I have written before that I consider civil enforcement (of ordinances, etc.) broken. (See, for example, Our Enforcement Culture. Many people in many towns have doubts about the reasonable, fair, unbiased enforcement of ordinances; those concerns are more serious in Whitewater.
It was, after all, only last fall that a longstanding member of Common Council remarked on her concern about unbiased enforcement during a council meeting. Ms. Kienbaum is hardly what one would consider a dissenter; if she has voiced even some of these concerns, it’s a sign of how prevalent they are in our town.
The many challenges of enforcement in Whitewater were a principal concern of our latest Council meeting. Two topics dressed enforcement matters: (1) number of automobiles to be parked lawfully, and where, at local residences, and (2) the number of unrelated people who may live together at a residential property.
I will consider the topics in reverse order, as the number of unrelated people who may live together at a residential property is the more significant.
The Council considered, and approved a change in a municipal ordinance regulating the number of residents in a non-family household.
There’s no question in my mind that the motivation of the ordinance’s proponent, Atty. Terry Race, is understandable. He has had what one could only describe by understatement as a challenging year with his neighbors. I have sympathy for anyone in his situation (although few people have been as unfairly treated as he has been).
When someone with his recent experiences observes that our current system is broken, it’s impossible reasonably to disagree. One may say that Atty. Race and I both see a problem, but we do not hold to the same solution
Here is our municipal code regarding non-family households, from Section 19.09.520:
“Non-family household” means a group of individuals who do not constitute a family under the terms of this title and who live as a single household in a dwelling unit. Within the R-1 and R-2 districts, a non-family household shall be limited to three unrelated persons. Within the R-3 district, a non-family household shall be limited to five unrelated persons.
His proposal offered, among other elements, the following addition to Section 19.09.520 (emphasis in blue mine):
This Ordinance is meant to ensure the right of quiet enjoyment of each property owner, or resident of their home. The constant or consistent presence of visitors to a particular residence can constitute the equivalent of additional persons living there, for land use purposes, regardless if they are listed as residents on a lease or deed, if the “quiet enjoyment” of other’s property rights are affected. For the purposes of this section, quiet enjoyment shall mean actions by occupants or visitors which unreasonably disturbs other property owners or occupants enjoyment of their premises.
In addition to any other penalties or remedies the City, or any landowner within 300 feet of the property, may maintain an action or injunctive relief to restrain any violation of this Ordinance and/or to enforce compliance with this Ordinance, upon a showing that a person has engaged, or is about to engage, in an act or practice constituting a violation of this Ordinance.
This amendment grants significantly expanded power to the city, so much so that the city may act when it assumes a person is about to engage in an act against quiet enjoyment. An ordinary private party may be constrained by litigation costs where the city has no equal concern.
We have now given a city that has unwisely exercised its authority greatly expanded, additional authority.
Where I differ is the idea that a broken enforcement culture can be easily repaired through legislation. So little having been done before (despite the homeowner’s own efforts), I am unpersuaded that a new ordinance will bring a better approach.
Our law has changed, but all the people involved are the same. One may contend that Whitewater was hamstrung without adequate ordinances, but ‘broken’ – that’s my characterization from months ago — suggests problems far greater than a gap in an ordinance.
If I thought that we could legislate our way out of these problems, then I might favor additional legislation. I have no confidence in that approach.
Events in Whitewater make me more than skeptical – I have no confidence that additional ordinances, amendments to ordinances, or administrative proposals will do us any good.
I simply don’t believe, so to speak.
A remedy is possible, but I contend that a different one is needed. Our experiences are too checkered to ask for anything other than new beginning with how our city sees, understands, and enforces existing ordinances.
We have failed for reasons more serious than lack of an adequate ordinance, however sincere the proposal may be. We can recover, but our failings are an indictment of current municipal practices and practitioners, not of inadequate ordinances.