fundamental flaws in the standard enforcement model

• A New Approach: Core Principles• A New Approach: Steps in the Process• Benefits to this Approach

Applications

• Non-”life safety” situations. • First time offenders• No previous contact with property owner

The “Standard” Enforcement Model

• Receipt of complaint • Field investigation and documentation• Determination if the condition of the property

constitute a violation • “NOTICE OF VIOLATION” is sent by MAIL


• Either way, the intent of the NOV is to scare the livin’ $#it out of the property owner

• Gives the impression that failure to comply is the functional equivalent of capital murder


The NOV “motivates” the property owner to comply; of course, it’s a NEGATIVE motivation that might carry NEGATIVE consequences for the enforcement agent

Issues with the “Traditional” Approach

STAFFING• Using building inspectors and building

inspection methodology for zoning and property maintenance code enforcement.

• Building codes are “black and white”; it either meets the code or it isn’t

• Kinda sorta like pregnancy: you are or you aren’t!

Staffing• Zoning and property maintenance enforcement operates in shades of grey• Building codes are usually developed by the state; zoning and property

maintenance codes are adopted by the locality• With building code violations, the person on the other end (most of the

time) is a contractor, not the property owner. The contractor risks his license and his income if compliance isn’t achieved.

• With zoning and property maintenance codes, the person on the other end is the property owner.

• Property owners DO get pi$$ed off if they are treated without respect. Pi$$ed off property owners have a way of showing up at the polls…..

• Interpersonal communication (tactfulness) and negotiating skills (diplomacy) are mandatory for zoning enforcement; not necessary for building code enforcement

Staffing

• In smaller cities, enforcement usually falls on the city clerk or an elected official

• Each has no clue about enforcement• The clerk is unwittingly placed in the crossfire

between a complainant and the violator• Elected officials are policymakers, not

enforcement agents. They are more likely to hear the “squeaky wheel” if the violator is squeaking.

Process• Everything is in writing!• Very little personal interaction• The public already has a jaded view of government,

and resents being treated like a number instead of a human being

• Detached process rarely reflects positively on city staff• Nuance is lost• Nuance is what specifically differentiates

zoning/property maintenance enforcement from building code enforcement.

Nuance: Two Kinds

CIRCUMSTANTIAL• Involves the particular plight of the property

owner • Circumstance plays a part in determining the

veracity of the property owner – “can he be trusted”

PERSONAL TRAITS• Voice inflection, modulation, and body

language

Benefits of a New Approach• Lower stress levels…for YOU and the property owner• Lower costs (less need for proactive abatement, much less

need to use the judicial process)• Higher esteem in the locality• Code enforcement is not seen as the evil Cruella De Vil of

local government• Code enforcement IS seen as a generator of good will in the

community while maintaining property values and eliminating blight.

• Code enforcement agents seen in a positive light in the community are more likely to see pay increases.

Core Principles

• The Initial Interaction Should Always Be Oral• Separation of the Animate and Inanimate

Objects in the Process• People Inherently Prefer to Clean Up Their

Own Mess• Silence is Golden

The Initial Interaction Should Always Be Oral

• Current trend is e-mailing/texting• People still prefer face-to-face communication• Cities recognize this through use of public forums, community

festivals, etc. • In application, staff hesitates to use the oral form of communication

– for fear of getting into a “he said she said” argument• The written word is less likely to be challenged by supervisors• City management (generally) prefers a structured system of written

instructions for code enforcement actions in order to control the communication

• While admirable in some applications, structure tends to turn easily resolvable violations into the potential of a major battle – in a court of law and, perhaps, in the court of City Council opinion.


• Nuance is lost with the written word• Example: “I REALLY love watching NASCAR”• Is the writer a fan of NASCAR, or does the

writer hate NASCAR?• Punctuation errors not caught by spell checker

can have disastrous results• Example: “Let’s eat, Grandpa!”• Example: “Let’s eat Grandpa!”


• Another factor in nuance is the many ways we communicate with each other

• Study by management “guru” W. Edwards Deming found that we communicate through the words we say; voice inflection, tone, and modulation; and body

• What did the study say about the percentages of each of these categories?


• Multiple choice quiz• WORDS WE SAY: 10% - 20% - 70%• VOICE INFLECTION, TONE AND MODULATION:

10% - 20% - 70% • BODY LANGUAGE: 10% - 20% - 70%


• ANSWERS• WORDS WE SAY: 10% - 20% - 70%• WORDS WE SAY: 10%• VOICE INFLECTION, TONE AND MODULATION:

10% - 20% - 70% • VOICE INFLECTION, TONE AND MODULATION:

20%• BODY LANGUAGE: 10% - 20% - 70%• BODY LANGUAGE: 70%


• That means that letters only allow us to use 10% of our communications capacity!

• Oral communication via a phone call TRIPLES our communications capacity to 30%....

• …and allows us to inject NUANCE into the conversation!• A personal visit to the property owner allows us to use ALL of our

communications capacity• Since the purpose of the communication is to alert the property

owner that his/her property is in violation, wouldn’t it be best to use all of the tools available?

• Notice how I put that last bullet point…..• ….it goes to the next core principle

Separation of the Animate and Inanimate Objects

• There is a tendency for us to personalize the code

• It’s almost as if the property in question is violating our own personal code instead of the City’s

• That’s how it appears to most property owners• Subjects the City to an “arbitrary and

capricious” claim


• In an enforcement situation, there are animate objects and inanimate objects

• What are the animate objects?• CODE ENFORCEMENT AGENT• PROPERTY OWNER• What are the inanimate objects?• CODE/ORDINANCE• CONDITION OF THE PROPERTY


• It is incumbent on the code enforcement agent to establish that separation in order to come up with a “win-win” resolution

• A “win-lose” resolution – even if the agent wins and the property owner loses – will result in negative consequences over the long run

• What do you believe would be a negative consequence of a “win-lose” resolution?


• A “win-win” discussion becomes one between two people that need to resolve a problem

• More conducive to a positive resolution• To illustrate, recall the last time you shopped for a car• The conversation involved animate and inanimate objects• The animate objects were you and the car salesman• The inanimate objects were the car and the amount of

money you were prepared to spend• In most situations, these “arms length” negotiations

resulted in you buying the car you wanted at a fair price to the dealer


• Imagine a situation where you find the car you’re looking for, but it’s for sale by a private party and is overpriced.

• The owner of the car may have some fond memories with that car, and those memories are capitalized into the price the owner wants for it

• You understand and appreciate why that car means so much to the seller, but you’re still not going to pay more than fair value for that car

• In this situation, the seller made the car an “animate” object; by doing so priced the car beyond its value to the general public


• In the context of code enforcement, by making an “inanimate” object like the code/ordinance “animate”, you are not likely to come up with a reasonable compliance solution commensurate with the condition of the property.

• Increases the likelihood of appeal or use of the judicial process, because the property owner won’t feel like he/she is being treated fairly in the transaction.

People Inherently Prefer to Clean Up Their Own Mess

• Imagine you’re at a social event • You accidently knock over someone’s beer or

something else• Almost by instinct, we accept responsibility,

apologize for our actions, and look for a towel to clean up the mess

• As humans, we are acculturated to atone for our mistakes

People Inherently Prefer to Clean Up Their Own Mess

• The vast majority of code violators simple are unaware that their property is in a state of noncompliance

• By alerting them to the situation, virtually all of these property owners are eager to atone for their unknowing transgression and simply ask for the courtesy of time

• A property that took several years to become a pig sty will not be brought into compliance in 10 days, 2 weeks, or even a month.

Silence Is Golden

• Back to the car dealer• You found a used car you like that is priced at

$24,900• The salesman comes out to the lot, introduces

herself, and sells you on the car you’re hovering over

• Of course, you’ve done your homework on the fair market value of the car and offer $19,000

Silence Is Golden• What comes next? • SILENCE• This silence bugs you to no end, but the

saleswoman absolutely CRAVES IT!• During that silence, she is checking your facial

expression and body language – your “tells”• You’re thinking maybe your offer was too low• Almost without exception, you (not her) break

the silence and increase your offer to $21,000

Silence Is Golden• Without her saying a word, the saleswoman just put

$2,000 in her pocket• Why would she be eager to jump at your

“counteroffer”? • She knows you’re in love with the car SO MUCH that

you’re negotiating with yourself!• She says she needs to talk to her “sales manager”

for approval. • Trust me – both her and the manager are checking

your body language

Silence Is Golden

• After what seems like an agonizingly long period of time, the saleswoman comes out and says her “manager” won’t approve your offer of $21,000

• She said she might be able to convince the “manager” to accept $23,000 for the car

• Then what does she do?• SILENCE

Silence Is Golden• The silence is worse than the sound of fingernails on a

chalkboard• To escape – because you really want that car – you say

you’re willing to pay $23,000 • The saleswoman goes back to the “manager” to “fight for

you”• She comes back and says that she was able to “convince”

the “manager” to accept $23,000 for the car• You just put $4,000 into the dealer’s back pocket• The dealer knew the fair market value of the car and would

have accepted $19,000

Silence Is Golden• The saleswoman used SILENCE to gain an edge in the negotiations• Can you see where this can be used in compliance negotiations?• Imagine you’re at a property negotiating compliance terms with the

property owner• By this time, you’ve had enough time to determine how long it should

take the average person to bring the property into compliance.• During the negotiations, you ask the property owner how long she

needs to bring her property into compliance• An awkward silence fills the air• Remember – the first person to talk LOSES the negotiating advantage.

Turning Theory Into Practice: Steps in the Process

There are 7 steps in this process• Determination of Compliance Timeline• Notification to the Property Owner• Negotiating Compliance Terms• Oral Confirmation of Compliance Terms• Contract• Monitoring• Post-Timeline Activity

Determination of Compliance Timeline

• You’re there, anyway….to see whether the condition of the property is a violation

• While you’re at the property, calculate how long it would take a reasonable person to bring the property into compliance

• Factors that play into the calculation• Health safety determination; immediate threats need to be abated in

a timely matter• Residential or C/I property: C/I properties generally have the financial

means to timely comply• Residential properties need to take into account the financial

resources of the property owner• This is especially true for non-threatening property maintenance

situations

Notification to the Property Owner• While at the property, knock on the door• If property owner is present, establish identification and say

“I suppose you’re wondering why I’m here this morning?”• Invariably, the response will be “well, as a matter of fact I am

wondering that!”• At that point, the enforcement agent should state that the

City received a complaint about the property. • Note that the agent did not say the City received a complaint

about the property owner.• This is deliberate and sets the stage for the next step in the

process – negotiating a compliance timeline

Notification to the Property Owner• If the property owner isn’t home, the enforcement agent should

leave a business card in the door…• …with a handwritten instruction to “please call”• I’ve done this close to 1000 times – the property owner calls every

time! • Why do they call?• They’re CURIOUS…why was I there?• Curiosity killed the cat! • When the property owner calls, revert back to the “I suppose

you’re wondering why I was at your home, business, etc. – NEVER SAY PROPERTY (too jargony!)

• Proceed as from the previous slide

Negotiating Compliance Terms

• The agent persuades the property owner to step outside to view the condition of the property

• Enact separation of the animate and inanimate objects

• What are the animate objects?• What are the inanimate objects?

Negotiating Compliance Terms• Bear in mind that the property is in violation, not the property owner • The agent needs to demonstrate a degree of detachment from the

code/ordinance• Have a copy of the code/ordinance with you to show to the property owner• As you are showing the code/ordinance, state “unfortunately, this section

of the ordinance appears to prohibit (state the property condition). I’m sure you were unaware of this requirement.”

• This statement is effective in creating and maintaining the animate/inanimate separation

• It allows the property owner an opportunity to look at the condition of the property dispassionately

• It acknowledges that you as the enforcement agent are not judging the property owner for the condition of his/her property

Negotiating Compliance Terms• Almost without exception, the property owner will engage in

small talk about how the property fell into noncompliance• Allow that conversation to play itself out; use reason in

determining if he/she is merely stalling for time• As the enforcement agent, it is up to you to start the

negotiations on compliance terms• A simple question is all that is needed• “How long do you think you need to bring your property into

compliance?”• “How long do you think you need to remove the junk

vehicles (or other action needed for achieving compliance)?

Negotiating Compliance Terms• Recall the discussion about people wanting to clean up

their own mess• The vast majority of property owners own up to their

responsibility and voluntarily comply – if given a reasonable amount of time to do so

• After asking the question, what do you do?• SILENCE!• Staying quiet will be the single most difficult task of the

process; however, if the enforcement agent speaks first, then she is negotiating with herself, not the property owner….and in that situation, she LOSES!

Negotiating Compliance Terms• If the agent keeps quiet, the property owner will respond with a time

request• It’s up to the agent to accept or reject the offer• Typically, in about 70% of the cases the time request will be acceptable• Quite often, the property owner will need less time that the agent was

willing to give!• For the other 30% of the cases, further negotiations will need to be made. • A rule of thumb is to “mirror” the extra time, so that the midpoint of the

two timelines is where you as an agent wanted to end up with anyway. • Example: If you think 3 weeks is the max, and the property owner asks for

4 weeks, counter with 2 weeks – compromising with 3 weeks• Use your best judgment on timelines. If you think 3 weeks is plenty, but

the property owner is asking for 2 months, to save the financial and PR costs of forced abatement it might be wise to go with 5-6 weeks.

Oral Confirmation of Compliance Terms

• Get oral confirmation/agreement on the compliance terms

• Basis for generating a contract between the City and the property owner

• Write it down on a blue line pad and give to the property owner in the field for him to sign

• Come back the next day with the formal contract

Contract • Signed by the enforcement agent and the property owner• During execution of the contract, advise the property owner that if

anything comes up that might cause the need for more time, he needs to contact the agent as soon as possible

• For sure, before the end of the negotiated timeline• This is extremely important, as it lets the property owner see you as being

empathetic with his situation and that you genuinely want to work with the property owner to achieve voluntary compliance

• Make sure that the contract states the consequences if compliance is not achieved by the agreed-upon time (e. g. citations, summary abatement, etc.)

• Since the contract uses the property owners own timeline, he/she is more motivated to make sure that timeline is met – “cleaning up my own mess”

Monitoring the Property

• Once the contract is signed, the property should be monitored to check on compliance progress

• It may appear that insufficient progress is being made

• The natural inclination is to stop in to find out what’s going on

Monitoring the Property• Should the agent check in with the property owner?• ABSOLUTELY NOT!• If the property owner has three weeks, the contract

has been followed even if compliance is achieved on the last day

• A deal is a deal!• An attempt by the agent to contact the property

owner may be perceived by her as a display of mistrust; once trust is broken, it will never be restored. Never!

Post-Timeline Activity• At this point, compliance has either been achieved or it hasn’t• If compliance is achieved, thank the property owner (thank

you cards come in handy), take some “after” pictures, and close out the file

• If compliance is not achieved, at this point it is appropriate to pay a visit to the property owner to see if they were any issues that prevented timely compliance

• Use your best judgment on extensions, but use them sparingly

• Trust me – the word will get out if extensions are handed out like candy in a parade

Post-Timeline Activity

• If this program is used as a prelude to a formal enforcement process, at this point commence the formal process and let it play out

• Using this method will only strengthen the City’s case, whether before the City Council or in court

Post-Timeline Activity• The next step is to introduce progressively increasing pressure points that

make it clear to the property owner that the City is serious about this matter

• On J/D and PM situations, one tactic I’ve used successfully is to contact a firm that specializes in cleaning up junk, siding or other PM matters and invite that firm out to the property at a time when I know the property owner will be present to observe

• The property owner, naturally, will want to know what’s going on• Say “This is Bill from ABC Junk Removal, and he’s looking at your property

to get an estimate for cleaning it up. You might want to come along with us, since the City will be sending you the bill.”

• This tactic works even in cities without summary abatement authority• If the City Council needs to approve the abatement (billing the property

owner), it will need to know the cost

BENEFITS OF THIS APPROACH

• Alleviates employee burnout• Minimizes animosity between the property

owner and the enforcement agent• Decreases compliance costs• Enhances the public’s opinion of City

enforcement staff

QUESTIONS

Towards A More Effective Code Enforcement Strategy

Documents

Transcript of Towards A More Effective Code Enforcement Strategy