Nuisance abatement - Missouri Municipal League

Report
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



Nuisance Declared
Abatement by property owner
Abatement by city
 City

of Winchester (4th Class)
Section 215.130
 City

of Olivette (Charter City)
Section 220.010.B.7
 Village

Heights Sec. 17-101-17-103 (3rd Class)
of Bel-Ridge (Village)
Section 215.020
Specific Issues: Trash in Yards
 Maryland





Definitions
Entry onto private property
Nuisance declared; prohibited
Abatemet by owner
Abatement by city
 City

of Winchester
of University City (Charter City)
Section 8.24.190
 Village

(4th Class)
Section 215.140
 City

Heights Sec. 17-51 – 17-55 (3rd Class)
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)


City of Breckenridge Hills (3rd Class City)


Section 215.040
City of Rock Hill (4th Class City)


Section 215.020
Section 220.010.8
Village of Bel-Ridge (Village)

Section 215.010.A.2
Specific Issues: Noise
 City




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 Ladue (4th Class)
of Breckenridge Hills (3rd Class City)
Section 215.030.20
So..what happens when there is a
violation?
Lewis v. City of University City
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.
Bezayiff v. City of St. Louis

Nuisance Abatement and the 4th 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 Servicethe 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 4th 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 4th 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?
Improvement of Public Health By
Regulation/City Created Nuisances
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.
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.
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”



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


Predatory towing
St. Louis City example
Maryland Heights sign code
“Effective Witness Preparation for Trail”

How a slip of the tongue can get you in trouble

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