1. law, govt and politics

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
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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
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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
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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
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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
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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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ADMINISTRATIVE NUISANCE ABATEMENT PROCESS
UNDER IOWA CODE SECTION 364.12
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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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ADMINISTRATIVE NUISANCE ABATEMENT PROCESS
UNDER IOWA CODE SECTION 364.12
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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.
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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
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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.
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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
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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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE
ABATEMENT UNDER IOWA CODE SECTION 364.22
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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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE
ABATEMENT UNDER IOWA CODE SECTION 364.22
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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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MUNICIPAL INFRACTION (COURT-ASSISTED) NUISANCE
ABATEMENT UNDER IOWA CODE SECTION 364.22
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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. 41
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
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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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