Limited Home Rule - Property Under Seige

"Limited home rule", a recent invention of Alabama's wise and austere legislature designed to regulate:

has, through the first local ordinance in Marshall County, regulated junk with the heavy hand of government.

Limited home rule was approved by the voters of Marshall on June 6th, 2006. The authority granted to the County Commission is supposed to benefit "public welfare," improve the "health and safety of the citizens throughout the unincorporated areas of the county by exercising certain powers for the protection of the county and public property under its control."

BUT!
The County's "junk" ordinance is in reality a gigantic step towards tyrannous government and the dissolution of private property rights. The ordinance creates the office of "Ordinance Enforcement Officer". The "officer may be an employee of the county or may be someone performing these duties under contract with the county commission." - outside contractor - hired gun!

Bureaucracy in the making!
Because "all fines and penalties collected shall be paid into the county general fund...earmarked for the administration of the ordinances adopted pursuant to this act," it is a foregone conclusion that fines and administrative fees necessary to support the identification of violators, issue citations, maintain records (computer system), clerks, judges, buildings, equipment, automobiles, and incidentals could be of sufficient magnitude to induce in some property owners the desire to surrender their holdings rather than pay the assessed fines and administrative fees.

Fines and Administrative Fees
Fines of 150 dollars per day with a cap of $5,000.00 will be issued with "..an administrative fee equal to the amount expended...by the county in enforcing this Ordinance." Therefore, when the "enforcement officer" declares, for example, a piece of rope on your property is "junk", you should expect fines and administrative fees to exceed $10,000.00.

Enforcement Officer's Authority
The County Commission grants to the "enforcement officer" the authority "..to enter upon any premises upon which junk is maintained.." Prior to the enactment of this ordinance an official was required obtain a warrant authorizing entry onto private property. The warrant, issued after an official had submitted evidence to a judge that a crime had been committed on the property, would allow entry to the property solely to verify accusations made in the warrant. The change in process violates the very concept of "private" property. Compounding this violation the property owner is required to remove the junk to the satisfaction of the enforement officer. If the property owner refuses to remove the objects on his property declared to be junk by the "enforcement officer" after a designated period of time the "officer" is authorized to seize the property for impoundment. The County requires the "enforcement officer" to maintain information regarding the disposition of property that was seized. Which pocket the proceeds from the disposal of your property wind up in is not defined.

Fundamental Changes
The alteration in judicial proceedings is not cosmetic, but fundamental, for the concept of sanctity of private property rights lies at the heart of our judicial system. The end result of this preliminary step will be the assimilation of our system that recognizes that the individual is “innocent until proven guilty,” into a globalist system that adheres to the “precautionary principle”1.

What effect will the "changes" have on the residents of Marshall County?
Rental property will likely be the first victim of this tyrannous ordinance. Renters could accumulate items on the rented property that the "enforcement officer" would view unfavorably and "declare" the items "junk". The property owner would be liable with little if any recourse against the renters. The County Commission has, through this one ordinance, effectively applied zoning to the unincorporated area of the County.

Cronyism – “The Bubba Network”
The ordinance bestows enormous authority on the “enforcement officer” for he can pick and chose whether a citizen's complaint will be investigated. The old adage "one man's junk is another man's treasure" certainly applies in this situation. This ability to “declare” someone’s property "junk" will eventually lead to graft and corruption - all in the name of “public welfare”.

The Marshall County “junk enforcement officer” recently issued to a retired veteran of WWII, Korea and Viet Nam notification that personal property on his parcel of land is classified as “junk” and would have to be disposed. The distraught veteran, believing his service to his country had helped to secured his private property rights, committed to a friend that his service was in vain. He was found dead the next day. Friends and relatives contend that stress related to the conversation with the “junk enforcement officer” brought about the demise of the veteran.

 As the world turns, Marshall County residents can, in addition to the “junk enforcement officer”, look forward to “weed enforcement officers”, “noise enforcement officers”, “effluent enforcement officers”, etc.

Footnote:

1. New Mexico - San Francisco – Hawaii

Wikipedia: "The precautionary principle is a moral and political principle which states that if an action or policy might cause severe or irreversible harm to the public, in the absence of a scientific consensus that harm would not ensue, the burden of proof falls on those who would advocate taking the action."

Global example – New Zealand’s Constitution

Excellent rebuttal

Click on www.marshallco.org then scroll down to view the Marshall County junk ordinance.

 

Limted Self Governance Act 2005-200

Marshall County Junk Ordinance

Section 1 – Purpose and Authority

Pursuant to the authority granted to the Marshall County Commission under Code of Alabama 1975, § 11-3A-1 et seq. upon approval by its citizens in a referendum held on June 6, 2006, therefore be it ordained by the Marshall County Commission as follows:

The Marshall County Commission finds that it is in the best interest of the citizens of the county to adopt and implement rules and regulations regarding junk in order to protect its citizens from public nuisances relating to public welfare, health, and safety within the unincorporated areas of the county. In order to address these concerns and pursuant to the authority granted to the Marshall County Commission under Code of Alabama 1975, § 11-3A-1 et seq., the Marshall County Commission has adopted the following Ordinance on junk on February 12, 2007 at the regular commission meeting of the Marshall County Commission, which adoption is evidenced by Resolution No. 2007-1, attached hereto as addendum A.

Section 2 -- Jurisdiction

This Ordinance shall only apply within the unincorporated areas of the county, and shall in no way be in effect or in force within the municipal limits of any municipality within the county unless amended with the approval of the appropriate city council and the Marshall County Commission. Additionally, this Ordinance shall in no way affect any protections granted to any persons or businesses pursuant to Code of Alabama 1975, § 6-5-127 or Code of Alabama 1975, § 11-3A-1 et seq.

Section 3 -- Definitions

For the purpose of this Ordinance, the following terms shall have the following meaning:

Junk -- Old or scrap copper, brass, rope, rags, batteries, paper trash, rubber debris, waste or junked, dismantled or wrecked automobiles, or parts thereof, iron, steel, and other old or scrap ferrous or nonferrous material.

Junkyard – As defined in Code of Alabama 1975, § 11-80-10, any establishment or place of business which is maintained, operated, or used for storing, keeping, buying, or selling junk as defined herein or for the maintenance or operation of an automobile graveyard.

Junkyard Nuisance – An accumulation of junk or a licensed junkyard which creates a public nuisance as provided in this Ordinance.

Waste or junked, dismantled, or wreck automobiles -- Any vehicle, including travel trailers, mobile homes, motor homes, motorcycles, boats and buses, which meets any of the following criteria:

a) Is apparently inoperable;

b) Is without valid license or current license plates;

c) Is extensively damaged, including but not limited to damaged windows, missing wheels, motors, tires, transmission, or other major parts; or

d) Has a fair market value equal only to the approximate value of the scrap in it.

Section 4 – Establishment of Junk Nuisance

It shall be unlawful for property owners to allow the accumulation of junk in a manner that presents a threat to public welfare, health and safety such that the junk constitute a public nuisance as defined in Code of Alabama 1975, § 6-5-120 and § 6-5-121. Absent other welfare, health, and safety threats, the mere presence of junk on property in the unincorporated areas of Marshall County shall not constitute a public nuisance if:

Section 5 -- Investigation and Enforcement

The Marshall County Commission shall appoint one or more persons as Ordinance Enforcement Officer [hereinafter “Officer”] charged with the administration and enforcement of the provisions of this Ordinance. This officer may be an employee of the county or may be someone performing these duties under contract with the county commission.

Such officer shall patrol the unincorporated areas of the county on a regular basis in an effort to monitor for compliance with this Ordinance by the citizens of the county. Additionally, any citizen with a complaint alleging a violation of one or more of the provisions of this Ordinance may contact the officer and request that the matter be investigated. The officer shall only investigate upon a citizen complaint where sufficient information is provided and where the citizen provides the officer with his or her name, address, and telephone number and agrees to sign a formal written complaint, if requested to do so.

For the purpose of discharging the duties imposed by this Ordinance and to enforce its provisions and abate a nuisance as determined by the Marshall County Commission, the officer is empowered to enter upon any premises upon which junk is maintained in a manner that is consistent with the creation of a public nuisance as defined in Code of Alabama 1975, § 6-5-120 and § 6-5-121, but only as necessary to investigate any alleged violation of this Ordinance or to issue notices and citations for any violation thereof.

Whenever the officer ascertains that junk is present upon the premises in such manner as to be a public nuisance, he or she shall cause a notice of sufficient size and weatherproofing to be placed upon the property. In addition to said posting, he or she shall mail such notice by certified mail, return receipt requested, to the owner of the premises upon which the junk is located as shown by the county's real estate tax records and to the address of the premises on upon which the junk is located.

The Notice required shall be substantially in the following form:

NOTICE TO THE OWNER AND ALL PERSONS INTERESTED IN THE ATTACHED PROPERTY. This property located at (set forth street address and brief description of property location) contains improperly stored junk creating a public nuisance in violation of Section 4 of Marshall County Ordinance No. ___. Said junk, consisting of (provide brief description of the junk), must be removed or properly stored within ten (10) days from the date of this notice. If said junk is not removed or properly stored within ten (10) days from the date of this notice as required under Section 4 of Marshall County Ordinance No. ___, a citation for violation of said Ordinance shall be issued to the owner of this property who shall be subject to fines and to administrative fees equal to any costs incurred by Marshall County in the abatement of said junk nuisance. Any questions regarding this notice should be directed to (insert name telephone number of Ordinance Officer).

Such notice shall not be less than eight (8) inches by ten (10) inches and shall be sufficiently weatherproof to withstand normal exposure to the elements for a period of ten (10) days.

If the junk described in the notice is removed or properly stored within ten (10) days after posting of the notice, there shall be no citation issued and no fines or administrative fees assessed. However, if a second violation of this Ordinance is found on the same property within twelve months from the date of notice of the first violation, the owner of the property upon which the violation is found shall be issued a citation as provided herein and shall not be granted the opportunity to avoid payment of fines and administrative fees by abating the nuisance prior to issuance of the citation.

If at the end of ten (10) days after posting such Notice, the owner of the property upon which the junk described in such notice is located has not removed or properly stored the junk, the Officer shall issue a citation to the owner in a form approved by the Marshall County Commission, which citation shall state with specificity:

a) the alleged violation for which the citation is issued;

b) the process and procedures for abatement of the public nuisance and payment of any assessed fines and administrative fees;

c) information advising that the matter will be presented to the Marshall County Commission for consideration of the alleged violation and fines and administrative fees; and

d) information regarding the owner’s right to appear before the Marshall County Commission when it considers the alleged violation and fines and administrative fees and appeal the issuance of the citation.

Copies of all notices and citations shall be provided to the Marshall County Commission, which shall set a date for action on the citation no less than 45 days following the issuance of the citation. The property owner shall be notified by certified mail, return receipt requested, of the date, time, and place of the County Commission meeting at which action will be taken. Notice shall also be posted in a public location within the courthouse.

When considering action on the citation, the officer shall present to the Marshall County Commission all relevant information supporting the citation. The owner of the property shall also be given the opportunity to speak and to contest the issuance of the citation should he or she be present at the meeting. Following the receipt of information from the officer as well as from the property owner, the Marshall County Commission shall take action on the citation, which shall include a determination that the presence of junk on the property constitutes a public nuisance which has not been properly abated or that the citation should be dismissed.

Section 6 -- Corrective Action

If the Marshall County Commission determines that the presence of junk constitutes a public nuisance which has not been properly abated, the owner of the property shall be subject to a fine for the determination of the nuisance of not more than $150 and an administrative fee equal to the amount expended thus far by the county in enforcing this Ordinance. Following such determination, the following shall apply for the abatement of the continuing nuisance.

1. The owner shall be given thirty (30) days to eliminate the nuisance and avoid the assessment of additional administrative fees equal to the cost of the county abating the nuisance by either:

a) Taking all action necessary to qualify under one of the exceptions listed in Section 4, or

b) Removing the junk to the satisfaction of the Officer

The owner shall notify the Officer immediately of the date on which he or she believes that the nuisance has been abated. The Officer shall then verify that appropriate action has been taken and report accordingly to the Marshall County Commission. Each day in which the violation is not abated as provided herein shall constitute a separate public nuisance and subject the owner to additional fines in the amount of $150 per day. Upon verification by the Officer that the nuisance has been properly abated, the Officer shall advise the owner of the additional amount due for fines as set out herein, and upon the payment of all assessed fines and administrative fees, the matter shall be closed.

2. If the nuisance is not abated by the owner within thirty (30) days of the determination of the nuisance by the Marshall County Commission, the Officer shall take steps necessary to abate the nuisance. An administrative fee equal to the cost of such abatement, plus the fine of $150 per day from the date of the determination of the nuisance to the date of its abatement shall be assessed against the property owner.

All fines and administrative fees shall be paid to the administrator of Marshall County who shall provide the Officer with verification of all payments made.

In addition to all other remedies available pursuant to this Ordinance, in the event that an owner who has been assessed fines and administrative fees for the violation of any provision of this Ordinance fails to pay such fines and administrative fees due within thirty (30) days of issuance, the officer may, on behalf of the county, bring action against the owner for the unpaid fines and administrative fees in the Marshall County Circuit Court.

Section 7 -- Records

It shall be the duty of the Officer to keep, or cause to be kept, accurate and detailed records of:

a) The impoundment and disposition of all junk coming into the officer’s custody;

b) All incidents and investigations conducted under this Ordinance, including but not limited to, all notices and citations issued, all correspondence to and from persons noticed or cited under this Ordinance, and minutes of all county commission proceedings relevant to any and all notices and citations issued; and

c) All monies collected and expended in the administration and enforcement of this program.

All such records shall be open to the public for inspection at reasonable times, shall be available to such persons responsible for similar records of the county, and shall be audited in the same manner as other county records are audited.