Commonwealth Journal


August 11, 2011

Nuisance Law is Ambiguous

Somerset — Dear Editor,

We were especially interested in Heather Tomlinson’s article in the Commonwealth Journal’s July 31 edition concerning the Pulaski County “nuisance” ordinance. Our recent experience with Pulaski County Fiscal Court Ordinance No. 930.1 demonstrates not only ambiguity, but that the ordinance does not go far enough to protect residents from property owner abuses and neglect, and to eliminate public nuisances.

We live in a partially wooded residential area, and residents take great pride in their homes and landscaping. Actions by owners (wealthy, prominent citizens of Pulaski County) of nine lots in our community cause substantial annoyance to our community, interfere with residents’ enjoyment of their properties, reduce property values, create fire hazards and may have violated a community restriction regarding business use.

The owners logged the properties of the largest trees to sell as timber, leaving huge piles of small trees and branches that remain after nine months. Although owners of other undeveloped lots in the community keep their lots mowed and clean of such debris, the owners of these nine lots have refused to do the same, ignoring a request by all residents of the community to do so. As a result, these lots are not being maintained in a manner consistent with a residential community, creating a public nuisance.

Based on the provision of the county ordinance that states it “shall apply to unmowed or unmaintained lots in subdivisions,” we filed a formal nuisance complaint with Pulaski County on behalf of the residents.

The ordinance states that “discarded items constitute a public nuisance, detrimental to the welfare and convenience of the inhabitants of Pulaski County” and that “it is the public policy of this county to prohibit the keeping of discarded items on private property within the unincorporated limits of the county and such discarded items are hereby declared to be public nuisances.”

Regardless, the review board determined that the ordinance does not address the situation in our community. Apparently, this determination is based on the ordinance’s stating that discarded items “includes, but not limited to household refuse, items for or used in recycling, motor vehicles, auto body parts, tires, boats, home appliances and furniture, in a dilapidated or apparently inoperable condition ... discarded on private property for more than thirty (30) consecutive days.”

Since this definition of discarded items includes household refuse and is not limited to what is specified, the debris left on these nine lots could certainly be considered discarded items left by the logging process.

Nine months far exceeds 30 consecutive days.

If the definition is too restrictive for common sense judgments, then it needs to be improved. It seems the “unmaintained lots in subdivisions” provision had no bearing on the review board’s decision.

That such wide disparity occurs when applying Pulaski County’s “nuisance” ordinance attests to its weakness and poor enforcement.

Conditions cited in Kentucky statutes regarding nuisances and blighted properties in neighborhoods were apparently not considered by the review board. For example, the statutes make reference to fire hazards, reduced property values, substantial announce to communities, and interference with residents’ use and enjoyment of their properties.

Most of the applicable Kentucky statues seem to apply to counties with a first-class city; (ironically, Kentucky only has one first-class city). However, their language could easily be included in Pulaski County’s nuisance ordinance, significantly strengthening it and providing firm legal recourse for offended residents.

For example, Kentucky Statute 82.710 states that when local governments enact a nuisance code, the ordinance should “provide for the establishment of a hearing board and hearing officers and the procedures to be followed by the hearing board and hearing officers.”

Apparently, Pulaski County has a review board. However, the county’s ordinance does not have a provision that establishes (1) a review board; (2) how board members are determined and by whom; (3) number of board members; (4) board procedures; and (5) controls to prevent conflict of interest. Further, Kentucky statutes on nuisance provide for a judge or jury to award damages to property owners adversely affected by the nuisance. The Pulaski County ordinance does not contain such a provision.

Without such provisions, a review board can act with impunity and be unduly influenced by wealthy, prominent citizens. Based on our experience, the county’s “nuisance” ordinance allows a review board substantial discretion, and it does not adequately address public nuisances, leading to judgments that are not always in the best interest of residential neighborhoods.

Al Steiner

Bob Sibal

Wondering Woods Drive

Somerset, KY 42503

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