John Scarffe

Nederland

After receiving a letter from the ACLU, the Nederland Board of Trustees repealed a Town ordinance on loitering during the Board’s regular meeting at 7 p.m. on Tuesday, October 4, 2016 at the Nederland Community Center. The Board also amended the Utilities Code to provide a method for utilities customers to apply for relief from unusually high bills stemming from a catastrophic event.

At the Board’s September 20, 2016 meeting, Town Attorney Carmen Beery introduced a letter that was sent to several cities and towns by the American Civil Liberties Union of Colorado (ACLU), including Nederland, referencing the Town’s loitering ordinance.

The letter requested that the Town repeal it, saying, “This ordinance not only unfairly targets poor and homeless persons whose pleas for assistance are protected by the First Amendment, but it is also legally indefensible.” The Mayor responded to the sender, indicating the Board would be discussing the issue at its upcoming meeting.

The code in question states: “It is unlawful for a person to: (1) loiter for the purpose of begging…” The letter further requested the Town to instruct its police not to enforce the law, according to background.

Marshal Paul Carrill confirmed that this law is not currently enforced, and there are no current cases citing it in violation, according to background. The loitering code was initiated by Ordinance 118, adopted by the Board on May 11, 1971, among a number of nuisance and “morality” codes.

The Board repealed much of the language in Ordinance 118 and reenacted the loitering code language as it appears today on February 17, 1981. These codes were affirmed by the Board on April 8, 1997, the first modern codification of the Municipal Code.

Beery noted her agreement that the referenced code language on loitering should be stricken, and she reported options for the Board to consider amending the code. Prohibiting loitering for the purpose of begging is illegal, Beery said.

She said more than 30 municipalities in Colorado are not in line with constitutional law. Dozens more got this letter from the ACLU after Beery sent around an email request to see if other towns also had received it.

“It will not pass muster if challenged,” Beery said. It’s been on the books for a long time and never revisited. There are some ways the town can address this that would pass constitutional muster. The Marshal did indicate his department would like to have as many tools as possible.

Carrill said he seconded Beery’s recommendation. He knew of eight ordinances that can be applied, including trespassing and interfering with traffic.

Mayor Kristopher Larsen said he didn’t respond to ACLU by their requested deadline. He said staff should provide an ordinance for the next meeting to eliminate this language, and he asked the Marshall to give them options that could be added to the code.

Mayor Pro-Tem Charles Wood asked how many arrests or tickets have related to this code, and Carrill said that they only had two summons issued for loitering and they involved other charges. “We haven’t had a situation where someone has felt threatened by a loitering or panhandling situation. We ask people to move along. If we don’t have that in the code it will move up to other things like menacing.”

Larsen suggested that the Board direct staff to review and submit policy for Board consideration. Trustee Masters voiced concern that staff not spend too much time on this item, to which Beery offered that CIRSA is a resource to provide alternatives to save staff time.

An ordinance repealing the Nederland Municipal Code concerning loitering was then placed on the Board’s consent agenda for the October 4th meeting, and the Board passed it without question. The Ordinance states: “Code Section 10-123 defines and prohibits the offense of “loitering;” and there have been recent developments in the law concerning the Constitutional parameters of defining and enforcing such an offense.

“The Board therefore desires to repeal existing Code Section 10-123, concerning loitering, to prevent its enforcement in Town while the Board takes the time and opportunity to study the language and evaluate the same in regards to its desirability and legality.”

The Board also considered an ordinance amending the Utilities Code in reference to billing to provide a method for utilities customers to apply for relief from unusually high utility bills stemming from a catastrophic event.

In the case of a water leak or line break, water that passes through the meter does not actually return to the Town’s sewer system and, therefore, it may be fair and equitable to waive some portion of sewer usage fees. “For an example: last winter a resident in Big Springs had the pipes burst in her house, which was vacant at the time.

“This residence used over 516,000 gallons of water before the leak was caught. Most of the water from this leak did not enter the sewer system, but ended up in the walls and floors of her residence. Since she lives in an area that is not connected to the sewer system, she was not charged for sewer service.”

Had the resident lived elsewhere, she would have had to pay more than $3,800 for sewer services that did not take place because the Town does not have a policy in place to waive this fee. The proposed ordinance allows for opportunity to create a policy to seek relief for high utility bills resulting from an extraordinary condition.

The Utility Fee Waiver Request Policy states: “A utility customer who receives an unusually high bill due to a catastrophic event beyond the customer’s control, such as an unknown water leak or broken pipe, may request relief from the unusually high wastewater charges. The Town Treasurer is authorized to administratively process and approve the request for relief when the amount to be relieved is $100.00 or less.

“Relief is authorized for wastewater charges only and only for charges in excess of the account’s most recent 12- month average, according the policy. Requests for relief in an amount in excess of $100 require Town Board approval.”

Trustee Stephanie Miller said the amount is ten times your average bill over a 12-month period. “I would be really comfortable with Town staff doing that.” She suggested authorizing the staff to process it if it is less than $300.

Trustee Julie Gustafson said, “We do have permission, if we can’t contact the owner, to shut off the water.” Town Administrator Alisha Reis said that really does document why this policy would be rarely used.

Public Works Director Chris Pelleteir said that his department would post a notice on someone’s door. They always give notice before turning off the water.

Mayor Pro-Tem Charles Wood said he was concerned about raising the limit – citing someone who is gardening and left the hose on. He’d like to see it a little higher.

Larsen asked at what level they would like to place the trigger point. Miller said $300, and Larsen said make the policy $300. The ordinance passed with the modification.

The Board met on October 18, 2016. The next meeting of the Nederland Board of Trustees will be at 7 p.m. Tuesday, November 1, 2016 at the Nederland Community Center.