Code enforcement needs due process

By William R. Toler and Corey Friedman

[Note: The following was written as an editorial for The Richmond County Daily Journal July 10. A section that was excised from the original draft has been included in this version and appears below in bold italics.]

It’s said that “good fences make good neighbors,” so we understand if Davie Dawkins is a little short-tempered these days. The city of Rockingham took dawkinspic2away his fence, so to speak.

City officials hired a private contractor who seized several rolls of Dawkins’ fencing in April while cleaning up his yard under Rockingham’s nuisance abatement rules. Dawkins has since asked for the fencing rolls’ return to no avail. They were presumably sold for scrap.

Rockingham officials accused Dawkins of being in violation of a local ordinance for having a messy yard that created a public nuisance. City planner John Massey also said the clutter could be a breeding ground for pests and the jagged edges on the fencing were a public safety hazard.

That’s a puzzling claim that gives us pause. How can an inanimate object in someone’s partially fenced-in backyard really put residents’ safety in jepoardy?

On the odd chance that children — or anyone else, for that matter — would be endangered by the fence rolls’ jagged edges, as Massey suggested, they would more than likely be trespassing, which is a crime.

But the “crime” of having a messy yard doesn’t have to go through the courts, as is usual due process before the government can take an individual’s property. Just a few letters and conversations saying, “Hey, clean up your yard,” with an unsatisfactory response will suffice.

No warrant. No court order. No judge. No jury. Just city employees exercising their discretion under Rockingham’s rulebook.

State law and city ordinances gave them the go-ahead. Be that as it may, what’s lawful and what’s right aren’t always the same thing.

Massey said the city received “multiple complaints” from Dawkins’ neighbors. While we’d all like to live on tidy streets with well-manicured lawns, don’t we also want the freedom to use our private property as we see fit so long as we’re not hurting anyone else?

Nineteenth century Massachusetts lawyer and abolitionist Lysander Spooner once wrote: “It is self-evident that no number of men, by conspiring, and calling themselves a government, can acquire any rights whatever over other men, or other men’s property, which they had not before, as individuals.”

Meaning if Massey, or anyone else involved, went of their own volition and took Dawkins’ fencing, they could be charged with trespassing and theft. Therefore, they shouldn’t be able to do it using the name The City of Rockingham.

The Ten Commandments also states in part: “Thou shalt not steal.”

“It’s not stealing if it’s something that constitutes public health and safety,” Massey told our reporter for a story last week.

But the city offered no proof that pests were breeding or that the rolls of fencing had harmed a single soul. There were no victims in this case.

If there were, then this would’ve been a common-law matter for the courts.

Massey pointed to a state law that gives municipalities the authority to remove property that constitutes a public health or safety hazard. If a few rolls of fencing meets that definition, maybe the definition is too vague and too broad.

We see no proof that Dawkins was guilty of anything more than having a cluttered backyard. The response seems as disproportionate as it was unilateral. Shouldn’t Dawkins have had the chance to make his case to an impartial arbiter?

The city of Rockingham and our state lawmakers should take a closer look at nuisance abatement rules and the North Carolina statutes that govern them.

We’d be more comfortable with code enforcement action if there were a system of judicial review in place. The accused deserve a form of due process before they’re deprived of personal property.



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