An Introduction to Chronic Nuisance Ordinances

More and more cities are enacting chronic nuisance property ordinances.  Along with Tim Burke, I represented a large property owner in a federal court challenge to Cincinnati's ordinance.  That case ultimately settled, but only after the City agreed to amend the ordinance and pay a large sum of attorneys' fees.  I have also helped property owners comply with chronic nuisance ordinances by taking proactive safety measures as well as crafting nuisance abatement plans.  

I was recently asked to write an article for the Greater Cincinnati Northern Kentucky Apartment Association's March Newsletter on chronic nuisance ordinances.  This will actually be in the first in a series of articles for their newsletter.  The newsletter is available on the GCNKAA webpage: http://gcnkaa.org/  My article follows:

An Introduction to Chronic Nuisance Ordinances

 In late 2006, the City of Cincinnati adopted Chapter 761 of the Cincinnati Municipal Code, entitled Chronic Nuisance Premises.  The ordinance sought to impose responsibility and sanctions on landlords for the conduct of tenants, visitors, and guests on the landlord’s property. Cincinnati has revised the ordinance at least twice (in late 2011 and late 2013), but the intent of the ordinance has remained the same.  Several Northern Kentucky municipalities, including Florence, Park Hills, and Bellevue, have followed suit, enacting chronic nuisance ordinances of their own.  

Though the various ordinances have different and distinct features, the general framework is similar.  In short, the ordinances contain a list of activities that qualify as a violation of the ordinance.  Such nuisance activities are deemed a nuisance call for service.  When a property passes a certain threshold for a number of nuisance calls for service within a prescribed period of time, the municipality will declare the property to be a chronic nuisance property.

 After a property is declared a chronic nuisance property, the next step is for the property owner to submit a proposed abatement plan to the municipality.  Abatement plans are supposed to contain detailed and specific proactive steps the landlord will take to eliminate, or at a minimum reduce, the number of nuisance calls for service.  Some of the local ordinances contain guidelines for the contents of abatement plans.  Others contain little to no guidance on either the contents of abatement plans or on the standards for approval of proposed plans.

If a property owner is able to get an abatement plan approved, the property should be placed in a safe-harbor, where it is free from fines and citations.  Without an approved abatement plan, the landlord is subject to fees and penalties for additional nuisance calls for service.  The ordinances also often allow the municipality to seek and receive an injunction to shut down the use of the subject property.

But these chronic nuisance ordinances create a number of legal concerns for landlords.  The premise is troubling in itself: holding a property owner liable for the actions of third parties.  Specific legal problems include substantive and procedural due process violations, equal protection violations, potential violations of the federal Fair Housing Act, and unduly restrictive regulations on the use of private property. 

This will be the first article in a series discussing chronic nuisance ordinances.  In my next column, I will discuss the federal lawsuit that Tim Burke and I filed against Cincinnati, in which our clients challenged the City’s chronic nuisance ordinance.  That case, Downtown Property Management, Inc., v. City of Cincinnati, et al. Southern District of Ohio Case No. 1:10-CV-00523, resulted in a settlement in December, 2013.   

Please contact me with any questions you have concerning chronic nuisance ordinances.