Tag: Due Process

Constitutional claims not preserved in defense to nuisance citation

hdankbar

by Hannah Dankbar and Gary Taylor

Beaver and Sanderson v City of Davenport
Iowa Court of Appeals, April 27, 2016

Clifford Beaver and Pamela Sanderson have lived as common law husband and wife at their property in the City of Davenport for the past 14 years.  In 2014 the City sent a letter to  Beaver and Sanderson declaring their property a public nuisance under Davenport Municipal Code §8.12, after several neighbors circulated a petition seeking the property to be declared as such. The City’s letter explained that Sanderson’s “erratic behavior” prevented multiple neighbors from enjoying their property. The letter detailed nine directives regarding the activity on and around the property, including prohibitions against “criminal related activity”, harassment of neighbors and guests, calling authorities without cause, accosting people parking on the street, letting their dog run without a leash, and restrictions on using security cameras.  The letter warned Beaver that failure to abate the nuisance could result in citations and fines.

Beaver requested an appeal hearing. After a two-day hearing in April at which seven police officers and seven neighbors were called as witnesses, the hearing officer determined that there was sufficient evidence to support the nuisance abatement and approved the “Nuisance Abatement Plan” which included seven directives. One of the directives prohibited recording or pointing security cameras at any part of any neighboring structure.

Beaver challenged in district court the legality of the hearing officer’s order. The court ruled in favor of the City and Beaver appealed.

On appeal, Beaver argued the district court wrongly upheld the city’s abatement order that declared his property a public nuisance. He presented two claims: (1) “Davenport’s Nuisance and Residential Camera Statutes are unconstitutional on their face; and (2) unconstitutional as applied to his situation.

The court concluded that these challenges were not preserved for their review. These two claims were not presented in district court and therefore cannot be ruled on in the appeal.

The only constitutional claim that was addressed in district court was regarding the residential-camera regulations. Beaver claimed that the City’s ordinance unconstitutionally restricted his “right to maintain surveillance for the purpose of monitoring or protecting [his] property.” The ordinance limits the camera’s field of view to less than fifty-percent of a neighbor’s property. The court determined that this balances a property owner’s right to survey their property with their neighbor’s right to privacy.

On appeal, Beaver claimed that the hearing officer misapplied the camera ordinance. This specific attack on the abatement order was not ruled on in district court, so the appeals court refused to rule on it.

On appeal, the court did not reach any conclusions on the propriety, constitutionality or enforceability of the City’s order due to the issue of preservation. Because of these issues the orders from the lower court were affirmed.

 

 

 

 

 

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Junk vehicle ordinance not a traffic regulation; neither overbroad nor vague

hdankbar

by Hannah Dankbar

Village of North Hudson v Randy Krongard
(Wisconsin Court of Appeals, November 18, 2014)

In November 2011 Krongard received two citations from Village of North Hudson for violating article II, chapter 90, § 44 of the Village Code by having two junk vehicles (cars without current registration) in plain view on his property.

Krongard pleaded not guilty in municipal court, but failed to show for his trial. He showed up a few months later with counsel seeking to vacate the municipal court judgment against him by saying that the Village ordinance is void, unlawful and invalid as it is preempted by, contrary and inconsistent with Wisconsin traffic regulations. The municipal court refused to vacate the judgment.  Krongard’s appeal was also dismissed by the circuit court. Krongard then appealed to the court of appeals.

Krongard claimed the Village’s ordinance conflicted with state traffic regulations in chapters 341 to 348 and 350.  Krongard argued that The Village’s ordinance “impermissibly defines unregistered vehicles as junk vehicles and regulates unregistered vehicles on private property.”

The Village argued that its ordinance and the state traffic regulations could not be contradictory because they regulated “two completely different issues.”  While the village ordinance is “concerned with the upkeep of private property,” the state traffic regulations were concerned “with the licensing, regulation of, outfitting and operation of vehicles[.]”

The circuit court decided, “this regulation, because of the way it is written, its location within the Village Ordinances, and the Village’s alternative definition of junk vehicle, falls under the Village’s ‘health, safety, welfare’ power granted in Wis. Stat. § 61.34.”  It also found the ordinance was a constitutionally valid exercise of that ‘health, safety, and welfare’ power.  As a result, the circuit court denied Krongard’s motion to vacate the default judgment. Krongard appealed to the court of appeals.

Krongard argued that because the village ordinance concerns motor vehicles, it must be a traffic regulation. The Village argued that its ordinance only addresses the problem of uncovered junk vehicles and has nothing to do with the operation of motor vehicles on highways or city streets.  Rather, as the circuit court correctly noted it “simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.”

The court rejected Krongard’s argument that the village ordinance is a traffic regulation. It stated that Krongard’s argument “ignores the fact that § 90-44 does not affect—directly or incidentally—motor vehicle operation. Rather, as the circuit court aptly noted on remand, it ‘simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.’”

Regarding the constitutionality of the ordinance, Krongard raises due process concerns that the Village’s provisions in Article II are overbroad and vague.

An ordinance is vague if it is “so obscure that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability.” It is overbroad “when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate.” The court found “no indication that Krongard could reasonably have any question as to what constituted a violation of the village ordinance, or the consequences for such a violation.”

The court dismissed all of Krongard’s claims.

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Ordinance prohibiting lot splits found constitutional

Gary Taylor

by Victoria Heldt

Richard W. Guse and Clara Guse v. City of New Berlin and Common Council of the City of New Berlin
(Wisconsin Court of Appeals, January 18, 2012)

The Guses own a lot in the Hillcrest Terrace Subdivision in the City of New Berlin.  They wanted to divide their existing lot into two lots, with each measuring approximately 29,000 square feet with a width of 147 feet.  The average lot within the subdivision contained approximately 41,000 square feet and measured 181 feet wide.  Both the New Berlin Plan Commission and the New Berlin Common Council denied the Guses’ request based on NBMC §235-23(G).  This ordinance allows the City to prohibit new lots that are smaller than or not as wide as existing lots in the subdivision.  It also allows the city to prohibit the formation of new lots in a subdivision that is more than 25 years old.  The Guses appealed the decision to the district court, arguing that the ordinance was unconstitutionally vague and that the Council’s denial of their request was arbitrary, unreasonable, and discriminatory.  The court agreed and reversed the Council’s decision, ruling in favor of the Guses.  The City appealed.

The Court looked first to the constitutionality of NBMC §235-26(G).  An ordinance is unconstitutionally vague if “it fails to afford proper notice of the conduct it seeks to proscribe or if encourages arbitrary and erratic enforcement.”   The Guses argued it was vague because it did not set forth adequate standards for the City to consider when deciding whether to allow such a lot split.  The Court looked to previous judicial decisions regarding vague statutes and ordinances.  In the case of Humble Oil, the Court struck down an ordinance that allowed a city to prohibit gas filling stations.  In the ordinance in that case, the only factors that were to be considered when deciding on a permit were public health, safety, convenience, prosperity, or general welfare.  The Court deemed those standards to be too vague and concluded there should be some standards to guide the municipality’s actions.

Next the Court looked to cases in which it upheld statutes and ordinances.  In Wadhams Oil Co. v. Delavan the Court upheld an ordinance allowing the city to prohibit a gas station to be placed within 165 of the main street of a city.  In Smith v. Brookfield, the Court upheld an ordinance that required the submission of location and a plan of operation before a board would allow certain types of businesses.  It also contained language in the preamble that required consideration of general welfare objectives.  After analyzing those cases, the Court concluded that “ordinances may vest boards with some (and even significant) discretion without being unconstitutionally vague.”  Turning to the ordinance in question, the Court determined that the New Berlin Municipal Code clearly outlines three considerations for the court to consider when contemplating the issuance of a permit, so it is not unconstitutionally vague.

The Guses further argued that the Council’s decision to deny the request was arbitrary because the lot in question is relatively large compared to those around it, and that the denial was unreasonable because it “lacked a health, safety, or general welfare basis.”  The Court noted that the existence of differences in decisions is not necessarily indicative of arbitrariness.  In making the decision, the Council considered the criteria of the statute and citizen’s opposition to the division, so there was clearly a rational basis for the decision.

The Guses finally argued that the decision was discriminatory because the Council previously approved lot divisions that created lots smaller than the average lot size within the subdivision.  The Court found this claim to be unsupported by the record.  The Guses presented evidence of previous lot divisions, but no evidence of how those lots compared in size to surrounding lots.  The Court reversed the trial court’s decision, ruling in favor of the City.

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City fails to demonstrate rational basis for prohibition of billboard extensions

by Melanie Thwing

Clear Channel Outdoor v. City of St. Paul
(Federal 8th Circuit Court of Appeals, August 25, 2010)

Clear Channel Outdoor has owned and operated billboards in the City of St. Paul, MN since 1925. They regularly use billboard extensions when the customer’s needs require them. In St. Paul billboards until November 2000 were regulated with the zoning code, but were allowed. Then St. Paul, Minnesota Code §64.420 was passed which does not allow for any new billboards to be constructed. Effectively, the standing billboards were allowed as nonconforming uses. St. Paul Code §66.301(g) at the time still regulated the size and length of time for all extensions.

Then in March 2005 concerns about billboard extensions were brought to the city’s Planning Commission. The options of banning extensions altogether and allowing extensions through a permiting process were both discussed.  A resolution in support of the permitting scheme was ultimately adopted and transmitted to the city council. 

In August 2005 at a public hearing the City Council discussed the billboard extension issue, but laid the discussion over until November. During this time the Planning commission again took up the issue and again rejected the outright prohibition of billboard extensions.  Dispite this, in March 2006 the City Council adopted Ordinance 06-160, which prohibited all billboard extensions. The minutes did not reflect any discussion of costs or benefits of the ordinance.

Clear Channel filed a complaint in federal district court claiming (1) unconstitutional and unreasonable use of police power and (2) violation of Clear Channel’s due process and equal protection laws. After two years of mediation the parties were not able to reach an agreement. In January 2009 the district court ultimately found the ordinance arbitrary and capricious and therefore void because no rationale for the City Council’s decision was presented.

The City appealed the district court decision to the 8th Circuit Court of Appeals, arguing that the district court applied the wrong standard. Honn v. City of Coon Rapids was the precedent cited by the district court. Honn declares, “…[t]he municipal body need not necessarily prepare formal findings of fact, but it must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion…” Clear Channel countered that the city was originally in favor of using the Honn standard, and originally argued it was controlling.

The 8th Circuit agreed with Clear Channel’s argument, citing specific instances where the city said Honn was controlling. Also, the 8th Circuit concurred that Honn was applicable because the procedure it announced should be followed in ‘any zoning matter, whether legislative or quasi-judicial…” Honn has legislative authority fromMinn. Stat. §462.357, subd 1, which gives a municipality the authority to regulate buildings and structures, which is the core of this case. It is concluded that Honn is applicable.

Secondly, the city argues that even if Honn is applicable, the district court was in err because it did not allow a trial that would have allowed the City to demonstrate the rational basis for its decision. The 8th Circuit noted, however, that the City had assured the district court that the record was complete and that a decision could be made. Honn does state that a trial may be allowed, but not required.  A trial is not made available simply “…to provide local governments with a routinized opportunity for a second bite at the apple by neglecting to provide and adequate record for review.” As long as the record is complete, as was the case here, no trial is necessary. The City failed to prove a rational basis for the ordinance prohibiting billboard extensions in any documents provided. The court refused to remand the case and affirmed the district court decision.

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