Updating the city’s ordinances around nuisance conditions and nuisance behavior came from a history of City Council seeking to ensure safe and compatible living conditions in neighborhoods. Specific action became a council priority in the spring of 2021, when riotous behavior on the University Hill resulted in property damage, violence, and de-stabilization of the neighborhood.
The Hill Revitalization Working Group was re-energized shortly after, and various goals and efforts were developed under an umbrella of improving quality of life conditions. Some of these included neighborhood walks and safety assessments, an education program for landlords, strengthening the CU police and Boulder police partnership, a neighborhood cleanup initiative, modifying the noise ordinance and updating regulations regarding nuisance weeds and trash.
It became clear that many of these are citywide conditions. A data project showed that while many conditions were more prevalent on and near The Hill, they were not unique to them. Furthermore, the ordinance updates and process improvements, such as reviewing nuisance reporting and development a landlord notification tool, apply to properties and property owners citywide.
This council priority continues with the update to the public nuisance code to more equitably and predictably define when properties are chronic violators.
Chronic nuisance ordinances have been adopted by many communities across the nation as a way to address and gain compliance from property owners with a history of frequent and multiple violations of the municipal code that create tenant and community impacts. The ordinance is not a replacement for “public nuisance” offences, which must have been resolved or cited on their own merits.
The focus of the new ordinance is on nuisance crimes on residential properties. The revision attempts to redefine “public nuisance” and to create a definition for “chronic nuisance.” The city’s philosophy is to seek compliance, but the contributing, underlying violations each already represent multiple opportunities for the property to be brought to compliance, so the chronic nuisance portion of the ordinance is intentionally more prescriptive. It addresses the small number of properties that habitually repeat or leave violations unresolved (less than two percent of the city’s residential properties). It applies to both owner-occupied properties, as well as those used as rentals.
No, but there is an Abatement of Public Nuisances ordinance that defines public nuisance which has been used in the past to enforce against properties with chronic issues. Public nuisance is defined in the current ordinance as a property with two or more violations in 12 months or three in 24 months. After one violation, written notice is provided; after the second, a settlement meeting is scheduled with the intent of a creating a voluntary compliance agreement. If there still is no compliance, the city can initiate a nuisance abatement action if there is a threat to public safety from condition or use of property, and file for civil action. After a civil hearing in municipal court, the judge can determine daily contempt charges for failure to abate (I.e., bring into compliance), which is a misdemeanor.
The new ordinance would designate a residential property as a “chronic nuisance property” if there are a certain number of qualifying offences (“violations”) within one calendar year. To acknowledge differences between properties with different numbers of units, the number of qualifying offences within the year are in four tiers. This approach is consistent with that of some peer communities in the country. The specific number of violations that can lead to chronic status is data-driven based on historical data of nuisance properties per this definition. (The proposed code would not apply to non-residential properties, though that may be reviewed as an option in the future.)
Qualifying offences/violations are specified in the ordinance. They are generally property-related in the areas of building/zoning code violations (including fire and building code matters), site property conditions (such as weeds/trash) and criminal behaviors (such as noise or public disturbance). Crimes against property owners or individuals, such as burglary or domestic violence, do not qualify if the victim of the crime is the property owner, tenant, agent or operator of the parcel.
The current code defines two or more violations as public nuisance. The update amends the definition of public nuisance from two or more violations to one or more and provides a new term of “chronic nuisance.” Administrative practice is to provide multiple warnings and work toward compliance with residents, however, there are times when this tool is needed with a single violation. The city applies “public nuisance” when the same violation is repetitively ignored, not abated, or when a single incident creates a significant public safety concern. The potential for chronic nuisance status does not replace the common violation charge(s). The typical process of warning and violation notices will continue, charged through other more specific codes. The chronic nuisance ordinance defines a threshold based on the number of violations per year, based on tiers that are defined by the number of dwelling units. Public nuisance is an administrative option for the city for situations in which typical process is not resulting in a compliant property, as it allows for a more efficient, consistent, equitable and predictable administrative process, abatement by the city and escalated civil penalties if/when needed. Both public nuisance and chronic nuisance gain access to the newly defined administrative remedies.
Violations across police, fire, code compliance and code enforcement are all applicable to this ordinance and will be considered as a public nuisance violation; other than those listed below.
The term public nuisance does not include the following:
Public nuisance means any act or omission that constitutes a violation of the Boulder Revised Code 1981, public health order or state criminal law occurring or existing on any parcel that creates an unreasonable risk of harm or is injurious to the public health, safety or welfare; or that unreasonably injures, damages, annoys, inconveniences or disturbs the peace of any member of the community with normal sensitivity with respect to their comfort, health or safety; or with respect to the free use and comfortable enjoyment of their property, sidewalks, streets or other public spaces near, upon and/or around the offending property.
Multiple violations committed within any 24-hour period of time on or in the same parcel can constitute separate violations, irrespective of whether the violations are otherwise related to each other by some underlying unity of purpose or scheme.
Voluntary self-reporting mitigates a nuisance finding. Specifically, violations that are first reported to a peace officer by a person having an ownership or leasehold interest in the property where a violation or violations have occurred, having a contractual obligation to manage the property or occupying the property, will not be deemed public nuisances under this chapter. (Note that “peace officer” includes not only police, but any enforcement officer of the city.)
Violations of the Boulder Revised Code 1981 regarding noise, trash and weeds create a rebuttable presumption that such violations are public nuisances. However, this definition of public nuisance is subject to the defenses set forth in Subparagraph 10-2.5-17(a)(2), B.R.C. 1981. It is not necessary that a criminal prosecution has been initiated to establish that a violation has occurred.
The number varies by the number of units. A property with more units would need to have more violations before being considered a habitual offender. This is managed by cities across the country by establishing tiers. Four tiers are planned, in which a chronic nuisance property means:
Historical data was used to approximate the number of what would have been qualifying violations for each property in Boulder, looking at properties with the full range of number of units. Those with the top two percent of violations were then grouped by number of violations, resulting in the four tiers. Recognizing experience gained from other jurisdictions, enforcement is fair and administrable when it is simple enough to be effectively managed. As such, fewer tiers, as long as they are equivalent and fair, are preferred.
Again, the threshold for chronic nuisance within each group was chosen based on the top two percent of nuisance violations, or volume per parcel. Approximately 61% of housing stock in Boulder is single-family homes. This is its own group for that reason. As the largest grouping, it is naturally disproportionate. The remaining housing stock was then divided into equally sized groups (as close as possible) to avoid over-representation.
Boulder does have a few large developments. Inclusion of these into the equation to produce numbers to define chronic skews the number toward a larger designation, allowing more violations at the larger developments. This was chosen in order to weight the properties toward a higher number rather than lower, providing more leeway for larger properties. While still consistent with the data, this weighting supports the city philosophy of seeking compliance, whenever possible, over a punitive action. The development of the update has been data driven, with the tiers established with a range roughly equivalent to not disproportionately weight one property/group vs. another. Setting thresholds by groups is similar to what other municipalities have done.
Initially, three tiers were proposed. Both BARHA and BHP questioned this approach as it seemed larger developments were still over-represented. After reflection, the city agreed that four tiers would still be manageable and also increase the number of violations for larger developments from 19 to 23, lessening the anticipated number of chronic nuisance properties, per year, and responding to equity concerns.
Strict liability is the standard in the current code. A structural change in the proposed code is that “separate violation” has been changed to include both “chronic nuisance” and “public nuisance” in the revision.
Current code language: 10-2.5.-5, Procedures in General
(c) Public nuisances as defined by this chapter shall be strict liability violations. No culpable mental state shall be required to establish a public nuisance under this chapter or to obtain court approval for remedies provided by this chapter. However, if a separate violation is used by the city to establish the existence of a public nuisance that has not been previously adjudicated, all of the elements of such separate violation, including any culpable mental state required for the commission of such separate violation, must be established by the city by a preponderance of the evidence at the trial on the merits of any civil action commenced pursuant to the provisions of this chapter.
Draft Language Ordinance: 10-2.5-4, Procedures in General
(c) Strict Liability. Public nuisance or chronic nuisance property as defined by this chapter shall be strict liability violations. No culpable mental state shall be required to establish a public nuisance or chronic nuisance property under this chapter or to obtain court approval for remedies provided by this chapter. However, if a public nuisance is used by the city to establish the existence of a chronic nuisance property that has not been previously adjudicated, all of the elements of such public nuisance, including any culpable mental state required for the commission of such public nuisance, must be established by the city by a preponderance of the evidence at the trial on the merits of any civil action commenced pursuant to the provisions of this chapter.
Community dynamics and other ordinances have changed the regulatory landscape. There has been a large shift in housing stock to predominantly rental, with 61 percent of all properties within the city now rentals versus owner-occupied. This transition and general expectations of safety and well-being have increased awareness and, at times, frustration in some neighborhoods. Furthermore, changes in occupancy laws and general support for a wide range of housing strategies and options in the community has led to an expectation for neighborhood livability and protection for residents from the impacts of nuisance violations.
The ordinance in its current state is also difficult and ineffective to administer. Community complaints have focused on the city’s inability to escalate response and accountability for situations where property owners are non-compliant and non-responsive to activities on their property. A small, but impactful, number of property owners are particularly unengaged in how those activities impact the neighborhood around those properties.
In order to be effective, the city will work collaboratively and creatively across its departments. Working through this update has presented the opportunity for a comprehensive review of enforcements activities across all city codes.
The current ordinance is not supporting the city’s goals and values for equitable and predictable code enforcement. With the low threshold for public and chronic nuisance violations, enforcement administration can be ineffective and does not necessarily focus on the small number of worst, repeat and unresponsive property owners.
The need for such an ordinance update is to identify and rectify the disproportionately large impact that repeated violations have on neighboring properties and public resources. It is enforced by tracking a threshold number of violations/citations in a calendar year. Based on historic trends, only a relatively small number of properties in the city will meet the threshold (likely as low as 20 or fewer per year).
The current ordinance perpetuates a process that is not equitable, because all properties with just two violations theoretically are subject to the current definition of public nuisance The process is not effective, because it is not targeted to the properties with the highest number of violations. The process layers the city’s action to cite/resolve underlying violations with an additional process after only two to three violations. And, importantly, the current process is not administrable. It requires a process that is cumbersome due to its multiple steps, which in practice draw out for months and years, and thereby allows the underlying behaviors and new violations to compile. Even when the city made enforcement of the current regulation a high priority (in 2020 and 2021), only two cases were brought through in two years, due to the ambiguities of creating a customized compliance agreement, the lack of enforceability, the inadequate access to information used for determining properties for review and the limitations of city resources.
Some challenges with the current code include:
Benefits of the proposed update include:
The new ordinance is intended to address weaknesses of the existing code. It is not a substitute for resolving individual underlying and contributing violations or citations for specific instances, which would still continue in their various current forms.
The city’s updated nuisance ordinance will be enforced in a manner that is fair, equitable, promotes awareness and education and serves as a deterrent to both public and chronic nuisance behaviors. The focus will be on compliance, with opportunities provided throughout processes for both landlords and tenants to work collaboratively with the city to bring property into compliance.
The impact of repetitive nuisance behavior on neighbors will be reduced by establishing clear consequences for escalating numbers of violations, encouraging compliance through the city’s offering of resources, and collective planning between property owners, tenants and the city.
A data study has focused on the top five percent of properties (those with the most violations). This was further reduced to the top two percent of properties, for the purpose of defining “chronic” thresholds. Working within the top two percent, it is anticipated that 10 to 20 properties will be designated as chronic nuisance properties per year, recognizing that the same options for compliance of individual public nuisance violation will remain the same.
Those properties that are approaching chronic nuisance status will receive a warning and will again have opportunities to comply/change. Those who do not quite reach the threshold will still have a chance to submit a plan of action for compliance. Only those who ignore the notices or fail to comply will move toward additional administrative, criminal or civil process.
Fewer than 20 properties per year are anticipated to receive a “chronic nuisance violation designation, since most property owners respond to warnings and notice of violations. It is expected that the number of chronic nuisance properties may then decrease in subsequent years as repetitive offenders move into compliance and create effective management plans.
The University Hill is not being targeted in this ordinance. The revisions are a movement away from what was often mostly complaint-based enforcement and toward enforcement that is driven by data and the number of verified violations.
Some violations, like trash and noise, are more prevalent in the University Hill neighborhood while other, potentially more serious or violent crimes, are more prevalent in other areas of the city.
The city does not believe that fraternities and sororities should be held to any different standard related to nuisances than for other properties. If a single-family home is utilized as a fraternity or sorority (formal or not), it does not change the community expectation of maintenance and behavior at the location. All multi-unit developments are intended to be inspected by the Fire Department once a year; those with sorority and fraternity designations are inspected twice a year. This is done to assure increased safety and should provide confidence to the property owner that issues are being identified quickly for their attention and repair, which should then assist in enabling property owners to more easily and readily avoid any type of violation/citation.
The city intends that landlords will feel supported in the notion that, while chronic nuisance will be more consistently and equitably enforceable with the update, there are also new tools/processes/positions devoted to identifying the source of issues within a problem property. If violations are tenant behavior-based and the landlord is fully invested and working with the city, there should be no risk for the landlord. A goal is that notice is viewed as a partnership to assist the property and tenant in becoming compliant and changing behavior as they understand norms and expectations. Even if the property were ultimately provided notice of chronic nuisance status, the owner/manager would still have the opportunity to work with the city to establish a plan for how to collaboratively and proactively manage the tenant situation and work to lessen impacts on neighbors/other residents.
On the other hand, landlords who are negligent, not caring for their property, providing unsafe conditions, not working with the city toward problem-solving, etc., will be held accountable.
While numbers and time will be utilized to identify potential chronic nuisance properties, investigators will continue to utilize resources including discussions with landlords/mangers/tenants to move the property toward compliance. In cases of mental health needs, resources will be explored and provided when possible. Mediation and Restorative Justice are most often offered at the individual violation level, but they may also be deployed if they have not yet been utilized and such efforts will help move toward compliance.
If a tenant is committing crimes and causing unrest or creating an unsafe environment for those in the area, at a rate to reach the “chronic” designation, the ordinance should help to address these issues in a more timely and efficient manner than has been done historically. The ordinance update should bring light to any resource gaps that may exist in the community and also provide resources, when possible, to tenants in need. If tenants are the primary source of violations and the landlord is collaborating in a problem-solving relationship with the city, there should be no risk to the landlord regardless of who is being housed by that property owner. The goal of a “chronic nuisance designation” is to receive a plan from the property owner to better manage the nuisance situation(s) so that the neighborhood/community is no longer impacted. All enforcement alternatives are a path toward compliance for the property owner.
This distinction will be handled via investigation and administrative process. The code itself gives the ability for both types of enforcement. It is necessarily written broadly in order to apply to instances where all types of issues may be prevalent.
No. The definition of dwelling unit excludes day shelters and overnight, temporary shelters. This exclusion is called out specifically in the ordinance for clarity.
Routine required fire and building do not create official notices of violation and therefore would not be counted toward chronic nuisance status. They are essentially a notice of potential violation. However, major violations of these codes that could result in immediate danger to the public or tenants are handled in a more expedited manner, as one would expect. Owners are given less time to correct these and, if not addressed, a code violation may result.
Yes. The only new aspect is that there is an identified exemption for some criminal violations. These are exempted with the intention of protecting crime victims. The updated ordinance also exempts traffic violations, false reports and false alarms. Chronic nuisance only applies to residential properties, while public nuisance violations could occur at any property within the city (as they also do now).
Property owners will be notified by mail. For rental properties, the city will also alert the local agent or operator via the email address listed on the rental license. It is up to the property owner to keep that information up to date. Notice of citation procedures remain as they current exist. Other than official notice, any other notification is a courtesy from the city.
Compliance is always the goal in this process. When possible, a warning will be provided that a property is one violation prior to “chronic.” At that time, the owner should reach out to the city and discuss plans for compliance as an off-ramp to further processes. When a notice of chronic nuisance is issued, the request is for the owner to provide a plan for compliance to the city. This is an off-ramp to further process/accountability. If the parties agree to the plan and the plan is carried out, no further action will be taken.
The city will enter into back-and-forth communication, to a degree, with the property owner, but as noted above, the property owner is responsible for creating the plan. The property owner is ultimately responsible for addressing any public nuisance violations on a property.
The Municipal Court will always consider the opportunity for mediation and restorative justice for single public nuisance violations, if the offender and offense meet the parameters. Offender responsibility is often a requirement for these types of processes. For chronic nuisance situations, these alternatives would have already been considered and provided.
Remedies may be civil or criminal, or injunctive relief. These remedies may be administered administratively (staff level, or the accused may request a hearing through a hearing officer. In criminal cases, the Municipal Court will host the process, before the Municipal Court Judge. Staff, circumstances and situations will determine the pathway for remedies. In all situations, compliance through a submitted plan (from the offending property owner) will be an option to stop the process and prohibit other actions, unless additional violations occur or there is a failure to complete the plan submitted.
Violent and criminal behaviors are much more likely to receive criminal penalties, and continued non-compliance related to any public safety matter, including building safety, could be considered as criminal behavior. Administrative options are likely to be pursued first if there is less threat to life and safety.
No. Violations follow the property in this case, as the ordinance addresses property accountability and ensuring safety in the neighborhood and community. The ordinance covers both property-focused issues (building safety, code requirements), as well as limited issues regarding occupants (noise or other disruptive criminal behavior).
In the case of owner-occupancy, violations follow the schedule of number of violations in a year. In the case of rentals, data has shown that some properties trend toward chronic nuisance regardless of the history of individual tenants in the residence. For both, the ordinance revision allows for a new “count” toward chronic nuisance each calendar year, effectively starting over each calendar year.
Yes. A new title will start the count over for a property for the remainder of that calendar year. The number of potential violations alone does not designate “chronic nuisance.” The number only indicates to the city that the property may be suitable for further investigation. All violations must be verified.
State law governs eviction practices. The updated ordinance prohibits any owner of a parcel from committing, conducting, promoting, facilitating, permitting, failing to prevent or otherwise let happen any public nuisance or chronic nuisance in or on such parcel. As far as landlord tenant relationship, the ordinance mandates development of an abatement plan with the city in the case of a chronic nuisance property, which may include addressing tenant behavior, depending on the causes of the repeated nuisances on the property. Dialogue with residents is encouraged throughout the process. Increased understanding and an open dialogue suggested so that all parties are aware of the potential for chronic nuisance designation. Depending on the nuisances, an abatement plan may include items such as lighting or removal of shrubbery or other items blocking the view of the property from the street.
Criminal violations will continue to be responded to by the police and managed in the same way that they are now. Typical criminal behavior is not addressed through this ordinance; rather, repetitive nuisance violations related to a property are addressed.
Yes. There is a clause that allows for property owners/managers to self-report without any count toward chronic violations. The city refers to this as an “owner managed/involved/self-reported property.” The city encourages landlords to self-report known public nuisances and work with the city to address the problems before reaching the chronic nuisance threshold.
The ordinance language is focused on nuisances (both public and chronic) and abatement of those nuisances. It does not include language about enforcing leases, as contract law related to tenants/ landlords is a matter of state law.
BRC 10-3-16-(g) says that a property owner can reapply for a rental license six months after revocation. The decision to grant a request will be made in large part based on the actions of the property owner since the revocation. Moving toward compliance and abatement quickly will best ensure renewal opportunities after that six-month period.
City staff recommendation is that this be on a calendar year as the ordinance is not specific to rental properties and certainly not specific to those renting to students; however, after several requests, staff agreed to make this change. For the purpose of the Chronic Nuisance count, the year will run from Aug. 1 through July 31.
Yes. However, there may also be an effort to hire additional staff to investigate these cases and to manage the associated programs that support the ordinance. Additionally, the current processes will be reviewed to ensure a structure for increasingly reliable, fair, and equitable enforcement.
No existing services are anticipated to be cut. As part of a broader review of neighborhood support effort, many have been enhanced, including landlord/tenant materials and resources, landlord education classes, a landlord notification tool, landlord-tenant handbook updates, mediation and restorative justice enhancements in municipal court, other ordinance revisions to include daytime noise regulations and expedited weeds/trash notifications.
The ordinance defers to state law on eviction and does not directly address this. This situation already exists. If a landlord would like to evict, then the landlord must follow state law procedures or follow the requirements in the lease about breaking the lease. When possible, tenants would receive assistance in relocation or the revocation would take place at the end of a lease term if that were appropriate and safe. Note that this is already allowed in current code for specific violations. The only change is to add this as an option for chronic nuisance designations.
