Oneida County zoning to take ‘harder line’ on ‘missing’ citations

If the dog ate your county zoning citation before you could see it, or if it just got lost in the mail a decade ago and now the government is finally knocking on your door, don’t necessarily expect the Oneida County zoning department to be shedding any tears for you.

Not that any formal policy changes are on the way, but both Oneida County zoning director Karl Jennrich and county corporation counsel Michael Fugle told the county’s zoning committee recently that people shouldn’t just assume the county will be dismissing a citation because they say it never arrived in the mail.

“Just because someone says I didn’t get the mail — I mean, yes, things get lost in the mail, but it is amazing how a high percentage of things that get lost in the mail are court documents or something that requires people to act on some certain thing,” Fugle said at the zoning committee meeting.

The discussion was prompted by Jennrich’s desire to discuss the department’s transmittal of citations, especially for violations related to septic system pumping, inspections, and maintenance, including various methods of transmittal such as affidavits of service, certified mailings, and service of process. 

“Back in the day when I started, most of our enforcement letters went out as certified mail, return receipt requested, so we could give verification that the individual received the mail,” Jennrich told committee members. “Same thing for citations. If I’m not mistaken, we sent out everything certified mail, return receipt requested.”

However, the rising cost of postage changed the dynamic, Jennrich said. 

“Certified mail with return receipt requested, I think the cost is up to $8 a pop for those cards,” he said. “And what really brought this to light is, with the amount of septic systems that we have on the maintenance program, we send out close to 7,400 notices every year to individuals to have their septic tanks pumped or inspected.”

The rising cost when it comes to subsequent citations and enforcement letters prompted staff talks with the corporation counsel at the time and ultimately the decision was made to send out the documents via an affidavit of mailing, rather than certified mail with return receipt requested.

“What that means is our staff will mail out the letters,” he said. “That’ll be the affidavit that is included in the file that says ‘[I, the staff member,] sent out something first class mail to such-and-such address at such-and-such date’ and then it’s notarized …, and all this is the affidavit to give to the court that something has been mailed to the individual at the last known address.”

The zoning committee at the time approved the use of the affidavit of mailing process, and, all in all, the process has worked relatively well, Jennrich said. 

“Now with this new Ascent program that we’re using, if I issue a citation to [somebody] for failure to pump or inspect a septic system in 2025, when 2026 comes around, if [the person] has not a basically pumped or maintained that septic system, he automatically gets another citation if he doesn’t pump it within 2026,” he said.

So, Jennrich said, the system generates the cards, and people get put on a list if they don’t pump or inspect and it keeps on coming out yearly instead of every three years. This year, the zoning director continued, he again took up the matter with the corporation counsel because there were some individuals who for two or three years were being issued citations and had not acted.

The Citation Man Cometh

“I was getting a little nervous on why are these people getting all these citations and not paying or not dealing with them,” he said. “So on those, we sent them all certified mail, return receipt requested. The department spent about $1,300 to do that. And for the most part, I think with certified mail, some people were showing up in court, we did get some returned mail, but at least we did get a definitive explanation on whether or not people received the mail. So I felt relatively comfortable going forward with the citations again if we got the return receipt back.”

Still, Jennrich said, some people with unpaid citations have come forward with cases going all the way back to 2010 or 2011, who, all of a sudden, find their bank accounts being garnished because somebody in state government caught up with them.

“Their bank accounts are getting garnished, and they’re saying we never knew about these citations and I get a little bit nervous about some of those,” he said. “We do look at those cases. For the most part, for those individuals that we sent notice to the owners at the time, I have no clue why they did not get the notice.”

Jennrich said they may have moved, but even so, it was their responsibility to provide Oneida County with the updated information on where they reside. Jennrich said the address they use through the Ascent program is the address the county uses to send out their tax bills.

“Wherever they say their taxes get mailed to is where all of our citation or all correspondence within Oneida County goes,” he said. 

But is the mail getting lost?

“Some of the return mail issues that we have are, people not going to the post office to pick up the certified mail and, after three attempts, it comes back to us,” he said.

Mail has been returned because the owners moved and left no address, Jennrich said, or there is no mail receptacle or a Post Office box has been closed, among other reasons. Jennrich said the department uses a variety of tools to find the correct address in those instances — Ascent, Google, looking at land information records for property transfers not yet registered in Ascent, or at the circuit court online court system, obituaries, probate records, records for the register of deeds, and others. On occasion, they even use a process service.

“Typically in Oneida County, we use the sheriff’s department and it costs $85 now to have them served,” he said. “We have not done that out of county or out of state because I don’t know who to use and what the cost would be. And then we’ve also had the customer sign the green card and and we give them a copy if they by any chance come into the office.”

The preference is still to do the mailings via affidavit and mailing just to be cost effective, Jennrich said. That said, the department may not be as generous as in the past, Jennrich said. 

“When people come to us years down the line and say they never got serviced, we may take a harder line saying we’re not going to vacate the citation or you’re going to [have to] file a motion with the judge yourself to try to get that citation dismissed,” he said.

Fugle speaks

Corporation counsel Michael Fugle explained the legal aspects surrounding an affidavit of mailing. 

“When you do an affidavit of mailing, you’re saying that you sent it to their last known address and, if it doesn’t come back, then the presumption is that there’s a service,” Fugle said. “One guy came back 14 years later saying, ‘Oh, well, it shouldn’t have been me, it should have been someone else,’ and I said, ‘We’re not going to reopen it.’ If he wants to do something, he can make his own motion.”

When there is a legitimate claim, such as the person had sold the property and the citation was issued incorrectly to that person, Fugle said he doesn’t have an issue reopening and dismissing the citation. But sometimes, the counsel said, people just aren’t dealing with it.

“We’ve had a few people who we’ve sent out certified mail and they haven’t signed for it,” he said. “We haven’t gotten anything back, and so we’ve adjourned it for another day. … My office has to send out all the adjournment letters and maybe two out of 30 or 40 actually showed up on the next date. So they very clearly have been getting their mail. They just didn’t want to deal with it.”

Bottom line, Fugle said, he wasn’t advocating for any formal change but was just keeping the committee apprised of how the county will view claims about never receiving citations. In cases where this is clear error, the citation will be re-opened and dismissed, but in other cases the harder line will be to tell your story to the judge.

“So we’re just really letting you know what’s going on,” he said. “When someone sends you something with a little green card, unless you’re expecting money, it’s probably bad. When it’s just planning and zoning, who wants to open that?”

Supervisor Billy Fried wanted to know if the way the county was handling the mailings now would put the county at a disadvantage in court.

“No, we’re not having that issue,” Fugle said. “I mean 99 percent of the people who appear in court and set it for a trial are coming in because they didn’t do it in time and they’ve vowed they’ve done it and they ask the court to reduce the forfeiture amount.”

Fugle said the department and his office tells them there is nothing the county can do.

“We tell them, ‘Look, the committee has not given us any discretion to negotiate a lower forfeiture. So you can ask the court to reduce your fine and it’s up to the judge,’” he said.

In court, if a person says they never received the citation, where does the burden of proof lie? Fried asked.

“I’m just trying to follow how, if all of a sudden the state stops someone from doing something, they realize, ‘Geez, I’ve got this 10-year-old citation I didn’t pay,’ and he goes into court and goes, ‘Listen, I never received anything’ and you don’t have anything to show that they received it, you’re saying we’re still in the right position?”

Fugle said the county just needs to show that they sent it to the appropriate address.

“There’s always an exception to a rule, but I believe that the vast majority of people who didn’t get the citation just didn’t bother opening it,” he said. “I mean the biggest issue frankly is people who say, ‘Oh man, I got my citation in December and I called right away and the road limits are on so they can’t come out until March.’ And we say, ‘You can ask the judge.’”

Jennrich reiterated that the department has no flexibility. He also said the department starts sending out citations in December, January, February, and then they put those court cases six-weeks out.

“If I issued a citation to you and then all of a sudden you have it pumped, not within that prescribed three year timeframe, they’re saying, ‘Well Karl, the weight limits came off, I had it done prior to court, will you dismiss it?’ We’re saying, ‘No, you did not have it within the prescribed timeframe. You should have had it done. But go to the judge and you can tell the judge your story.’”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.