Agenda - Planning Commission - 02/02/2017

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sible defenses (e.g., legal nonconforming use). If these procedural steps are ignored, the defendant may file a motion to dismiss the complaint. This delays enforcement and creates a possible due process challenge to the action. The zoning code also determines who is responsible for abiding by the code. Usually it will be the owner of the property, but it might also be a tenant or agent of the owner. This is why reading the code is so important. POWER TO ENFORCE THE CODE A few years ago, I was appointed as a special prosecutor on a zoning case that had been brought against a city official. The prosecution was unsuccessful because the zoning code required that the zoning official enforce the code. However, a code enforcement inspector who was not the zoning official had drafted the complaint. The zoning official had never appointed the inspector as a deputy zoning official nor did the code give the zoning of- ficial the power to delegate powers to another person. The only testimony available was from the code enforcement inspector. Consequent- ly, a motion to dismiss was granted. The town did not wish to start the complaint process anew so the case ended. I advised the city to amend its code so that the zoning official had the power to appoint deputy zoning officials and inspectors to carry out his or her duties so the same problem would not reoccur. It is not unusual for employees of local governments to wear multiple hats when en- forcing local ordinances. The building official is often the zoning administrator. It is impera- tive that the local code allow enforcement of the code by multiple employees. If it does not, any action taken must be by the person desig- nated for enforcement by the ordinance. If the zoning administrator delegates certain duties based on the zoning code, it is wise to have written documents setting forth the appointment of such employees in their personnel files so that it is clear that an employee possessed the power to enforce the code prior to the date of the violation. IDENTIFYING THE RESPONSIBLE PARTY One of the most important tasks when enforc- ing the zoning code is to correctly identify the party that is responsible for the violation. While this sounds like an easy step, it can be complicated when the owner or tenant of the property is not an individual but a legal entity Many municipalities prohibit parking commercial vehicles in residential districts. that exists only on paper. Because of liability, the preferred method of owning commercial property is to set up a corporation, limited liability corporation (LLC), Limited liability part- nership, or trust as the owner. Therefore, it is rare for the owner of a commercial building or large apartment complex to own the property in his or her name. One of the most common mistakes zoning inspectors make when en- forcing the code is assuming the owner is a person instead of a legal entity. How do you determine who owns property? The gold standard is to check the records of the recorder of deeds in the county in which the property is located. The zoning official needs to determine who owns title to the property by examining the last deed that transferred title to the current owner. Many documents are now available online at the website of the county recorder of deeds. The website can be searched for ownership based on a property index number, address, or name. Title companies will perform an owner- ship search for a fee, and I recommend doing this before engaging in any complex litigation. The inspector should never skip verifying who the responsible party is. Relying on tax records or the assessor's files alone is danger- ous because anyone can pay taxes on a prop- erty. While these records supply information, they are not sufficient to confirm ownership. If the responsible party is a tenant (which is often the case when dealing with defendants that are businesses), it may be possible to uncover its identity using records from the local government, especially if the code or the local taxing authority requires a business license. The zoning inspector can always ask an employee for a business card of the entity or question him or her directly about the tenant's legal name. The owner of the property may cooperate to avoid being named as a codefendant or even file an evic- tion lawsuit for violation of the lease once the problem is brought to the owner's attention. For example, when "adult entertainment" is being offered at a place that is supposed to be a spa, landlords will often cooperate with law enforcement to evict the tenant to solve the zoning issue. Unless the owner or tenant is an in- dividual, the next step is to verify the legal existence of the entity in question. In most states, the business corporation division of the secretary of state administers the creation and existence of corporations and limited li- ability companies. Most of these public agen- cies have websites where the names of these companies can be searched. The websites verify the existence of the entity and whether it is in good standing. They list the name of the registered agent required for every cor- ZONINGPRACTICE 1.17 AMERICAN PLANNING ASSOCIATION I page 3