On Wednesday, July 29, the Albuquerque Journal ran a story that the city “may take legal action” against the Rising Phoenix apartment complex. A link to the full Albuquerque Journal article is here:
The Rising Phoenix is a 6 building apartment complex just north of the New Mexico Veterans Memorial located on Louisiana Blvd SE in the Trumbull Village area of Albuquerque. The apartments were built in 1975. According to its on line web page, the Rising Phoenix has 511 apartments offering 3 categories of apartments: 326 sq. ft. renting for $776 a month, 462 sq. ft. renting for $985 a month, and 753 sq. ft. renting for $1,087 a month.
In October, 2020 the City of Albuquerque Code Enforcement Division of the Planning Department inspected the apartment complex and cited the Rising Phoenix for numerous housing code violations affecting occupancy. Those code violations included exposed electrical wiring, broken windows and doors, inoperable bathroom ventilation fans, bathrooms and kitchens without hot water, missing or non-working fire extinguishers, a hole in a second-story walkway, a missing gas meter and vacant apartments that had been occupied by “trespassers” engaged in “criminal activity.” City inspectors also found an accumulation of discarded items outside some buildings, including trash, old mattresses, weeds and syringes.
After the code violation citations were issued, the City Planning Department gave the property Mihail Koulakis of Texas time to make repairs and bring the property into compliance. On May 25, the City, not satisfied with the progress of improvements made entered into a “nuisance abatement agreement” with the apartment complex owner. The property owner agreed to make repairs, clean up the property and keep it maintained in exchange for the city not taking any further action. The nuisance abatement agreement calls for management to trim shrubbery and trees, install and maintain security cameras, post signs saying the property is monitored by security cameras, install no trespassing signs, and put up fencing to prevent unauthorized entry onto the premises. As long as the repairs set out in the agreement were made as scheduled the city agreed to defer all civil, criminal and administrative action until at least Oct. 6, 2020
On July 9, Albuquerque City Councilor Pat Davis, whose district the complex is in, visited with residents of the apartments. Davis said he saw that the apartment owner “had done absolutely nothing, so I asked city legal to move forward,” because waiting until October would put the residents at risk. Although there is currently an eviction freeze, Davis said, the residents have few options, particularly during the COVID pandemic and said:
“They’re supposed to stay home, and this isn’t a good place for that. … The point of the abatement agreement is to get the owner and the city to work together and, thus far, the owner has not upheld his end.”
On Friday, July 31, Maia Rodriguez, a spokeswoman for the city’s Planning and Environmental Health departments reported that the city is in negotiations with the property owner for non-compliance with an existing nuisance abatement agreement. According to Rodriguez, failure of the negotiations could result in the city filing a civil cause of action for nuisance abatement in court.
PROPERTY OWNER RESPONDS
On Wednesday, July 29, the Albuquerque Journal ran a story that the city “may take legal action” against the apartment complex. According to the story, Albuquerque attorney, Sean Calvert, said his client’s company, MKJS I and II, purchased the complex in 2018 as a “distressed” property and has already “put a whole lot of money into it.” According to Calvert, many of the violations and problems at the complex existed prior to his client’s purchase of the complex. Calvert asserted that the city bears some responsibility for not stopping homeless people who congregate at nearby Phil Chacon Park from entering the complex, and breaking into and vandalizing vacant apartments. According to Calvert:
“Police keep pulling [homeless] people out of Rising Phoenix and ushering them back across the property boundary, but then they come back, and break doors and windows to regain access.”
When contacted by the Journal, a representative of the management team declined to provide information, including the number of people living in the complex and the number of units that are Section 8 or otherwise subsidized.
SQUATTERS HAVE NO PROPERTY RIGHTS
On Wednesday, August 12, KOB Channel 4 did an update report on the City’s efforts in demanding the owner of the Rising Phoenix Apartments clean up the property. It was reported that “squatters” who lived at the apartment are now concerned that they will have to find a new place to stay. According to an APD spokesperson, APD officers were dispatched to the property August 12 after reports of trespassing.
APD found a man with meth, two people with felony warrants and two others with misdemeanor warrants.
According to the City, the property managers have until August 17 to move people out of badly damaged buildings, put up fencing and hire security. City officials confirm Fannie Mae has allocated $2 million to the property managers to try and get the complex into compliance quickly.
One person identified as Christopher Krebsbach, admitted to being a meth user and living at the complex for free and said:
“I’m living in an abandoned apartment. … I’ve been here since March.”
Krebsbach said he was worried about police violating his civil liberties after what he saw and claimed:
“They were searched illegally because none of them, none of them all said it was OK to be searched. And many of them were hauled off – I believe we saw seven people. I feel as though [sending police] was a form of intimidation. [Where squatters will live if kicked out] … is something that we always worry about, all of us do. … Some more than others.”
City Councilor Pat Davis was interviewed and said it’s in the property owner’s right to call police to kick people out who are living there illegally.
PROPERTY RIGHTS VERSUS HUMAN PLIGHT
Property rights are favored under the law and there is absolutely no question that “squatters” have no property rights of occupancy of another’s real property. It is the responsibility of the real property owner to take steps to have squatters removed. Eviction and removal of people who are squatters on another person’s property is in fact accomplished in any number of ways including personal intervention by the property owner, requesting the Sheriff’s Office or APD for assistance, filing criminal charges for trespassing and seeking removal and arrest. However, for an elected city councilor to intervene to enforce the real property rights of another and seeking news coverage for such matters is nothing more than a publicity stunt.
What is so damn laughable is that Mr. Progressive Pat Davis proclaims “it’s in the property owner’s right to call police to kick people out who are living there illegally” while ignoring the apparent desperate situation of the those that are squatting in empty apartments. Evictions are only part of the solution. The city has available any number of resources and programs and spends millions each year within the Department of Family and Community Services to deal with the homeless, including providing vouchers, temporary housing and drug addiction counseling, but Davis is more interested in just eviction of squatters. Pat Davis says nothing about what efforts are being made by the city to help those that are homeless and so desperate that they become squatters at the “Rising Phoenix.” Pat Davis has his eyes on the news camera and not the problem of squatters and the homeless.
PAT DAVIS CONTINUES WITH HIS PATTERN OF PUBLICITY SEEKING WAYS
It is more likely that not that it was City Councilor Pat Davis that alerted both the Albuquerque Journal as well as Channel 4 about the code enforcement action taken against the Rising Phoenix. Davis has an extensive history for seeking publicity under the pretense that he is doing something for his constituents with enforcement of the city’s code enforcement and nuisance abatement.
One of the first times he did so was back in 2018.
On November 14, 2018 Channel 4 did an “investigative report” about the cities’ efforts to take civil code enforcement action against motels on central that had hundreds of calls for service for a variety of crimes, including auto thefts, assaults, domestic violence and violent crimes such as rape and murder. You can view the report here:
It was reported that motels had become “magnets for crime” and nuisance properties under the law and city ordinances. The report featured City Council Pat Davis who talked about city ordinances and laws he has no real knowledge about.
Pat Davis said that for years, the city lacked a willingness to go after so-called nuisance properties. Davis knew that because he was part of the problem. Those years the city lacked a willingness was from 2010 to 2017 under the previous Berry Administration, but Davis did not disclose that fact.
Davis went so far as saying there’s a “new approach” which makes hotel owners more accountable for crimes on their property. No, Councilor Davis, it was not a “new” approach. It was an approach that was abandoned, Davis knew that but made no mention of it.
Davis went so far as to say:
“Neighbors are starting to demand we do more to address these problem properties and quite frankly we should. It’s not just the city fighting back, the court is willing to back us up … If you want a sort of scumbag motel in Albuquerque right now you look at what happened in the Sahara [hotel which is under a court order] and you realize that you could be next.”
Such bravado coming from a City Councilor who did absolutely nothing to help fund the Safe City Strike Force but voted repeatedly to fund the disastrous ART Bus project for millions and refusing to put it on the ballot.
SAFE CITY STRIKE FORCE WAS SOLUTION
From 2002 to 2009, the Safe City Strike Force was formed to combat blighted commercial and residential properties. Thirty (30) to forty-five (40) 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 and comprised the strike force.
Seventy (70) to one hundred fifty (150) properties a week, both residential and commercial properties would be reviewed by the Safe City Strike Force. The Albuquerque City Council would be given weekly updates on the progress made in their districts on the nuisance properties identified by the Strike Force. The Safe City Strike Force routinely prepared condemnation resolutions for enactment by the Albuquerque City Council to tear down substandard buildings, including commercial buildings. Over 8 years, the Safe City Strike Force took civil enforcement action against some 6,500 properties, both commercial and residential.
From 2010 to 2017, Mayor Richard Berry and Chief Administrative Officer Rob Perry steadily dismantled the Safe City Strike Force to the point that it existed in name only with only a Director and a few code inspectors assigned to it.
In 2018, in his first budget ever submitted, Mayor Tim Keller made a firm commitment to reinstate the Safe City Strike Force when he requested $3.9 million for the city’s Code Enforcement Department and the Safe City Strike Force in the adopted 2018-2019 budget. $1.5 million in additional public safety spending was added by the city council. The Safe City Strike Force and the Planning Department received a funding bump of $425,000 for the 2018-2019 fiscal year. $125,000 was allocated to hire two additional code enforcement specialists. $300,000 was allocated to secure or demolish neglected structures.
SAFE CITY STRIKE FORCE SUCCESS
The success of the Safe City Strike Force is clear and unmistakable and can be summarized in part as follows:
TEAR-DOWNS AND BOARD UPS
The Safe City Strike Force was responsible for the tear down of an entire residential block of homes located at 5th Street and Summer in the Wells Park neighborhood area located north of downtown Albuquerque. There were a total of 21 abandoned and vacant, boarded up properties that could not be repaired, owned by one elderly woman who agreed allowed a tear down of the structures by the City.
A voluntary tear down of an entire strip mall was negotiated by the Strike Force. The strip mall had been boarded up for years, beyond repair, located near the former Octopus Car Wash on Menaul Street and Eubank. The strip mall was constantly being broken into, with fires being set by the homeless, and at one time a dead body was found at the location.
Two long vacant and vandalized restaurants, the Purple Plum and a Furr’s cafeteria, both on far North-East heights Montgomery, were torn down by the Safe City Strike Force.
One year, Albuquerque experienced a large spike in meth labs where almost 90 meth labs were found and identified and where the Safe City Strike Force was asked for assistance with contamination clean up.
The Safe City Strike Force required commercial property and motel owners to make repairs and they were required to reduce calls for service and address security on their properties.
The Safe City Strike Force took code enforcement action against 48 of the 150 motels along central and forced compliance with building codes and mandated repairs to the properties. The Central motels that were demolished were not designated historical and were beyond repair as a result of years of neglect and failure to maintain and make improvements.
Central motels that had historical significance to Route 66 were purchased by the City for renovation and redevelopment.
The Central motels that the Safe City Strike Force took action against included:
The Gaslight Motel (demolished)
The Zia Motel (demolished)
The Royal Inn (demolished)
Route 66 (demolished)
The Aztec Motel (demolished)
Super-8 (renovated by owner)
The Travel Inn (renovated by owner),
Nob Hill Motel (renovated by owner)
The Premier Motel (renovated by owner)
The De Anza (purchased by City for historical significance)
The No Name
The Canyon Road (demolished)
The Hilltop Lodge
American Inn (demolished)
The El Vado (purchased by City for historical significance and now renovated and reopened)
The Interstate Inn (demolished).
The Safe City Strike Force was responsible for the demolition of at least seven (7) blighted motels that were beyond repair.
When people were displaced by enforcement actions taken by the Safe City Strike Force, the City’s Family and Community Services Department would provide vouchers to the displaced and assist in locating temporary housing for them and making sure people were not thrown out onto the streets.
The Safe City Strike Force took action against violent bars on Central that were magnets for crime. Many Central bars have hundreds of calls for service a year placing a drain on law enforcement resources.
A few of the bars located on or near Central that were closed or torn down by the Safe City Strike Force include the Blue Spruce Bar, Rusty’s Cork and Bottle, the Last Chance Bar and Grill and Club 7. The Safe City Strike Force closed Club 7 and the owner was convicted of commercial code violations.
The city attorney’s office in conjunction with the Bernalillo County District Attorney’s office brought criminal charges against and convicted the Club 7 downtown Central Avenue bar owner that hosted a “rave” that allowed under age participants to mingle with adults and where a young girl was killed.
The Safe City Strike Force took enforcement action against a number of convenience stores on Central that had substantial calls for service to APD. In 2005, The Safe City Strike Force identified convenience stores that had an unacceptable number of “calls for service” which resulted in the convenience stores being considered a public nuisance by the Albuquerque Police Department (APD). Outdoor phones at the convenience stores used for illicit drug transactions were identified.
APD felt the convenience stores were relying upon APD to provide security at taxpayer’s expense rather than hiring their own private security company. In 2005, the Strike Force negotiate a stipulated settlement agreement with three major convenience store corporate owners of seventeen (17) convenience stores throughout Albuquerque and they agreed to pay for private security patrols.
The Safe City Strike Force was responsible for the closure of Louie’s Flea Market and the Star Flea Market, two Westside flea markets both on Old Coors Road South of Central. The flea markets brought down property values. Both flea markets had been around for decades and caused extreme traffic congestion on weekends they operated causing problems for the established or developing residential areas. Both flea markets were found by the Albuquerque Police Department to be locations where stolen property was being sold and both had an excessive number of calls for service.
In 2010, the previous Republican administration began to dismantle and reduce funding for the Safe City Strike Force. At the beginning of 2018, the Safe City Strike Force had one employee, its director, and the Safe City Strike Force existed in name only.
MAYOR KELLER’S “ADAPT” PROGRAM REPLACED SAFE CITY STRIKE FORCE
In July, 2019, Mayor Tim Keller announced the creation of the “Addressing Dilapidated and Abandoned Property Team” (ADAPT). The ADAPT program supposedly relies on new data to target the worst 100 nuisance properties in the city. The goal of the ADAPT program aims to get dilapidated and crime-riddled homes a fresh start. The program is part of the Fire Marshal’s office. Confidential sources within City Hall reported that Mayor Tim Keller and his City Attorney felt the Safe City Strike Force had too much of an “aggressive sounding title”, and they did not believe it fit into Keller’s “ONE ABQ” slogan. The city wanted to soften the approach to nuisance abatement and that is the primary reason for the ADAPT program.
Under the ADAPT program, city officials meet with homeowners and property owners to address crime and code enforcement problems in hopes of turning things around. According to the city, it has 124 properties enrolled in the ADAPT program and the city claims 96% of those property owners are working to fix the problems. According to Albuquerque Fire Rescue spokesperson Lt. Tom Ruiz:
“The whole premise of the ADAPT program is to help the property owners, not punish them.”
In the 2019-2020 approved City budget, a mere $711,000 was allocated for Mayor Keller’s ADAPT Program. Mayor Keller’s “ADAPT” program essentially replaced the funding of the Safe City Strike Force contained in the 2018-2019 fiscal budget. The Safe City Strike Force exists in memory only at city hall.
COMMENTARY AND ANALYSIS
It is pathetic that one lone City Councilor, especially the likes of Pat Davis actually thinks he is taken seriously when he complains about the living conditions of renters at an apartment complex that are out of sight and out of mind to the property owner that does not even live in the state of New Mexico. For the last 6 years, Davis has attempted to take action against many a nuisance property in within his District such as the Rising Phoenix, including trying to enact new ordinances, with little or no success.
Simply put, diplomacy and patience is often a waste of time with property owners who refuse to invest and keep their properties up to code. During his first term in office, Davis was repeatedly asked to take steps and fully fund and staff the Safe City Strike Force, but he refused thinking he had a better plan which resulted in plenty of press for him but no results. City Council President Pat Davis needs to stand down with his publicity seeking ways and allow the professionals within the City’s Attorney’s Office to take over. What Davis should be doing is demanding that the Mayor and City Attorney do their jobs when it comes to enforcing the nuisance abatement laws.
Mayor Tim Keller’s new “Addressing Dilapidated and Abandoned Property Team” (ADAPT) program is nothing more than extensively watered-down version of the Safe City Strike Force. ADAPT is essentially a “passive aggressive” approach by the Planning Department to deal with residential and commercial property owners. Such an approach usually does not work with out of state property owners as is evidenced by the Rising Phoenix. The Safe City Strike Force for a full 8 years showed immense success in dealing with meth labs, crack houses and magnets for crime, especially when legal action was taken by the city attorney’s office against slumlords.
What Mayor Keller and the City Attorneys office fail to understand is that the passage of time and the delay to make repairs to apartment complexes that should be made add nothing more than misery and a slogan of One ABQ is meaningless when their own quality of life is affected.
The City of Albuquerque has one of the strongest Nuisance Abatement Ordinances and New Mexico has some of the strongest state statutes in the country on nuisance abatement with court rulings defining nuisance. The law allows the City Attorney’s Office to take aggressive code enforcement action against slumlord’s blighted properties, both residential and commercial, that have become nuisances and magnets of crime resulting in calls for service to APD. Such calls are a drain on police resources. You can read the city ordinances and state statues in the postscript below.
Under existing ordinances, civil and criminal action can be taken against property owners and the properties that have become a nuisance and a danger to public safety. Under existing city ordinances, property owners can be cited for code violations for not maintaining their properties up to city codes. The city nuisance abatement laws provides that a magnet for crime property is one that has an extensive history of calls for service to the Albuquerque Police Department (APD). They are properties where crime occurs that would allow a District Court to declare the property a nuisance.
The City of Albuquerque and the State of New Mexico have some of the strongest nuisance abatement laws in the county. A summary of those laws are provided in the postscript below. Crime rates can be brought down with civil nuisance abatement actions that protect the public health, safety and welfare of the public. It is very disappointing that Mayor Tim Keller reneged on his decision to reinstate the Safe City Strike Force when the decision was made to replace the Safe City Strike Force with his own ADAPT program. The Strike Force was a proven and effective program and was recognized as a best practice nationally. Mayor Keller’s ADAPT program sends the wrong message that he wants city residents and property owners to be content and ADAPT to the fact the city really does not want to do anything about nuisance, substandard and abandoned properties.
As far as phony progressive City Councilor Pat Davis is concerned, he needs to step aside and allow the professionals at city hall to deal with nuisance laws as well as allow the city to step in and continue with its efforts to help and assist the homeless and the drug addicted who become squatters on other people’s properties.
On Friday, August 14, it was reported that the Rising Phoenix has been placed in receivership after the owner, Mihail Koulakis of Texas and his MKJS Investments I and II, relinquished control. On July 27, 2nd Judicial District Court Judge Erin B. O’Connell file a Court Order appointing Kathleen Danuser of the international company Greystar Real Estate Partners, as the receiver of the property. Fannie Mae, the Federal National Mortgage Association, is listed on the court filing as the Plaintiff and will be providing $2 million to Greystar to secure the property and make all necessary repairs and improvements to bring it into compliance city codes. Danuser will serve as the receiver until the court enters another order terminating or discharging her. She will be paid $1,000 a month, plus reimbursement for reasonable out-of-pocket expenses. The receiver is also authorized to eventually sell the property on behalf of the owner, subject to court approval.
“Among the violations described in the nuisance abatement agreement were exposed wiring and other electrical problems, broken windows and doors, bathrooms and kitchens without hot water, missing or nonworking fire extinguishers, and vacant apartments that had been occupied by trespassers engaged in “criminal activity.” According to the nuisance abatement agreement, between September 2018 and September 2019, Albuquerque police officers responded to complaints at the apartment complex that included aggravated assault, aggravated battery, arson, auto burglary, auto theft, breaking and entering, robbery, robbery with a deadly weapon, criminal damage to property, criminal trespass, larceny and various drug-related offenses.”
POSTSCRIPT ON THE LAW OF NUISANCE
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.
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 of Albuquerque ordinance defines a nuisance property as “any parcel of real property, commercial or residential, on which …illegal activities occurs, or which is used to commit conduct, promote, facilitate, or aide the commission of … any … [crimes or housing code violations].” (See 11-1-1-3, city ordinance defining Public Nuisance)
The nuisance abatement ordinance lists misdemeanor and felony statutes and housing and commercial codes.
Albuquerque’s Nuisance Abatement Ordinance states:
“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.” (See 11-1-1-10, Public Nuisance Prohibited)
The City’s Uniform Housing Code defines a nuisance in part as “Any nuisance known at common law …” or “whatever is dangerous to human life or is detrimental to health, as determined by the health officer” or “any violation of the housing standards” required by the building and housing codes. (See 14-3-1-4, ROA 1994, Housing Code defining Nuisance).
In 2004 the city enacted the Vacant Building Maintenance Act which requires property owners to register their vacant buildings, repair them and keep them maintained. Albuquerque’s housing and commercial codes define substandard structures and there are provisions that allow inspections and civil code enforcement actions.
Under existing city ordinances, property owners can be cited for code violations for not maintaining their properties in compliance with city codes.
Under the nuisance abatement ordinance, aggressive code enforcement action against blighted properties, both residential and commercial, can be taken where it is found that that the properties have become a nuisance and magnets of crime resulting in calls for service to the Albuquerque Police Department.
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)
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.
For a related blog article see: