Hancock v. City Council of City of Davenport

• Decision Date: 20 August 1986
• Docket Number: No. 85-1011,85-1011
• Citation: 392 N.W.2d 472
• Parties: Glen O. HANCOCK, Appellant, v. CITY COUNCIL OF the CITY OF DAVENPORT and the City of Davenport, Iowa, Appellees.
• Court: Iowa Supreme Court

Page 472

392 N.W.2d 472

Glen O. HANCOCK, Appellant, v. CITY COUNCIL OF the CITY OF DAVENPORT and the City of Davenport, Iowa, Appellees.

No. 85-1011.

Supreme Court of Iowa.

Aug. 20, 1986.

John T. Flynn of Brubaker, Flynn & Darland, Davenport, for appellant.

John R. Martin, Corp. Counsel, Davenport, and Michael J. Meloy, City Atty., Davenport, for appellees.

Considered en banc.

WOLLE, Justice.

The defendants, city council and city of Davenport (collectively "the city"), adopted a resolution which declared plaintiff Glen O. Hancock's apartment building in downtown Davenport to be a public nuisance and ordered its demolition. The district court thereafter denied Hancock's consolidated petitions seeking certiorari and injunctive relief. We reverse and remand for entry of an order sustaining the writ of certiorari. The proceedings through which the city declared the building a nuisance and ordered it demolished did not comply with the city's own ordinances and did not satisfy requirements of procedural due process guaranteed by the fourteenth amendment of the United States Constitution.

I. Scope of Review.

Our scope of review in this certiorari action turns on the nature of the issues we reach for decision. Our review of certiorari proceedings brought in the district court is generally governed by the rules applicable to appeals in ordinary actions. Hardy v. Grant Township Trustees, 357 N.W.2d 623, 625 (Iowa 1984); Iowa R.Civ.P. 318. Apart from constitutional issues, therefore, our review is at law. Bevers v. Kilburg, 326 N.W.2d 902, 904 (Iowa 1982). Hancock has exercised his right to raise due process issues in his certiorari action, and "where violations of basic constitutional safeguards are involved we make our own evaluation of the facts from the totality of the circumstances." Iowa Freedom of Information Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983).

We do not agree with Hancock's contention that his request for injunctive relief made this an equitable proceeding reviewable de novo. Hancock's pleadings included a request for an injunction as an auxiliary remedy dependent on a determination that the city had no substantive factual basis for declaring his building a public nuisance. The trial court decided all procedural and substantive issues adversely to Hancock, and it did not decide whether injunctive relief would have been appropriate if Hancock had prevailed on the merits. We do not reach that question. Serious flaws in the proceedings through which the city acted preclude our reaching beyond the procedural due process issues raised by Hancock and decided in this appeal. Hancock's request for an injunction as an auxiliary remedy does not change our scope of review in this case. See Green v. Advance Homes, Inc., 293 N.W.2d 204, 208 (Iowa 1980).

II. Background Facts.

The trial court's well-written decision presents the background facts, supported by evidence offered at the certiorari trial, in a clear and informative manner. We adopt that statement of facts, with a few additional pertinent facts inserted in brackets, as follows:

The Vale Apartment building is an 111-year-old, five-story, brick-over-wood frame structure located at 210 East Fourth Street on the east side of downtown Davenport. The building has approximately 90 apartment units, the units varying in size and number of rooms, but generally consisting of a living room bedroom and bathroom. The building was an elegant hotel, primarily serving railroad passengers during the last quarter of the Nineteenth Century. It thrived at the beginning of this century, and was known then as the Burtis-Kimball House. By 1920 the building's glory had declined and it was converted into the Perry Apartments. In 1941 it was greatly damaged by fire, and was purchased and rebuilt as an apartment building by W. J. Vale. Plaintiff's father, Thomas J. Hancock, purchased the building in 1971 and operated it as an apartment building. It has had several contract purchasers who have let it go back to the vendors, and it has fallen into disrepair. Plaintiff acquired title within the past year, but had worked with the building through his father's ownership for many years. Plaintiff has endeavored to get substantial financing to refurbish the building to its original splendor. Plaintiff has presented plans for renovation and evidence that the main bearings of the building are structurally sound. In addition, the building is listed in the National Register of Historic Places. The building is now vacant, without heat, water, or power. The doors and windows of the first floor are boarded up, as are the windows of the second and third floor. Plaintiff pleads with the City and the Court that he be allowed to "mothball" the building while he endeavors to secure the $3,000,000 to $4,000,000 necessary for renovation. This has been his prayer for several years.

The record shows that the City's patience with Plaintiff has become increasingly strained. The building has been cited for numerous housing and fire code violations since the 1950's, as it has declined into further disrepair. On January 14, 1982, the City vacated approximately 120 residents from the building, having found it was substandard and constituted a threat to the life, health and safety of the residents. There has been a continuing controversy between the parties about the upkeep of the premises. In September of 1983 the City issued a notice and order to [Thomas J. Hancock] to repair the building to meet housing code standards or to demolish it [within 90 days. Glen O. Hancock and Mary Jane Kruse, Thomas' children, were contract purchasers of record but were not provided with notice. The notice provided that objections to the finding could be made by appearing before the city council on October 3, 1983. No one appeared or objected.] When no formal action was taken, the City, in December of 1983, gave Plaintiff and others having a legal interest in the property, notice to appear to show cause why the building should not be declared a nuisance and condemned. [The parties dispute whether Mary Jane Kruse was properly notified.] Plaintiff [Glen O. Hancock introduced himself by letter to the council, described his circumstances and plans for the building, and] prayed for and received an extension of time to February 15, 1984, in order to initiate a program for rehabilitation of the building. Again, there was no formal action by the owners, and on February 15, 1984, the City initiated final action to take effect March 22, 1984. On March 22, 1984, the City initiated the formal bidding procedures for the demolition of the building. On May 11, 1984, Plaintiff requested and received a temporary injunction against demolition. On or about August 27, 1984, the City published public notice and served the owners [again Mary Jane Kruse was not served] with notice of a public hearing to be held before the Davenport City Council as a committee of the whole on September 4, 1984, to recommence the nuisance determination and demolition procedures. On September 4, 1984, the parties were in court on Plaintiff's Application for Extension of the Temporary Injunction and Ruling on the Permanent Injunction. The record shows that those requests were denied by the Court, the issue having become moot because of the City's recommencement of its proceedings. Also on September 4, 1984, the City Council, as a committee of the whole, conducted a public hearing on whether or not they should find the Vale Apartment building unsafe or otherwise dangerous to the public, declare it to be a public nuisance, and order its demolition. On September 5, 1984, the Davenport City Council passed a resolution finding the Vale Apartment building substandard to the extent that it endangers the life, health, safety or welfare of the public and resolving that the building be demolished. The City Council also passed a resolution awarding the demolition to a firm that was the lowest dollar bidder of those who bid on the demolition project as a part of the previous proceeding.

III. Nuisance Law and Procedural Due Process.

The city council found Hancock's building to be a public nuisance. The general statutory definition of a nuisance is provided in Iowa Code section 657.1:

Whatever is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance....

In Pottawattamie County v. Iowa Department of Environmental Quality, 272 N.W.2d 448, 453 (Iowa 1978), we stated:

The same circumstances may create both a public and private nuisance. The facts may create a nuisance to the general population and also a nuisance to individual plaintiffs. ... The elements of public nuisance are: (1) unlawful or antisocial conduct that (2) in some way injures (3) a substantial number of people. ... The determination of private nuisance rests upon whether there has been "an actionable interference with a person's interest in the private use and enjoyment of his land." Patz v. Farmegg Products, Inc., 196 N.W.2d [557, 560 (Iowa 1972) ].

Property owners hold title subject to the authority of the state to regulate use and enjoyment of property so as to prevent and abate public nuisances. City of Waterloo v. Waterloo, Cedar Falls & Northern Railway Co., 149 Iowa 129, 136, 125 N.W. 819, 821 (1910). Of course the police power to control property must be exercised with caution; action short of razing a building may be called for if a public hazard can be eliminated with less drastic action which effectively abates any condition constituting a public nuisance. Childs v. Anderson, 344 Mich. 90, 95-96, 73 N.W.2d 280, 282-83 (1955).

A municipality, in the exercise of its police power, may declare and abate nuisances by adopting and enforcing reasonable ordinances. City of Cedar Falls v. Flett, 330 N.W.2d 251, 255 (Iowa 1983). But procedural...