On Wednesday, September 12, Mayor Bob Hall called a special meeting of Charlestown’s Common Council so that attorneys for the city could explain the recent Court of Appeals ruling in the Pleasant Ridge Neighborhood Case that overturned the preliminary injunction and remanded the issue back to Judge Jason Mount for further consideration. During this meeting, Mark Crandley, an attorney from Barnes and Thornburg who represented the city in the appeal, and City Attorney Michael Gillenwater recommended that the council vote to rescind the ordinance that adopted the Indiana Unsafe Building Law because doing so will clarify property maintenance in the future. Council members should move carefully on this issue, however, since the information presented in this meeting was misleading.
The attorneys suggested that the City’s own Property Maintenance Code, which was adopted in 2008 (available here 2008-OR-1) and revised in 2018 (available here 2018-OR-6), will be the most effective way to ensure that Charlestown has safe and habitable buildings. The attorneys base their recommendation on their interpretation of the order issued by the Court of Appeals and imply that the ruling prevents cities from having both the UBL and a PMC that work in conjunction with one another.
This interpretation appears to be wrong.
According to Mr. Crandley, “what you can’t do under the Court of Appeals’ decision is both, you can’t have your own property maintenance code and adopt the unsafe building law” (6:32 on meeting audio). The order issued by the Appellate Court does find that Charlestown’s previous USE of the UBL and the PMC seem to be in contradiction with one another, but it does NOT say that a city can only have one or the other. The order states,
“Specifically we conclude that because the City has adopted the UBL, the City is required to act in accordance with its provisions. That does not mean that the PMC is without legal force, but rather that the City is precluded from enforcing the PMC in a manner that is inconsistent with the UBL…Therefore, we remand for the trial court to consider how the UBL and the PMC work together in light of our conclusion that the PMC must work within the confines and strictures of the UBL” (Order pp 4-5, paragraph 3).
Knowing that the Court of Appeals leaves room to see how the two codes can work together, we should look carefully at the codes to understand how they can be applied in Charlestown to help meet our goals of ensuring the safety of our residents.
Charlestown’s Property Maintenance Code is much more specific than the Indiana Unsafe Building Law. Specificity is often good. The standards in the PMC are more precise in their description of what a “safe” structure includes, and they cover everything from electrical and heating/cooling to handrails and tears in window screens. In this regard, the PMC appears to be the better choice (if indeed a choice must be made).
The major problem for Charlestown residents lies in the area of code enforcement and fines for non-compliance. As noted in the Appeals’ Court Order, the Indiana Unsafe Building Law “provides procedural protections” for property owners who are notified that features of their property are in non-compliance (Order pg 6, paragraph 5). Specifically, the UBL gives owners “sufficient time” to repair their property before fines are imposed and limits the amount of fines and the rate at which they accrue (Order pg 7, paragraph 5). These protections prevent municipalities from abusing their authority and bullying property owners with excessive, accumulating fines.
Charlestown’s PMC as revised in 2018 removed these protections and allows the city to issue IMMEDIATE and ACCUMULATING fines, regardless of how quickly an owner brings his or her property into compliance.
Attorney Michael Gillenwater views the ability to issue immediate, accumulating, and unforgivable fines as a good thing for our citizens because he thinks that a grace period “will only encourage people to allow their properties to become unsafe” (10:08 on meeting audio). Mr. Gillenwater concurs with Mr. Crandley that the council must choose between the UBL and the PMC. He notes that his efforts in March of this year to reconcile the two were not sufficient. Unfortunately, Mr. Gillenwater has left off an important piece of information about that 2018 PMC revision.
When a city adopts an ordinance that addresses fire safety and prevention, they are required to submit the ordinance to the Indiana Department of Homeland Security’s Fire Prevention and Building Safety Commission for approval. This board checks the ordinance to make sure it is in compliance with state law. In June 2018, Mr. Gillenwater notified this commission that the City of Charlestown failed to do so on the 2018-OR-6 ordinance and he, on behalf of the City, requested a variance be given to approve the ordinance (Variance Request City of Charlestown Ordinance No. 2018-OR-6 – Property Maintenance Code.) The commission met on Tuesday, September 4, and DENIED the City’s request to approve the ordinance because, among other things, they found the the code enforces international law, not state law and was inconsistent with the goals of the state. (Additional materials related to this case are provided at the end of the entry.)
Additionally, a request for information about the City’s filing of the original 2008 ordinance produced no results. At this point, the legality of the PMC is questionable and it seems as though the entire code requires re-writing and reconsideration by our Council.
The council indeed needs to take action on the UBL and PMC. While changes made now will not affect the City’s alleged improper application of the two in the existing court case, they will help ensure that the rest of us remain protected from abuse in the future.
In its review of these codes, however, the council should look carefully at the enforcement provisions. Mayor Hall has been in office since the time the original 2008 PMC was adopted. He was also Mayor when the UBL was adopted in 2001. Problems that he cites in Pleasant Ridge therefore evolved under his leadership, and can often be attributed to his improper application of the process he adopted. In 2014, the Board of Public Works issued fines on a number of property owners (mainly landlords) in Pleasant Ridge. Rather than enforce these fines and require that the owners bring their properties into compliance or pay, the City waived the fines in exchange for the owners’ signatures on letters of intent to participate in the Blight Elimination Project (see here: Council Meeting Minutes 11/03/2014). At this meeting, when called out on this issue, Mayor Hall confirmed that “multiple” fines were “levied throughout eleven years” with only one actual owner being required to pay. We are left wondering what would have happened if the City had, in accordance with the UBL and/or PMC,
- properly notified landlords/owners that their properties were in non-compliance,
- warned them of impending fines if repairs were not made, and
- held those owners accountable and followed up on those fines after the grace period if the repairs were not made.
Now, in 2018, we are still having conversations about this issue because the City’s actions have forced the issue into court as residents who are in compliance fight to protect their property and constitutional rights. Trust in our government is sorely lacking today and much of this distrust can be attributed to the ineffective, inaccurate, and misleading communication provided by our leaders.
In case you think this issue doesn’t affect you, keep in mind that Mr. Crandley reminded us all in the meeting on Wednesday night that, “there is no Property Maintenance Code for one neighborhood, there’s a Property Maintenance code for the City of Charlestown and that every action you lay down applies to all” (17:30 on meeting audio).
If you own property in the City of Charlestown you should be concerned with how the Property Maintenance Code and Unsafe Building Law ordinances are applied.
If you are a council member who has been entrusted with the responsibility of representing us, then you should read the PMC carefully and make sure that YOUR property is in alignment before you advocate a code that unfairly and unethically fines people out of their houses.
- Full audio of the Special meeting of the city council referenced in this article can be found HERE.
- The Fire Prevention and Building Safety Commission has additional documents related to the Charlestown Variance Request HERE