2016-2018 The Park Plaza Purchase

I question the method

 

SPENCER BOARD OF ALDERMEN MEETING

JUNE 14, 2016

7:00 P.M.

 

MEMBERS PRESENT:  Mayor Jim Gobbel

                                         Mayor Pro-Tem Sylvia Chillcott

                                         Aldermen:  Mike Boone

                                                            David Lamanno

                                                            David Smith

                                                            Howard White

 

17.  ORDINANCE AMENDMENT 16-04—PULIC HEALTH & SAFETY MATTERS; PUBLIC NUISANCES

 

MOTION WAS MADE BY ALDERMAN JONES TO APPROVE THE ORDINANCE AMENDMENT 16-04, CONCERNING THE PENALTY FOR PUBLIC HEALTH & SAFETY MATTERS; PUBLIC NUISANCES.  MOTION WAS SECONDED BY ALDERMAN SMITH AND CARRIED UNANIMOUSLY.

 

 

 

Bookmark§ 10.99  GENERAL PENALTY.

   Any person, firm or corporation violating any of the provisions of any section or subsection of this code of ordinances for which no other penalty is provided, or failing, neglecting or refusing to comply with the same shall, upon conviction, be guilty of a Class 3 misdemeanor and subject to a fine not to exceed $100 or imprisonment not to exceed 30 days, and each day that any of the provisions of this code of ordinances are violated shall constitute a separate offense with a fine not to exceed $200.

(G.S. § 14-4(a))    (Am. Ord. 15-05, passed 4-12-16)

Statutory reference:

   For provisions concerning enforcement of ordinances, see G.S. § 160A-175

 

NC Code

§ 160A-175.  Enforcement of ordinances.

(a)       A city shall have power to impose fines and penalties for violation of its ordinances, and may secure injunctions and abatement orders to further insure compliance with its ordinances as provided by this section.

(b)       Unless the Council shall otherwise provide, violation of a city ordinance is a misdemeanor or infraction as provided by G.S. 14-4. An ordinance may provide by express statement that the maximum fine, term of imprisonment, or infraction penalty to be imposed for a violation is some amount of money or number of days less than the maximum imposed by G.S. 14-4.

(c)       An ordinance may provide that violation shall subject the offender to a civil penalty to be recovered by the city in a civil action in the nature of debt if the offender does not pay the penalty within a prescribed period of time after he has been cited for violation of the ordinance.

(c1)     An ordinance may provide for the recovery of a civil penalty by the city for violation of the fire prevention code of the State Building Code as authorized under G.S. 143-139.

(d)       An ordinance may provide that it may be enforced by an appropriate equitable remedy issuing from a court of competent jurisdiction. In such case, the General Court of Justice shall have jurisdiction to issue such orders as may be appropriate, and it shall not be a defense to the application of the city for equitable relief that there is an adequate remedy at law.

(e)       An ordinance that makes unlawful a condition existing upon or use made of real property may be enforced by injunction and order of abatement, and the General Court of Justice shall have jurisdiction to issue such orders. When a violation of such an ordinance occurs the city may apply to the appropriate division of the General Court of Justice for a mandatory or prohibitory injunction and order of abatement commanding the defendant to correct the unlawful condition upon or cease the unlawful use of the property. The action shall be governed in all respects by the laws and rules governing civil proceedings, including the Rules of Civil Procedure in general and Rule 65 in particular.

In addition to an injunction, the court may enter an order of abatement as a part of the judgment in the cause. An order of abatement may direct that buildings or other structures on the property be closed, demolished, or removed; that fixtures, furniture, or other movable property be removed from buildings on the property; that grass and weeds be cut; that improvements or repairs be made; or that any other action be taken that is necessary to bring the property into compliance with the ordinance. If the defendant fails or refuses to comply with an injunction or with an order of abatement within the time allowed by the court, he may be cited for contempt, and the city may execute the order of abatement. The city shall have a lien on the property for the cost of executing an order of abatement in the nature of a mechanic's and materialman's lien. The defendant may secure cancellation of an order of abatement by paying all costs of the proceedings

§ 160A-365.  Enforcement of ordinances.

(a)       Subject to the provisions of the ordinance, any ordinance adopted pursuant to authority conferred by this Article may be enforced by any remedy provided by G.S. 160A-175.

(b)       When any ordinance adopted pursuant to authority conferred by this Article is to be applied or enforced in any area outside the territorial jurisdiction of the city as described in G.S. 160A-360(a), the city and the property owner shall certify that the application or enforcement of the city ordinance is not under coercion or otherwise based upon any representation by the city that the city's approval of any land use planning would be withheld from the property owner without the application or enforcement of the city ordinance outside the territorial jurisdiction of the city. The certification may be evidenced by a signed statement of the parties on any approved plat recorded in accordance with this Article.  (1971, c. 698, s. 1; 2015-246, s. 3.)

 

§ 160A-416.  Failure to perform duties.

(a)       If any member of an inspection department shall willfully fail to perform the duties required of him by law, or willfully shall improperly issue a permit, or shall give a certificate of compliance without first making the inspections required by law, or willfully shall improperly give a certificate of compliance, he shall be guilty of a Class 1 misdemeanor.

(b)       A member of the inspection department shall not be in violation of this section when the city, its inspection department, or one of the inspectors accepted a signed written document of compliance with the North Carolina State Building Code or the North Carolina Residential Code for One- and Two-Family Dwellings from a licensed architect or licensed engineer in accordance with G.S. 160A-412(c).  (1969, c. 1065, s. 1; 1971, c. 698, s. 1; 1993, c. 539, s. 1089; 1994, Ex. Sess., c. 24, s. 14(c); 2015-145, s. 9(d).)

 

§ 160A-425.  Defects in buildings to be corrected.

When a local inspector finds any defects in a building, or finds that the building has not been constructed in accordance with the applicable State and local laws, or that a building because of its condition is dangerous or contains fire hazardous conditions, it shall be his duty to notify the owner or occupant of the building of its defects, hazardous conditions, or failure to comply with law. The owner or occupant shall each immediately remedy the defects, hazardous conditions, or violations of law in the property he owns. (1905, c. 506, s. 28; Rev., s. 3009; 1915, c. 192, s. 14; C.S., s. 2771; 1969, c. 1065, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 67.)

 

The Park Plaza owner did not comply with the law from 3/21/2016 till the time they sold the property to the Town of Spencer?  That is 27 months that the town turned a blind eye toward the largest and biggest violator of the code since Spencer incorporated.   WHY?

 Did the mayor at the time use coercion to get them to sell?  Did he try to coerce them into selling?

For 27 months the Town of Spencer refused to enforce the law.


The mayor for 27 months refused to enforce the law.....
§ 160A-175.  Enforcement of ordinances.

The mayor for 27 months refused to allow town employees to do their duties.
§ 160A-416.  Failure to perform duties.

The mayor for 27 months refused to force the repair of the Park Plaza.
§ 160A-425.  Defects in buildings to be corrected.




This is an official response from Town Hall Spencer, NC

Dated 2/21/2019

 


 

I asked the question:

Please refer me to the code that makes it unlawful for the HPC/LMD to use private home owners/residents to clean/remove brush/trim hedges to work on R/Ws or private property.

No codes that I can find makes this question unlawful.

 

I asked the question:

Please refer me to code that states the home owner is responsible for maintaining property that is located between sidewalk and curb.

 

Responsibility of Property Owner for Maintenance between property line and edge of pavement

 

93.21  NUISANCES DECLARED.

   (A)   The following enumerated and described conditions are hereby found, deemed and declared to constitute a detriment, danger and hazard to the health, safety, morals and general welfare of the inhabitants of the town and are found, deemed and declared to be public nuisances wherever the same may exist, and the creation, maintenance or failure to abate the nuisances is hereby declared unlawful:

      (1)   Any condition which is a breeding ground or harbor for mosquitoes or a breeding ground or harbor for rats or other pests;

      (2)   A place of heavy growth of weeds or other noxious vegetation over eight inches in height.  This shall include the area between a property line and the edge of pavement of any abutting street, and to the centerline of any abutting alleyway;

 

 I asked the question:

Please refer me to the code that gives the Town Manager or Mayor to delay/suspend enforcing any code.

There is not a code that gives this authority, however in the Personnel Policy the employee can be disciplined or dismissed if the job duties are not performed to meet the standards by the Town Manager.

In addition, if the enforcement authority of any parts of the codes are not delegated to a staff member, than the Town Manager retains the enforcement officer authority. Example: Commercial Maintenance Code Administrator was never conveyed to a staff member by the former Town Manager. Therefore, no commercial code was enforced from April 2016 to November 2018.

 

Town Manager Sets the Standards for Staff

Personnel Policy – Article VIII Section 2

  1. Failure in Performance of Duties

Failure in the performance of duties includes any aspects of the employee’s job which are not performed as required to meet the standards set by the Town Manager.

 

Commercial Maintenance Code - 152.01 Definitions

MAINTENANCE CODE ADMINISTRATOR.  The person delegated as the same by the town manager.

The Director of Land Management wasn’t delegated this authority by Manager Reid Walters.

The Director of Land Management was delegated this authority in November 2018 by Manager Arrington when directed to enforce the Commercial Maintenance Code.

 

 

Town Code

Sec. 1.  Appointment, qualifications, term, compensation and duties of town manager.

   The charter of the Town of Spencer be and the same is hereby amended by adding thereto the following:

   “The board of aldermen shall appoint a town manager who shall be responsible for the administration of all departments of the town government.  He shall be appointed with regard to merit only, and he need not be a resident of the town when appointed.  He shall hold office during the pleasure of the board of aldermen and shall receive such compensation as it shall fix by ordinance.

 

   “The town manager so appointed shall:

   (1)   be responsible for the administration of all departments of the town government;

   (2)   see that within the town the laws of the state and the ordinances, resolutions and regulations of the governing body are faithfully executed;

   (3)   attend all meetings of the governing body, and recommend for adoption such measures as he shall deem expedient;

   (4)   make reports to the governing body from time to time upon the affairs of the town, keep the governing body fully advised of the town's financial condition and its future financial needs;

   (5)   shall perform the duties of tax collector, municipal accountant and purchasing agent in addition to the above-mentioned duties;

   (6)   perform such other duties as may be required of him by the mayor and board of aldermen.”

 

 

93.20  ENFORCEMENT.

   The Town Manager shall appoint an individual as enforcement officer for this subchapter.  The individual so appointed shall have the duty of full enforcement of this subchapter, and any enforcement officer shall be clothed with full power and authority imposed by this subchapter, and is hereby authorized and directed to proceed to carry out the provisions of this subchapter.

 

The order by Reid Walters, Town Manager in 2016 ordering  LMD  to suspend enforcement, (Per letter from LMD to Town Manager in letter dated November 21, 2018 was NOT legal and Town Manager Reid Walters did not have that authority.


 I asked the question:

Please refer me to the code that gives the Town Manager or Mayor to delay/suspend enforcing any code.

There is not a code that gives this authority, however in the Personnel Policy the employee can be disciplined or dismissed if the job duties are not performed to meet the standards by the Town Manager.

In addition, if the enforcement authority of any parts of the codes are not delegated to a staff member, than the Town Manager retains the enforcement officer authority. Example: Commercial Maintenance Code Administrator was never conveyed to a staff member by the former Town Manager. Therefore, no commercial code was enforced from April 2016 to November 2018.

 

 




The town manager in spring of 2016 tried to coerce the Park Plaza owner into negotiations to sell the property to the town of Spencer.

For 27 months code enforcement employees were placed in a very precarious position by not allowing them to perform their duties while continually enforcing rules and regulations among the cheap seat taxpayers.

We now have a new aggressive "even steven" for a Town Manager.  From what I can see the town manager/LDM working together has begun in 12/2018 enforcing the code more evenly and notified the Plaza owners of 65 violations.  The Plaza owner was notified at some point between November and end of December. 

Do any of you find it odd that with the largest violator in the town with 65 known violations would have been able to slide by for 27 months???

How many cheap seat tax payers were zinged and paid fines during those 27 months??

My final thought.  With letter going to the owners of the Plaza warning them of legal action that could result in fines of

$1,126,125.00 do you not think that would persuade the owner into selling?

 

I CALL THAT COERCION!!!

If you received a certified letter from the City of Spencer with the projected figures below would you feel COERSED INTO SELLING?

$1,126.125.00 IN FINES
IF YOU DON'T SIGN HERE!!!

 

Final thought:

I have been impressed with the job that Mr. Arrington, Town Manager and Mr. Powell, LDM have both been doing an impressive job.  Mr. Arrington did step into a hornet's nest dealing with the Plaza.

 

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The more we knee jerk the

 more we stay the same