Vacant property ordinance stalled by enforcement concerns

Havre's vacant property registration ordinance has been at a standstill since it was last sent in June to the city attorney, who advised the city that enacting a VPRO would not be in the best interest of Havre.

Local officials agree that perhaps the only way of proceeding with a VPRO would be changing Havre from a general law municipality to a charter law municipality.

"We are fighting an uphill battle," Havre Mayor Tim Solomon said. 

The city has been looking at some kind of ordinance to cover vacant properties since Samantha Clawson, director of Head Start at District 4 Human Resources Development Council and wife of Havre City Council member Caleb Hutchins, came to the council in 2016 to voice concerns about dilapidated vacant properties in Havre.

Solomon created an ad-hoc committee two years ago, which included Hutchins and Clawson, to look at the issue.

The ad-hoc committee created a proposal for a VPRO, which would include requiring owners of vacant properties to register their properties with the city and potentially pay a fee, including adding it to the property owners' property taxes, if they failed to pay.

In June of this year, the Havre City Council Ordinance Committee voted to send its proposal to the city attorney for review, and the city attorney advised the council against passing it. The attorney said the main issue with the VPRO is enforceability because the city would have no way to enforce any fees or penalties.

Solomon said Monday that the city, because it is a general municipality, cannot enforce laws that are not specified in state statute. He added that Butte-Silver Bow, although they have a similar VPRO, has a charter form of government and abides by different rules.

"The problem is with our type of government; it tells us what we can do," he said. 

Solomon said that Havre has tried in the past to increase regulation on vacant properties, but has been unable to because of the city being a general law municipality.

"It may look like heck, but as long as they keep people out of them, they can do pretty much what they want with their private property," he said.

He added that if Havre were a charter municipality, and the charter included having abilities to enforce the ordinance, enacting the VPRO would have no issues.

Hutchins said that neither the mayor or the city attorney has brought up the issue of general municipalities and charter municipalities before.

"This is interesting that is all now being brought up," he said.

Solomon said that Havre City Council attempted to change the designation of the city government from general to charter in 2017, but it was voted down in the 2017 election. He said that if the city is interested in changing its designation again, the council can revisit the issue.

Solomon said he is frustrated because the ad-hoc committee was established a few years ago to investigate the vacant property issue and no solution has been found. He said he created the ad-hoc committee partly because he wanted to find a solution and because of frustration due to the lack of options

"I don't know if it's out there," Solomon said. 

In an email, sent to Hutchins and cc'd to Solomon about a month ago, City Attorney Jennifer Forsyth said, "I have reviewed the Vacant Property Registry Ordinance, and as I said in my last email, I do not believe it is in the city's best interest, liability-wise, to pass this ordinance. After doing some research, my position remains the same on the liability exposure, and the enforceability issues."

The Montana Law Library cited a paper written by Sacramento, California, reference librarian Peter Egler to explain the difference between general and charter municipalities.

Egler wrote that state government grants cities and counties the ability to administer government on the local level. A state's constitution or legislative code sets forth the powers of cities and counties organized under the laws of the state. Most states recognize two kinds of charters, general law and home rule. 

"Cities and counties that operate under the procedures set forth in the laws and constitution of their state have a general law charter," the paper says. "General law charters are created by and are consistent with the state law. State constitutions also give cities and counties the ability to write and adopt their own charter."

Montana Code Annotated Title 7 Chapter 3 specifies that the purpose of a charter municipality in part is to comply with Article XI, section 5(1), of the Montana Constitution, which provides: "The legislature shall provide procedures permitting a local government unit or combination of units to frame, adopt, amend, revise or abandon a self-government charter with the approval of a majority of those voting on the question."

Havre City Council member Lindsey Ratliff said Oct. 16 that Forsyth said in an email to her that VPROs are very difficult to enforce.

Citizens could petition the city to enforce the VPRO against neighbors or other unsightly buildings that they simply do not like, whether the building was indeed "vacant" according to the ordinance or not, Forsyth's email said. The ordinance itself is also too subjective. Some buildings may be subject to the ordinance under one opinion, while falling exempt under another due to the interpretation of some facts. The subjectivity surrounding both the notification of the City of a vacant property and the enforcement of the VPRO expose the City to undue litigation, she said.

Ratliff said the city attorney mentioned a problem of remaining objective, but did not specify any alternatives the city could take for the VPRO.

"I think there are always going to be some kind of liability issues in any ordinance passed, but I don't think that should keep us from trying to find a solution," Ratliff said. "I have faith in our public works department, that they would exercise sound judgement when enforcing any VPRO or other related ordinance."

She added that she respects the legal advice from the city attorney, but she believes somethings needs to be done about unsightly vacant properties in the area.

"Key word here is vacant," she said. "Of course there are other issues with occupied buildings, but our target here is unsafe and unsightly vacant properties."

Ratliff said that if the city cannot pass the ordinance, it can still achieve the same goals of the VPRO using a different method that protects the city from being vulnerable to lawsuits. She added that it doesn't appear that much effort has been put into exploring alternative routes.

"If a VPRO is unenforceable per legal recommendations, then more stringent nuisance ordinances would be a viable alternative to solve some of Havre's blight issues," she said. 

Butte-Silver Bow enacted a VPRO, similar to Havre's proposed ordinance, in 2016. 

Butte-Silver Bow Building Officer Michael Nasheim said that the VPRO has been doing well since it was put into place.

"It's just another tool in our toolbox," he said. 

He added that it is not a silver-bullet to the problem of vacant properties but it has done well at collecting information about properties. He said that they are working on updating the VPRO to give it more legal teeth to better hold property owners accountable. Delinquent or absentee landowners may attempt to avoid the VPRO but putting the fees and fines onto the property owners' property tax will prevent people from not paying. 

Good property owners will always pay the fees and fines and are not a problem, the problem are those who abandon their properties, Nasheim said. 

"It works well," he said.

He said that he would suggest, if Havre were interested in passing a VPRO, the city try to make it as enforceable as possible.

Butte-Silver Bow is a consolidated city and county charter government, he said, and in that way is somewhat unique, although a VPRO is a good tool for any city to have.

Hutchins said if the enforceability, due to not being a charter municipality, is the main issue for the city, then the city should work toward changing the designation, regardless of the VPRO.

He said that, when the council previously tried to change the designation, one of the reasons - he suspects - for it not being passed by the voters was the issue of a city manager.

A city manager would take over many of the mayor's duties, making the mayoral position more of an honorary title, he said. Previously, when the council explored charter municipalities, it proposed creating the position of a city manager as well as changing the charter designation on the same ticket.

He said that many people were opposed to the idea of a city manager, mostly because of the cost to the city and taxpayers, but if the city manager and the charter were on separate tickets, Hutchins believes the charter proposal would have been passed.

Havre becoming a charter municipality has a number of different benefits, Hutchins added, including the city having more power and control over the taxes in the area, such as an additional bed tax separate from the state, and additional taxes for roads and sidewalks.

"At this point, I would very much like the city to pursue getting a charter, regardless of the VPRO," he said. "It could be a good thing for us and give us more flexibility, and, if the mayor is on board, we should pursue the option."

Hutchins added that City Council still has a large amount of information about charter municipalities from when the city last proposed changing the designation. He said the information is available and can be reused.

He added that if the mayor or the city attorney also had an alternative to the idea of establishing a VPRO he would be more than happy to hear it. He said that the ad-hoc committee researched the issue for more than a year, looking at areas across the country. The VPRO was a tool many cities have been using and found it effective.

"If the mayor is saying the only thing holding up the VPRO is a charter, then I say, 'Let's move forward full-steam ahead with pursuing the charter,'" Hutchins said. "We already have all that language written up."