Presentation on theme: "NUISANCE ABATEMENT Howard Paperner & Lilian Doan."— Presentation transcript:
NUISANCE ABATEMENT Howard Paperner & Lilian Doan
Statutory Authority Missouri law requires a city’s authority to exercise police power to derive from a specific delegation by the state or from the express or fairly implied grant of powers of a city’s charter. Miller v. City of Town & Country, 62 S.W.3d 431, 437 (Mo. App. 2001). A municipal ordinance will be deemed a legitimate exercise of police power if the expressed requirements of the ordinance bear a substantial and rational relationship to the health, safety, peace, comfort and general welfare of the citizenry. Miller, 62 S.W.3d at 437.
Statutory Authority: All Cities and Towns Section 71.780 RSMo The legislative or governing bodies of cities organized under the general statutes or special charters shall have, and they are hereby granted, the power to suppress all nuisances which are, or may be, injurious to the health and welfare of the inhabitants of said cities, or prejudicial to the morals thereof, within the boundaries of said cities and within one-half mile of the boundaries thereof. Such nuisances may be suppressed by the ordinances of said cities, or by such act or order as the charters of said cities authorize them to adopt. If the nuisance is suppressed within the city limits, the expense for abating the same may be assessed against the owner or occupant of the property, and against the property on which said nuisance is committed, and a special tax bill may be issued against said property for said expenses.
Statutory Authority: Charter Cities Section 82.1027 Nuisance Action Nuisance Defined: "Nuisance", within the boundaries of the community represented by the neighborhood organization, an act or condition knowingly created, performed, or maintained on private property that constitutes a local code violation and that: (a) Significantly affects the other residents of the neighborhood; (b) Diminishes the value of the neighboring property; and (c) Is injurious to public health, safety, or welfare of neighboring residents or obstructs the reasonable use of other property in the neighborhood.
Statutory Authority: Charter Cities Section 82.300 Charter Cities 4. Any city with a population of more than four hundred thousand inhabitants may enact all needful ordinances to protect public and private property from nuisance and property maintenance code violations, and to punish the violation of such ordinances by a fine not to exceed one thousand dollars or by imprisonment not to exceed twelve months for each offense, or by both such fine and imprisonment.
Statutory Authority: Third Class Cities Section 77.530 The council may make regulations and pass ordinances for the prevention of the introduction of contagious diseases into the city, and for the abatement of the same, and may make quarantine laws and enforce the same within five miles of the city…and make regulations to secure the general health of the city, and to prevent and remove nuisances; provided, however, that the condemnation of any property outside of the city limits shall be regulated in all respects as the condemnation of property or railroad purposes is regulated by law; and provided further, that the police jurisdiction of the city shall extend over such lands and property to the same extent as over public cemeteries, as provided in this chapter.
Statutory Authority: Fourth Class Cities Section 79.383 1. If any fourth class city shall enact an ordinance allowing for a civil cause of action for abatement of nuisances created by the accumulation of unsightly, dangerous, or noxious personal property within the borders of such city, the city may, upon successful prosecution of such cause of action, be awarded by the court reasonable attorney's fees incurred in such action 2. This section shall not be construed to allow any award of attorney's fees in any municipal court hearing on criminal charges or traffic violations.
Statutory Authority: Towns & Villages Section 80.090 Power of the Board of Trustees: Such board of trustees shall have power: (1) To pass bylaws and ordinances to prevent and remove nuisances;
Specific Issues: High Weeds Maryland Heights Sec. 17-101-17-103 (3 rd Class) Nuisance Declared Abatement by property owner Abatement by city City of Winchester (4 th Class) Section 215.130 City of Olivette (Charter City) Section 220.010.B.7 Village of Bel-Ridge (Village) Section 215.020
Specific Issues: Trash in Yards Maryland Heights Sec. 17-51 – 17-55 (3 rd Class) Definitions Entry onto private property Nuisance declared; prohibited Abatemet by owner Abatement by city City of Winchester(4 th Class) Section 215.140 City of University City (Charter City) Section 8.24.190 Village of Bel-Ridge (Village) Section 215.010
Specific Issues: Dilapidated Buildings Missouri Statutes Specifically Authorize Cities to Abate Vacant & Dilapidated Buildings Section 82.1026 (Charter Cities) Vacant Buildings The governing body of any home rule city with more than four hundred thousand inhabitants and located in more than one county may enact ordinances to provide for the building official of the city or any authorized representative of the building official to petition the circuit court in the county in which a vacant nuisance building or structure is located for the appointment of a receiver to rehabilitate the building or structure, to demolish it, or to sell it to a qualified buyer.
Specific Issues: Dilapidated Buildings City of Creve Coeur (Charter City) Section 215.020 City of Breckenridge Hills (3 rd Class City) Section 215.040 City of Rock Hill (4 th Class City) Section 220.010.8 Village of Bel-Ridge (Village) Section 215.010.A.2
Specific Issues: Noise City of Ladue (4 th Class) Sec. 58-1. – 58-3. Prohibited Generally Acts enumerated Prohibitions on business or commercial property City of Berkeley (Charter City) Section 215.010.D.11 City of Breckenridge Hills (3 rd Class City) Section 215.030.20
Due Process & Nuisance Ordinance Violations FACTS: Following the raid of appellant Lewis’ home and discovery of drug paraphernalia, City notified Lewis that they would conduct a hearing to determine if her house was a place used for the illegal use, keeping, or sale of controlled substances. The hearing was conducted by the City Manager. The City Attorney presented evidence. The City Manager determined appellant’s residence was a nuisance pursuant to City ordinance and ordered the premises unoccupied for three months. Lewis v. City of University City
ISSUES: - Appellant urged Trial Ct. erred because: - *One person prosecuted and judged the merits of the case. - *City did not have the police power to order appellant’s residence closed. - *Decision was arbitrary and capricious and not supported by substantial evidence. Lewis v. City of University City
RULES: -Combination of roles by itself is not reversible error for denial of due process claim Due process requires that Appellant had a fair hearing Know claims, hearing evidence submitted, confront and cross examine witness and submit own witnesses Ordinance deemed legitimate if ordinance bears substantial and rational relationship to health, safety, peace, comfort and general welfare of citizens Agency acts unreasonably and arbitrarily if findings are not based on substantial evidence in record Lewis v. City of University City
CONCLUSION: City Manager’s actions did not violate requirement of separation of powers No due process violation Knew claims against her Represented by counsel at hearing Had opportunity to cross examine witness Presented evidence on own behalf Ordinance within police power Purpose: shut down locations where drugs sold, stored and consumed Manager’s decision was not arbitrary or capricious because had substantial evidence. Lewis v. City of University City
Bezayiff v. City of St. Louis Nuisance Abatement and the 4 th Amendment FACTS: The City of St. Louis ordered respondent, Bezayiff, to remove two vehicles kept on his property pursuant to an ordinance declaring inoperable cars a public safety hazard. Bezayiff appealed the order to the Board of Public Service- the Board ordered the owner or the City to remove one vehicle. Bezayiff appealed to the Circuit Court- Court enjoined City from entering private property to remove the vehicle and declared a portion of the City’s ordinance unconstitutional.
Bezayiff v. City of St. Louis Applicability of the 4 th Amendment to Government Officials: Entries onto private property by government officials, like searches pursuant to a criminal investigation, are governed by the warrant requirement of the Fourth Amendment Basic purpose of the 4 th Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials Protection against unreasonable searches and seizures fully applies to the seizure of residential property in the civil context “We do not mean to suggest that the warrant requirement extends to all entries onto private property for nuisance abatement purposes, such as removing inoperable motor vehicles. Rather, the requirement applies only to those entries with intrude upon constitutionally recognized expectations of privacy.”
Bezayiff v. City of St. Louis A municipal Catch 22: Court requires that City officials have a search warrant… But Mo. Sct. Rule 37 does not have any language authorizing search warrants and there is no statutory authority for a municipal court to issue a search warrant.. And remember…Missouri law requires a city’s authority to exercise police power to derive from a specific delegation… What is the correct procedure?
Smoking Bans- Statutory Authority? Section 71.760 (All Cities, Public Health) Smoke Nuisance The emission or discharge into the open air of dense smoke within the corporate limits of any city of this state is hereby declared to be a public nuisance. The owners, lessees, occupants, managers or agents of any building, establishment or premises from which dense smoke is so emitted or discharged shall be deemed guilty of a misdemeanor, and upon conviction thereof, in any court of competent jurisdiction, shall pay a fine of not less than twenty-five dollars nor more than one hundred dollars. And each and every day whereon such smoke shall be emitted or discharged shall constitute a separate offense; provided, however, that in any suit or proceeding under this section, it shall be a good defense if the person charged with a violation thereof shall show to the satisfaction of the jury or court trying the facts that there is no known practicable device, appliance, means or method by application of which to his building, establishment or premises the emission or discharge of the dense smoke complained of in that proceeding could have been prevented. Improvement of Public Health By Regulation/City Created Nuisances
Statutory Authority?- Smoking Bans (Cont’d) Section 71.770 Smoke nuisance All cities to which the provisions of section 71.760 are applicable are hereby empowered to enact all necessary or desirable ordinances, not inconsistent with the provisions herein, nor the constitution, nor any general law of this state, in order to carry out the provisions of said section.section 71.760 Improvement of Public Health By Regulation/City Created Nuisances
Saint Louis County Smoking Ban Possession of lighted or heated smoking materials in an enclosed place of employment or enclosed public place or within any other place specified in ordinance is unlawful. Improvement of Public Health By Regulation/City Created Nuisances
St. Louis County Smoking Ban… but what of enforcement? The ban is to be enforced by the St. Louis County Department of Health and by any authorized designee of the Director of the Department of Health. Section 605.080, St. Louis County Ordinances. Improvement of Public Health By Regulation/City Created Nuisances
National Discussion on Code Enforcement Service of Process and Notice WHO owns the property? Searching for Problems: Administrative Warrants and Code Enforcement Fourth Amendment issues There is STILL a debate if municipal courts can issue administrative search warrants Look Before You Leap: How Code Officials and City Attorneys Can Effectively Plan Enforcement COMMUNICATION IS KEY!!!
National Discussion on Code Enforcement Tales from the Last Frontier: “GOV-zilla Meets the Parking Fairies” Predatory towing St. Louis City example As the Rooster Crows: Chickens and other Exotic Pets Urban farming National Expert: Marianne Banks from Springfield, MO City of Clayton Ordinance Section 220.020.A.13 Signs, Signs, Everywhere a Digital Sign: Issues in Code Enforcement Maryland Heights sign code “Effective Witness Preparation for Trail” How a slip of the tongue can get you in trouble