Nuisance Beginner - Iowa League of Cities

iowaleague.org

Nuisance Beginner - Iowa League of Cities

Iowa League of Cities 2012 Annual Conference & Exhibit

Nuisance Beginner:

How to Clean Up

Your City

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

Derrick Franck, Multiple Cities

Mahlon Sorensen, Multiple Cities


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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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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NUISANCE ?! or NOT a Nuisance?

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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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CHAPTER 657 OF THE IOWA CODE

DEFINITION AND EXAMPLES OF NUISANCES

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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CHAPTER 657 OF THE IOWA CODE

DEFINITION AND EXAMPLES OF NUISANCES

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)

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COMPLAINT: Filthy Conditions In This House.

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COMPLAINT: Filthy Conditions In This House.

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COMPLAINT: Filthy Conditions In This House.

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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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ADMINISTRATIVE NUISANCE ABATEMENT PROCESS

UNDER IOWA CODE SECTION 364.12

• 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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ADMINISTRATIVE NUISANCE ABATEMENT PROCESS

UNDER IOWA CODE SECTION 364.12

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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ADMINISTRATIVE NUISANCE ABATEMENT PROCESS

UNDER IOWA CODE SECTION 364.12

• 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.

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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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

• 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.

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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

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 (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

Municipal Infraction Ordinance may be limited

to problem areas

Examples

Property violations

Animal Infractions

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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

• 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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

• 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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

• 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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

• 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.

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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE

ABATEMENT UNDER IOWA CODE SECTION 364.22

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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