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Learn about nuisance properties, typical nuisance ordinances, inspection rights, and abatement procedures for addressing nuisances in your city.
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Handouts and presentations are available online at www.iowaleague.org. Nuisance Basics - Cleaning Up Your City Mahlon Sorensen, Essex Derrick Franck, Denison
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 Nuisance beginner - introduction
CHAPTER 657 OF THE IOWA codeDefinition 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, ….
CHAPTER 657 OF THE IOWA codeDefinition 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;
CHAPTER 657 OF THE IOWA codeDefinition 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.
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)
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.
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.
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;
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…
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.
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.
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.
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 Municipal Infraction (Court-assisted) nuisance abatement under Iowa Code Section 364.22
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.
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) 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 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 LisPendens • 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 Municipal Infraction (Court-assisted) nuisance abatement under Iowa Code Section 364.22
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.
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.
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.
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.
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 Municipal Infraction (Court-assisted) nuisance abatement under Iowa Code Section 364.22
Identify & Address Nuisance Properties • Advisability of Attempting Informal Resolution • Advantages of Court Assistance v. Administrative Abatement • Questions? CONCLUSION
Derrick Franck Franck & Sextro, P.L.C. 1231 Broadway #300 Denison, IA 51442-1923 (712) 263-3159 Mahlon Sorensen 301 Maple Street PO Box 287 Shenandoah, IA 51601 (712) 246-1924 Workshop Speakers:
