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Board of Aldermen Page 36
June 14, 2016

peace there and they prevented me from going on the property. | got there about five minutes to ten and
it started at ten and they said no. As | was standing by the property and would have trespassed on the
property if | came back, two people in a truck came by and they said they wanted to go to and the guy
said no, it started at ten and if you weren’t here by ten then skedaddle. | don’t know what your power is
over the police chief, | think he is appointed but is he elected?

Alderman McCarthy

He is appointed by the independent police commission.
Mr. Haas

Oh that’s right, | forgot about that. | just want to get to the bottom and the bottom line in the auctioneer,
the federal auctioneer who wasn’t licensed by Dave Gardner of Secretary of State’s Office. Even the
RSA says that all auctioneers, not exempting the federal auctioneers, have to submit an accounting of
what happened over there to the city clerk. So either he pushes it to the city clerk’s office or she ought to
be able to pull it by sending a notice to the Ward Alderman, Dowd and that’s why | wrote to him. | wrote
to the other guy because he is the Ward Alderman for where the auction took place. | thought they
would have some type of feedback to me on what to do. | come down here to spend money and | was
prevented from spending money so you would think that you would say that we will straighten it out so it
doesn’t happen next time and in the meantime, we will issue a reprimand or something like that that
something wasn’t done and the law was not complied with. | went to the commission over there and
there was a public hearing and they said too bad, those guys paid and whoever pays us gives the
command and | said no, you took an oath of office to abide by the Constitution and my rights were
violated and so what | am doing is | am giving you notice to correct the situation and if you don’t then |
might sue the city because that’s a violation of my rights. | am not doing this for myself, | am doing this
for Ed Brown too because the money that could have been collected....| went to a coin shop and he said
that if he had known about it he would have gone there too and other people would have gone and it
would have increased the price. His debt that he owes to Uncle Sam would have been paid off more
with money coming in so for not even advertising it... The city clerk said yes, they can advertise on the
city’s website but that opportunity was not even presented to them and maybe they didn’t even know
about it. Maybe McLaughlin, | don’t know what his problem is over there of not complying with the law
because the only place that | saw it was on the federal website. There was no advertisement.

Alderman Siegel

Your five minute time limit is up.
Mr. Haas

Well | leave it up to you, please would you do something about it. | spent some time coming down here
and like | said, stuff should have been done in writing and I’m not getting any feedback from the Mayor,
from the city clerk and the two Aldermen. | will send you all of the e-mails if you want. Do | give it to
someone to distribute it to someone else, | don’t know, | mean come on, please. Thank you.

REMARKS BY THE MEMBERS OF THE BOARD OF ALDERMEN

Alderman Lopez

| want to comment that next Monday at 8:00 p.m. at Rotary Commons we are holding a vigil for everyone
we have lost to substance abuse and addiction. It’s the summer solstice and it’s meant to reflect the one
day at a time that people make to remain sober. Tonight Positive Street Art held a vigil for the Orlando
victims and they committed to free style dancing after their class.

Board of Aldermen Page 37
June 14, 2016

Alderwoman Melizzi-Golja

Tomorrow evening, Science Café at 6:00 p.m. and the topic is Local Hydroelectric Power and it’s
specifically focused on Nashua and it’s held at the Holiday Inn.

Alderman Siegel

I’d like to offer my condolences to the Cookson family and in light of horrible tragedies | would like to
remind everyone how great Nashua is and that’s what happened to the Ivory family at Nashua North, it’s
truly a wonderful story and how wonderful our city is.

Alderman Caron

| too would like to send out my condolences to the Cookson family and the Kleiner family as well. One
other thing concerning this landlord issue, | want to say that any of these laws that we put in, if there is
an issue or a problem then we can bring it back and change it but | would rather see this go in place
because | know that the good landlords are not going to get fined and we could have turned around and
do what Manchester does and charge each and every one of these landlords for the apartments that
they have so we can go in and inspect them and | think that would have been a bigger hardship for the
good landlords. | think we tried to do our due diligence and hopefully we can work on this and | am sure
that code enforcement will be very well represented in taking care of this.

Alderman Dowd
| just want to congratulate Justin Kates, Emergency Management Department, for their award.

Alderman Wilshire

On June 23” the Nashua Police Department will be holding a pre-4"" of July holiday blood drive at the
police department classroom from noon to 5:00 p.m. The Club National is holding their annual golf
tournament to benefit the Nashua Children’s Home; thank you Alderman Chasse! My condolences also
go to the Cookson and Kleiner families.

President McCarthy

| would express my condolences also the Cookson and Kleiner families and I'd also like to thank
my wife of 41 years today and her tolerance of the 23 of those 41 years that I’ve spent with you
instead of her.

Committee announcements:

Alderman Dowd

We are having a budget wrap-up on Thursday and that’s where motions can be made. | would ask that if
you have a specific motion you have in mind please write it down so Alderman McGuinness won’t have
to recreate the motion. Also one week from Thursday is the School Construction Projects Committee
and the Joint Special and it’s going to be at Sunset Heights Elementary School and at 6:30 p.m. there
will be a tour so the contractor can show us the progress made to date.

Alderwoman Melizzi-Golja

There will be no Planning and Economic Development Committee next week as we have no business.

Board of Aldermen Page 38
June 14, 2016

ADJOURNMENT

MOTION BY ALDERMAN WILSHIRE THAT THE JUNE 14, 2016, MEETING OF THE BOARD OF
ALDERMEN BE ADJOURNED
MOTION CARRIED

The meeting was declared adjourned at 10:38 p.m.

Attest: Patricia D. Piecuch, City Clerk

LAW OFFICE OF

NICOSIA & ASSOCIATES, P.C.

259 MIDDLESEX ROAD
PETER J. NICOSIA (MA, NH & ME) P. O. BOX 721 TELEPHONE: (978) 649-4300
TYNGSBORO, MASSACHUSETTS 01879 FACSIMILE: (978) 649-9308

LAWRENCE M. BEANE (MA) . .
W www.nicosia-assoclates.com TOLL FREE: (866) 2!5-9248

COURTNEY JOHN BALL (MA & NH)

MEMORANDUM IN OPPOSITION TO
PROPOSED NASHUA ORDINANCE O-16-003, CHAPTER 74
(Board of Aldermen Meeting June 14, 2016)

The Petitioners' oppose proposed Ordinance O-16-003, Chapter 74 on the grounds that it
is unconstitutional for lack of due process and vagueness. In that regard, the Petitioners
respectfully request that the Board of Alderman reject the enactment of the proposed
Ordinance in its current form.

Procedural Status and Request to Table Discussion

The Petitioners, by and through legal counsel, attended the Substandard Housing Sub-
Committee Meetings on the proposed Ordinance on April 14, 2016 and May 26, 2016.
At both meetings the Petitioners raised all of the arguments set forth below. The
meeting was also attended by various representatives of the City Inspectional
Departments. Some of the Aldermen in attendance as well as some of the Inspectional
Representatives even agreed with some of the points set forth below. Petitioners’
counsel also volunteered to work with City legal staff and the Sub-Committee to
essentially re-write the proposed Ordinance to address the most significant concerns of
the Petitioners. Such offer and all comments below were rejected. The Sub-Committee
then voted on May 26, 2016 to send the originally proposed Ordinance version back to
the Board of Alderman with no changes for a full vote.

Since learning second hand of the impending Aldermen Meeting Agenda, the
undersigned counsel has requested that the Aldermen table the 6.14.16 impending vote on
the Ordinance until 6.28.16 as counsel for these Petitioners cannot attend. The pre-
meeting request for this brief extension of time was emailed to the President of the Board
and the Substandard Housing Sub-Committee and has been rejected by Alderman Siegel.
As such, Petitioners’ counsel is circulating this Memorandum now to the Board for
inclusion in the Administrative Record and will send another lawyer from the firm to
represent the Petitioners in the event that the Board does not table the discussion in
accordance with this request.

' The Petitioners are comprised of thirty-two (32) Nashua property owners whom have retained this law
firm to oppose the proposed Ordinance. For purposes of this advisory committee hearing the property
owners can be identified as the ‘Association of Nashua Property Owners Opposed to Proposed Ordinance
O-16-003 Chapter 74.’

Standard of Review

RSA 31:39-c adopted in 2010 along with the state zoning-enabling act grants
municipalities broad authority to pass zoning ordinances for the health, safety, morals and
general welfare of the community. Boulders at Strafford, LLC v. Town of Strafford, 153
N.H. 633, 636, 903 A.2d 1021 (2006) (citing Taylor v. Town of Plaistow, 152 N.H. 142,
145, 872 A.2d 769 (2005); RSA 674:16, I (1996)). Although a town generally has the
authority under its police power to enact zoning and other related laws in the interest of
the general welfare, this authority is not unlimited. Loundsbury v. City of Keene, 122
N.H. 1006, 1009, 453 A.2d 1278 (1982.)

Due Process.

A substantive due process challenge to an ordinance questions the fundamental fairness
of an ordinance both generally and in the relationship of the particular ordinance to
particular property under particular conditions existing at the time of litigation.
Caspersen v. Town of Lyme, 139 N.H. 637, 642, 661 A.2d 759 (1995). In determining
whether an ordinance is a reasonable exercise of the municipality's police powers and,
therefore, can withstand a substantive due process challenge, the Courts have consistently
applied the rational basis test. Under this test, we consider whether the ordinance bears a
reasonable relationship to its objective and does not unduly restrict fundamental rights.
Powers v. Town of Hampton, 125 N.H. 273, 276, 480 A.2d 143 (1984).

Although an ordinance may be facially valid because it promotes the public health, safety
and the general welfare, this does not end the matter. In order to respect the property
owner's rights, it is also necessary to determine whether the ordinance is nevertheless
arbitrary and unreasonable as applied to the plaintiff's land." Metzger v. Town of
Brentwood, 117 N.H. 497, 501, 374 A.2d 954 (1977) (emphasis added). To determine
whether an ordinance is arbitrary and unreasonable, the injury or loss to the landowner
must be balanced against the gain to the public." Buskey v. Town of Hanover, 133 N.H.
318, 323, 577 A.2d 406 (1990).

Vagueness.

The vagueness doctrine rests upon the Due Process Clauses of the Fifth and Fourteenth
Amendments and applies solely to legislation which is lacking in clarity and precision."
State v. Gaffney, 147 N.H. 550, 553, 795 A.2d 243 (2002). Due process requires that an
ordinance proscribing conduct not be so vague as to fail to give a person of ordinary
intelligence a reasonable opportunity to know what is prohibited." Webster v. Town of
Candia, 146 N.H. 430, 434, 778 A.2d 402 (2001) (quoting Jn re Justin D., 144 N.H. 450,
453, 743 A.2d 829 (1999)). An ordinance is unconstitutionally vague when people of
common intelligence must necessarily guess at the statute's meaning and differ as to its
application. State v. Pike, 128 N.H. 447, 449, 514 A.2d 1279 (1986).

ARGUMENTS

1. The City of Nashua already has a mechanism for enforcement of building, fire
and health code violations pursuant to RSA 502-A:11-a and RSA 676:6.
Inclusive in those statutory protections is the ability to also fine non-compliant
property owners. As such, the proposed ordinance is duplicative. Moreover, the
adoption of the ordinance will not eliminate the need for a future District Court
proceeding if a property owner wants to contest the violation.

2. Unlike the current statutory scheme referenced in paragraph 1, the proposed
ordinance does not afford a property owner due process prior to imposition of and
obligation to pay the fine imposed. An inspector determines the merits of an
alleged code violation, issues the citation and the fine is then due and payable
under the current wording of the ordinance without any form of due process. Ifa
property owner wants to contest the fine the property owner must pay it within the
time allotted or be faced with additional fines for non-payment as the matter
proceeds into a District Court litigation.”

3. The proposed ordinance fails for vagueness and due process as it relates to the
City’s determination of the ‘person responsible’ for the violation. The current
wording of the ordinance does not define ‘person responsible’ and presumes that
it is simply the record title owner of the property that should be obliged to pay the
fine. What if the alleged code violation were caused by a tenant, negligent
contractor or act of mother nature and not the property owner? Shouldn’t the fine
then be imposed upon the actual person that caused the violation? A property
owner should not be assessed a fine without a due process evidentiary hearing to
determine who ultimately caused the alleged code violation. It is inherently
unfair for a property owner to pay a contested administrative fine up front, force
them into a District Court appeal process and then also force them to chase
whoever the ultimate responsible party is for such property condition. What if the
property owner is successful in the contest and has already paid the administrative
fine? There is no mechanism written into the proposed ordinance to prescribe a
refund of said monies.

4, The proposed ordinance fails for vagueness and due process as it relates to a
‘reasonable time to comply.’ The way the ordinance is currently written appears
to impose a ten (10) day time line to comply or pay the designated fine.
Depending upon the nature and cause of the alleged fire, building or health code

2 Contrast the proposed Nashua ordinance with the town of Durham NH and others. In that community, a
similar ordinance was adopted pursuant to RSA 31:39-c. However, after issuance of a citation the
aggrieved property owner is afforded with an Administrative Appeal to the town council prior to the
ultimate imposition of the fine. Here there is no Administrative Appeal structure proposed that would be
specifically related to this ordinance. Within the Nashua Housing Code Blue Book there is reference to a
Board of Housing Appeals and Appeals from a Condemnation Order but nothing that would relate to
Appeals from these types of Citations. What if it is a commercial property? What if it is a fire or health
code violation? An Administrative Appellate process would need to be written into the proposed Ordinance
to afford due process.

violation such a time frame is patently unreasonable. There needs to be an
Administrative Appeal mechanism that allows a property owner to provide
evidence to justify expansion of the time frame to comply on a case-by-case basis.
One size does not fit all here. What if the job is complex? A contractor is
unavailable? A property owner is out of state/communication? A natural disaster
occurred? There are insurance or tenant issues? The way the proposed ordinance
is written does not comport with a fair analysis of what reality is likely to be here.

The way the table of fines is currently proposed in the ordinance will result in
unfair penalties that are in direct violation of RSA 31-39-III in that the totality of
a fine for an ‘offense’ cannot exceed One Thousand Dollars ($1,000.00.) The
way the ordinance is currently drafted it defines offense as ‘each day’ being anew
offense as opposed to each code violation ‘occurrence or existence.’ Offense
should be redefined to an event occurrence tied to the merits of the violation and
not the calendar days of which the one-time violation continues to exist.
Moreover, the proposed ordinance should contain ‘warning’ provisions and it
does not. The fines are also excessive in ‘amount’ for limited resource property
owners that are already paying substantial real estate taxes to the City.

Moreover, the proposed ordinance references the ability to impose ‘reduced’ fines
but there is no further designation or uniformity to that in application.

The proposed ordinance as written lends itself to selective enforcement and abuse
by third parties. The ordinance needs to be revised to set forth whether
inspections are ‘complaint’ based or whether there will be a ‘set schedule’ of
inspections for all property owners—residential and commercial. There should
also be a ‘reasonable advance notice’ provision as it relates to these inspections.
As written, this ordinance would allow the relevant inspector discretion to engage
in surprise inspections and selective enforcement as to who they may choose to
fine and who they don’t. The wording of the ordinance is framed with the word
‘may’ as it relates to a fine. There is too much discretion afforded to a potential
inspector to impose or not impose fines in an arbitrary and capricious manner.
Moreover, such an ordinance will arm residential and commercial tenants with
retaliatory measures to abuse the process by intentionally damaging property,
notifying a relevant inspector resulting in an administrative fine being imposed
upon a property owner without due process and not as the true responsible party.

The ‘description section’ of the proposed ordinance is overly vague. Although
the offense categories are tied to other City or State statutes and ordinances there
is the opportunity for an inspector to impose multiple fines for the same violation
as the description of the violation can fall into multiple categories. For example,
an alleged violation of ‘exterior standards’ may also qualify for a ‘building
violation.’ There needs to be a ‘definitions’ section to the proposed ordinance to
avoid vagueness and arbitrariness in its application.

CONCLUSION

In light of the foregoing, the Petitioners respectfully request that the proposed Ordinance
be rejected in its current form by the Board of Aldermen.

Respessa submiyha,
7 IONERS BY THEIR COUNSEL,

Good morning Aldermen & Mayor Donchess,

You have all received on Monday June 13, 2016 the Memorandum referenced below from
Attorney Nicosia email. Once you read it, you will realize that it lists the same concerns
that were presented to you back at the last meeting by Attorney Nicosia. This is the same
meeting where | was naively under the impression you were willing to all actually work
on the redraft with Attorney Nicosia. | actually had hope that this poorly written
legislation would be redone the right way; where it actually considered all its effects on
All Nashua Citizens/Constituents and All Nashua Property Owners (single family
residence owners, all forms of residential rental properties owners, all forms of
commercial properties owners, all business owner renters, all renters from all forms of
residential rental properties).

Believe me, | was totally blown away when | found out that the ordinance came back as
originally written. Are you kidding me? This is like the federal government where the
republican party constantly refuse to reach across the aisle to compromise with the
democratic party or vice versa because they are the better party. When it should be
about doing what is best for All Americans not just a few! My parents raised me to not
slap stick my work or treat others unfairly. But that in everything you do everyday, to
always do your out most best, and keep in mind always how it will effect others around
you.

This ordinance as currently written:

-. Has loop holes, may be easily misinterpreted, lacks clear written procedural steps to be
understood by all.

-. Will increase court proceedings rather than lower them between city and property
owners. No savings to city there. Thus, force property owners to have no choice but to
raise prices on cost of goods sold or raise rents to cover these extra business costs not
currently budgeted (court costs, fines, etc). These then will make cost of goods sold and
housing even more unaffordable for low income families.

-. Will unfairly fine property owners for damage cause by mother nature, negligent
contractor, or code violations caused by a tenant. Instead of allowing due process to
property owner, will cause them to go to court. In the town of Durham, NH and others,
there is an administrative Appeal to town council prior to the ultimate imposition of the
fine for aggrieved property owners who have been issued a citation. The Nashua
housing code blue book references a board of Housing Appeals and Appeals for a
condemnation order but it has nothing that relates to appeals from these types of
citations.

-allows only 10 days to comply. What if job is complex? Contractor is
unavailable? Insurance or tenant issues? Even section 8 allows for 30 days for non life
threatening issues.

-allows selective enforcement and may be abused by third parties. Will arm residential
and commercial tenants with retaliatory measures to abuse process by intentionally
damaging property, notifying inspector resulting in administrative fine imposed on
property owner without due process and not as the true responsible party. Especially

From: Siegel, Ken [mailto:SiegelK@nashuanh.gov]

Sent: Friday, June 10, 2016 7:50 PM

To: Peter Nicosia <Nicosia@Nicosia-Associates.com>; Lovering, Susan <LoveringS@nashuanh.gov>

Cc: Clemons, Benjamin <ClemonsB@nashuanh.gov>; Cookson, Mark <CooksonM@nashuanh.gov>:
McCarthy, Brian <mccarthvb@nashuanh.gov>; doodlebugsS@comcast.net

Subject: RE: RE: Request for Continuance (Proposed Nashua Ordinance O-16-003, Chapter 74) Aldermen
Meeting June 14

Attorney Nicosia,

The Board of Aldermen is not a court of law. The decision of whether to postpone debate on this
legislation rests solely with the members of the board as a whole and not with any one member or
subset of members. Should the majority of members of the full board vote to table this legislation till
the next meeting then that will happen. If that does not happen then the legislation will be debated and
voted on at the meeting on June 14th.

Best regards,
Ken

Ken Siegel
Alderman Ward 9

From: Peter Nicosia [Nicosia@Nicosia-Associates.com]

Sent: Friday, June 10, 2016 3:31 PM

To: Lovering, Susan

Cc: Clemons, Benjamin; Cookson, Mark; Siegel, Ken; McCarthy, Brian; doodlebugs5@comcast.net
Subject: RE: RE: Request for Continuance (Proposed Nashua Ordinance O-16-003, Chapter 74) Aldermen
Meeting June 14

Hello again:

Having not received any response, I'm following up on the prior email below.
Please advise as to whether you will grant this brief professional courtesy of a two week extension.

Regards,

Peter J. Nicosia, Esquire

Nicosia & Associates, P.C.

PO Box 721

259 Middlesex Road,

Tyngsboro, MA 01879

T: 978-649-4300

F: 978-649-9306

E: nicosia@nicosia-associates.com<mailto:nicosia@nicosia-associates.com&gt;