Media stories have covered the city’s actions under “nuisance abatement” ordinances and state laws without much of any explanation what constitutes a “nuisance” or a “public nuisance”.
The two major city programs that enforce nuisance abatement laws are the city’s attorney’s DWI Vehicle Forfeiture program and the Safe City Strike Force.
The media gives very little explanation on how the two major programs enforce nuisance abatement laws.
One involves vehicles, while the other deals with real property that has become magnets for crime.
At the risk of reading too much like a legal brief, following is a short summation of state law and city ordinances and the two city programs.
DISCLAIMER NOTE: Anyone who reads this blog article needs to keep in mind that free legal advice, free legal opinions and free legal commentary are only worth what you pay for them and any reliance on the article and content is at your own risk. (Being a retired lawyer does have its advantages.)
NEW MEXICO STATUTES ON NUISANCE ABATEMENT
New Mexico statute defines a “public nuisance” as consisting “of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either:
“A. Injurious to public health, safety and welfare; or
B. Interferes with the exercise and enjoyment of public rights, including the right to use public property.
Whoever commits a public nuisance for which the act or penalty is not otherwise prescribed by law is guilty of a petty misdemeanor.”
(30-8-1, NMSA 1978, Public Nuisance defined).
The New Mexico legislature has also empowered municipalities very broad authority to define a nuisance, abate the nuisance and impose penalties and initiate civil causes of action.
State statute provides that “A municipality may by ordinance … define a nuisance, abate a nuisance and impose penalties upon a person who creates or allows a nuisance to exist. …”
(3-18-17 Nuisances and Offenses; Regulation or prohibition)
State statute also grants municipalities with broad powers and provides that:
“A municipality may:
A. sue or be sued; ….
F. protect generally the property of its municipality and it inhabitants;
G. preserve peace and order within the municipality; …”
(3-18-1 General Powers (of Municipality)”
Note that the creating, performing or maintaining a public nuisance is a crime under state law, which would be prosecuted in a magistrate court or metropolitan court.
Under New Mexico law, a petty misdemeanor is the very least serious crime for which a person can be sentenced to time in jail.
The sentence for a petty misdemeanor in New Mexico can never be more than six months in jail or a fine up to $500, is usually up to 30 days in jail and a $100 fine or both, depending on the offense and the penalties can also be suspended by the court.
Notwithstanding being a criminal charge, actions to abate a nuisance are civil actions that must be filed in state district court.
New Mexico statutory law provides that any action for the abatement of a public nuisance shall be governed by the general rules of Civil Procedure.
(30-8-8, NMSA 1978 Abatement of a public nuisance.)
Under New Mexico law, “a civil action to abate a public nuisance may be brought, by verified complaint by any public officer or private citizen, in state district court of the county where the public nuisance exists, against any person, corporation or association of persons who shall create, perform or maintain a public nuisance.”
(30-8-8, B, NMSA 1978, Abatement of a public nuisance, emphasis added)
When a plaintiff prevails and proves that a nuisance exists and a judgment is given against a defendant in an action to abate a public nuisance, the district court can order the defendant responsible for the nuisance to pay all court costs and attorney fees for the plaintiff’s attorney.
(30-8-8, C, NMSA 1978, Abatement of a public nuisance, emphasis added)
The huge significance is that both public officials as well as private citizens can bring an action for nuisance abatement.
Another major distinction is the burden of proof between a criminal charge and a civil cause of action.
A criminal charge requires the state to prove a defendant is guilty “beyond a reasonable doubt”.
A civil case requires proof by “preponderance of the evidence” by a plaintiff.
In general, with few exceptions, only law enforcement or state prosecutors can bring petty misdemeanor charges for public nuisance.
However, any private citizen or public official, such as a District Attorney or City Attorney, or any lay person with money for the court filing fee, can initiate a civil nuisance abatement action for injunctive relief and if they prevail can be awarded attorney’s fees and costs.
NEW MEXICO CASE LAW ON DEFINING A NUISANCE
The New Mexico Supreme Court and the Court of Appeals has issued opinions and rulings on what constitutes a nuisance.
Under New Mexico court case law nuisances are classified as nuisances per se and nuisances in fact.
“A nuisance per se is generally defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings … [A] nuisance in fact is commonly defined as an act, occupation, or structure not a nuisance per se, but one which may become a nuisance by reason of circumstances, location, or surroundings.” (Koeber v. Apex-Albug Phoenix Express, 72 N.M. 4; 380 P.2d 14; 1963, New Mexico Supreme Court).
Further, it is well settled that a court may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin. (Koeber v. Apex-Albug Phoenix Express, 72 N.M. 4; 380 P.2d 14; 1963, New Mexico Supreme Court).
A public nuisance must affect a considerable number of people or an entire community or neighborhood. (Environmental Improvement Div. v. Bloomfield Irrigation Dist., 108 N.M. 691, 778 P2d 438, New Mexico Court of Appeals 1989).
A common law “public nuisance” which is similar to the public nuisance statute, is the unreasonable interference with the right common to the general public, belonging to all members of the general public. It is not necessary that the entire community be affected by a public nuisance. If the nuisance will interfere with those coming in contact with the exercise of a public right or if the nuisance otherwise affects interests of the community at large. (State, ex rel, Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 119 NM 150.)
A public nuisance is a wrong that arises by virtue of unreasonable interference with the rights common to the general public. The Public nuisance statute applies to anything affecting “any number of citizens” meaning a considerable number of people or an entire community or neighborhood. (NMSA 1978, 30-8-1 and State, ex rel, Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 119 NM 150.
Public nuisance is one which adversely affects public health, welfare, or safety. A public nuisance affects the rights of citizens as part of the public and must affect a considerable number of people or an entire community or neighborhood. A continuing nuisance is one which occurs so often that it can fairly be said to be continuing although it is not constant and unceasing. (Padilla v. Lawrence, 101 NM 556, cert. denied 683 P.2d 1341, 101 NM 419.
The fact that acts constituting a public nuisance are punishable criminally does not deprive a court of its power to enjoin a public nuisance where there is ample proof of irreparable injury to public health, welfare, or safety. (Town of Clayton v. Mayfield. 82 NM 596, (involved operation of a junk yard that was unfenced and contained old cars). See also, State, ex rel, Marron v. Compere, 103 P.2d 273, 44 NM 414.
CITY’S DWI VEHICLE FOREFEITURE ORDINANCE
In 1993, the Albuquerque City Council exercised its authority granted to it by the New Mexico legislature to define and abate a nuisance and impose penalties to abate a nuisance by declaring any motor vehicle to be a nuisance and subject to immediate seizure and forfeiture when an arrest is made for driving while intoxicated (DWI).
(Article 6: Motor Vehicle Seizure; Forfeiture, section 7-6-1 City of Albuquerque Ordinances, 1992)
The forfeiture of an asset by court order is a penalty when dealing with the abatement of a nuisance that is affecting public health, safety and welfare.
The city specifically defines vehicles used by arrested drunk drivers with prior convictions a nuisance endangering public health, safety and welfare and interfering with the public’s right to public rights of way.
(Article 6: Motor Vehicle Seizure; Forfeiture, section 7-6-1 City of Albuquerque Ordinances, 1992)
Penalties to abate a nuisance would include the authority to exercise civil forfeiture authority with court orders to eliminate the nuisance.
Under the city ordinance, a vehicle is subject to immediate seizure and forfeiture by the city if the vehicle is operated by a person in the commission of a DWI offense and has, on at least one prior occasion, been arrested or convicted of a previous DWI, or has a suspended or revoked driver’s license for DWI.
CITY ATTORNEY VEHICLE FORFEITURE DIVISION
The city’s DWI Vehicle Forfeiture Program is administered and managed by the City Attorney’s Office and at one time was a part of the Safe City Strike Force.
Assistant City Attorneys and paralegals are assigned to initiate administrative actions, court action and enter into settlements agreements and boot vehicles.
The amount of projected proceeds from vehicle forfeiture auctions is projected to drop dramatically from $760,000 to $300,000 over three years.
The biggest complaint made against the program is that it deprives people of their property without due process of law.
The biggest benefit of the program is that it takes the very object used to commit a crime out of the hands of people who intentionally violate the law and who at times seriously injure or even kill people.
A drunk driver behind the wheel of a car is clearly a threat to the public health, safety and welfare.
A drunk driver behind the wheel of a car interferes with the general public’s right to use public city streets free from any threat of great bodily harm or lethal bodily injury caused by a drunk driver.
ALBUQUERQUE CITY ORDINANCES DEFINING NUISANCE
In 1994, exercising the authority granted to it by the state, the City of Albuquerque enacted its nuisance abatement ordinance and then amended it 2006 to add offenses under the state criminal code and city housing and construction codes.
The city’s nuisance abatement ordinance defines nuisance as:
“Any parcel of real property, commercial or residential, … on which
any of the following illegal activities occurs, or which is used to commit
conduct, promote, facilitate, or aide the commission of … any of
the following activities: …
At this point, the ordinance lists crimes in the state’s criminal code as well as the city’s building and construction codes.
(City of Albuquerque Nuisance Abatement Ordinance, Section 11-1-1-1, Section 11-1-1-3 of ordinance defining “Public Nuisance”)
The city’s nuisance abatement ordinance prohibits “public nuisances” as follows:
“It shall be unlawful for any owner, manager, tenant, lessee, occupant, or other person having any legal or equitable interest or right of possession in real property …or other personal property to intentionally, knowingly, recklessly, or negligently commit, conduct , promote, facilitate, permit, fail to prevent, or otherwise let happen, any public nuisance in, on or using any property in which they hold any legal or equitable interest or right of possession.”
(11-1-1-10 PUBLIC NUISANCES PROHIBITED, City of Albuquerque.)
The City of Albuquerque’s Uniform Housing Code also defines “nuisance” as:
“(1) Any nuisance known at common law …
(2) Any attractive nuisance which may prove detrimental to children whether in a building, on the premises of a building, or upon an unoccupied lot. This includes any abandoned wells, shafts, basements or excavations; abandoned refrigerators; or any structurally unsound fences or structures; or any lumber, trash, fences or debris which may prove a hazard for inquisitive minors.
(3) Whatever is dangerous to human life or is detrimental to health, as determined by the health officer.
(4) Overcrowding a room with occupants.
(5) Insufficient ventilation or illumination.
(6) Inadequate or unsanitary sewage or plumbing facilities
(7) Any violation of the housing standards set forth in this code.”
(14-3-1-4 ROA 1994 of Housing Code, Definitions)
SAFE CITY STRIKE FORCE
In 2002, the Safe City Strike Force was created by an executive order of the Mayor and a Memorandum of Understanding was executed between various city departments.
The Safe City Strike Force was formed to combat blighted commercial and residential properties.
Originally, thirty to forty-five representatives from the Albuquerque Police Department, the Albuquerque Fire Department, the Fire Marshal’s Office, the Planning Department Code residential and commercial code inspectors, Family Community Services and the Bernalillo County District Attorney’s Office participated comprised the strike force.
From 2002 to 2010, the Safe City Strike Force was a division of the City Attorney’s Office with an attorney in charge as Director.
For the first 8 years of its existence, seventy to one hundred fifty properties a week, both residential and commercial properties would be reviewed by the Strike Force.
The Safe City Strike Force would handle referrals from the general public, neighborhood associations, the Mayor and the Albuquerque City Council.
The Albuquerque City Council would be given weekly updates on the progress made in their districts on the nuisance properties found.
The Safe City Strike Force routinely prepared condemnation resolutions for enactment by the Albuquerque City Council to tear down substandard buildings.
From 2002 to 2010 civil enforcement action against some 6,500 properties, both commercial and residential were taken by the Safe City Strike Force.
Actions taken by the Strike Force included actions against central motels, violent bars, flea markets, convenience stores and slumlord properties.
The Safe City Strike Force took civil action against substandard properties that had become magnets for crime.
A magnet for crime property is one that has an extensive history of calls for service to the Albuquerque Police Department and where crime occurs.
The Strike Force took actions against residential and commercial properties that were used for prostitution and drug activity such as meth labs and crack houses.
A review of the total number of calls for service a year is what is used in part to determine if a property is a public nuisance or a nuisance under city ordinances.
Calls for service to the Albuquerque Police Department to deal with properties that have become “magnets for crime” result in a drain on police resources and costs millions of dollars a year in taxpayer funds.
Currently there are estimated to be between 3,000 to 4,000 vacant, substandard buildings, both residential and commercial, within the Albuquerque area.
From 2010 to the present, the Safe City Strike Force has been a division of the Planning Department and has only 3 employees, the Director and 2 code inspectors.
Beginning in 2018, the Safe City Strike Force has 3 employees, its director and 2 inspectors, and the Safe City Strike Force exists in name only.
Review of the Keller Administration 2018-2019 proposed budget, a $3.9 million appropriation is being made as commitment to reinstate the Safe City Strike Force.
Further, $102,000 is being proposed for board ups of blighted properties, but significantly more will be needed to address the approximate 3,000 substandard properties throughout Albuquerque.
Eight years ago, the Safe City Strike had $1 million in funding for board ups, tear downs and condemnations.
The City of Albuquerque and the State of New Mexico have some of the strongest nuisance abatement laws in the county.
Crime rates can be brought down with civil nuisance abatement actions that protect the public health, safety and welfare of the public.
Both the city and the state need to ensure that sufficient resources are dedicated to enforce existing nuisance abatement laws.