City of Collinsville v. Seiber, 79-275

• Decision Date: 01 April 1980
• Docket Number: No. 79-275,79-275
• Citation: 82 Ill.App.3d 719,403 N.E.2d 90,38 Ill.Dec. 75
• Parties: , 38 Ill.Dec. 75 The CITY OF COLLINSVILLE, Illinois, Plaintiff-Appellee, v. James SEIBER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 90

403 N.E.2d 90 82 Ill.App.3d 719, 38 Ill.Dec. 75 The CITY OF COLLINSVILLE, Illinois, Plaintiff-Appellee,
v.
James SEIBER, Defendant-Appellant. No. 79-275. Appellate Court of Illinois, Fifth District. April 1, 1980.

Page 91

[82 Ill.App.3d 721] [38 Ill.Dec. 76] William C. Evers III, Collinsville, for defendant-appellant.

Thomas M. Welch, City Atty., City of Collinsville, Collinsville, for plaintiff-appellee.

SPOMER, Justice:

The plaintiff, City of Collinsville, filed complaints against the defendant, James Seiber, alleging that he committed a nuisance at two separate locations (his residence property and his business property) on August 1, 1978, in that he "permitted or maintained an unsightly yard or premises where there is an accumulation or deposit of vehicles, equipment, junk, wrecked or disabled automobiles, trucks, material, waste and earth" in violation of paragraph 9.16.140 of its Municipal Code. The case was tried before a jury, defendant was found guilty, and a fine of $250.00 was imposed on each complaint. Judgment was entered on the verdicts.

Defendant appeals, alleging (1) that the ordinance was unconstitutional; (2) that the evidence failed to prove a nuisance; (3) that he was not given proper opportunity to abate the nuisance; and (4) that he was the subject of selective prosecution. We affirm the judgment.

The city ordinances in issue were promulgated pursuant to powers authorized by Sections 1-2-1 and 11-60-2 of the Municipal Code (Ill.Rev.Stat.1977, ch. 24, pars. 1-2-1 and 11-60-2), and in pertinent part provide:

"1.20.010 General penalty. A. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of the ordinances of the city is guilty of a misdemeanor. Except in cases where a different punishment is prescribed by any ordinance of the city, any person convicted of a misdemeanor under the ordinances of Collinsville shall be punished by a fine of not more than five hundred dollars.

Division 9.16 Nuisances

9.16.010. It is hereby declared to be a nuisance for any person within the limits of the city to commit any of the following described acts:

9.16.140. To permit or maintain an unsightly yard or premises where there is an accumulation or deposit of any vehicle, equipment, junk, wrecked or disabled automobile, trucks, material of any nature, waste or earth.

9.16.190. Abatement-Notice Required. Whenever the Mayor or other authorized Municipal Officer finds that a nuisance or

Page 92

[38 Ill.Dec. 77] other [82 Ill.App.3d 722] condition listed in this Division 9.16 exists, he shall cause to be served upon the property owner or occupant a written notice to abate the nuisance within a reasonable time after notice.

9.16-250. Fine as alternate or concurrent penalty. In addition to or as an alternate penalty for violation of this Division 9.16, the owner or occupant may be prosecuted under the provisions of Division 1.20, Section 1.20.010 of the Collinsville Municipal Code."

At trial, the evidence disclosed that defendant operated a sanitation service in Collinsville known as Seiber's Sanitation & Hauling, which consisted of garbage and trash collection and buying and selling scrap iron, metal and similar items. He had been in business at the same location for thirty years on property that was originally zoned residential but was presently zoned commercial.

One of plaintiff's witnesses, a city police officer, testified that he went to both locations and took photographs depicting the condition of the premises on August 1, 1978, and again on August 28, 1978. All photographs were introduced in evidence, and they depicted a variety of items scattered about the premises motor vehicles, a disabled van, a truck bed, a kitchen sink, barrels, old tires, tree limbs, weeds, twisted metal pieces, scraps of metal and iron, and other debris. The city clerk testified that he was on the property on August 1, 1978, and that he observed "garbage trucks, parts of garbage...