Forfeitures for Ordinance Violations – When Are They Excessive?
By Ruder Ware Alumni
June 2, 2017
An age-old problem faced by municipal officials is what to do about residents and landowners who fail to take care of their properties and allow junk, debris, and other unsightly items to accumulate. This often leads to citizen complaints and even health and safety issues.
When municipalities take enforcement action against such properties, they usually seek a court order for remediation and for forfeitures as provided under their ordinances. These ordinances usually set a minimum and a maximum amount of forfeiture for the violation, with each day of violation being a separate offense. It is not uncommon for violations to exist for many months or even years. Courts are then asked to answer the question: what is the appropriate amount of forfeiture to impose against the violator?
Last week the Wisconsin Court of Appeals released a decision which dealt with this question. While the opinion is unpublished, it does explain the law in Wisconsin and offers insight into how judges view municipal forfeitures.
The case, Town of Ixonia v. Knopps (No. 2016-AP-766), involved a town’s lengthy efforts to force a landowner, Knopps, to clean up junk, debris, and rubbish on his residential property. The town sued Knopps for violating its junk storage and nuisance ordinances. The junk storage ordinance provided for forfeitures of $5 to $500 for each day of violation, while the nuisance ordinance provided for forfeitures of $10 to $200 for each day of violation.
The circuit court granted judgment declaring the property in violation and allowing the Town to clean up the property. After the Town cleaned up the property, it came back to court seeking forfeitures for 773 daily ordinance violations. The circuit court determined that by applying the minimum forfeitures, along with “add-ons” allowed by state statute, the amount for the junk storage violations would be $22,763.40 and the amount for the nuisance violations would be $27,633.30, for a total forfeiture of $50,396.70.
However, the circuit court also decided that this amount would be an excessive fine prohibited by the Wisconsin and U.S. Constitutions. It instead imposed a total judgment of $3,631.00.
The Town appealed the forfeiture issue. The appeals court judge agreed with the circuit court that the amount sought by the Town was unconstitutionally excessive and affirmed the $3,631.00 judgment.
The appeals judge based his decision on what is known as the “proportionality test”. Under this test, the following factors are to be considered: (1) the nature of the offense; (2) the purpose for enacting the regulation; (3) the fine commonly imposed upon similarly situated offenders; and (4) the harm resulting from the offender’s conduct.
Taken together, the above factors require that “the amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish”. The appeals judge found the following factors to be especially significant:
- Knopp was a poor and disabled man who was simply incapable of maintaining his property in the condition called for under the Town’s ordinances.
- Knopp was not engaging in this behavior for profit, such as running an unlicensed junk yard.
- The “massive accumulation” of daily violations was at least partly due to the length of time it took the Town to abate the violations. The judge felt that 773 days of violations may not compare with “similarly situated offenders”.
- Though it took a while, the remediation of the property was successful and no permanent harm resulted.
In short, the judge concluded that “it would be disproportionate to the offense and shocking to the conscience for a poor disabled man to be penalized by such a large forfeiture that he could well lose his home”.
Unfortunately, the opinion does not describe how the circuit court calculated the $3,631.00 forfeiture it imposed and which the appeals judge affirmed. Apparently neither party challenged the basis for the alternative calculation. However, there are some takeaways from this decision:
- A person who is unable to maintain his or her property because of poverty or physical ailment or disability will be treated differently from a person or business flouting the law by making money off junk-filled property.
- Unsightly property that is successfully cleaned up, either by the landowner or the municipality, will probably be considered as posing no permanent harm, no matter how long the process takes. This likely would be different, however, if the property conditions lead to injuries, pollution, or hazardous waste releases.
- Municipalities should not expect a court to impose maximum forfeitures or daily forfeitures for long periods of time, unless the circumstances are particularly egregious.
- The principles discussed in the Town of Ixonia case apply to other local ordinance enforcement efforts, such those directed at zoning and land use violations.
Feel free to contact us with any questions on this case or its applicability to specific situations.
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