City of Monroe v. Dustin M. Nicol and Michelle R. Street

IN THE COURT OF APPEALS OF IOWA
No. 16-1155
Filed May 3, 2017
CITY OF MONROE,
Plaintiff-Appellee,
vs.
DUSTIN M. NICOL and MICHELLE R. STREET,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Terry R. Rickers,
Judge.
Dustin Nicol and Michelle Street appeal the order awarding title to their
property to the City of Monroe pursuant to Iowa Code section 657A.10A(5)
(2016). AFFIRMED.
Roger J. Hudson II of R.J. Hudson Law Firm, P.C. West Des Moines, and
Justin Anthony Montello of J Montello Law P.L.L.C., West Des Moines, for
appellants.
Gilbert R. Caldwell III of Caldwell, Brierly, Chalupa & Nuzum, P.L.L.C.,
Newton, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.
Dustin Nicol and Michelle Street appeal the order awarding title to their
property, which the trial court deemed abandoned, to the City of Monroe (City)
pursuant to Iowa Code section 657A.10A(5) (2016). They challenge the statute,
arguing it allows an unconstitutional taking of property without just compensation.
Because the statute is a permissible exercise of police power rather than an
unconstitutional taking, we affirm.
I. Background Facts and Proceedings.
The record is not crystal clear, but it appears Nicol and Street bought
property in Monroe in 2011 or 2012. They took title by warranty deed in 2013.
Beginning in May 2013, and over the two years that followed, the City sent them
five letters regarding their failure to maintain the property. Nicol and Street failed
to clean up the property, and in April 2015, the City filed municipal infractions
against Nicol and Street, citing the couple for violating several ordinances
regarding junk, vehicles, and garbage on the property. After a compliance
hearing in August 2015, the court entered judgments against Nicol and Street
assessing civil penalties and ordering them to fully abate the violations. They did
not do so. Additionally, Nicol and Street have failed to pay property taxes on the
property since purchasing it. No utilities have been in use at the property since
June 2015.
In January 2016, the City petitioned for title to Nicol and Street’s property,
alleging it was abandoned within the meaning of section 657A.10A(3). Nicol and
Street moved to dismiss the action on the ground the statute is unconstitutional.
Specifically, they argued chapter 657A allows the taking of private property for a
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public purpose without just compensation to the owner. The court denied the
motion, finding chapter 657A is a legitimate exercise of police powers and does
not violate the Federal or Iowa Constitutions. At the conclusion of a bench trial,
the court found the property met the definition of abandoned under chapter 657A
and entered an order awarding its title to the City.
Nicol and Street appeal.1
II. Scope and Standard of Review.
Because the case was tried in equity, our review is de novo. See City of
Waterloo v. Bainbridge, 749 N.W.2d 245, 247 (Iowa 2008). We also review
constitutional issues de novo. See Bowers v. Polk Cty. Bd. of Supervisors, 638
N.W.2d 682, 688 (Iowa 2002).
Statutes are presumed to be constitutional. See id. In order to rebut that
presumption, Nicol and Street must show that the statute is unconstitutional
beyond a reasonable doubt. See id. In addition, they “must negate every
reasonable basis upon which the statute could be upheld as constitutional.” Id.1
The parties’ appendix violates Iowa Rule of Appellate Procedure 6.905 in numerous
respects. The appendix contains no table of contents. See Iowa R. App. P.
6.905(2)(b)(1) & (4). The appendix contains no list of relevant docket entries. See Iowa
R. App. P. 6.905(2)(b)(2) & (5). The documents included in the appendix are not in
proper order. See Iowa R. App. P. 6.905(6). The name of each witness whose
testimony is included in the appendix is not inserted at the top of each appendix page
where the witness’s testimony appears. See Iowa R. App. P. 6.905(7)(c). Furthermore,
the appendix contains duplicates of documents. While we may appear to be just
nitpicking, we are not. The three-volume appendix was very difficult to navigate. As we
have repeatedly observed: Rule compliance lightens the court’s burden and promotes
judicial efficiency because compliance begets uniformity, and uniformity eases the
court’s navigation through the thousands of briefs and appendices it reviews each year.
See, e.g., In re Estate of Woodroofe, No. 11-0900, 2012 WL 3854642, at *1 n.1 (Iowa
Ct. App. Sept. 6, 2012).
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III. Constitutionality of Iowa Code section 657A.10A.
Iowa Code section 657A.10A(1)(a) provides that “a city in which an
abandoned building is located may petition the court to enter judgment awarding
title to the abandoned property to the city.” A building is “abandoned” if it “has
remained vacant and has been in violation of the housing code or building code
of the city in which the property is located.” Iowa Code § 657A.1(1). The
legislature has provided a list of factors the court must consider in determining
whether a building is abandoned. See id. § 657A.10A(3)(a)-(m). The factors
include: whether the owner has paid the property taxes, whether utilities are in
use at the property, whether the property is unoccupied, and whether the
property complies with the housing code. See id. If, after considering these
factors, the court determines the property is abandoned, it must award title to the
city. See id. § 657A.10A(5).
Nicol and Street argue section 657A.10A is an unconstitutional taking
under both the Takings Clause of the United States Constitution and its
counterpart in the Iowa Constitution, which prohibit the taking of private property
for public use without just compensation.2 See U.S. Const. amends. V, XIV; Iowa
Const. art. I, § 18. In order to decide this question, we must first determine
“whether the restrictions and conditions imposed by [the statute] amount to a
taking of property under eminent domain or simply a regulation under the police
power of the state.” Woodbury Cty. Soil Conservation Dist. v. Ortner, 279
2
This issue was raised before the Iowa Supreme Court in Bainbridge, 749 N.W.2d at
247, but the appellant’s failure to preserve error precluded the supreme court’s review.
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N.W.2d 276, 277-78 (Iowa 1979). The distinction is important because the
regulation of property
for purposes that are declared, by valid legislation, to be injurious to
the health, morals, or safety of the community, cannot, in any just
sense, be deemed a taking or an appropriation of property for the
public benefit. Such legislation does not disturb the owner in the
control or use of his property for lawful purposes, nor restrict his
right to dispose of it, but is only a declaration by the State that its
use by any one, for certain forbidden purposes, is prejudicial to the
public interests. . . . The power which the States have of prohibiting
such use by individuals of their property as will be prejudicial to the
health, the morals, or the safety of the public, is not—and,
consistently with the existence and safety of organized society,
cannot be—burdened with the condition that the State must
compensate such individual owners for pecuniary losses they may
sustain, by reason of their not being permitted, by a noxious use of
their property, to inflict injury upon the community.
Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 144-45 (1978)
(alteration in original) (quoting Mugler v. Kansas, 123 U.S. 623, 668-69 (1887)).
Because section 657A.10A was enacted to remedy “the existence of unsafe
abandoned buildings,” Bainbridge, 749 N.W.2d at 251, it relates to the safety,
health, or welfare of others and was an exercise of police power, see Penn. Cent.
Transp. Co., 438 U.S. at 144-45; Stone v. City of Wilton, 331 N.W.2d 398, 402
(Iowa 1983) (“Land use restrictions (such as at issue here) reasonably related to
the promotion of the health, safety, morals, or general welfare repeatedly have
been upheld even though the challenged regulations destroyed or adversely
affected recognized real property interests or flatly prohibited the most beneficial
use of the property.”).
We note that the exercise of police power may amount to a taking if it
deprives the property owner of the substantial use and enjoyment of the property.
See Woodbury Cty., 279 N.W.2d at 278. Before a statute may be imposed on
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behalf of the public as a permissible use of police power, “it must appear (1) that
the interests of the public require such interference, and (2) that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals.” Kasparek v. Johnson Cty. Bd. of Health, 288
N.W.2d 511, 517 (Iowa 1980). In determining whether the statute is reasonable,
we consider “such things as the nature of the menace against which it will
protect, the availability and effectiveness of other less drastic protective steps,
and the loss which appellants will suffer from the imposition of the ordinance.” Id.(quoting Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962)).
Section 657A.10A affords the property owner a minimum of sixty days
after the filing of the petition to correct the situation that led to the city to initiate
the proceeding. See Iowa Code § 657A.10A(2) (providing the city may request a
hearing “[n]ot sooner than sixty days after the filing of the petition”), (4) (providing
in the alternative that the court may enter judgment granting the city title to the
property if the city “can establish to the court’s satisfaction that all parties with an
interest in the property have received proper notice and . . . did not make a good-
faith effort to comply with the order of the local housing or building code official
within sixty days after the filing of the petition”). Although loss of title to property
is a significant loss, it is not unreasonable; an action under section 657A.10A is
undertaken as a final resort against those property owners who have otherwise
failed to comply with housing codes, building codes, nuisance laws, or tax
assessments when less drastic steps toward compliance have failed. For
instance, in the present case, Nicol and Street were served with a petition for title
to abandoned property in 2016, only after the City unsuccessfully attempted to
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obtain compliance by sending letters regarding ordinance violations in 2013 and
2014 and citing them for multiple ordinance violations in 2015—and after the
court assessed them civil penalties and ordered them to abate the violations.
Furthermore, even in the event of a complete taking, the State is not
required to compensate a property owner if it “can show that the owner’s ‘bundle
of rights’ never included the right to use the land in the way the regulation
forbids.” Iowa Coal Mining Co. v. Monroe Cty., 555 N.W.2d 418, 431 (Iowa
1996) (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992)).
Section 657A.10(A) provides a sanction for those who use their property in a
manner that was already prohibited. Because the statute does “no more than
duplicate the result that could have been achieved in the courts—by adjacent
landowners (or other uniquely affected persons) under the State’s law of private
nuisance, or by the State under its complementary power to abate nuisances that
affect the public generally, or otherwise,” it is not a constitutional taking for which
compensation is required. Lucas, 505 U.S. at 1029.
AFFIRMED.