Fresno's "Tough on Slumlords" posturing runs into the Constitution

Fresno City Hall’s war on slumlords may be turning into a war on private property.

Ed Johnson will weigh in on one side or the other real soon. First, though, the city’s code enforcement judge wants expert legal advice on what he sees as a troubling trend.

City Hall is assessing fines on the owners of ugly properties that are so big they might constitute a violation of the owners’ Constitutional protections against government overreach.

At issue is Fresno’s Vacant Blighted Building Ordinance. The law was passed by the City Council and signed by Mayor Ashley Swearengin last spring. It figures to be the first of several sweeping pieces of legislation designed to rehabilitate Fresno’s stock of residential and commercial buildings.

Simply put, too many of our buildings (inside and out) look terrible. City Hall’s focus at this point is on housing.

Code enforcement, a division of the city’s planning department, is charged with enforcing the new blight law.

I once wrote a 5,000-word blog for The Bee on the history and politicization of local code enforcement – and barely touched the topic’s surface. We won’t go there again.

It’s sufficient to note that the blight law requires property owners to keep the exteriors of their vacant buildings looking sharp. The law covers yards, too.

As I said, the city these days is concentrating on vacant houses. Landlords with vacant houses in rougher neighborhoods generally cover the windows with thick slabs of plywood. Otherwise, the homeless and the bad guys will get in. The blight law requires windows visible from the street to be covered with a clear Plexiglass-type material.

Property owners who don’t follow the rules get a warning. If that doesn’t work, the fines come. You’re looking at $250 per day per offense (plywood on a front window is one offense; tall weeds is a second; peeling paint is a third).

Code enforcement officers do all this policing. Property owners can appeal the fines. Johnson, the city’s independent administrative hearing officer, handles the appeals.

Johnson’s word is final within the confines of City Hall. The only alternative for the losing side is to take the matter to Superior Court.

City Hall for the past eight months has been busy putting the blight law into action. This means a lot of things. For example, the city as of last May had about 191,000 housing units – single-family houses, duplexes, triplexes, apartment complexes. How many vacant properties fit the definition of “blight” according to the new law? City workers after considerable study found more than 1,000 such properties.

And, of course, it’s in the nature of time and market forces that buildings are constantly transitioning from vacant to occupied to vacant. The pool of buildings that might run afoul of the blight law will never go dry.

Bottom line – the first trickle of landlords appealing their fines under the new blight law is making its way to Johnson’s makeshift courtroom near the City Council Chamber.

Johnson has seven such appeals before him, almost ready for decision, and another dozen or so waiting in the wings.

Two things about the cases strike Johnson as eye-catching.

First is the city’s process for applying its power.

The landlord is first given a courtesy notice: You’re property looks terrible for these reasons. Please fix things.

Then the reluctant landlord is given something called a “notice and order” letter: You are ordered to fix things, and face big fines if you don’t.

Then, after 30 days of continued dilly-dallying, the landlord is hit with the fine: $250 per day per offense, retroactive to the day of the “notice and order.”

The second thing that’s sobering is how fast the fine can grow.

Let’s say you’ve covered that big living room window of your vacant house on Oak Street with plywood rather than a clear material. You’ve heard several times from code enforcement. You haven’t gotten around to removing the plywood. Then you open your mail and find a letter from City Hall: Pay $7,500 or we’ll put a lien on your property.

“Seventy-five hundred bucks?” you yell. “For keeping the drug addicts out of my house? On top of that, I thought City Hall and I were still in the talking stage.”

Near as I can tell, that’s pretty much the essence of the appeals before Johnson. He told me the biggest fine among the 20 or so before him is $37,500.

Johnson is no stranger to appeals involving big fines. He heard a case last year involving the cultivation of 119 marijuana plants. The fine was $119,000. The appeal had many fine points, not the least being whether the appellant was given fair notice and whether the fine was excessive.

Johnson’s 19-page decision came down on the city’s side. But it wasn’t a resounding victory for City Hall. Johnson said the appellant made some worthy Constitutional points.

The Constitution’s Eighth Amendment says: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

It’s that middle protection – “nor excessive fines imposed” – that is catching Johnson’s attention these days.

So, Johnson figures he can see a future with a growing volume of landlord appeals involving the new blight law. To lay a solid foundation for resolving the conflict ahead, Johnson sent a letter dated Feb. 4 to City Attorney Doug Sloan.

Johnson asked five questions:

1.) “When a vacant building is secured with plywood instead of a ‘Lexan type material,’ does a fine of $7,500 meet the United States Supreme Court rule that fines must not be grossly disproportional to the gravity of the offense?”

2.) “When a vacant building has painted exterior wood surfaces that are oxidized and peeling, exposing them to weather damage, does a fine of $7,500 meet the United States Supreme Court rule that fines must not be grossly disproportional to the gravity of the offense?”

3.) “When a vacant building has an exterior wall at the front of the house that is deteriorated and needs stucco, does a fine of $7,500 meet the United States Supreme Court that fines must not be grossly disproportional to the gravity of the offense?”

4.) “When a vacant building site has trees that are overgrown causing a fire hazard, does a fine of $7,500 meet the United States Supreme Court rule that fines must not be grossly disproportional to the gravity of the offense?”

5.) “When a vacant building site has tall and/or dry (or likely to become dry) weeds/grass located throughout the property, does a fine of $7,500 meet the United States Supreme Court rule that fines must not be grossly disproportional to the gravity of the offense?”

Johnson asked for a speedy answer.

Deputy City Attorney Tracy Parvanian responded with a four-page letter dated Feb. 9. She began by reviewing the three appeals of immediate interest to Johnson and the wheels of justice.

1.) 1544 N. Pacific Avenue (about a half-mile west of Fresno High School). Windows and doors covered with plywood. Exterior wood surfaces oxidized and peeling, exposing them to weather damage. No action after the “notice and order” letter. Fine: $15,000. Appellant: Elizabeth Mondol.

2.) 945 N. Safford Avenue (about a half-mile west of Tower Theatre). Windows and doors boarded with plywood. No action after the “notice and order” letter. Fine: $7,500. Appellant: Maria Hernandez.

3.) 1612 B Street (West Fresno). Boarded windows and doors. Unfinished exterior. Tall grass and weeds. Overgrown landscaping. No action after the “notice and order” letter. Fine: $30,000. Appellant: Khela Baldev.

Based on my Google search, all three appear to be single-family residences.

To be sure, Parvanian said, fines can hurt, “but their primary purpose is to secure obedience to statutes and regulations imposed to assure important public policy objectives.”

These objectives involving the blight law include neighborhood health, safety and stability, Parvanian said. She added that there is ample state law to justify the city’s method of enforcing the blight law.

In conclusion, Parvanian said, the city “has a legitimate police power goal” of enforcing the law. The three appellants “had multiple chances to fix the violations without a fine and failed to do so and further failed to provide evidence of their inability to pay the fines.”

Johnson wasn’t satisfied. He fired back a letter dated Feb. 11 to Sloan’s office. It wasn’t a long letter. Johnson noted that the federal and state Constitutions “require procedural fairness.” He said state and local laws require City Hall to give folks enough time to fix a problem.

Then he asked one final question.

“When a Notice and Order allows for a compliance period which is not met,” Johnson said, “does the issuance of a citation and fine for each day of the compliance period, retroactively applied, comply with the letter, spirit and intent of due process, the Government Code and the Municipal Code?”

Johnson told me late last week that he expected to get a reply from Sloan’s office by late Friday afternoon. Johnson said he would study the response before issuing his first judgments on landlord appeals to the Vacant Blighted Building Ordinance.

As I said above, there are lots of pieces to this blight law. More, no doubt, will be added in the coming months and years. Coordinating them into a smooth-running machine will be a challenge. For example, this story makes me think of the city’s receivership program. It’s still in its infancy. It’s not unreasonable to think the blight law could lead to properties changing hands due to the way the city uses its policing powers.

Maybe lots or properties. If so, in the end someone other than City Hall will get control of this real estate. Who?

Johnson’s fine work as code enforcement judge seldom gets the attention it deserves from the media. I’m guessing these first appeals to the blight law will change that.