Code Ordinance 02-323: Registration Of Vacant Commercial Buildings

Los Alamos


Here is another example of taking a sledgehammer to a problem that requires finesse and diplomacy.  The vacancy of commercial properties downtown is something I take seriously.  I have followed its genesis, followed it with interest partly because it is literally a block from my home.  There is a problem.  

Purported solutions to county problems surface regularly in the beer halls of Los Alamos.   What’s missing in these venues is expertise, interested parties, and balanced, nuanced discussion.  Nevertheless these “solutions”  seem to be regularly making their way to the County Council.  Every vacant property has its own set of causes and economics.  Common factors include the national economy, the pandemic, the changing retail environment of the world (e.g., Amazon, mega-malls) aging infrastructure.  Local factors include imprudent business decisions, aging infrastructure, Hill-itis,  protecting a market, the ills of being a one-horse town, and lousy (for retailers) demographics. Retailers blame landlords and customers who won’t “shop local,” landlords blame the government, customers blame the retailers and the government. 

We must identify the myriad problems, and develop a long-term strategy that ties all these pieces together.  Taking a sledgehammer to a few landlords won’t help, and will alienate a segment of the community that will be essential to solving the problems.  The Metropolitan Redevelopment Project proposed for White Rock may help and may be applicable to parts of Los Alamos – if the state and national economies cooperate. Likewise for LEDA, the Local Economic Development Act.

Aside from that, the structure of the ordinance is seriously flawed because there is no clear definition of “vacant” or “vacant building” to provide a standard for declaring a building vacant.  This creates confusion for property owners seeking to comply with the ordinance, for the Code Enforcement Office seeking to enforce it, and the Municipal Court and County Council who will have to hear criminal violations or appeals respectively, on an ordinance that is probably unconstitutionally vague. 

Sec. 18-222 (a) requires the owner of a vacant building or structure to obtain a permit “for the period during which it is vacant.”  

Additionally, “when a building or structure becomes vacant, as defined in this article, the owner shall [apply for a permit and pay fees] within 30 days of the vacancy …”

There is no clear definition of “vacant” or “vacant building”  in the definitions section, nor in Section 18-224 Determination of Vacant Commercial Building.  

Sec 18-224 provides 21 criteria by which the Code Enforcement Inspector may decide whether a building is vacant, but these range from the specific (“the commercial building is unoccupied for one hundred eighty (180) days”) to the trivial (“Has one or more broken or boarded windows”).  How is an owner to know when the building becomes vacant or she is to report the building vacant:  Is it within 30 days of a broken window, or within 30 days following 180 days after the last tenant vacates the building?  

These 21 criteria are separated by “or.” As written, it appears to be intended as a list of criteria that the inspector may consider when making his decision, but he has no guidance as to which or how many of the criteria are determinative that the building meets a clear standard for “vacant.” Those criteria that could reasonably be considered to be determinative that the building is vacant (unoccupied for 180 days, no certificate of occupancy) are given equal weight in the list to criteria that are reasonably no more than indicia that a building might be vacant (no mail service, broken windows).

Further, the ordinance is unclear as to just when the owner is supposed to apply for the vacancy permit.  Because there is no clear definition of vacancy, one owner might reasonably conclude that he should apply thirty days after the last tenant leaves.  A more diligent owner may read the 21 criteria looking for a definition that isn’t there, and try to choose among the following:  30 days after a window is broken or boarded up, 30 days after the tenancy falls below 25%, or 30 days after 180 days after the building has become completely unoccupied, or 30 days after a mortgage or tax foreclosure has been filed, or … well you get the idea,  no?

Finally, the ordinance unnecessarily mixes civil and criminal law, to the detriment of the property owner.  The Code Enforcement Officer’s determination and the appeal to the County Council are civil proceedings, but because testimony in those proceedings may become   evidence in a criminal prosecution in Municipal Court, the property owner is handicapped in one or the other case.  Either she must refuse to present potentially incriminating testimony in the civil case to protect her 5th amendment right against self-incrimination in Muni Court, or she gives up his right not to testify in the criminal case.   This occurs because this action is based on what are essentially code violations in Chapter 16, the Development Code, but they are being put into the nuisance section of Chapter 18, which carries criminal penalties.  There is no reasonable justification for burdening business owners with criminal penalties on top of numerous (and dubious) civil sanctions and this section should be struck.  

This is bad law.  It is fitting that they are putting it into the nuisance code, because that is another example of poorly conceived and hastily enacted bad law.  I urge the Council to defeat Ordinance 02-323.