nuisance beginner - how to clean up your city · pdf filenuisance beginner: how to clean up...

Nuisance Beginner:

How to Clean Up

Your City

Derrick Franck, Multiple Cities

Mahlon Sorensen, Multiple Cities

Iowa League of Cities 2012 Annual Conference & Exhibit

Handouts and presentations are available online at www.iowaleague.org

NUISANCE BEGINNER - INTRODUCTION

• Identification of Nuisance Properties

• Typical Nuisance Ordinances

• How to Get the Right to Inspect Properties

• Informal Nuisance Abatement Procedures

• Administrative Abatement Procedures

• Court Assisted Abatement

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LET’S PLAY - NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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CHAPTER 657 OF THE IOWA CODE DEFINITION AND EXAMPLES OF NUISANCES

Section 657.1 – Nuisances – What Constitutes.

Whatever is injurious to health, indecent, or unreasonably offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere unreasonably with the comfortable enjoyment of life or property, is a nuisance, ….

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Section 657.2 - What Deemed Nuisances.

• … any building or other place that is injurious and dangerous to the health, comfort, or property of individuals or the public;

• Offal, filth, or noisome substance;

• … corrupting or rendering unwholesome or impure the water of any river, stream, or pond;

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Section 657.2 - What Deemed Nuisances.

• The emission of dense smoke or noxious fumes;

• Dense growth of all weeds, vines, brush, or other vegetation ;

• Trees infected with Dutch elm disease; and

• Houses of ill fame.

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TYPICAL NUISANCE ORDINANCE IN CITY CODE

Describes and defines the following nuisances:

• Junk and Junk Vehicles

• Dangerous Buildings

• Weeds

• Storage and Disposal of Solid Waste, and

• Property Maintenance (Failure to Maintain)

COMPLAINT: Filthy Conditions In This House.

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IF OWNER REFUSES ACCESS TO PROPERTY, OBTAIN ADMINISTRATIVE SEARCH WARRANT

Process for obtaining an administrative search warrant:

• City makes Application, supported by Affidavit of inspector.

• Judge holds hearing, issues Order for issuance of Warrant if supported by proper cause.

• Administrative Search Warrant served on property owner.

• Property owner required to allow access to property for inspection.

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INFORMAL NUISANCE ABATEMENT EFFORTS

• City representative makes personal contact with the property owner – on their doorstep.

• Politely and respectfully identify the nuisance condition and the City Code Section violated.

• Request that they take specific action(s) to correct the nuisance condition.

• Make multiple personal contacts, if necessary.

• If that doesn’t work, follow-up with one or two letters directing that the nuisance be abated.

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ADMINISTRATIVE NUISANCE ABATEMENT PROCESS UNDER IOWA CODE SECTION 364.12

• City sends Notice / Order to Abate Nuisance to the property owner, preferably by certified mail.

• The Notice -

Identifies the location and nature of the nuisance condition ;

Orders that nuisance be abated by taking specific action within a specific period of time;

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• The Notice –

advises property owner of right to request a hearing before the City Council within a certain period of time;

advises the property owner that if the nuisance is not abated as directed and no request for hearing is made within the time prescribed, the city may…

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the city may …

abate the nuisance and assess the costs against the property for collection in the same manner as a property tax, or

file a civil citation to initiate a municipal infraction proceeding against the property owner.

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• If the property owner fails to abate the nuisance within the time required,

the City can perform the required abatement action and assess the costs against the property for collection in the same manner as a property tax, OR

the City can commence a municipal infraction proceeding against the property owner.

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PROS AND CONS OF ADMINISTRATIVE NUISANCE ABATEMENT PROCESS

• Pros:

Cheaper and quicker process to undertake and complete – does not involve going to court.

• Cons:

No judicial sanction for city’s actions to abate / correct the nuisance condition.

Presents a potential risk of civil liability for denial of due process, or for taking of property without just compensation.

MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE ABATEMENT UNDER IOWA CODE SECTION 364.22

RISK OF SELF HELP REMEDIES

Hancock v. Davenport

Iowa Supreme Court held that sufficient notice and opportunity for hearing required before city resolution authorizing demolition of nuisance property.

Risks of denial of due process

Damages and Attorney Fees

Emergency Exception

Cerro Gordo Hotel v. Mason City

Immunity under State Law for Emergency Response

670.4 (11)

Potential Federal liability under Section 1983 for unlawful taking

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• If the property owner fails to abate the nuisance within the time required, the City can file a civil citation against the property owner, charging the owner with a municipal infraction violation.

• The citation must be served on the property owner in accordance with the Rules of Civil Procedure and filed in court.


City must have adopted municipal infraction ordinance to use Sec 364.22 remedy

Ordinance may make most violations of city code municipal infractions

Exceptions Acts that are criminal under State law punishable as

serious misdemeanors, aggravated misdemeanor or felonies

Some simple misdemeanors (e.g. assault)

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Municipal Infraction Ordinance may be limited to problem areas

Examples

Property violations

Animal Infractions

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Procedure Starts with issuance of citation to offender Original filed with Clerk If affects real estate

Enter in Lis Pendens Bars later acquired interests

File also with county treasurer Bars tax sale

Tried as a small claim Magistrate court if less than $5,000 District Court if exceeds that amount

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• In the civil citation, the city :

Charges the property owner with maintaining a nuisance at a particular location; and

Describes the nuisance, typically by reference to a particular city code section.

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• In the civil citation, the city can :

Request the imposition of a civil penalty (not to exceed $750 for first violation; $1,000 for second and succeeding violations);

Request the property owner be ordered to take specific action to abate the nuisance violation; and

Request the property owner be enjoined and restrained from future violations.

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• In a municipal infraction proceeding, the court can :

Approve a consent decree negotiated by the city and property owner;

After trying the case and finding that the property owner committed the municipal infraction, impose a civil penalty and enter an order directing the property owner to take specific actions within a certain period of time to abate the nuisance.

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• If the property owner fails to abate the nuisance per the consent decree or as ordered by the court, the court can

Hold the property owner in contempt;

Impose a civil penalty on the property owner;

Authorize the city to abate the nuisance; and

Order that the city's abatement costs be entered as a judgment against the defendant or assessed against the property, or both.


Good Practice to Litigate as a Last Resort

Most cities use lesser steps first to gain voluntary compliance

Magistrates are more sympathetic to cities who have tried other steps to correct the problem

Council should adopt scheduled violations by resolution

Avoids having to prove up damages before judge

Make sure city properties comply with city codes before suing

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CONCLUSION

• Identify & Address Nuisance Properties

• Advisability of Attempting Informal Resolution

• Advantages of Court Assistance v. Administrative Abatement

• Questions?

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WORKSHOP SPEAKERS:

Derrick Franck

Mundt Franck & Schumacher

1231 Broadway #300

Denison, IA 51442-1923

(712) 263-3159

Mahlon Sorensen

301 Maple Street

PO Box 287

Shenandoah, IA 51601

(712) 246-1924

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nuisance beginner - how to clean up your city · pdf filenuisance beginner: how to clean up...

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