Boyles v. City of Topeka

• Decision Date: 20 April 2001
• Docket Number: No. 83,161.,83,161.
• Citation: 21 P.3d 974,271 Kan. 69
• Parties: GERALD M. BOYLES, Appellant, v. CITY OF TOPEKA, Appellee.
• Court: Kansas Supreme Court

271 Kan. 69

21 P.3d 974

GERALD M. BOYLES, Appellant, v. CITY OF TOPEKA, Appellee.

No. 83,161.

Supreme Court of Kansas.

Opinion filed April 20, 2001.

James S. Willard, of Scott, Quinlan & Hecht, of Topeka, argued the cause, and Deborah L. Hughes, of the same firm, was with him on the brief for appellant.

Mary Beth Mudrick, assistant city attorney, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

SIX, J.:

This case concerns the constitutionality of a city's public nuisance ordinance prohibiting the maintaining on private property of any garbage, rubbish, trash, refuse, junk, or other listed items which create "an unsightly appearance." The attack on the ordinance is based on a claim of vagueness linked to a claimed violation of defendant's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.

The City of Topeka (City) found that the defendant property owner, Gerald M. Boyles, violated the City's public nuisance ordinance, codified as Topeka City Code Section 66-25 et seq. Specifically, the City found that Boyles violated Sections 66-27(2) and 66-28 by maintaining a public nuisance. Boyles operates a business in Topeka that is variously described as a flea market, a secondhand store, and a lawnmower/tiller repair service. On appeal under K.S.A. 60-2101(d), the district court affirmed the City's finding that Boyles maintained a nuisance. Boyles appeals the district court's ruling.

Our jurisdiction is based on an order of transfer from the Court of Appeals. K.S.A. 20-3018(c).

Our review of the record reflects that the district court did not have the benefit of written briefs or any measured discussion by either counsel for the City or for Boyles focusing on the vagueness argument advanced here. However, Boyles' counsel during oral argument below referenced the primary question before us. Counsel said, "Our position is that the word `unsightly' as used in this ordinance could not be constitutional as applied, Your Honor, because it would not have any sort of objective test whatsoever."

We consider three questions: (1) Is City Code Section 66-27(2) void for vagueness? (2) Did the district court err by not making findings of fact and conclusions of law? and (3) Did the district court err in finding that there was substantial competent evidence that Boyles violated Section 66-27(2)?

Finding no error, we affirm. Section 66-27(2), under the facts here, is constitutional as applied to Boyles.

FACTS

On September 3, 1998, the City notified Boyles in writing that an inspection of his property showed a violation of Section 66-27(2). The notice informed Boyles that the following specific items found outside on his parking lot constituted a nuisance:

"vehicle seats, plastic floor runners, baby jump seat, baby safety gate, carpet, fold away bed, cabinet doors, mattress, bed frames, bicycle tires, inner tubes, baby car seats, baby high chairs, baby stroller, fan, school desks, tarps, deflated raft, wheel chair, sinks, wicker table, cardboard boxes, stuffed furniture, baby bed frames, section of hand rail, wood tables, wood desks, bumper pool table, vacuum, doors, vanity, counter top, wood bed frames, disassembled metal displays, metal hand rail sections, electric stove tops, formica display cabinets, gas stove, unattached storm windows and doors, disassembled bicycles in pickups, stove, refrigerators, toilet, disassembled and broken lawn mowers, sewing machine, grass bags in pickup, mattresses in pickup, loose trash and debris."

A public hearing was held in the Code Compliance Services Division to decide whether Boyles had violated Section 66-27(2). Boyles attended the hearing and was represented by counsel. A Code Compliance Order was issued with the finding that items on Boyles' property created an unsightly appearance, which constituted a nuisance in violation of Section 66-27(2). Boyles was given 20 days to abate the nuisance. The order further stated: "If not abated, the administrative penalty in the amount of $175.00 will apply in full on October 14, 1998."

Boyles appealed the administrative order to the district court. The district court affirmed.

DISCUSSION

We first examine whether Section 66-27(2) is void for vagueness and, thus, unconstitutional as applied to Boyles. Section 66-28 provides that "[i]t shall be a violation of city ordinance for any person to maintain or permit a nuisance to exist."

Section 66-27(2) says, in part:

"The maintaining or permitting to be or remain on any ... private property of any of the following conditions is hereby declared to be and constitute a nuisance. ...

. ... .

"(2) Garbage, rubbish, trash, refuse, junk and other materials, metals, plumbing fixtures, appliances, auto parts, lumber or other litter and furniture, stuffed furniture, clothing, or other household items which creates an unsightly appearance." (Emphasis added.)

In Section 66-25, the City expressed its purpose and intent in adopting Section 66-27(2) and the other provisions of the public nuisance ordinance:

"The Council of the City of Topeka finds that certain conditions as hereinafter defined cause annoyance, inconvenience or damage to the public with respect to the public's comfort, health, safety, welfare and enjoyment of property. ... [I]t is the purpose and intent of the council of the city to define and proscribe those conditions which are injurious to the public and which constitute a public nuisance."

Boyles asserts that the term "unsightly" is vague and subjective. He argues that ordinary persons could only guess at the meaning of "unsightly" and that the lack of a common understanding of the term creates the likelihood of arbitrary enforcement.

We are reviewing the constitutionality of an ordinance. Thus, our standard of review is de novo. City of Wichita v. Edwards, 23 Kan. App.2d 962, 964, 939 P.2d 942 (1997). We have a duty to preserve the validity of Section 66-27(2) and to search for ways to uphold its constitutionality. Here, we must: (1) presume that Section 66-27(2) is constitutional, (2) resolve all doubts in favor of validity, (3) uphold Section 66-27(2) if there is any reasonable way to construe the ordinance as constitutional, and (4) before striking the ordinance, we must conclude that it clearly appears to be unconstitutional. Hearn v. City of Overland Park, 244 Kan. 638, 640, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).

We first examine the tests to be used when considering an ordinance subjected to a void-for-vagueness challenge. In Hearn, we discussed the guidelines for evaluating a constitutional challenge based on vagueness. In rejecting an attack on Overland Park's pit bull ordinance, we distinguished the scrutiny afforded ordinances dealing with constitutional guarantees from ordinances, such as Section 66-27(2), which do not deal with constitutionally protected rights, saying:

"It is important to note that we are not dealing with an ordinance that limits constitutionally protected conduct. Because the present ordinance does not infringe upon explicit constitutional guarantees, such as freedom of speech, the ordinance should be upheld unless it `is impermissibly vague in all of its applications.' [Citation omitted.] The plaintiffs must establish that the ordinance is unconstitutional on its face, which means it must be demonstrated to be `"invalid in toto—and therefore incapable of any valid application."' [Citations omitted.] In order to establish that legislation is unconstitutional on its face, the person challenging the legislation must establish that it is vague `"not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all."' [Citations omitted.]" 244 Kan. at 641.

The test here is whether Section 66-27(2) conveys sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. In rejecting the contention that the anti-noise ordinance of the City of Rockford was impermissibly vague and upholding its validity, the United States Supreme Court said:

"Condemned to the use of words, we can never expect mathematical certainty from our language. The words of the Rockford ordinance are marked by `flexibility and reasonable breadth, rather than meticulous specificity,' [citation omitted] but we think it is clear what the ordinance as a whole prohibits." Grayned v. City of Rockford, 408 U.S. 104, 110, 33 L. Ed.2d 222, 92 S. Ct. 2294 (1972.)

With the test inquiries in place, we next turn to consider Boyles' void-for-vagueness argument. Boyles relies primarily on City of Independence v. Richards, 666 S.W.2d 1 (Mo. App. 1983). Richards was cited for having an old stove and scattered pots and cans in her yard in an unsightly and annoying manner. She was convicted and fined $250 for violating an ordinance that provided: "It shall be unlawful ... to permit refuse to accumulate or remain upon such premises to an extent or in such manner as to be unsightly, annoying, dangerous or detrimental to the life, health, property or safety of any person in the City." (Emphasis added.) 666 S.W.2d at 4. The Richards court noted that the City of Independence had not claimed that the accumulation of items on Richards' property was dangerous or detrimental to life or health. The complaint alleged only that the accumulation of refuse was unsightly and annoying. The ordinance did not define either "unsightly" or "annoying."

Richards concluded:

"The term unsightly, ... in the absence of definition, does not suffice as a standard of regulation. It conveys no determinable criterion, but rather invites the vagary of personal response. Nor does the context of the ordinance supply what otherwise lacks. The other operative terms, accumulation [also undefined] and trash [defined] invest no more certainty to the context than

...