CITY OF ARASOA NUISANCE ABATEMENT BOARD MINUTES March 9, 2017 6:00 p.m. Commission Chambers A regular meeting was held on March 9, 2017. Case Nos. 16-03 and 16-04 were noticed for public hearing. The Chair, Douglas Christy, called the meeting to order at 6:07 p.m. The Pledge of Allegiance was recited and the Chair called Roll. PRESENT: All board members were present. Board Attorney Kelly Fernandez, Esq., SPD Investigator Mike Harrell, Assistant City Attorney Joe Polzak and Recording Secretary, Melanie Marken were also present. ABSENT: None. Approval of Minutes Ms. Holland moved to approve the minutes of the January 12, 2017 meeting as presented. Mr. Christy seconded and the motion was approved unanimously. Old Business Case No. 16-03 (Bernier) The Chair opened the hearing on Case No. 16-03. Ms. Fernandez requested the Chair call the first case and inquired about ex-parte communications, which there were none. Mrs. Bernier, the property owner, was present along with her son. They came forward to address the board. Mr. Polzak gave a recap of the City's activity to date and requested Mr. Harrell speak as to the costs, which were the subject of the noticed hearing. The property owners inquired about the invoices for costs. Mr. Harrell confirmed that there were two outstanding invoices: one for investigative costs prior to the sixty (60) day notice, and one for costs after the sixty (60) day notice. Mr. Harrell also confirmed that both invoices were in the same amount: $2,098.00. He and Mr. Polzak explained that was the reason why the most recent letter and proposed stipulation listed costs in a total amount of over four thousand dollars. Approved 4/12/18 Nuisance Abatement Board Meeting Minutes 3/9/17 Ms. Fernandez stated that as a matter of procedure, the board should first consider the proposed stipulation before getting into testimony on costs. She inquired as to whether the parties both agreed to the stipulation as presented. Mr. Polzak asked if the property owner still wished to execute the stipulation as to the nuisance. The property owner's son spoke regarding the procedural history and investigation that occurred last year. Discussion was held. Mr. Harrell outlined the procedural actions taken in the case, and stated the dates he spoke to Mrs. Bernier on the telephone. The property owner's son stated that he did not know that the nuisance was ongoing. Mr. Polzak requested the property owners reiterate their concerns during their testimony on costs. The property owners had concerns regarding executing the stipulation as presented due to the fact that the total costs were referenced in the stipulation. Ms. Sykes requested clarification on the stipulation as to the nuisance which was before the parties (the board and the property owner) for execution. Ms. Fernandez suggested that the parties could remove paragraph 7 on page 2 of the proposed stipulation stating the current costs to date if they agreed to the remainder of the stipulation. Mr. Polzak agreed that paragraph 7 could be stricken, and clarified that it was not intended to impose those costs, merely to make the parties aware of what was outstanding. Mr. Polzak summarized the remainder of the proposed stipulation. Ms. Buchand asked if the parties were indeed, striking paragraph 7. Mr. Polzak confirmed he believed that is what the parties intended to do. Mr. Polzak confirmed that no fines were sought as part of the stipulation - only costs. Ms. Fernandez said the board needed a motion to accept the stipulation with revisions. Ms. Holland moved accept the stipulated order with amendments and authorization for it to be executed. Mr. Baugh seconded the motion. A roll call vote was held. The board voted unanimously to approve the stipulated order in case No. 16-03 with amendments and execute it. The Chair executed the stipulated order on behalf of the board. Mr. Polzak submitted that with the stipulated order now executed by all parties, the board had jurisdiction to proceed. The board heard testimony from Mr. Harrell regarding the current status of the property and the property owner's compliance with the terms contained in the stipulated order. Mr. Christy moved to find the property in compliance. Ms. Holland seconded the motion and it was approved unanimously. The matter went forward with the hearing on costs. Mr. Harrell outlined the evidence, the costs for the City, and reiterated his discussions with Mrs. Bernier on multiple dates throughout the investigative process to the board. He stated that the City's investigative costs from the police department totaled $4,196.00. Mr. Polzak stated that the City Attorney's office had prosecution costs in the amount of $738.00, which Mrs. Bernier stated she still felt the whole situation could have been avoided and did not understand why law enforcement charged for personnel on this investigation as opposed to any other time when law enforcement investigated a case/made an arrest. 2 Nuisance Abatement Board Meeting Minutes 3/9/17 Mr. Harrell explained the difference, citing the city code and mentioned that the only way to have avoided coming before the nuisance abatement board would to have been to evict the tenant shortly after the two of them spoke on the telephone after Mrs. Bernier received the sixty (60) day notice. Ms. Holland made a motion that the board impose costs in the amount of $4,934.00. Mr. Baugh seconded the motion. Discussion was held regarding the motion. Ms. Buchand stated she did not agree with charging the property owner costs in the amount presented. She also asked several procedural questions regarding the multiple narcotics purchases relating to the investigative charges. She stated that she did not agree with charging investigative costs for two investigations, citing that it appeared the first investigation was already completed before the property owner received a sixty (60) day notice. Mr. Harrell confirmed that the police department follows the procedure set forth in the code and in the law. Ms. Buchand said that she does not agree with imposing costs when the property owner had the property owner evicted the tenant. Mr. Harrell replied that the decision to impose costs is always a decision of the board. He confirmed that the investigation would not have been as lengthy and costs would have not been incurred if the tenant had been evicted after the 60-day notice was received. The property owner's son again spoke and stated he felt the entire case was unnecessary. He stated that he and his mother had spent a lot of money fixing up the property and evicting the tenant. The Chair held a roll call vote on the motion that was on the table. The board voted 4-2 to impose costs in the amount of $4,934.00 in Case No. 16-03 (Bernier), with board members Gonet and Buchand dissenting. The property owners disputed the decision of the board. Ms. Buchand said it was wrong and encouraged the property owners to "go to the newspapers. The next case was called, Case No. 16-04 (Dryden). Ms. Connie Dryden was present. Ms. Fernandez called for any ex part communications. There were none. Mr. Polzak addressed the property owner who stated she agreed with stipulating to the nuisance, but she still wished to have a hearing on the costs. Ms. Fernandez addressed Ms. Dryden's procedural concerns. Ms. Dryden agreed that drugs were sold at the property and acknowledged that arrests were made. There was a question regarding the property was jointly owned by her and her husband, who was unable to be present that evening. Ms. Fernandez stated she felt as though the case could proceed forward and the parties could obtain Mr. Dryden's signature at a later date if necessary. Mr. Polzak outlined the stipulated order. Mr. Polzak addressed the costs which amounted to $3,968.00 in SPD investigative costs and $902.00 in city attorney's prosecution costs. Ms. Buchand questioned why the amount of prosecution costs were higher for this case than for the last case. The Chair called for a motion to approve the stipulated order with revisions. Ms. Holland made a motion. Mr. Baugh seconded the motion, and it passed unanimously. 3 Nuisance Abatement Board Meeting Minutes 3/9/17 At the outset of the hearing on costs, Mr. Polzak outlined differences in prosecuting the two cases to address Ms. Buchand's concerns. Mr. Harrell outlined the investigative activities taken by the police department which amount to $3,968.00 in investigative costs. Mr. Harrell also outlined his prior discussions with Ms. Dryden, the property owner regarding the tenant(s) and prior illegal activities. Mr. Harrell stated that since the tenant vacated the property, the property has been in compliance. Mr. Polzak amended his response regarding the additional prosecution costs, and noted that there was an amended complaint was filed, thereby incurring approximately $100 more in Ms. Dryden stated that she had read the code online and felt that there was a procedural requirement contained in section 2-269(d) for a second notice to be given to the property owner. The Chair and Mr. Harrell examined the code and clarified, stating they read that if no additional illegal activity had occurred within a 6 month period following the first activity, then a second 60-day notice should be given. In this particular case, additional illegal activity did occur within 6 months. Ms. Fernandez clarified that she agreed with the Chair and Mr. Harrell's interpretation of the code = that there was no requirement for a second 60-day notice to be given if illegal activity continued. Ms. Dryden stated that her main argument for the hearing on costs was hinging on a second notice requirement but that she understood the board's nterpretation. She further stated that she could not afford to pay over $4,000.00 in costs. She questioned the arrest process, and stated that she felt like the investigation costs covered more personnel necessary than might be required to make the arrest. Mr. Harrell explained the arrest process for executing a search warrant, including planning, maintaining a safe perimeter during the search warrant and processing evidence when the investigators return from the property. Ms. Dryden asked about repayment of costs, should they be imposed. Mr. Polzak explained the process, stating that a lien would be recorded in official records, but it could not be foreclosed upon and that there were some opportunities for multiple payments to satisfy the lien. Ms. Dryden expressed concerns regarding the criminal defendant tenant who created the situation and the system. Discussion was held. Ms. Gonet moved that the board find the property in compliance. Ms. Buchand seconded the motion and the motion passed unanimously to find the property in compliance. The Chair stated the board would now address the requested costs in the amount of $4,870.00. Ms. Buchand made a motion to impose costs in half the requested amount $2,435.00. There was no second. Mr. Baugh moved to impose costs in the amount requested of $4,870.00. Ms. Holland said she would second the motion for discussion. Mr. Christy stated that he had some discussion for the board to consider and would like to amend the motion to reduce the attorneys' fees to be in line with the previous case, SO as to not pass along any additional prosecution costs to the property owner which might have been incurred as a result of an error. Ms. Gonet seconded the amendment to impose costs in the amount of $4,702.00. The vote was called on the amendment to Mr. Baugh's original motion. The board voted 4-1 approving the amendment to Mr. Baugh's original motion. 4 Nuisance Abatement Board Meeting Minutes 3/9/17 Ms. Buchand stated her opinion was that what the board was doing was wrong and stated that she thought the board was imposing liens on properties sO that one of their friends could buy the property. Mr. Baugh replied that he felt that the code was in place to put responsibility on absentee landlords, and that the charges contained in the arrest reports are very serious, with drugs and guns being recovered from the properties. He stated that even though the property owners may claim they were not aware of the illegal activities, he felt that the neighbors of the properties were probably aware, and they were the ones whom the illegal activities affected. He felt like the landlords had opportunities in the code to correct the problem. The Chair called for a vote on the amended motion on costs. Ms. Buchand again stated her opinion that it was wrong to impose costs in such high amounts, and that she would be going to the commission about it. Ms. Buchand further stated that she did not agree; that she felt that the board did not care about the property owners. She felt that some adjustment could be made to the costs. A roll call vote was held on the amended motion to impose costs in the amount of $4,702.00 against the respondents in Case No. 16-04. The motion passed 4-1 with Ms. Buchand dissenting. Mr. Polzak and Mr. Harrell discussed setting up a payment plan with the property owner. She departed. The Chair called for old business on the agenda. Mr. Polzak stated that he would amend the agenda to withdraw the item from the agenda as the case never actually came before the board. Ms. Buchand said that she had a problem with that because she thought that costs should be imposed against the developer. Mr. Polzak stated that the matter was out of his hands = possession of the property changed before the jurisdiction of the board could be invoked. Ms. Buchand departed the meeting at 7:37 p.m. Discussion continued regarding the former potential case and property that changed hands. Mr. Christy wished to re-address the procedure of liens. Mr. Harrell directed the board's attention to 2-271 of the code. Mr. Polzak stated that the procedure was to record a lien, but the liens are unable to be foreclosed upon and that a payment plan could be worked out with property owners. Ms. Sykes questioned the validity of the lien for 20 years and asked if the property didn't change hands within 20 years, did the lien go away. Mr. Polzak said he was uncertain if the city had any NAB liens over 20 years old, but that he would look into historical records and let the board know. 5 Nuisance Abatement Board Meeting Minutes 3/9/17 The Chair called for any other business/discussion. The recording secretary and Mr. Polzak gave an update on the vacant seat. The Chair called for public comment. Ms. Sykes inquired about new board member training. Mr. Harrell confirmed that the new member would view the training workshop which was recorded for that purposes. Ms. Gonet inquired about new city email addresses. The recording secretary addressed sending instructions to board members regarding new domains. Ms. Holland asked that the record reflect the accusations made by board member Buchand and stated it was absurd for her insinuate that board's action was taken SO "their friends" could buy the properties. She asked the issue be addressed. She further stated that she was offended by the comments made. She stated that she felt badly for the property owners who had to come before the board too, and felt like the decisions were difficult. Ms. Sykes agreed, citing that she was hoping the board could all get on the same page during the workshop, but that the workshop was not attended by all board members. Ms. Gonet also agreed with Ms. Holland's comments. Ms. Gonet said this was the second time the board had been accused of being stacked" against them by Ms. Buchand. She did not feel it presented a good impression. Mr. Baugh agreed, stating that everyone is entitled to his/her own opinions, but it was uncalled for to be accused of something by another board member. Mr. Christy stated that he appreciated their comments and directed everyone's attention to the Pledge of Conduct that was inscribed on the dais. Ms. Fernandez spoke said that disagreements among boards were quite common and that it usually helped to remind everyone of the code of conduct to be respectful of one another. The Chair stated he wanted to allow everyone a chance to speak, but would try to encourage respectful discussion in the future. The meeting was adjourned at 7:44 p.m. 6