Code enforcement a sore spot in some SD communities

FAITH, S.D. – A few months ago, the city council in this ranching town in remote northwestern South Dakota decided to join dozens of other communities across the state and hire an outside contractor to enforce property codes.

But in a pioneer town built on a rugged history of cattle ranching and as a stop on the state’s early railroad, the code enforcement crackdown has led to a (so far) peaceful revolt.

After years without any property inspections or code enforcement, residents here are hinting at taking up arms to force their elected leaders to rescind the code enforcement contract and undo an ordinance that put in place a strict new set of codes that could allow an inspector to enter someone’s property without permission.

About 50 residents – roughly a quarter of the city’s adult population – attended a city council meeting on July 2 to air their grievances before the council. The only other pressing decision of the night was rubber-stamping a liquor license request for the annual stock show.

As the crowd filed in, one man asked another, “Did you bring your pistol?” The guy said he had not.

A while later, former city council member Rae Shalla warned the council that, “I promise you that if you start violating peoples’ Fourth Amendment rights (against unlawful searches and seizures), you’re going to have citizens exercising their Second Amendment rights (to bear arms).”

1 in 4 properties warned over violations

Per his contract with the city, contracted inspector Joel Johnson of Code Enforcement Specialists (CES), sent out 53 warning letters to Faith residents after visiting this spring.

The town’s population of 300 lives in roughly 200 housing units, according to the U.S. Census. Johnson owns the company, based in Burke, another West River community, and said he has more than 80 cities under contract and a waiting list of a dozen more municipalities.

“I promise you that if you start violating peoples’ Fourth Amendment rights (against unlawful searches and seizures), you’re going to have citizens exercising their Second Amendment rights (to bear arms).”

— Former Faith city council member Rae Shalla

Johnson, a former fire chief and city council member in Burke, said he approached his job in Faith just as he does in any other town. His contract typically includes a $1,500 annual retainer fee with $75 an hour for work performed plus mileage and expenses.

In an interview with News Watch, Johnson said he applied codes and wrote warning letters to people in Faith whose properties need to be cleaned up, doing so without prejudice and without intent to cause undo hardship to any resident or business.

Johnson said code enforcement is badly needed in many South Dakota cities and towns that have lost population, jobs and commerce but which hope to attract new residents and industry.

“If they don’t (enforce codes), they eventually lose control of their communities,” Johnson said. “There’s smaller communities that waited a little too long to get somebody in there and it’s very tough to get people to comply. … And then nobody wants to move in.”

But in a rural town of proud people who don’t like to be told what to do, and where the housing stock is aged and many residents are elderly, disabled or live beneath the poverty line, his enforcement letters have drawn people’s ire.

Even as they acknowledge that some work needs to be done to spruce up the city, especially at a few properties that have a history as eyesores, many residents of Faith are outraged that they could be fined or put under other enforcement action and that no one spoke with them or tried to work with them before sending warning letters in the mail.

Sudden worry over new enforcement efforts

Loretta Passolt, 70 years old and living on Social Security and part-time wages, was told she had to repaint and install new windows in a small vacant home next to hers that has sat idle since her in-laws who lived there died 30 years ago.

“Nothing’s ever been said about that building, and I don’t have a lot of money to put towards that,” said Passolt, a widow with no local family.

Passolt estimated it could cost $5,000 or more to hire someone to do the work. “It’s a big worry about how to get this done,” she said.

The letter to Dan Nolan, a 72-year-old carpenter, informed him he had to get a license for an old truck and find a new place to store a few 2-by-4 boards and sheets of tin he hid behind his house after high winds blew down a shed.

“You have to drive down the back alley to even see it,” Nolan said.

The code crackdown has sent this tiny town into a big tizzy, and the anger and resentment were palpable at the council meeting on July 2. Several residents demanded that the council rescind the hiring of the code enforcement officer and undo an ordinance enacting the International Property Maintenance Code as the city’s official guide.

Some residents said the code is overly detailed and strict and is not applicable to a town where many homes are old and new construction is almost unheard of.

Code enforcement unpopular but necessary

Working as a property code enforcer is not a job for the thin-skinned or faint of heart, according to Dave Smith, president of the South Dakota Association of Code Enforcement, a nonprofit trade group.

Smith is the director of planning and permitting and the lead code enforcement officer for the city of Sturgis and has spent 15 years in the field after formerly working in law enforcement.

“These code violators tend to push back harder than anyone else,” he said. “I would rather arrest a 300-pound fighting drunk than tell a 90-year-old lady she had to mow her lawn.”

But Smith said code enforcement is necessary in municipalities for several reasons, chief among them the “broken window” doctrine, which states that allowing one broken window in a community can reduce overall property standards and lead to more and more broken windows that go unfixed.

Smith said consistent code enforcement prompts most residents to make repairs or clean up their properties, yet there are typically a handful of residents who push the boundaries or simply refuse to comply.

“But there’s less people that don’t like it than people who do like it,” he said. “When you start taking junk cars off of properties and maintaining things, you’d be surprised how many people are truly appreciative.”

He said city government can play a big role in property maintenance beyond enforcing codes by working with residents who may have physical or financial challenges that make compliance difficult.

In Sturgis, for example, Smith said the city has a program to aid in repairing damaged sidewalks by using city funds to make the repairs, then allowing property owners to pay back in installments over three years with no interest.

Smith said Johnson, owner of CES, is known as a quality enforcement officer with a reputation for fairness. The enforcement association awarded Johnson a training scholarship in 2020.

“I know Joel and he knows his stuff, and he’ll work well in these communities,” Smith said.

Inspector endures ‘butt-chewing,’ death threats

Johnson, who bought CES in 2019, said he and his staff have extensive experience and training in identifying code violations and working with property owners to make needed upgrades. By hiring an outside contractor, cities and towns save money compared to hiring staff and can avoid impressions of favoritism or bias, he said.

“We don’t work in the communities where we live,” Johnson said, noting that he has received death threats during his enforcement career. “It’s rewarding work but you do take a lot of butt-chewing, that’s for sure.”

While he is sometimes scorned by those whose properties are cited, he said he also receives strong support for his enforcement efforts by city officials, business owners and neighbors of properties that are cleaned up.

“I get a lot of thank-you calls from spouses, both guys and girls, saying, ‘I’ve been trying to get him or her to do those things for years,” he said.

“… When you live in town, you sign an unwritten rule that you’re going to keep your property up to a standard so you’re not bringing down the property values of your neighbors’ property.”

— Joel Johnson, owner of Code Enforcement Specialists

Johnson said his travels have shown him that a lot of municipalities in South Dakota have a great need for code enforcement, which can ultimately lead to stronger communities that are more attractive to new residents and new businesses. Johnson said a real estate agent once told him that an unkempt property can reduce the value of neighboring properties by 10% or more.

Johnson said people who want to live without adhering to property codes should live in the country and not within a municipality or put up a privacy fence that blocks public view of anything that might be a violation.

“It’s different if you live in the country because the only person who really gets hurt by a bad property is the property owner or the heirs,” he said. “But when you live in town, you sign an unwritten rule that you’re going to keep your property up to a standard so you’re not bringing down the property values of your neighbors’ property.”

In Faith, Johnson said he expected to write about 35 warning letters but found enough violations to write 53. He said he found out after his visit that he had sent a violation letter to a member of the Faith City Council, though he didn’t know it at the time.

He added that he has already given some deadline extensions to residents who contacted him, and that he will do his best to help anyone who needs assistance to find time, money or a contractor to get their properties up to code.

“We work with the city, and sometimes different organizations, to get people money or help,” he said.

Johnson said he is aware of the upheaval in Faith but will keep enforcing codes as long as he is under contract. He said one city council in South Dakota, bowing to public pressure, canceled his contract at one point but then hired him back a year later after voluntary enforcement efforts fell short.

“Some people feel like if they bury their heads in the sand, it will just go away. But I haven’t seen that,” he said.

Improvements in Faith may be a challenge

Residents of Faith face a number of challenges that could make it more difficult to clean up or fix up their properties, including a high level of poverty, an aging population with a high rate of disabilities and a housing market with many unoccupied properties, according to 2022 data from the U.S. Census.

Of the 205 housing units in the city, 41 are unoccupied, meaning fewer people live in homes they own. Meanwhile, 31% of Faith residents are 65 or older, and the median age of 55 is 42% higher than the statewide average of 38.

The poverty rate in Faith was 24% in 2022, compared to 12.5% statewide, and the median household income in Faith was $34,500, less than half the South Dakota average of $69,700. And 1 in 5 Faith residents (19.4%) is disabled, compared to 13.2% of all South Dakotans.

Additionally, with such a small population and remote location – Faith is a two-hour drive to Rapid City – some residents said it can be difficult or even impossible to get a licensed contractor to come to town at a time when the entire state has a shortage of workers in the building and trade fields.

“The burden placed on me is tremendous,” said Sharron Johnson, a sight-impaired tax preparer who received an enforcement warning letter. “I can’t do it … (and) it makes me want to get out of town as fast as possible even though I’ve lived in Faith for 25 years.”

East River city finds code enforcement success

On the eastern side of South Dakota, the city of Volga has contracted with CES for code enforcement for a few years and has a good relationship with the company, said Michael Schulte, city administrator in the city of 2,300 located 7 miles west of Brookings.

The city has spent about $9,600 to use CES for its code enforcement work over the past three years, Schulte said. “We’re definitely saving money this way,” he said.

Enforcing property codes is important in small cities and towns that want to develop a good reputation while improving opportunities for residential and commercial growth, Schulte said.

A CES employee makes an inspection visit to Volga about once a month, but most of the code enforcement compliance issues arise due to complaints from residents filed with the city or to the person’s city council representative, Schulte said.

“They (CES) have been really great to work with, and I don’t have the feeling they’re nitpicking or trying to find any little violation,” Schulte said. “If there’s no complaints, we’re not going to be creating something out of nothing. And you can kind of tell just by looking at a property if there’s a violation.”

Even with ongoing code enforcement efforts, and generally solid compliance, Volga still has a handful of property owners who don’t respond to warning letters that prompt possible legal action to make required improvements, Schulte said.

“Code enforcement is one of those things where you’re never going to get compliance 24/7 but do your best to respond,” he said.

One family, two warning letters

Terry Bottjen and his wife, Diana, received separate code enforcement warning letters for the art gallery they run downtown and for the church and rectory where they live and where Terry serves as pastor.

Diana told the city council that the couple, both in their 70s, nearly had heart attacks while trying to get property maintenance done quickly on a recent hot day.

In an interview with News Watch, Terry Bottjen said he was aware the business had a broken window and that he had some old vehicles on his property. He said he’s willing to make the required improvements.

The Bottjens are upset that existing codes were never enforced and are suddenly being enforced with great immediacy. They are also bothered by the strict nature of the international property code adopted by Faith.

“They bring in the most hard-core code there is and try to cram it down our throats, and I just don’t think we need to pass the strictest code law in the country,” Terry Bottjen said.

But the Bottjens and other residents are especially angry over one sentence in the international property code that refers to both occupied and unoccupied properties: “If entry is refused, the code official shall have recourse to the remedies provided by law to secure entry.”

“They could have come and just asked me and I would have done it (make the repairs) instead of passing a code that literally takes everybody’s rights away,” Terry Bottjen said. “It’s a communistic deal, very un-American and very ungodly.”

Uncertainty among city council

Hovering above the entire code enforcement debate in Faith is the question of whether the process was enacted legally.

While the CES firm was hired in March, the council did not vote to approve the International Property Maintenance Code until its meeting on June 18, and the approval was not published as required by law in the Faith Independent newspaper until June 26. State statutes indicate that enacting new codes requires two publications in the paper of record and a 20-day waiting period after that.

Meanwhile, the warning letters sent out by CES on June 14 cited requirements of the international code and gave residents 60 days to reply or comply.

Council member Sandy Rasmussen joined the council in April, after the code enforcement firm was hired. On June 18, Rasmussen made the motion and voted in favor of adoption of the international code, but she told New Watch on June 28 that she still isn’t sure if the ordinance has officially taken effect.

“I’m not done with my research on that,” she said. “I was going by what the council had said before and I thought it was fine, but I may not think it’s fine anymore. I probably should not have made the motion if I hadn’t read the whole thing, and that was my faux pas.”

Rasmussen, who works part time as a gatekeeper at the city dump, said she knew the issue was blowing up in Faith while working on a recent Saturday. “Twenty-five people came through, and 25 people had a comment, so I got a good sense of what was going on out there.”

The International Property Management Code is a guidebook used around the world as a standard for property code enforcement. It is included in South Dakota Statute 11-10-11 as a basic requirement for municipalities to follow, though it does allow for modifications.

Faith Mayor Glen Haines, who has won reelection for the past 25 years, told News Watch that the council members believed the city needed to get cleaned up but is now wondering if they went too far.

“They’re upset, and they have a right to be upset,” he said of residents. “To me, he (inspector Johnson) got a little carried away. And maybe that code enforcement book is not meant for small towns like ours.”

Haines said he is telling angry residents that they can refer one or both of the ordinances to a ballot measure if they seek to undo the council’s actions.

At the July 2 council meeting, Haines told the gathered residents that the council will likely place an item concerning the new code on the agenda of the next meeting on July 16.

Part-time city attorney Shane Penfield did not answer resident questions about the legality of the international code during the July 2 meeting and did not respond to an email with questions from News Watch sent after the meeting.

Citizen petition in the works

Nolan said he agreed that he could do some tidying up on his downtown home and property, and he’s working to comply with the requirements of the warning letter.

But Nolan said he isn’t convinced the property codes are being enforced equally throughout town, and he wonders if the local code enforcement crackdown could have been handled better.

“Some residents, as far as I know, have not gotten letters and their properties, to me, seem a lot worse than mine,” he said.

Nolan said he also is concerned with the wide latitude provided to code enforcement officers within the code book being used as a guide by CES.

On the day of the July 2 council meeting, Nolan took Mayor Haines’ advice and began to push for a referred ballot measure to overturn the code ordinance. Throughout the day, he traveled around town collecting signatures on a petition to force a public vote to rescind the new property code. By late afternoon, he had gathered 22 signatures, well above the 15 required by law to make the official ballot in the next election.

“My thinking was, they already had ordinances on file, so why didn’t they just enforce the ones they had instead of getting this international code and hiring this guy to enforce codes?” Nolan said. “The thing that concerns me most is what is included in this new international code book because there’s some places in there that are vague and they infringe on people’s rights.”

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