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  • NUISANCE ABATEMENTand

    MUNICIPAL INFRACTIONS

    Prepared byAnne E.H. Loomis

    1175 8th AvenueMarion, IA 52302

    319-377-9405

    158 Main StreetMcGregor, IA 52157

    563-873-8912

    ALoomis@allenvernon.com

  • NUISANCE ABATEMENT AND MUNICIPAL INFRACTIONS

    I. MUNICIPAL AUTHORITY TO ABATE NUISANCES ..................................................................... 1

    A. STATE LAW........................................................................................................................................... 1

    B. CASE LAW RE: MUNICIPAL AUTHORITY TO ABATE NUISANCES............................................................ 1

    II. MUNICIPAL AUTHORITY RE: MUNICIPAL INFRACTIONS.................................................... 2

    A. STATE LAW........................................................................................................................................... 2

    B. CASE LAW RE: MUNICIPAL INFRACTIONS.............................................................................................. 2

    III. INSTRUCTIONS TO CITY STAFF................................................................................................... 3

    EXHIBIT A - ORDER TO ABATE NUISANCE ...................................................................................... 9

    EXHIBIT B LETTER TO COMPLAINANT........................................................................................10

    EXHIBIT C CITATION FOR MUNICIPAL INFRACTION..............................................................11

    EXHIBIT D CONFIDENTIAL INFORMATION FORM ...................................................................13

    EXHIBIT E VERIFICATION AND AFF RE: MILITARY SERVICE..............................................14

    EXHIBIT F PROPOSED SETTLEMENT AGREEMENT..................................................................15

    EXHIBIT G CLERKS CERTIFICATE................................................................................................17

    EXHIBIT H ORDER ACCEPTING SETTLEMENT AGREEMENT ...............................................18

    EXHIBIT I - REPORT TO THE COURT OF NONCOMPLIANCE ....................................................19

    EXHIBIT J RULE TO SHOW CAUSE APPLICATION.....................................................................21

    EXHIBIT K RULE TO SHOW CAUSE AFFIDAVIT .........................................................................22

    EXHIBIT L RULE TO SHOW CAUSE ORDER .................................................................................24

    EXHIBIT M PRECIPE............................................................................................................................25

    EXHIBIT N NOTICE OF GARNISHMENT ........................................................................................26

  • ii

    EXHIBIT O LETTER TO CLERK........................................................................................................27

    EXHIBIT P LETTER TO SHERIFF .....................................................................................................28

  • 1

    NUISANCE ABATEMENT AND MUNICIPAL INFRACTIONS

    I. Municipal Authority to Abate Nuisances

    A. State Law

    Iowa Code (text of sections in appendix)364.12 Responsibility for public places80.39 Disposal of Personal Property

    321.89 Disposal of Vehicles

    B. Case Law re: Municipal Authority to Abate Nuisances

    City of Independence v. Purdy, 46 Iowa 202Iowa,1877A city has the right and power by resolution to require lots within the city limits uponwhich water becomes stagnant to be filled up by the owners thereof.

    Bush v. City of Dubuque, 28 N.W. 542Iowa,1886A city has no right, without the owner's consent, to raise the grade of a lot higher than isnecessary for the abatement of the nuisance caused by water stagnating there.

    Sioux City v. Simmons Warehouse Co., 129 N.W. 978Iowa,1911Under Code, 696, empowering cities to prevent annoyance from anything dangerous,offensive, or unhealthy, and to cause any nuisance to be abated, a city anticipatingdanger from the obstruction of a stream within its limits, may declare by a generalordinance that no structure shall be erected over the stream without leaving a specifiedarea unobstructed for the flow of the water in its natural channel, provided the ordinanceis reasonable; and one violating the ordinance must show that the requirement isunreasonable, and that his structure does not imperil the safety of the public as to freepassage of the water of the stream at any stage, resulting from causes which may intheir nature and extent be anticipated.

    Wilson v. City of Ottumwa, 164 N.W. 613Iowa,1917The power conferred by Code Supp. 1913, 696, authorizing municipal corporations toabate nuisances, can be exercised only in accordance with ordinance regularly and legallyadopted.

    Hancock v. City Council of City of Davenport, 392 N.W.2d 472Iowa,1986Municipality, in exercise of its police power, may declare and abate nuisances by adoptingand enforcing reasonable ordinances, but power is subject to procedural due processrequirements. U.S.C.A. Const.Amend. 14.

    City of Iowa City v. Iowa Dist. Court for Johnson County, Iowa, 456 N.W.2d 178Iowa,1990Cities have authority to investigate, to declare, and to seek abatement of nuisances.I.C.A. 364.1.

  • 2

    Kelley v. Story County Sheriff, 611 N.W.2d 475Iowa,2000While the police power is very broad, and not capable of exact definition, it is notboundless, and, as a rule, is subject to constitutional limitations, and while police powermay allow public nuisances to be abated, in all such cases, the necessity for summaryaction must exist, and one who would justify on the ground of necessity must be able toconvince a jury that the occasion was present which authorized his act.

    City of Muscatine v. Northbrook, 619 N.W.2d 362, 2000City may pursue a personal judgment to recover demolition costs incurred by the city inabating a nuisance

    Meyer v. Jones, 696 N.W.2d 611Iowa,2005Before a city can declare a property a nuisance and order its abatement in a non-emergency situation, the city should inform the property owner of the city's declarationthat a property is a nuisance, inform the owner of what the owner must do to prevent thecity from abating the nuisance at the owner's expense, and provide the owner with ahearing to contest the declaration and abatement order.

    II. Municipal Authority Re: Municipal Infractions

    A. State Law

    Iowa Code364.3. Limitation of powers364.22. Municipal infractions (NOTE NEW ADDITIONS PER 2010 SF 434)

    B. Case Law re: Municipal Infractions

    PARKING OF VEHICLES, REMOVAL OF JUNK AND JUNK VEHICLES

    Kistler v. City of Perry, 719 N.W.2d 804, 2006The seizure of junk vehicles without a pre-deprivation hearing denied the plaintiffs dueprocess.

    CITY OF DES MOINES v. Stan GRUEN

    457 N.W.2d 340 (Supreme Court of Iowa)

    June 20, 1990, As Corrected Sept. 11, 1990.

    Landowner was found guilty in the District Court, Polk County, Joel D. Novak, J., ofviolation of a municipal ordinance which restricts the parking and storage of lawfullyunregistered vehicles to enclosed buildings, at least when such vehicles are parked andstored in a residential neighborhood. Landowner appealed. The Supreme Court,McGiverin, C.J., held that the ordinance was not "inconsistent" with the statute whichprovides that automobile dealers may lawfully possess unregistered vehicles undercertain conditions, and thus, the ordinance did not violate the Home Rule Amendment.Affirmed.

  • 3

    III. Instructions to City Staff

    NUISANCE ABATEMENT Process that I advocate after City Staff have beenunsuccessful in otherwise resolution of the matter with property owner

    1. Prepare and serve Order to Abate nuisance

    a. See Exhibit A hereto

    b. Responsible party is the owner of the property, unless there is a contract of

    record, in which case the contract purchaser is the responsible party.

    c. Serve the Order to Abate on the Responsible Party*

    i. Personally delivered

    ii. Certified mail (to address in county records)

    iii. Send copy of Order to Abate to complaining citizen so they know

    the City has taken action. (See example Exhibit B hereto)

    Note: Service is complete when it is either personally delivered, or when the certified

    mail is sent. It is not necessary to have proof of anyone receiving the certified mail.

    2. Note date for compliance, inspect property.

    3. If property not in compliance, make decision whether City will abate nuisance (if

    so, continue here), or if City will pursue municipal infraction (if so, skip to municipal

    infractions below). Most common abatement activities are for the removal of trash due to

    concerns that trash/refuse/rubbish will decompose causing health concerns, i.e. smell,

    rodents, etc.

    4. If the City is going to abate the nuisance, no further notice is necessary, however

    most cities give one last notice, via regular mail or posting on the door, to alert the owner

    as to the date and time the City will come by to remove the junk or trash.

  • 4

    5. If the City abates the nuisance, the Clerk will need to bill the property owner for

    the costs thereof. If they do not pay the Clerk may assess the costs to abate the nuisance

    pursuant to Iowa Code Section 364.12(3) or pursue a civil suit for collection of costs.

    MUNICIPAL INFRACTIONS Process to file with Court and Procedure

    1. Fill out forms:

    a. Citation Municipal Infraction (Exhibit C hereto)

    b. Verification of Debtor (Exhibit E hereto)

    c. Confidential Information (

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