Tag: Nuisance abatement

Condemnation and demolition of historic Keokuk church not a taking. 657A not the sole procedure for abating a dangerous building

Gary Taylor

by Gary Taylor

Christ Vision, Inc., v. City Keokuk

Iowa Court of Appeals, January 25, 2023

Built in 1876, the former Unitarian Church in Keokuk had fallen into serious disrepair by 2005. That year the city sent a letter to the church’s owner – Christ Vision – asking the owner to address deteriorating brick and falling moldings. Christ Vision took no action for three years, so the city delcared the building unsafe to occupy in 2008, informing Christ Vision that “no person shall remain in or enter any building that has been so posted except to enter for repair or demolish….” Christ Vision representatives spoke with city officials numerous times, and presented (unfunded) plans for rehabilitation, but by December 2016 Christ Vision still had made no repairs. By then the church had gaping holes in the roof, fallen plaster and bricks, depressions in the floor, water in the basement, and other serious deficiencies. The city filed for a declaration of nuisance, and after a hearing the district court found in December 2016 that the church’s hazardous condition constituted a nuisance and ordered abatement. The court told Christ Vision that, at a minimum, the roof would need to be replaced and “any hazardous conditions with the structure that make it unsafe to occupy” would need to be fixed. Otherwise, the building would need to be demolished or deeded to the city. The court ordered Christ Vision to create a written abatement plan with a timeline by March 2017, but when that did not happen, and had not happened even by October 2017, the city approved a contract for the church’s demolition. Christ Vision applied for a temporary injunction, but (and i am skipping some irrelevant facts here) the city began demolition before the hearing on the injunction. Two years later Christ Vision filed this lawsuit, alleging a taking, trespass, and conversion of personal property.

Taking. Christ Vision alleged that the city’s nuisance action amounted to an illegal taking; however, the Court of Appeals noted that in City of Eagle Grove v. Cahalan, 904 N.W.2d 552, 561 (Iowa 2017) the Iowa Supreme Court held that the state’s exercise of its related police powers over abandoned property did not constitute a taking, even though Eagle Grove’s action denied the owner of “all economically beneficial or productive” use of the property. The Court of Appeals confirmed that a landowner has no vested property right in a nuisance, and so in demolishing the church in compliance with an unchallenged court order (the December 2016 order) the city did not take anything. “Bottom line, Keokuk could enforce its nuisance law without compensating Christ Vision for its losses stemming from that enforcement.”

Due Process. Christ Vision did not did not contest contest the procedural history of the December 2016 order, but rather insisted that the order did not automatically authorize demolition of the church once the March 2017 deadline was missed. It argued that the city then needed to Follow Chapter 657A before it could demolish the building. The Court of Appeals disagreed, noting that Iowa Code 657A.11(2) states “This chapter does not prevent a person from using other remedies or procedures to enforce building or housing ordinances or to correct or remove public nuisances.” The city followed its own nuisance ordinance and state law. The fact that the city demolished the church prior to the hearing on the temporary injunction was of no effect because there was not yet an injunction in place, meaning it was still lawful for the city to proceed under the December 2016 order.

Trespass and conversion. Because Christ Vision did not challenge the court’s authority to permit the city to demolish the building once the owner missed the abatement deadline the city was within its rights to enter the premises. “[C]onduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act.” Nothing in the December 2016 order imposed on the city a duty to help preserve the church; to the contrary, the onus was on Christ Vision to take action. As for the claim of conversion, Christ Vision claimed the city interfered with its right to personal property by demolishing the church with the property still inside. There was no evidence, however, that Christ Vision requested access to the church to remove personal property once it knew demolition was imminent or any time prior.

Abandoned/unsafe buildings, Due Process, Iowa Court of Appeals, Nuisance, Takings, Trespass , , ,
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Iowa Supreme Court interprets “satisfaction” to the satisfaction of county

Gary Taylor

by Gary Taylor

McNeal v. Wapello County

Iowa Supreme Court, February 3, 2023

The McNeals were operating a vehicle repair and salvage business on property in Wapello County zoned R-1 Residential. For our purposes it’s not necessary to go too far into the history of the dispute between the McNeals and the county over the condition of the property; it is sufficient to know that in April 2019 the parties entered into a settlement agreement that, in part, included the following provisions:

1. The McNeals have 90 days from April 1, 2019 to clean the Property including the removal of debris and derelict vehicles and begin repairs on the residence . . . .

2. Forty-five days after April 1, 2019, (May 16, 2019) the McNeals grant to the County the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed. The County will then notify the McNeals of the additional work which needs to be completed within the 90 day period.

3. If the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the County by the end of the 90th day (June 30, 2019), then the McNeals grant unto the County the right for the County and/or its agents to enter onto the Property and to remove all remaining debris, derelict vehicles, and unrepaired structures. The County’s cost in removing such debris, derelict vehicles, or structures will be assessed against the Property ….

4. . . . Other than the procedure set forth in this Settlement Agreement, the McNeals waive and release any other statutory or common law right to challenge the County’s right to enter the Property and to conduct clean up activities, including any rights against the County’s employees, elected officials, or agents….

6. This Agreement is the entire agreement between the Parties and supersedes all prior discussions, understandings or representations. It may not be modified or amended, nor any waiver of its provisions, except by a written instrument executed by the parties.

emphasis added in Paragraph 3

When the county zoning administrator entered the property on May 19 no cleanup work had been done. He sent a letter to the McNeals on May 21 documenting this fact. On August 5, after the ninety-day period referenced in Paragraph 3 of the settlement agreement, plus another thirty-five days, had passed, the county entered the property and removed a large number of items. This included sixteen vehicles, none of which displayed any indication of being licensed. The county sent the McNeals a letter on August 27 advising them that they could retrieve any of the vehicles by providing an indication of title and paying the towing and storage fees, but none could be returned to the same property. The letter also stated that the vehicles would be destroyed if not retrieved within 10 days.

The McNeals filed suit in district court against the county on September 6, claiming that the county’s actions constituted a breach of the settlement agreement. At a hearing on motions filed by bother parties the dispute was determined to be centered on Paragraph 3 of the settlement agreement; specifically on what the term “derelict” meant for purposes of the agreement. The county argued that the language of Paragraph 3 gave the county sole discretion to determine whether the vehicles were “derelict,” while the McNeals disagreed, and countered that there were genuine issues of fact about whether the vehicles were, in fact, derelict. After some actions at the district court and the Court of Appeals that you probably don’t care about, the Iowa Supreme Court took up the case and issued this opinion.

The court stated the issue as primarily an interpretation of Paragraph 3: “What does it mean to say that ‘the removal of debris, derelict vehicles, and maintenance of the Property has not been completed to the satisfaction of the county'”? The county argued, first, that “to the satisfaction of the county” means what it says; that is, it is within the county’s sole discretion to determine whether vehicles were “derelict.” Second, that Paragraph 2 giving the County “the right to enter onto the Property and to determine what remaining debris, derelict vehicles, or repairs need to be completed” affirms this. Third, that to decide otherwise would, in effect, render the “settlement” meaningless as it would give the McNeals the right to essentially relitigate the case over whether the county had the right to remove the items on the property. The McNeals, of course, disagreed with the county’s characterization of the agreement’s provisions.

The Court noted that, absent a phrase in the agreement such as “as determined by the County in its sole discretion,” the relevant inquiry should be “whether a reasonable person in the position of the county would be satisfied” that the McNeals had carried out its obligations under the agreement. The Court concluded that it was reasonable for the county to determine on August 5 that all the vehicles in question were derelict and should be removed. None had current licensure, most were decades old, most if not all were unable to be driven, and a few even lacked VINs. The McNeals had done nothing to clean up the property since the agreement was reached, and offered no proof, either to the county or during the court proceedings, that any of the vehicles were in good, running condition. While the McNeals argued that all the cars had “productive value” because they were salvaged for parts and therefore didn’t require removal, the Court said this was immaterial. A party’s “undisclosed, unilateral intent” in signing a settlement agreement doesn’t matter. A reasonable person could still view a vehicle as derelict even if it had salvage value.

In sum, the Court concluded that the terms of the agreement required the county to act reasonably in determining whether the vehicles were derelict, and that it had done so.

Iowa Supreme Court, Junkyards, Nuisance , ,
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Iowa Supreme Court Rules that Cities May Take Possession of Abandoned Properties

ejchr 3 Comments

Cby Eric Christianson

Eagle Grove v. Cahalan Investments
(Iowa Supreme Court, December 1, 2017)

Cahalan Investments purchased two residential properties in the City of Eagle Grove, one in 2002 and the other in 2011. Both properties have remained unoccupied and in deteriorating condition since their purchase. The properties were the subject of multiple complaints by neighbors and were found to be unfit for human occupancy.  In 2014 the city began an effort to clean up a number of nuisance properties, these properties were among those targeted. The city sent several letters to Cahalan advising them that they were in violation of the city’s nuisance ordinance. Cahalan made no effort to abate the nuisance and would later testify that they had no intention of making either property habitable in the foreseeable future

Iowa Code section 657A.10A allows cities to petition a district court to transfer ownership of abandoned properties to the city. The code details the following criteria that a court is to use when determining if a property has been abandoned.

a. Whether any property taxes or special assessments on the property were delinquent at the time the petition was filed.
b. Whether any utilities are currently being provided to the property.
c. Whether the building is unoccupied by the owner or lessees or licensees of the owner.
d. Whether the building meets the city’s housing code for being fit for human habitation, occupancy, or use.
e. Whether the building is exposed to the elements such that deterioration of the building is occurring.
f. Whether the building is boarded up.
g. Past efforts to rehabilitate the building and grounds.
h. The presence of vermin, accumulation of debris, and uncut vegetation.
i. The effort expended by the petitioning city to maintain the building and grounds.
j. Past and current compliance with orders of the local housing official.
k. Any other evidence the court deems relevant.

The code then states that if the court finds the property is abandoned, “the court shall enter judgment awarding title to the city.” In this case, the district court found that Cahalan’s properties were indeed abandoned under the definition set forth in the statute. In fact Cahalan Investments does not dispute this finding; however, Cahalan argued that awarding ownership of these properties to the city without compensation violated the takings clause of the US Constitution. In this case, the district court found Cahalan Investment’s argument convincing and did not award title to the City of Eagle Grove.

The City of Eagle Grove appealed the district court’s decision to the Iowa Supreme Court.

The Iowa Supreme Court revisited the question of whether awarding ownership to a city under Iowa Code section 657A.10 is constitutional.

Proving that a section of state code is unconstitutional is not easy. The court quotes an earlier decision stating that, “statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because it must prove the unconstitutionality beyond a reasonable doubt.”

Takings jurisprudence is based primarily on the takings clause of the Fifth Amendment which states that, “private property [shall not] be taken for public use, without just compensation.” To determine if a governmental action has violated the takings clause, the court uses the following framework:

(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

In this case, Cahalan’s case fails on the first question. The court cites an earlier ruling which states that “the State has the power to condition the permanent retention of [those] property right[s] on the performance of reasonable conditions that indicate a present intention to retain the interest[s].” Ownership of property comes with many rights, but is not absolute. Here the court is saying that in Iowa a property owner’s rights do not include allowing properties to remain abandoned. By doing so here, Cahalan has forfeited their rights.

By allowing the properties to persist in a condition unfit for human habitation, allowing the properties to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems, Cahalan did not comply with the section 657A.10A(3) criteria. Thus it failed to “indicate a present intention to retain the interest.” See id. at 526, 102 S. Ct. at 790. We conclude the district court erred in concluding Cahalan holds a constitutionally protected private property interest in the abandoned properties for which just compensation is owed.

Finding that Cahalan Investment’s stake in the properties was not a constitutionally protected right is enough to decide the case, but for completeness the court did examine the second question as well.

Assuming that Cahalan did have a constitutionally protected private property right the court still found that takings jurisprudence supports the city’s actions. A taking occurs when the government denies a property owner “all economically beneficial or productive use” of property. In this case there is no dispute that Cahalan Investments has been deprived of all use of these two properties. Generally when that occurs, the government is required to pay just compensation. However, there is a public nuisance exception in takings jurisprudence. The state has the “power to abate nuisances that affect the public generally, or otherwise,” and this action, “is not a constitutional taking for which compensation is required.”

The court also examined whether the fact that Cahalan Investments purchased these properties before the enactment of this particular section of 657A would prevent it from being applied in this case. Here the court found that the state’s existing legislation as well as the principles of nuisance law already in place at the time of purchase were sufficient to hold that Cahalan never possessed the right to maintain properties in an abandoned state.

The Iowa Supreme Court reversed the finding of the district court that the city’s exercise of 657A constituted an unconstitutional taking and remanded the case back to district court.

Abandoned/unsafe buildings, Iowa legislation, Iowa Supreme Court, Nuisance, Police powers, Takings , ,
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Unreasonable-to-repair provision in Brighton (MI) unsafe structure ordinance passes constitutional muster

Gary Taylor

by Gary Taylor

Bonner v. City of Brighton
(Michigan Supreme Court, April 24, 2014)

Under the City of Brighton, Michigan’s code of ordinances, if a structure is determined to be unsafe and the cost of repairs would exceed 100 percent of the true cash value of the structure when it was deemed unsafe, then the repairs are presumed unreasonable, the structure is presumed to be a public nuisance, and the city may order demolition of the structure without providing the owner an option to repair it.  The unreasonable-to-repair presumption can be overcome by presenting a viable repair plan, evidence from the landowner’s own experts that the repair costs would not exceed 100 percent of the property value, or evidence that the structure has some sort of cultural, historical, familial, or artistic value.

The City ordered Leon and Marilyn Bonner to demolish three unoccupied residential structures on their property after determining that repairs would exceed 100 percent of the true cash value of each of the structures (thereby providing the Bonner’s no option to repair).  The Bonners sued the City, and the circuit court and Michigan Court of Appeals determined that the above-discussed provisions of the Brighton Code of Ordinances violated property owners’ substantive and procedural due process rights.  The City appealed to the Michigan Supreme Court.

The Supreme Court determined that the Court of Appeals erred by failing to separately analyze the Bonners’ substantive and procedural due process claims. The substantive component of due process protects against the arbitrary exercise of governmental power, whereas the procedural component ensures constitutionally sufficient procedures for the protection of life, liberty, and property interests.

Substantive Due Process.  Because property owners do not have a fundamental right to repair a structure deemed unsafe by a municipality before that structure can be demolished, the government’s interference with that right need only be reasonably related to a legitimate governmental interest. The Brighton ordinance did not constitute an unconstitutional deprivation of substantive due process because the ordinance’s unreasonable-to-repair presumption was reasonably related to the city’s legitimate interest in promoting the health, safety, and welfare of its citizens. Nuisance abatement is a legitimate exercise of police power, and demolition is a permissible method of achieving that end. The ordinance was not an arbitrary and unreasonable restriction on a property owner’s use of his or her property because the ordinances provided for circumstances under which the unreasonable-to-repair presumption could be overcome and repairs permitted.

Procedural Due Process.  The Supreme Court further determined that the  demolition procedures provided property owners with procedural due process by providing the right to appeal an adverse decision to the city council, as well as the right to subsequent judicial review. The City is not required to afford a property owner an option to repair as a matter of right before an unsafe structure could be demolished, nor is the City required to provide for a reasonable opportunity to repair the unsafe structure in order for the ordinance to pass constitutional muster.

Abandoned/unsafe buildings, Due Process, Michigan courts, Nuisance , , ,
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Demolition is abatement of a nuisance, not a taking requiring condemnation

Gary Taylor 1 Comment

by Victoria Heldt

Hendrix Roosevelt v. City of Detroit
(Michigan Court of Appeals, October 13, 2011)

This case deals with the demolition of a building in Detroit, Michigan.  In 2003, the City sent a dangerous building violation notice to the owners of the building after they discovered it was dilapidated, only had a half roof, and was open to trespass.   After a hearing was held, a demolition notice was sent.  At the time, Roosevelt was not on record as an owner of the building, so he didn’t receive these notices.  In 2005, Roosevelt filed a demolition deferral application and listed the building’s address as the place to send him notice.  The City granted the deferral on the condition that the building not is kept open to public trespass.  If the condition was not met, the building would be demolished without further notice.  A notice was sent to the building addressed to Roosevelt, but it was returned as Roosevelt had moved from the building.  In 2006 the City inspected the building and found it was in violation of the deferral agreement.

Roosevelt filed another deferral request in 2007 and provided 258 Riverside Drive as an address at which to reach him.  The City denied the request and sent notice both to the building’s address and to the alternative address Roosevelt provided.  Both notices were returned in the mail.  In September of 2007 the building was demolished.  Roosevelt filed a claim arguing that the demolition of the building violated the Michigan constitution, violated federal due process, and was the result of gross negligence by two City employees.  The court dismissed the federal claim and remanded the case to the circuit court to resolve the remaining claims.  On both of these claims the circuit court granted summary judgment for the City.  In 2010 the City petitioned to reopen the case in order to present a counterclaim for demolition costs.  The petition was granted, and when Roosevelt failed to oppose the demolition costs, the court awarded demolition costs to the City.  All claims made their way to the Michigan Court of Appeals.

As for the state constitution claim, the Court of Appeals laid out three main reasons why the claim was properly dismissed by the circuit court.  First, monetary damages are reserved for plaintiffs with no other avenue of relief.  Roosevelt’s first line of relief would have been via a federal due process claim, which was alleged and was denied.   The Court also noted that the City’s actions did not constitute a “taking.”  A “taking” occurs when the government confiscates property for public use.  In these instances, the government must go through the proper condemnation process.  An exception exists, however, if the property is causing a public nuisance.  Nobody has the right to use their property as a nuisance; therefore it is not considered a “taking” if the government uses its power to stop a public nuisance.  Roosevelt’s building was considered a public nuisance since it “imperiled the health, safety, and welfare” of the neighborhood.  Thus, the government did not commit a “taking” when it demolished the building.  The Court’s final point regarding this claim was that Roosevelt cannot claim a due process violation if he actually received notice.  The fact that he filed petitions for demolition deferral was evidence that he knew of the demolition plans.  Consequently, there was no due process violation.

In regards to the gross negligence claim against the municipality’s employees, the Court noted that governmental employees are protected from lawsuits if they were “acting within the scope of their authority, were engaged in the exercise or discharge of a governmental function, and their conduct did not amount to gross negligence that is the proximate cause of the injury or damage.”  In this case, the Court focused on the phrase “proximate cause.”  The Court concluded that this phrase is to be interpreted as the “most immediate and direct” cause of the action (in this case, the demolition of the building) and that it refers to one cause.  In this case another cause existed in correspondence with the demolition, namely Roosevelt’s failure to uphold the conditions of the deferral.  As a result of those factors, the employee’s actions are not deemed gross negligence.

Finally, Roosevelt challenged the circuit court’s action in assessing the demolition costs to him since state statute specifies that a judgment lien, and not a personal judgment, should be granted in demolition costs.  The Court agreed with Roosevelt and found that the trial court abused its discretion in awarding the city a personal judgment against Roosevelt.  After affirming the district court’s decisions regarding the constitutional claim and the gross negligence claim, it remanded the case for the granting of a judgment lien.

Condemnation, Michigan courts, Nuisance, Takings , ,
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Proper to assess court costs against defendant who abates nuisance

Gary Taylor

by Gary Taylor

City of Des Moines v. Amerson
(Iowa Court of Appeals, April 13, 2011)

On February 5, 2009, the Des Moines city attorney’s office filed a petition alleging Amerson’s garage was structurally unsound and constituted a public nuisance. The petition asserted that the garage should be immediately emptied and the nuisance should be abated at the owner’s expense. The petition further urged that if Amerson did not abate the nuisance in the time ordered by the court that the city be authorized to enter Amerson’s property and demolish the structure.

A process server unsuccessfully tried to serve Amerson five times between February 24, 2009, and May 12, 2009. On May 26, 2009, the city asked for permission to serve Amerson by the alternative means of publication, which the court granted.

On June 9, 2009, Amerson filed a pro se pre-answer motion, asking to dismiss the action and to disqualify the judge. She alleged that the city had been harassing her for years through the use of its nuisance ordinances. On July 10, 2009, the district court denied the motion to dismiss and the motion for recusal.

On March 1, 2010, Amerson filed a second pre-answer motion to dismiss, alleging—among other things—that her garage was demolished in late June 2009. Amerson also attached to the motion an invoice sent to her by the city on February 18, 2010, demanding that she reimburse the city for $480 in charges incurred as a result of its administrative or legal action taken against her property. The charges included $200 for legal inspections; $30 for photographs; $125 for a title search; $25 for a service fee; and $100 in court costs. The invoice explained that her failure to pay the costs by March 20, 2010, would result in an assessment to Amerson’s property.

On March 3, 2010, the city voluntarily dismissed its cause of action, noting that Amerson’s property was “brought into compliance” with the municipal code.  The city, however, still pursued collection of costs and fees associated with the cause of action.  Amerson challenged the district court’s assessment of those costs against her.

Iowa Code 625.1 provides that costs “shall be recovered by the successful against the losing party.” Iowa Code 625.11 states that “[w]hen a plaintiff dismisses the action . . . judgment for costs may be rendered against such plaintiff . . . .” The Court of Appeals observed that the general rule in Iowa has long been that when a plaintiff voluntarily dismisses the suit, it is error to require the defendant to pay costs, but that does not apply when the plaintiff dismisses the lawsuit solely because the purpose of the suit has been achieved. In this public nuisance action, the city was the successful party because Amerson abated the nuisance by demolishing her garage “while the suit was pending and most likely because the suit was pending.”  The Court of Appeals concluded that it was proper for the district court to tax Amerson with the costs associated with the court action.

Iowa Court of Appeals, Nuisance , ,
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