Decision by judge or jury? Alternatives to traditional code enforcement boards.

• Author: Consalo, Karen Zagrodny
• Position: Florida

Through F.S. Ch. 162, the Local Government Code Enforcement Boards Act, the legislature expressly granted Florida cities and counties the power to enforce their codes through a variety of tools, including fines, abatement, and foreclosure. These tools established by Ch. 162 enable local governments to ensure compliance with any local code or ordinance. (1) Local codes subject to enforcement action can include matters ranging from zoning violations, tree cutting, creation of nuisances, excessive noise, unsafe buildings, and nearly any other matter properly regulated in the local government code.

Traditional Use of Code Enforcement Boards to Effectuate Code Enforcement

Enforcement of local government ordinances has traditionally been effectuated by volunteers from the community, appointed by local government elected officials and empaneled as the local code enforcement board. The Local Government Code Enforcement Boards Act requires that, when possible, such boards be composed of "an architect, a businessperson, an engineer, a general contractor, a subcontractor, and a realtor." (2) Unlike other appointed city or county boards, the code enforcement board has a significant amount of autonomy and authority in that its decisions are final. Neither the board's finding of a violation nor its establishment of a fine for the violation require further approval by the city council or county commission. Rather, the only avenue by which the decision of a code enforcement board may be challenged is through appeal to the local circuit court. (3)

Pros and Cons to the Use of Code Enforcement Boards

There are many apparent benefits to the use of volunteer boards to adjudicate code enforcement violations. As community volunteers, members of code enforcement boards typically have an intimate understanding of their community, including its historic and current development patterns, areas of local blight, the reputation of local landlords and land-holding trusts, pending redevelopment efforts, and other civic matters that may enable the board to review pending cases in the context of a larger understanding of community well-being. Further, like the composition of a jury, these community members are the peers of local land owners that may have alleged code enforcement violations.

Further, as civic-minded volunteers, the board members serve without compensation, allowing local governments to expend little in direct costs or staff time to ensure this vital aspect of local government is accomplished responsibly.

However, there are several drawbacks to the use of community volunteer boards to effectuate code enforcement. Some local governments, particularly smaller cities, run into difficulty in consistently filling these volunteer positions. Per F.S. [section]162.05, the board must be composed of either five or seven members depending on the size of the local government. (4) While finding sufficient volunteers is not a difficulty for larger cities, it can be extremely challenging for smaller cities with a smaller pool of community members to fill the board vacancies. In a similar vein, some cities and counties experience poor attendance rates by the volunteer members. When sufficient volunteers cannot be located to fill vacancies, or a quorum cannot be met, the volunteer boards cannot conduct business, and code enforcement violations remain unaddressed for months at a time. (5)

Some local governments have also found that board members drawn from the local community may also come to the board with predetermined loyalties, vendettas, or biases that prohibit those members from affording the due process necessary to this quasi-judicial process. If such predispositions for or against a landowner can be demonstrated in a judicial challenge, it may result in a reversal of the code enforcement action. Even when not challenged in court, a perception of such personal predisposition of board members erodes local confidence in the fairness of these enforcement actions.

Although as noted above, there is a perception of cost-savings by use of a volunteer board, one must keep in mind that F.S. [section]162.05 requires local governments to retain a separate legal advisor for their code enforcement boards from the government's general legal counsel. (6) This statutory mandate to employ an additional attorney as advisor to the volunteer board may negate the cost savings of using a volunteer board.

Members of a code enforcement board rarely are required to have any legal training or special knowledge of the local zoning codes. Rather, the statutory criteria to serve on a code enforcement board is simply a desire to serve on the board and appointment by the appropriate government officials. In this regard, the composition of a code enforcement board is much like an empaneled jury, if a jury governed all conduct in the courtroom. However, without legal training, such volunteers may lack the legal skills necessary to conduct the code enforcement hearings, particularly during board discussion and imposition of penalty phases, which meet legal requirements. The failure of a board to follow the detailed processes set forth in Ch. 162, as well as ensuring the substantive and procedural due process required in these types of hearings, can lead to indefensible orders that are overturned by the courts. While a local government must appoint independent legal counsel to advise its code enforcement board, such legal counsel is merely advisory and cannot compel the board members to...