On July 23, 2019 and July 30, 2019, Chanel 4 News did stories on abandoned, neglected and nuisance properties. Both Channel 4 reports were at worst inaccurate or at best misleading when it was reported that nuisance property “owners are given 12 months to fix a substandard property before it can be declared a public nuisance and condemned” and the city cannot do that much until then. That is simply not true. I know because I was a Deputy City Attorney and the Director of the Safe City Strike Force for 8 years. The Strike Force as a team took immediate legal action and code enforcement against hundreds of nuisance properties a year.
On July 29, 2019, Channel 13 did another of the many stories it has done over the last 15 years on the same hoarder who has his yards filled with, trash, litter and debris which he feels are collectible and including old beat up vehicles. Pigs lived in the house at one point. At least 15 years ago, as a Director of the Safe City Strike Force, I initiated a nuisance abatement action against the individual. After a court hearing where testimony from neighbors was presented, the city secured court orders that mandated the clean up of the property.
This article is an in depth commentary on all 3 news stories and the city ordinances, state law and case law primarily because of how inaccurate the reports were. There appears to be no apparent desire of Channel 4 or 13 to confront the city with the truth on its failure to act. Because of the inaccuracies contained in all 3 TV news stories, the Postscript to this article contains the State Statutes and the City Nuisance Abatement Law and the Rules of Civil Procedure.
July 23, 2019 CHANNEL 4 NEWS REPORT BY JOY WANG
Following is the transcript of the Channel 4 TV news report followed by the link to the report:
ALBUQUERQUE, N.M.- “A home on Supernova Street in northwest Albuquerque has been a problem for neighbors for months.
In December, it [was] riddled with bullet holes. Since then, neighbors report the problems continuing.
Tired of the problems, neighbors banded together to make sure something was done about the property.
“We’re not going to let this happen in our neighborhood,” Janice said. “I’ve lived here 12 years, never had an issue until this happened and it was a nightmare.”
Janice said it took about 150 calls to the city and five of her neighbors moving away before anyone showed up to board it.
“Police showed up,” Janice said. “There was code enforcement here. They actually arrested a couple people that were in the home for outstanding warrants.”
City officials said their hands were tied, too.
Code enforcement sent violation notices, cleaned up debris, boarded up the home and notified the owner.
In Albuquerque, owners are given 12 months to fix a substandard property before it can be declared a public nuisance and condemned.
“A California management company has taken over and says that you guys should see some updates, some progress soon,” Janice said.”
Below is the link to the report:
https://www.kob.com/albuquerque-news/neighbors-band-together-to-fight-back-against-problem-property/5432916/?cat=500&fbclid=IwAR2-8-VtDK96abnr0PTjQ3wRjQ9lxCbcWbZEVLjbCU2mOd1nOn5QW-qoInY
ANALYSIS AND COMMENTARY
The Channel 4 report says “City officials said their hands were tied … [and] In Albuquerque, owners are given 12 months to fix a substandard property before it can be declared a public nuisance and condemned”. This is not true nor what the law provides. The most effective approach to address blighted, nuisance and crime riddled properties is to initiate civil complaints in District Court, which can be done immediately. The city attorney can secure temporary restraining orders, preliminary and permanent injunctions by showing immediate and irreparable harm and a danger to the public. It is injunction relief and is not a “condemnation action” nor a taking.
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. Additionally, 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 the city nuisance abatement laws, 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 described bullet holes, the shooting up a neighborhood and 150 calls for service to APD qualifies to make a property a nuisance. The City Attorney’s office should have sought court orders to compel property owners to bring their properties into compliance with city ordinances, codes and state laws.
July 30, 2019 CHANNEL 4 NEWS INVESTIGATES REPORT BY NATHAN O’NEAL
Following is the short transcript of the Channel 4 TV news report followed by the link to the report:
ALBUQUERQUE, N.M.- “In New Mexico’s largest city, abandoned properties pose a complex problem – becoming havens for crime, drug use and fires started by squatters.
In August, the Albuquerque City Council will consider proposals to demolish four abandoned properties. Those properties include: 247 Espanola St. NE, 8400 Chico St. NE, 600 Dallas St. NE and 2401 Quincy NE, according to a city planning official.
The abandoned properties problem is widespread throughout the Duke City.
4 Investigates obtained data for all the Albuquerque properties eligible to be condemned. The City of Albuquerque has identified more than 260 properties that have been deemed “unsafe” for at least a year.
Albuquerque City code inspectors frequently visit one long-abandoned home near Chico and Wyoming.
“You see a lot of illegal dumping here, trash… people dump furniture, shopping carts, syringes,” said inspector Christopher Romero. “We don’t want children here obviously. We don’t want anyone here because we don’t’ want anyone getting hurt.”
Albuquerque’s interim planning director, Brennon Williams, said demolition is the city’s last resort after giving the property owner at least one full year to clean up their act.
“It’s a waste to spend money on maintaining a property that nobody’s going to take responsibility for,” Williams said.
When asked how to hold property owners accountable, Williams replied:
“The most direct method – which is allowed under state statute and under ordinance – is to put a lien against the property for that, the costs that are incurred and then arguably the lien – based on tax payer dollars – can be foreclosed on.”
Abandoned properties are also contributing to a recent surge in house fires across the city. With 874 structure fires last year, Albuquerque has seen a 21 percent increase over the last five years.
The city often cleans up and clears out blighted homes when property owners are either not responsive or can’t be located.
In the past, the city would deploy the Safe City Strike Force to deal with the problem properties. However, Mayor Tim Keller has now launched a new program – called ADAPT – which relies on new data to target the worst 100 properties.
“The data collection and the analysis that goes into the current program is much more strategic. It was a little subjective in the past and the city was criticized for that,” said Williams, adding: “This approach is much more purposeful than it was in year’s past.”
However, change doesn’t happen overnight. It often takes months if not years to deal with “substandard” properties – which can be a nightmare for neighbors.”
Below is the link to the report:
https://www.kob.com/new-mexico-news/4-investigates-the-dump-next-door-hundreds-of-abandoned-properties-in-albuquerque/5441560/?fbclid=IwAR14dhSgoN1xtL1585M19jOnnBkgcy3aXUgEuq2gcAOzLOl92T73_ME4iuQ#.XUEbQ7fbeWg.facebook
ANALYSIS AND COMMENTARY
The statistics provided in the 4 Investigates Report are accurate to a degree when it says “The City of Albuquerque has identified more than 260 properties that have been deemed “unsafe” for at least a year [eligible to be condemned.] … Abandoned properties are also contributing to a recent surge in house fires across the city. With 874 structure fires last year, Albuquerque has seen a 21 percent increase over the last five years.”
Notwithstanding the news report, the actual number of “unsafe” and substandard properties is in all likely approaching 4,000 or more. During the last 9 years, the city under the previous Mayor and under current Mayor Tim Keller has essentially completely dismantled the Safe City Strike Force and city code enforcement. Nuisance abatement actions essentially ceased to exist and inspections and code enforcement actions were not a priority.
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. Channel 4 failed to do any investigation or report on how many residences are now on that list and what the city is doing to enforce it.
In the July 30, 2019 interview Albuquerque’s Interim Planning Director Brennon Williams said demolition is the city’s last resort after giving the property owner ”at least one full year to clean up their act.” When Williams was asked how to hold property owners accountable, Williams replied:
“The most direct method – which is allowed under state statute and under ordinance – is to put a lien against the property for that, the costs that are incurred and then arguably the lien – based on tax payer dollars – can be foreclosed on.”
Williams also said: “The data collection and the analysis that goes into the current program is much more strategic. It was a little subjective in the past … .” NO, NO, NO, it was not subjective in that nuisance properties were determined based upon the number of calls for service to APD as well as the extent of code violations found, which is about as objective as you can get. Enforcement actions were not done on a whim. Williams was also not asked about the Vacant Building Maintenance Act which his department is required to enforce.
Contrary to what Williams said, the most direct and immediate method under state statute and under city ordinance is found within the New Mexico Rules of Civil Procedure, cited below in the postscript, which allows the city and private parties to institute civil complaints in District Court. Such court actions can be done immediately and there is no one year waiting period. It is not a foreclosure action and the city does not take title to the property. The State Nuisance abatement statute specifically provides for injunctions. The City can secure temporary restraining orders, preliminary and permanent injunctions by showing immediate and irreparable harm and a danger to the public. Such actions force the property owners, and even slum lords to take responsibility for their properties.
It is painfully obvious that Mayor Keller’s interim planning director Brennon William has little knowledge of what the law is with respect to nuisance abatement which includes state law and violations of city codes and ordinances. It is strongly recommended that Williams confer with the City Attorney’s Office and confront it with its failure to give him assistance.
Mayor Tim Keller’s new “Addressing Dilapidated and Abandoned Property Team” (ADAPT) program supposedly relies on new data to target the worst 100 properties is nothing more than extensively watered-down version of the Safe City Strike Force. Confidential sources within City Hall have said that Mayor Tim Keller felt the Safe City Strike Force had too much of an “aggressive sounding title”, he and others did not like it as fitting into his “ONE ABQ” slogan and the city wanted to soften the approach to nuisance abatement. Confidential sources have also said Mayor Keller’s previous Planning Director made it known to the housing code inspectors he felt housing code inspections and posting residential homes as “substandard” was not a priority. The former Planning Director was reluctant or refused to allow inspectors to file misdemeanor charges as was done in the past.
ADAPT is essentially a “passive aggressive” approach by the Planning Department which will not work, or have little success, when dealing with meth labs, crack houses and magnets for crime with legal action by the city attorney’s office being the most effective approach to crime and slumlords. What Keller fails to understand is that for residential property owners who feel the sting of crime in their neighborhoods and living next door to magnets for crime, a slogan of One ABQ is meaningless when their own quality of life is affected, not to mention a reduction in property values. But then again when it comes to Mayor Tim Keller, images and press conference appear to be all that is important to him. On more than one occasion he has appeared on TV news casts to take credit for “teardowns” done by the city.
In the 2019-2020 approved City budget, a mere $711,000 is allocated for Mayor Keller’s “Addressing Dilapidated and Abandoned Property Team” (ADAP) Program. Mayor Keller with his new “ADAPT” program is essentially failing to follow through on his funding of the Safe City Strike Force contained in the 2018-2019 fiscal budget. 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.
JULY 29, 2019 CHANNEL 13 NEWS REPORT BY JEANNIE NGUYEN
ALBUQUERQUE, N.M. (KRQE) – For more than two decades, an Albuquerque man has been known to his neighbors as the city’s worst hoarder. He’s been the focus of a number of Larry Barker investigations. Now, the city has stepped in with a lot of manpower to try to finally put an end to the problem.
“John is compulsive. He can’t control himself. When his dad died, I think about 1995, he went out of control,” says James Mondloch.
For Mondloch, seeing the city clean up his neighbor’s yard has been a long time coming. For the past 20 years, the city says they’ve been trying to reason with John Gallegos, the man who owns the house near Louisiana and Copper.
“There had been constant complaints about the storage of litter, debris, trash. The collecting of anything and everything,” says Interim Planning Director Brennon Williams.
The collection of things also includes animals. Larry Barker investigations have shown pigs actually lived in the house at one point.
“He did seem like he wanted to fix things. He talked like he wanted to fix things, but when it actually came time to doing it, there was never any action,” Williams says.
About three years ago, the city was granted a permanent injunction on the property to clean it up. In the past, the city would hire contractors to throw things out into dumpsters. However, this was different.
“It’s estimated that we may need six or eight, maybe more, of these garbage trucks to haul off all the trash and debris that’s just in the backyard alone,” says Williams.
After giving Gallegos a ten-day notice with no response, about 30 different city employees showed up Monday to clean. At one point, Gallegos even tried to plead to code enforcement officials to not tow his car. It didn’t work.
Even though Monday’s cleanup is something Mondloch has been wanting for a long time, he hopes it’s enough to change Gallegos for the better. Gallegos refused to comment.
“John, mend your ways otherwise you’re going to be homeless,” Mondloch says.
All of the clean-up the city is doing is going to cost Gallegos a lot in the end. The city will be putting a lien on the house for all the costs from this job. They estimate it’ll be at least $10,000.
After the city finishes cleaning up the house, they will have an inspector monitor the area once a week to make sure Gallegos follows the rules. If he doesn’t, they’ll be back to clean it up again.
https://www.krqe.com/news/albuquerque-metro/city-steps-in-to-clean-pig-house-owned-by-infamous-albuquerque-hoarder/?fbclid=IwAR1V9-71fHj9EKt1VTI09E7Av4oaeKWyOsD4JOL1GZARap1-Otdr_SQudSw
COMMENTARY AND ANALYSIS
Channel 13 ostensibly thinks that this one property owner is the only person in the city that has a problem with accumulating junk and debris. Some of the most tragic and heart-breaking cases that the Safe City Strike Force dealt with involved “hoarders”. Hoarding is not classified as a mental illness but rather is a pattern of behavior that is characterized by excessive acquisition and an inability or unwillingness to discard large quantities of objects or animals that cover the entire living areas or exterior of a home or property. Being an “eccentric” or different is a good description of a hoarder.
The Strike Force dealt with a number of cases of hoarders.
The saddest case the Safe City Strike Force City dealt with was an elderly woman who was housing over 60 cats in her 1,400 square foot, three bedroom home. The home was not fit to be lived in as a result of contamination by the animals. Dead cats who she could not part with were found in her kitchen freezer. The main bathroom was found to be storage space for stacks of used feminine napkins stacked floor to ceiling used to urinate in while the main bath tub was used as a cat litter box and the tub was a quarter full of feces. The City removed the cats, cleaned up the property and placed a $40,000 lien on the home for the cleanup of the contamination. The house had to be completely gutted to the studs throughout and sanitized and remodeled and placed on the market for sale.
Another hoarder had accumulated an extensive number of items in his front and backyards to the extent that the area had become rat infested and the City was forced a cleanup op the area. Still another hoarded accumulated papers, magazine and printed material floor to ceiling to the point you literally had to crawl through pathways in the house to get around.
When this Channel 13 report says “For the past 20 years, the city says they’ve been trying to reason with John Gallegos, …” it is a totally understatement of the problem. The Safe City Strike Force dealt with Mr. Gallegos and forced him into court and secured court orders. The Safe City Strike Force was the first time ever that he was forced to do something. What is pathetic is that a stipulated settlement agreement has been signed in the original case where Mr. Gallegos agreed to maintain the property or face sanctions if he did not, but apparently the City Attorneys Office is reluctant to go to court and seek contempt of court sanctions.
The Channel 13 report says that about three years ago, the city was granted a permanent injunction on the property to clean it up. The City Attorney’s Office apparently does not understand the Rules of Civil Procedure and what they could do to seek Contempt of Court Orders. One sanction the court can impose is jail time for violations of court orders and the permanent injunction. The city attorneys office has 33 attorneys, and sources say only one attorney is assigned to do nuisance abatement, when the Safe City Strike Force had as least 5 at any given time along with para legals and support staff.
What was not reported by Channel 13 is that Mr. Gallegos owned acres of vacant land in another county and used it to store and accumulate discarded items and vehicles, many vehicles 20 or more years old. Mr. Gallegos testified in court that he had over 70 old cars that he was storing and represented that they were operable, insured and registered. He testified he would move many of the vehicles between his home and mother’s home in the North East Heights.
SAFE CITY STRIKE FORCE SUCCESS
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.
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.
CENTRAL MOTELS
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 include the Gaslight (demolished), The Zia Motel (demolished), The Royal Inn (demolished), Route 66 (demolished), the Aztec Motel (demolished), the Hacienda, Cibola Court, 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), Hill Top Lodge, American Inn (demolished), the El Vado (purchased by City for historical significance), 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.
VIOLENT BARS
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.
CONVENIENCE STORES
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.
FLEA MARKETS
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 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.
CONCLUSION
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. Too bad.
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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.
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