719 N.W.2d 804 (Iowa 2006), 04-1459, Kistler v. City of Perry

Docket Nº:04-1459.
Citation:719 N.W.2d 804
Party Name:Walter Norman KISTLER and Jean Ann Kistler, Appellants, v. CITY OF PERRY, Iowa, Appellee.
Case Date:August 11, 2006
Court:Supreme Court of Iowa

Page 804

719 N.W.2d 804 (Iowa 2006)

Walter Norman KISTLER and Jean Ann Kistler, Appellants,


CITY OF PERRY, Iowa, Appellee.

No. 04-1459.

Supreme Court of Iowa

August 11, 2006

Appeal from the Iowa District Court for Dallas County, Darrell J. Goodhue, Judge.

Owners appeal from district court order upholding the city's seizure of the plaintiffs' motor vehicles under the city's nuisance ordinances.

Stephen V. Nielsen of Skinner & Nielsen, P.L.C. West Des Moines, for appellants.

Page 805

Sarah M. Kouri and William L. Dawe III of Hopkins & Huebner, P.C., Des Moines, for appellee.

LARSON, Justice.

The City of Perry, acting under authority of its nuisance-abatement ordinances, seized twelve vehicles from the plaintiffs' property. The plaintiffs, Walter and Jean Kistler, challenged the seizure through an action seeking temporary and permanent injunctions and damages. The district court denied the injunction and granted the city's partial motion for summary judgment over the plaintiffs' argument that the seizure orders were unconstitutional. The plaintiffs appeal, and we reverse.

I. Facts and Prior Proceedings.

the plaintiffs own three properties in Perry. In the fall of 2002, the city became concerned about a number of vehicles that it considered junk on one of the Kistlers' lots. On November 6, 2002, the city sent a notice to the plaintiffs to remove the vehicles within fourteen days. The plaintiffs declined, and as the city had threatened, it seized the vehicles. The plaintiffs claimed foul because they were seized without an opportunity for them to challenge the city's actions or to establish whether they were, in fact, junk under the city's ordinance.

The November 6, 2002 notice to the Kistlers stated:

You are hereby notified to abate the nuisance existing [on the plaintiffs' property] within 14 days from receipt of this notice.

The nuisance consists of junk and junk vehicles that shall be abated by removal from the above referenced properties.

In the event that you fail to abate, or cause to be abated, the above referenced nuisance within the time period designated herein, the City of Perry will take such steps as are necessary to abate, or cause to be abated, said nuisances and the cost of the abatement action will be assessed against you and/or the above-referenced properties, as provided by law.

The notice did not inform the Kistlers of any opportunity to have a hearing on the matter, and the city concedes that neither the notice to abate nor the ordinance provides for any such hearing. The issue presented on appeal is whether the city's nuisance-abatement provision, allowing seizure of the vehicles under these circumstances, denied the plaintiffs due process.

II. Principles of Review.

We review a district court's grant of a summary judgment for correction of errors at law. Campbell v. Delbridge, 670 N.W.2d 108, 110 (Iowa 2003). Summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id. we, of course, review constitutional issues de novo. Dressler v. Iowa Dep't of Transp., 542 N.W.2d 563, 565 (Iowa 1996).

III. The City Ordinances.

The Kistlers argue that section 50.05 of the city's ordinance is unconstitutional because it places sole discretion over nuisance abatement in an administrative officer, without...

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