BY MAIRE O’NEILL
The agenda packet for a Los Alamos County Council Aug. 24 discussion on the possibility of implementing a “vacancy ordinance” for commercial buildings noted that the County has two options currently in place to deal with vacant commercial buildings.
The first option is that the County can execute its existing authority under State statute to find by resolution, that a “structure or premise is a menace to the public comfort, health, peace or safety and require the removal from the municipality of the building, structure, ruins, rubbish, wreckage or debris.” Although this statute has not been invoked in recent memory, the imminence of such action prompted property owner action in several instances. The second option is that the County has authority to use its existing building and property maintenance codes to require owners of vacant buildings “to maintain their properties at the minimal required compliance with these code”. Details of those two options were not included in the agenda packet.
County Manager Steven Lynne opened the discussion noting that the strategic goal of addressing blight and vacant buildings is one that Council has had for quite a while and that it has been recently discussed in a lot of different venues. He mentioned the above two options and added a third – a vacant building ordinance – noting that examples of such ordinances were included in the agenda packet along with a white paper from New Mexico MainStreet, which he said indicates that some governments deal with vacant buildings through a registration process. Lynn said he and staff were seeking a sense for whether or not Council has any interest in pursuing any of those options in any particular direction.
Councilor David Izraelevitz said he is personally interested in the registration process for commercial properties because that is a way to have a local point of contact which he feels would be very valuable.
Council Vice Chair James Robinson said the MainStreet white paper is incredibly useful for knowing what can be done within New Mexico law and where the County can mold a possible ordinance around constitutional and legal requirements. He said two big issues that registration tends to have are out-of-state landlords or building owners and the resources to pursue the list.
“Two big issues registrations tend to have is out of state landlords or building owners and resources to maintain and actively pursue the list,” Robinson said, adding that neither of those would apply in Los Alamos apart from two larger pieces of property and that most of the commercial buildings in the County have some sort of local contact.
“I would be interested in pursuing something similar to Raton or some sort of hybrid verison between Raton’s ordinance and the one that was presented to Council through a citizen because I think we can overcome the typical barriers that prevent these from being a tool that can be implemented, especially when we’re looking at potential redevelopment of the (Metropolitan Redevelopment Area) in White Rock which has a high vacancy rate of buildings and potential other uses of Local Economic Development Act). I think a vacancy ordinance is just another natural way to make sure that if local funds are going to be used we do have a mechanism to make sure that we get something in that building.”
Councilor David Reagor began a discussion on how to determine whether a building is vacant or used for storage. He said the County does not have the right to search in the building without a crime.
“How do you legally go about that and how would you refute their statement if they said it’s just for storage – it’s not vacant? If they say it’s just for their other business operations, are you punishing people that are more honest?”, he said.
Lynne said there are limits to the ability to search but that typically with a vacant building there are outdoor obvious visual signs that become symptomatic. He said certainly if there’s zero or virtually zero utility usage, that’s another clue.
County Community Development Department Manager Paul Andrus said it’s illegal for a commercial entity to store goods without properly engaging their line of business.
“There are often times when we have visual clues, where we actually have gone in and contacted that property owner because it’s pretty clear that they’re storing various things in their building that have nothing to do with their line of business and they haven’t been operating their business for some time. That is a fire safety issue mostly as opposed to a building safety issue but we have encountered that from time to time,”he said. “Visually speaking, frankly if a business has a storefront and the contents in the interior can be seen, there are oftentimes things we can do from a code enforcement perspective in dealing with that. But it is difficult to monitor ongoing what exactly is going on with that business. We have encountered those situations where we have been able to follow up on a code issue with the property owner.”
Councilor Reagor noted that regular code violations on the exterior of the building are “easy to enforce – at least easy to see – maybe not so easy to enforce”. He asked if the County really has anything to work with to enforce the ordinance.
Andrus said having a vacant building which for all intents and purposes from the exterior is code-compliant means there isn’t much that can be done from a building safety perspective other than site considerations if there are weeds or debris or anything of that sort. He said that’s the extent of the ability the County has to address an issue.
Councilor Denise Derkacs said she believes a vacancy ordinance is worth looking into.
“We clearly have commercial buildings in town that are a nuisance but we have nothing officially in place to address vacancies per se. There’s already been discussion about what can be done under the nuisance code. There’s nothing to address the issues specifically if it’s vacant. It will be challenging to confirm a vacancy but I think it’s worth pursuing to see what we can do.There are some excellent examples included in the package. The Raton ordinance, a draft from a member of the community that’s worth looking at, and there were several other ordinances in the package,” she said.
Derkacs noted that some of the ideas that popper out at her from the examples were strictly registration with an associated fee after a building is determined to be vacant, a renewal that would require a proof of inspection, progressive renewal fees, penalty fees for failure to register, designation of a local property manager or point of contact and mandatory liability insurance.
“I think there were some very worthwhile suggestions or possible resources we could use to develop an ordinance. My sense is there’s a lot of frustration in the community about the long-term vacancies so I think it is worth pursuing to see if we can come up with a viable draft that we could approve and enforce. I would like to go forward with some more research on this,” she said..
Councilor Sara Scott said she thought the white paper from MainStreet had a lot of good information and a good summary, not of specifics but what could be expected as a result of enacting an ordinance.
“Certainly it’s of interest to me from a health and safety perspective. The point that was made about having a local point of contact for issues that might come up. That is something that would be a tangible impact that we could expect from this. I really appreciate the good case studies and lessons learned that were presented. I agree that it would be helpful for the staff to look at this and have a potential draft but what I would like to understand is elements of what a draft would contain, any recommendations associated with it, pros, cons and unintended consequences,” she said.
She added that she would also like to know that the costs would be in terms of staff time and what kind of engagement with stakeholders should bewe undertaken. She also wanted to know what lessons learned from case studies would be incorporated as well as what is being coordinated and aligned with the ongoing downtown masterplanning efforts with upcoming code update proposals .
Councilor Sean Williams went back to the storage issue.
“When talking commercial, storage is a business and businesses have business licenses and business licenses are location specific, so places that are in the business of storage, but have an occupancy of that property with a particular occupancy class, and they have a business license associated with that property, that allows them to do storage,” he said.
Williams noted that one of the requirements of having a business license is allowing fire inspections to happen.
“Even storage that is auxiliary to a business – for example a construction firm will often have storage where they keep their machinery or supplies. My understanding is, like a construction contractor who has a laydown yard or storage facility has a separate business license for that storage facility. So then by virtue of having the license – you entitle the County right to inspections,” he said.
Andrus noted that there would also be some help if the fire marshal was there because fire is responsible for maintenance of existing buildings and the building department is responsible for new construction and reconstruction.
Council Chair Randall Ryti reminded Council that the focus is more on buildings that are more obviously vacant with nothing in them and not being used, where the County would prefer active use of the property.
Councilor Izraelevitz said Council needs to have the right expectations for what a vacancy ordinance might provide.
“Personally I think that if there is a commercial property owner that is leaving their property vacant – just thinking about the taxes that they are paying, maintenance to make sure there are no code enforcement issues – they probably do have a property manager for their own purposes so that there’s no burst pipes and things like that. I would think that if I owned a vacant property, which I don’t, even the maximum fee of $, for a large facility, which in Raton ordinance is more than 10,000 square feet, I don’t think that given the income lost, my other expenses and so forth, that would provide strong economic motivation to lease that building if I don’t have other motivations to do that,” Izraelevitz said.
He said he thinks having a local point of contact is important.
“I don’t know how often that occurs and maybe Mr. Andrus can tell us whether he is concerned about certain current buildings for which we don’t have a local point of contact and maybe that would provide a strong motivation for doing this,” Izraelevitz said.
He wondered if a vacancy ordinance is going to address the public concern which he said frankly is not that that there’s no local point of contact for a vacancy but rather “they don’t want the vacancy either. They want some business activity.”
Izraelevits asked County Attorney Alvin Leaphart to address the issues of fees versus taxes and the Fourth Amendment. Leaphart said that on the Fourth Amendment issue, NM Statute 24.1-16 contemplates inspection warrants.
“It’s a statute that gives local officials like fire marshals and building officials the ability to go to district court, obtain inspection warrants, which are a flavor of search warrants and are different from criminal search warrants. There are regulated industries and regulated practice of life safety issues that are not necessarily criminal in nature but at the same time there is a privacy expectation. If the County wants to enter a building that’s not open to the public for a fire, life safety inspection, and the owner of that building refuses to give that consent, there’s an easy avenue for the County, its building official and fire marshal to approach a district court judge and obtain an inspection warrant,” he said.
Leaphart said because the inspection warrants are not criminal search warrants, the standard is low.
“The evidentiary burden is low for a fire marshal or building official if they have some evidence that there is some violation – a potential life safety issue – in the structure and they can quite easily obtain a warrant. So that’s the way we would deal with the Fourth Amendment issue. Now whether a judge will be willing to grant one simply because the building is vacant, that may be an issue we have to address,” Leaphart said. “You really can’t punish anybody. You really can’t say if you don’t give consent to search this building you’re violating our ordinance and there’s Supreme Court cases on inspection warrants. Not really something we can do.”
“There’s a difference between the two and sometimes governments like to charge fees or like to case things as fees when they’re really taxes and the courts don’t like that. The one case in New Mexico which adopts other findings, has this quote in it – ‘A trait that distinguishes fees from taxes is that fees, unlike taxes, only cover the agencies reasonable anticipated cost in providing the services for which the fees are charged. In determining whether regulatory charges are fees rather than taxes are charged, reasonable latitude must be given to the agency in fixing charges to cover its anticipated expenses in connection with the services or regulatory function rendered’,” he said. “If you’re going to establish fees, you need to have some sort of analyses of what the cost of running this program will be. Other jurisdictions have established fees – it doesn’t mean they would pass constitutional muster if challenged. Do they have a record that supports what they’re charging is a regulatory fee properly adopted based on criteria of distinguishing taxes from fees. If we’re going to charge the fees we need to have a record and a basis .. reflecting what this program is going to cost.”
Vice Chair Robinson said he is a big proponent of “what problem are we trying to solve.
“The one problem we really can’t solve is forcing these people to put businesses in their building. It’s a free market decision. However, the registry can at least let us know the extent of our issue because then we know what we need to keep an eye on because sooner or later a building will become a public safety hazard if left unattended. Though I would like to think that a vacancy ordinance would encourage a property owner to make the investment to put someone in, I can’t realistically say we would be able to do that,” he said.
Robinson said he thinks what a vacancy ordinance can do is give Council a scope of the issue.
“When the MRA issue came up I asked what is the extent of the vacancy issue in White Rock compared to Los Alamos and we did not have that information. This would help us understand so that we have the ability to work with the tools we have like LEDA or an MRA designation if we see in a certain area that the problem has become persistent or at least letting those property owners know that they at lease will be on a record and their building is going to be looked at so that in the event that it becomes a public hazard we can exercise the tools we have accordingly,” he said. “That’s where I see the strength of this ordinance. We can’t force someone to put a business in because their building is vacant but it does allow us to start knowing what we need to do and when we need to execute the tools available to us.”
Councilor Derkacs agreed with Vice Chair Robinson that a vacancy ordinance would provide general information on the number of vacant commercial buildings.
“We have to establish reasonable expectations in the community that this is not going to be a cure for the vacancies. It’s not going to force property owners to lease their properties but it is a step in that direction,: she said.
“We won’t need any proprietary information but at least we can ask them why it’s vacant and could they share with us what difficulties they are having – what future plans are – so getting not just the numbers but the reasons for vacancies would be very useful,” he said.
Councilor Reagor said there are two problems properties in the County – one at the front of Los Alamos and the other at the center of White Rock.
“We have various urban redevelopment tools to address those issues and they’re in place. And I think this ordinance is about other smaller properties that we really shouldn’t be worrying about right now. We should be addressing the big properties because that’s what everybody is talking about. These other smaller vacancies are not really the problem that we’re talking about,” Reagor said. “We should address the two big problems and not even worry about a comprehensive ordinance for the whole town…The main problem is still the front of the town and we have to address that issue. We don’t need to do anything that’s a distraction leading us away from focusing on the thing that really counts. I think this is a distracting side activity that is not really fixing the problem we’re facing.”