Give me a ticket, please!

By Mike Weland

Had Monday afternoon’s public hearing before county commissioners on a proposed amendment to the enforcement provisions of the Boundary County Zoning and Subdivision Ordinance been a little less raucous and a bit more civil, there’s a chance the 99.9-percent of Boundary County property owners who do their best to abide our local land use laws would have heard a couple of significant and definitive facts that seem to have gone unnoticed in the debate so far.

But it may well be that those rare few people in the county who hold themselves superior and thus above the law did take notice. And perhaps that one-tenth of one percent did their best to distract attention away, lest what they perceive as a potential golden key to free them from rules they find unbearably onerous be taken away.

While the outcry heard loudest Monday against a proposed ordinance amendment was that the county was cracking down on the already overly oppressed property owners by elevating violations that are currently infractions to misdemeanors, “They’re making people who break minor planning rules into criminals!” one woman exclaimed via social media … commissioners didn’t get the opportunity to speak to nor explain the most significant change that would have been brought by the proposed amendment. And it’s important.

But first, a primer.

An infraction is a civil public offense, not constituting a crime, which is punishable only by a penalty not exceeding $300 and for which no period of incarceration may be imposed. A misdemeanor is a minor crime punishable by up to one year in jail and/or a fine not to exceed $1,000.

From the time the first land use ordinance was grudgingly adopted in Boundary County in the mid 1970s until October, 2012, when the original version of the ordinance currently in effect was adopted, all violations of county land use law were misdemeanors.

From around 1998 to October 2012, the zoning ordinance set for itself the maximum penalty for a zone ordinance misdemeanor; a fine not to exceed $300, with no jail time.

The idea was to hold the misdemeanor penalty to the level of an infraction while requiring the zoning administrator do all possible to bring about voluntary compliance. And whether the violation is classed as an infraction or a misdemeanor, the approach has worked relatively well to date, despite what the loquacious liberty league might say to misinform.

In the 50 years land use, subdivision and zoning ordinances have been in effect as Boundary County law, no county zoning violation has ever been filed or charged in a court of law, infraction or misdemeanor. While that’s sinking in, consider this:

4.7. Complaints of Violation: Whenever a violation of the land use codes is alleged to have occurred or is occurring, any person may file a written complaint with the planning department. The complaint shall include the type and evidence of the violation, the location, and ownership information when available. Upon receipt of the complaint, the county may investigate the complaint …

That’s the passage proposed. It would replace 4.4 in the existing ordinance:

4.4. Reporting Violations: If any person has complaint or cause to believe that a violation of this ordinance has occurred or is about to occur, that person should notify the administrator, providing the nature of the complaint and information sufficient to accurately identify the lot or parcel upon which the violation is alleged. A citizen may also make complaint directly to the sheriff or the prosecutor, and nothing in this section will preclude their taking action as deemed appropriate to the allegation …

Notice anything? Here’s a hint: Boundary County does not and has never had an ordinance enforcement apparatus. For those thinking this amendment is emulating California — it’s a too familiar quip and is, as usual, wrong.

A hint of the true impact this amendment would have had can be found in the staff report, initiated November 30. It’s a brief entry in the summary of proposed changes as regards the current code: “Allows a violation to continue if a fine is paid.”

In U.S. jurisprudence, there are five objectives in meting out penalties for crimes or infractions; deterrence, incapacitation, rehabilitation, retribution or restitution. Allows a violation to continue if a fine is paid is conspicuously not on that list, but look at the ordinance now and still to be in effect and oh my goodness — there it is! And not once, but twice!

4.1.2. Separate Violation may Exist: A separate violation may be deemed to occur each week an adjudicated infraction continues to exist without abatement, beginning on the date of adjudication, as established at Section 4.7, below. In the case of illegal structure placement, where no simple remedy to move the structure exists, and there is no unreasonable risk to public safety, a judge may impose a fine up to $1,000. Once the infraction is paid by the homeowner, this will preclude Boundary County from taking further action unless the structure is subsequently modified without an approved variance.

4.1.4. Separate Violation may Exist: A separate violation may be deemed to occur each week an adjudicated misdemeanor continues to exist without abatement, beginning on the date of adjudication. In the case of illegal structure placement, where no simple remedy to move the structure exists, and there is no unreasonable risk to public safety, a judge may impose a fine up to $5,000. Once the infraction is paid by the homeowner, this will preclude Boundary County from taking further action unless the structure is subsequently modified without an approved variance.

Two sentences, fewer than 30 words each, and they essentially limit enforcement of the Boundary County Zoning and Subdivision Ordinance to the 99.9-percent of property owners who voluntarily comply with ordinance provisions and affords that one-tenth of one-percent the right to do what such folk have done for 50 years now — thumb their nose at authority at the expense of all  those around them.

But there is one difference and it has the greediest of those who deliberately put themselves above the law salivating, which might well explain the sudden unruly spate of attendees, estimated at 125 souls, after two prior hearings on the same amendment drew fewer than a dozen people each.

It wasn’t about property rights or liberty or turning Boundary County California at all, it was about keeping those two sentences on the books so that the unscrupulous might push and dare with childish abandon in hopes of getting one of those magical madcap tickets that for the price of a fine will let them do what they want regardless of how it might affect their neighbors or cost the county.