PITFALLS OF CODE ENFORCEMENT

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PITFALLSOF CODE ENFORCEMENT

• Stephanie E. Karr
• Curtis, Heinz, Garrett OKeefe, P.C.
• St. Louis, Missouri

2
Exercise of Police Power

• Code Enforcement is a mechanism to protect the
  public health, safety and welfare.
• Code Enforcement, when utilized properly, falls
  under the umbrella of the citys police power.

3

• A nuisance is a condition which causes a hazard
  or some detriment to the public health, safety
  and welfare

4
LACK OF CAUSAL CONNECTION
5
Causal Connection

• A causal link must be shown between the alleged
  violator and the alleged nuisance.
• City of St. Louis v. Benjamin Moore Co., 226
  S.W.3d 110 (Mo. 2007) (nuisance action to recover
  costs for abatement of lead paint in homes)
• City of St. Louis v. Varahi, Inc., 39 S.W.3d 531
  (Mo.App.E.D. 2001) (city failed to prove that
  hotel's hourly rental policy, reputation and
  arrests in vicinity of hotel caused public
  nuisance of prostitution on street outside
  hotel)

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PROCEDURAL DEFICIENCIES
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Abatement

• If the property owner fails to remedy the
  nuisance, the city may take action to abate the
  nuisance
• The costs incurred by the city in abating the
  nuisance may be recovered from the property owner
  by issuance of a Special Tax Bill such costs
  are a lien on the property.

8
General Proceduresfor Abatement

• Written Notice reasonably calculated to reach the
  intended recipients
• Opportunity for owner or possessor to be heard by
  representative of the city
• Reasonable time for abatement by owner/possessor
  reasonable time depends on the condition to
  be abated and other considerations such as
  weather conditions
• Findings and determination of nuisance after
  hearing

9
Statutory Procedures

• Section 67.398 Any ordinance authorized by
  this section may provide that if the owner fails
  to begin removing or abating the nuisance within
  a specific time which shall not be less than
  seven days of receiving notice that the nuisance
  has been ordered removed or abated, or upon
  failure to pursue the removal or abatement of
  such nuisance without unnecessary delay, the
  building commissioner or designated officer may
  cause the condition which constitutes the
  nuisance to be removed or abated.

10
Statutory Procedures

• Section 71.780 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.

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Statutory Procedures

• Section 71.285 Expedited procedures for
  abatement of high grass and weeds and litter and
  trash in certain cities

12
Statutory Procedures

• Section 67.400 and 67.410 Vacation, Repair or
  Demolition of Dangerous Buildings

13
Section 67.450

• In the event any building or structure is
  wrongfully demolished by a cityor is demolished
  without adhering to the procedures provided in
  sections 67.400 to 67.450, the cityshall be
  liable for damages as determined by a court of
  law in a suit brought by the party so damaged.
• This section does not require ownership of the
  building in order to recover for wrongful
  demolition and, therefore, does not preclude
  damages and recovery by non-owners, including
  tenants, lien holders, or other interested
  parties.

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Defective Notice

• Arbogast v. City of St. Louis, 285 S.W.3d 790
  (Mo.App.E.D. 2009)
• June, 2000 Plaintiff buys and moves into
  property
• May, 2001 Fire damages structure
• Plaintiff moves out and registers change of
  address
• with Post Office (did not register new address
  with Assessors Office)
• July, 2001 Mail to Plaintiff is returned to
  sender with notification of new address

15
July 2001 July 2002 Plaintiff receives mail at
new address including mail from other City
departments August and October, 2001 City had
to board up building twice because of
squatters and others who removed boards and
other items from property October,
2001 Citys Building Department served notice of
condemnation and potential demolition on
Plaintiff by posting it on the damaged
structure and by regular mail to the subject
property Deadline to appeal notice or to
remedy violation was October 29, 2001 Mailed
Notice was returned to City No appeal was
filed February, 2002 Structure demolished
16
On Plaintiffs action for wrongful demolition,
jury awarded Plaintiffs 65,000 Action not
dismissed for failure to exhaust administrative
remedies because of defective notice that rule
does not apply when the government fails to
provide parties with notice and an opportunity to
be heard in accordance with the requirements of
due process.
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Sufficient Notice

• Government must provide notice reasonably
  calculated, under all the circumstances, to
  apprise interested parties of the pendency of the
  action and afford them an opportunity to present
  their objections.
• If the government becomes aware prior to a taking
  that its attempt at notice has failed, due
  process requires the government to take further
  reasonable steps if any are available.

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Sufficient Notice - Posting

• in most cases, the secure posting of a notice
  on the property of a person is likely to offer
  that property owner sufficient warning of a
  pendency of proceedings possibly affecting his
  interests.
• posted service accompanied by mail service is
  constitutionally preferable to posted service
  alone.
• Quoting Greene v. Lindsey, 456 U.S. 444, 102
  S.Ct. 1874, 72 L.Ed.2d 249 (1982)

19
Sufficient Notice - Mail

• Under most circumstances, notice sent by mail is
  deemed reasonably calculated to apprise
  interested parties that their property rights are
  in jeopardyBut in some special circumstances,
  mailed notice may be inadequate
• 1. government knows that the party does not
  reside at the address and does not have access
  to the address
• 2. recipient is known to be a person who
  cannot understand the notice
• 3. government learns the mailed notice is
  returned by the post office before the
  taking occurs

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Reasons Why Citys Notices Failed

• Posted Notice failed
• It was likely that Plaintiff did not see the
  posted notice (inspector acknowledged that
  squatters and vandals frequently removed boards
  and notices from condemned buildings in the area
  and that, in fact, City had to board the building
  up at least twice within 3 months)
• Mailing failed
• Mailed notice was returned to the City. Other
  City departments accomplished mailings to
  Plaintiff.
• City had other avenues to reach Plaintiff

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Lack of Notice to Mortgagee

• First National Acceptance Company v. City of
  Utica, New York, 612-CV-1622 (N.D. New York)
• Pending Case
• Mortgage Company filed 1983 action against City
  for demolishing structure subject to Deed of
  Trust without notice to the company and an
  opportunity for the company to be heard.
• Last month, Court denied citys Motion for
  Summary Judgment on procedural due process claims
  and granted mortgagees Motion for Summary
  Judgment.

22
Municipal liability is limited under Section 1983
by Monell v. Dept of Social Services, 436 U.S.
658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978) Municipal liability exists where the
citys policies or customs led to an independent
constitutional violation. If a plaintiff shows
that the citys policy or custom was the
moving force behind the violation, then he/she
will prevail. Here, the City of Utica did not
require its code enforcement officers to search
real estate records, determine the identity of
mortgagees and provide them of notice of any
process that could lead to destruction of a
significant asset on the property. The
violation of mortgagees rights was a result of
an official policy or custom therefore, City
subject to 1983 liability.
23
Defective Hearing

• Village of Blodgett v. Rhymer, 279 S.W.3d 242
  (Mo.App.S.D. 2009)
• July 2005 storm caused the roof of defendants
  building to cave in
• One Month later letter sent to owner ordering
  him to remedy and remove the dangerous building
  or appear before the Municipal Courtto be heard
  and present evidence as to why defendant is not
  in violation of the Ordinance.

24
Three months later City demolishes building but
leaves basement portion and debris January, 2006
City sends 2nd letter to defendant ordering him
to remedy the existing conditions February 4,
2006 defendant appears at Board meeting and
asked if installing fence would remedy the
violations February and March, 2006 letters to
defendant ordering him to perform the work April
2006 City pays to have basement filled and
debris removed
25
City cannot recover abatement costs

• In Citys action to enforce its tax lien, the tax
  lien was determined to be invalid because
  defendant was not afforded an adequate hearing
• no hearing was ever scheduled for Appellant.
  Rather, Appellant took affirmative steps to
  attend a regular meeting of the board of
  trustees. It is unclear from the record what type
  of process Appellant received there, but what is
  clear is that Village never provided Appellant
  with the type of hearing required by either of
  its ordinances.

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No Adequate Hearing

• Goe v. City of Mexico, 64 S.W.3d 836 (Mo/App.E.D.
  2001)
• Process to demolish dangerous structure.
• Section 67.410 requires ordinance to provide for
  a full and adequate hearing upon the matter,
  giving the affected parties at least ten days
  written notice of the hearingAfter the
  hearingsthe building commissionershall issue an
  order making specific findings of fact, based
  upon competent and substantial evidence, which
  shows the building or structure to be a nuisance
  and detrimental to the health, safety, or
  welfare

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Opportunity to ask for hearing is not enough

• Following the code officials original notice and
  order to demolish the structure, the aggrieved
  party had the right to appeal the decision of the
  code official.
• If no appeal was requested, then no hearing was
  held.
• Because the demolition ordinance did not provide
  for a hearing to be held automatically, it did
  not comply with the requirements of section
  67.410 and was therefore invalid.
• Owner did not waive due process challenge by not
  appealing the original decision.
• Trial courts dismissal reversed and cause for
  damages remanded.

28
Defective Notice and Hearing

• McNeill v. City of Kansas City
• Building on Citys dangerous building list since
  August, 2001
• McNeill purchased property in 2008 and then
• - paid delinquent taxes and fees for the
  property
• - notified the City of his plans to renovate
• - began renovating by obtaining architectural
  plans, gutting the building, removing the old
  roof, re-decking the roof, reframing the
  building and demolishing the brick and concrete
  patio which had collapsed
• By June, 2009, work stalled because of trouble
  with McNeills construction loan

29
June 2009 City sends letter to McNeill
instructing him to remove some debris that was
sitting on the property along with weeds that had
begun to grow there June 24, 2009 McNeill meets
with code enforcement inspectors and
representatives. McNeill tells them of his plans
to obtain other financing. Code enforcement
informs McNeill that he will have more time to
obtain financing and instructs him to remove a
pile of debris on the side of the
building. July, 2009 McNeills contractor
removed the debris and graded the yard. Upon
completion, McNeill notified code enforcement on
July 20, 2009. July 31, 2009 McNeill receives
preliminary commitment for a construction loan
and began notifying subcontractors. August 8,
2009 City demolished the building without
having any further contact with McNeill,
disregarding the policy of the Dangerous
Buildings Division to send the property owner a
pre-demolition notice.
30
McNeill sues the City for wrongful demolition
under Section 67.450 and City files counterclaim
seeking the costs incurred with respect to the
demolition
31
Initial jury trial - 4 days Judgment in favor of
McNeill Damages 150,000 Motion for New Trial
granted / affirmed (372 S.W.3d 906) (Flawed jury
instruction) 3 day jury trial April 15, 2014
April 17, 2014 Judgment in favor of
McNeill Damages 151,000 for property
damages 55,000 for personal injury Prejudgment
interest (9) on property damage amount
commencing September 2, 2010 Costs assessed to
City 1,900.65
32
Defective Findings and Conclusions

• Woodson v. City of Kansas City, 80 S.W.3d 6
  (Mo.App.W.D. 2002)
• Department issued order to demolish storage
  garage which was appealed to the Citys Property
  Maintenance Appeal Board. The Board held
  evidentiary hearing.
• Following evidence, the Board voted and issued
  Findings and Conclusions merely affirming the
  previous demolition order. The Board did not set
  forth specific conditions and defects which
  caused the garage to be dangerous.

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Ordinance set forth several conditions which
showed a structure to be dangerous, such
as 1. The exterior walls or other vertical
structural members list, lean or buckle to such
an extent that a plumb line passing through the
center of gravity does not fall inside the
middle one-third of the base. 2. A portion
thereof has wrecked, warped, buckled or settled
to such an extent that wall or other structural
portions have materially less resistance to
winds or snow Neither the Departments
demolition order or the Boards decision made
findings which set forth these conditions to
support a decision that the building was
dangerous. Case remanded back to Board with
instructions to remand matter to department for
specific findings as to particular conditions of
building. Demolition delayed.
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NO WARRANT
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Administrative Search Warrants

• Camara v. Municipal Court of the City and County
  of San Francisco, 387 U.S. 523 87 S.Ct. 1727, 18
  L.Ed.2d 930 (1967)
• Bezayiff v. City of St. Louis, 963 S.W.2d 225
  (Mo.App.E.D. 1997)

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Warrants

• Necessity of warrant
• Requirements
• Probable cause
• Affidavit
• Application for the warrant
• Definition of area and work covered
• Warrant
• Execution
• Return

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Process Is Not MeantTo Be Easy

• An individualized review is necessary to
  provide the traditional safeguards which the
  Fourth Amendment guarantees to the individual.

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Public goals and need for expediency considered

• Camara
• it is vigorously argued that the health and
  safety of entire urban populations is dependent
  upon enforcement of minimum fire, housing, and
  sanitation standards, and that the only effective
  means of enforcing such codes is by routine
  systematized inspection of all physical
  structureswe think this argument misses the
  mark. The question is not, at this stage at
  least, whether these inspections may be made, but
  whether they may be made without a warrantIt has
  nowhere been urged that fire, health, and housing
  code inspection programs could not achieve their
  goals within the confines of a reasonable search
  warrant requirement.

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Liability Considerations

• Is it the policy or custom of the City NOT to
  obtain warrants?
• Procedure to obtain warrants
• Adequate training of code enforcement officers
• No Qualified Immunity
• Haefner v. City of Philadelphia Summary
  Judgment based on qualified immunity of
  inspector and Department Head denied
• Camara case was decided in 1967
• building code inspector had been involved in
  another
• lawsuit concerning lack of warrant
• city had warrant provisions in Code
• City had conducted training session
• Department Head did not object to employees
  conduct

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SELECTIVE ENFORCEMENT AND SUMMONS OVERKILL
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Generally, the failure of municipal authorities
to enforce a zoning ordinance against some
violators does not preclude its enforcement
against others. Kansas City v. Wilhoit, 237
S.W.2d 919 (Mo.App. 1951). But, selective
enforcement or using the process to a greater
extent than is necessary may lead to a Section
1983 action. Williams v. City of Carl Junction,
Missouri, 480 F.3d 871 (8th Cir.
2007) and 523 F.3d 841 (8th Cir. 2008) (award
of attorneys fees to City reversed) Garcia v.
City of Trenton, Missouri, 348 F.3d 726 (8th
Cir. 2003)