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.
