Beck v. City of Blue Rapids
| Decision Date | 18 November 2022 |
| Docket Number | 124,136 |
| Parties | David Lewis Beck, Appellant, v. City of Blue Rapids, Kansas, et al., Appellees. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Marshall District Court; JAMES A. PATTON, judge.
David Lewis Beck, appellant pro se.
Andrew J. Lohmann, of Galloway, Wiegers & Brinegar, P.A., of Marysville, for appellees.
Before GARDNER, P.J., WARNER and COBLE, JJ.
David Lewis Beck appeals from the district court's denial of his petition for injunctive relief to prevent the City of Blue Rapids, Kansas, from removing nuisance conditions on his property. Beck asserts the district court erred in determining the conditions were nuisances. But those factual matters were undisputed at trial. Finding Beck has not shown the district court erred, we affirm.
For several years, the City of Blue Rapids (City) sought to abate public nuisances on Beck's property including dead trees storm damage debris, inoperable vehicles, dilapidated buildings, trash, and other items. In 2018, Beck was cited for city code violations on his property. In August 2019 Beck was fined by the Blue Rapids Municipal Court for not abating the nuisance conditions. The municipal court deferred to the City Council (Council) to act. The City gave Beck notice to remove nuisance conditions on his property. When he did not do so, the matter was heard at a Council meeting.
On September 6, 2019, the Council was presented with pictures that showed piles of tree limbs, numerous old vehicles damaged structures, and other items on the property. Beck was present at the hearing. The Council found the property in violation of the City's health and welfare code specifically the health nuisance, environmental, and junked motor vehicles sections. The Council discussed whether to give Beck additional time to clean up the property. Ultimately, the Council passed a resolution ordering enforcement officers to abate or remove the conditions causing the violations at Beck's expense, if Beck did not remedy the conditions within 15 days of the publication of the resolution. The resolution stated that Beck could appeal the decision in the manner provided by K.S.A. 60-2101. At the meeting, the Council decided it would not "green light" the cleanup until after its next meeting on October 9, 2019, if Beck had not abated the nuisance conditions by that time. The Council instructed code enforcement officers to begin cleanup after the October 9 2019 meeting.
On October 29, 2019, Beck filed a petition in the Marshall County District Court asking for an injunction to stop the City from taking action on his property. Beck stated he had a disability that made it difficult to do the work yet had made a lot of progress hauling away trees and dollying cars to another property. Beck contended he just needed more time, and he could not afford to pay the City to do the work. Beck also objected to the City potentially tearing down his shed.
The City moved to dismiss the action, contending the district court did not have jurisdiction because the filing was a masked untimely appeal. Beck failed to timely appeal the City's action, although he had appeared at the Council hearing and acknowledged the public nuisance conditions. The City also argued Beck failed to meet the standard for injunctive relief as he could not establish that he had a right to maintain public nuisance conditions on his property.
Beck responded that his property was a constitutional homestead and the City's ordinance violated article 15, section 9 of the Kansas Constitution. He argued the City's threat to tear down his shed and trees, to impose a special assessment for the costs of the cleanup, and its "self help" procedures were unconstitutional.
The City replied that it had exercised its home rule powers granted to municipalities under article 12, section 5 of the Kansas Constitution to abate a public nuisance. The City also argued Beck had acquiesced by removing some of the inoperable vehicles from his property.
The district court held a hearing on the City's motion and to consider Beck's injunction request. Chris Flood, a code enforcement officer for the City of Blue Rapids Police Department, testified he first inspected Beck's property in February 2018. Flood gave Beck violation notices, but the condition of the property did not change. There was "a lot of junk deposited, couches, bicycles, lawnmowers, things of that nature" aside from the inoperable vehicles and storm debris. After being given the go ahead by the Council to clean up the property, Flood went back to inspect the property on October 17, 2019. Nothing had been cleaned up. Flood had one vehicle towed that day. He had a second vehicle towed the next day. In the days after, Beck did remove some of his inoperable vehicles.
Flood returned on December 20, 2019, to photograph Beck's property. Flood testified the storm damage debris on Beck's property had gotten worse. Beck had not cleaned up his property except to remove some vehicles. Three vehicles remained. Flood observed piles of rubbish, gas cans, buckets, a couch, plastic bags of garbage, a trunk, dilapidated buildings, fallen trees, and the three vehicles. He also observed a squirrel inside Beck's house.
Beck presented no evidence. Beck, through counsel on a limited capacity for this constitutional issue only, argued there were constitutional limits to the City's authority to regulate nuisances. He argued the City could not put a lien on a homestead for the expense of abating the nuisances. The City argued the fact that a person has a homestead right does not give them the right to have a landfill dump in their backyard. The City had the right to keep the community safe and clean.
The district court applied the law on injunctive relief and ruled that (1) Beck failed to use the statutory remedy available to him-appealing the City's action, and (2) that an injunction would not be in the public interest because the condition of the property was unsanitary and unsafe. The court stated the City could assess taxes against Beck's property as provided by statute and ruled Beck was not entitled to an injunction. At the conclusion of the hearing, the district court purportedly granted the City's motion to dismiss, although our review of the record shows the district court denied the request for injunction on its merits. The district court filed its journal entry dismissing the application for injunction on February 7, 2020. On March 10, 2020, Beck filed a notice of appeal.
In June 2021, the City filed a motion in the district court to dismiss the appeal because Beck filed his notice of appeal out of time, Beck had not yet docketed his appeal and he had not requested a stay to prevent the cleanup of his property. The City contended...
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