Meyer v. Jones, 04-0364.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WIGGINS, Justice.
• Citation: 696 N.W.2d 611
• Parties: Richard MEYER, Appellant, v. Redmond JONES II and City of Davenport, Iowa, Appellees.
• Docket Number: No. 04-0364.,04-0364.
• Decision Date: 20 May 2005

696 N.W.2d 611

Richard MEYER, Appellant,
v.
Redmond JONES II and City of Davenport, Iowa, Appellees

No. 04-0364.

Supreme Court of Iowa.

May 20, 2005.

696 N.W.2d 612

Michael J. Meloy of Koos & Meloy, Bettendorf, for appellant

Brian Heyer, Assistant City Attorney, Davenport, for appellee.

WIGGINS, Justice.

A property owner filed a petition requesting a writ of certiorari on the ground a municipality failed to give the owner adequate notice of an alleged nuisance and the city's intent to abate the nuisance. The owner further claims the city cannot charge him with the expense of abating the nuisance because he did not receive adequate notice. The district court annulled the writ of certiorari. We disagree with the district court because the city failed to follow its code provisions and afford the owner his right to procedural due process. Accordingly, we reverse the judgment of the district court and remand the case for entry of an order sustaining the writ of certiorari.

I. Background Facts and Proceedings.

Paul Reid owned land located in the City of Davenport. Reid purchased the land in three separate transactions. The county auditor assigned a separate parcel number to the real property conveyed in each transaction. Iowa Code § 441.29 (2001). The combined acreage for the three parcels totaled 7.7 acres. Over the years, numerous individuals and entities dumped trash and debris on Reid's property with his consent. This debris included broken

696 N.W.2d 613

concrete, rubble, vehicles, and trailers. The trash and debris spilled onto the adjoining property owned by Zenith Corp. The auditor assigned the Zenith property a fourth parcel number. The trash and debris spanned an area of around twenty acres

On August 21, 2001, the city declared the property a nuisance and served Reid a written notice to abate the nuisance. Rather than identifying the entire twenty acres in the notice by legal description, the city identified the property as the "property located at 2400 West River Drive" and listed only one of the parcel numbers assigned to Reid's property. Reid challenged the city's abatement order. The city held a hearing on September 24. The plaintiff, Richard Meyer, was present at the hearing as an observer. The hearing officer filed his decision on October 9. The hearing officer described the affected property as having twenty plus acres, upheld the abatement order, but gave Reid an opportunity to obtain a special-use permit from the zoning board of adjustment to use the property as a salvage yard. The hearing officer did not serve Meyer with a copy of the order.

Reid was unable to obtain the special-use permit. The city held a second hearing on March 6, 2002. Meyer was not given notice of this hearing and was not present. The hearing officer gave Reid until April 15 to remove all non-vehicle debris and June 30 to remove the vehicles on the property. The hearing officer did not serve Meyer with a copy of this order. Reid did not appeal this order.

When Reid failed to abate the nuisance by removing the non-vehicle debris as ordered, the city sent invitations for bids to thirty-four vendors to remove the debris and grade the area. On June 27, the city received and opened four bids. The city did not act upon the bids at that time.

Sometime before July 31, Richard Meyer purchased the 7.7 acres from Reid. The city was aware of the change in ownership but never served Meyer with a written notice to abate the nuisance.

In October, the city accepted a bid to remove the debris and grade the area. Meyer provided the contractor who cleaned up the property with a temporary access agreement. When the cleanup was complete, the city sent Meyer four separate bills for the abatement of the property. The city tied each bill to each separate parcel number. Meyer owned three of the parcels. Zenith owned the fourth parcel.

Meyer objected to the billing and requested a hearing. At the conclusion of the hearing, the hearing officer issued an oral decision on the record. The hearing officer upheld the billing finding the cleanup costs were reasonable.

Meyer brought a petition for writ of certiorari requesting the district court to overturn the decision of the hearing officer. The district court annulled the writ of certiorari. Applicable to this appeal, the district court concluded the city gave Meyer adequate notice of the alleged nuisance and the city's intent to abate the nuisance. Meyer appeals.

II. Issue.

Meyer raised many procedural issues in this appeal. We find it only necessary to determine whether Meyer received adequate notice of the alleged nuisance and the city's intent to abate the nuisance to dispose of this appeal.

III. Scope of Review.

A court shall grant a writ of certiorari when an inferior officer acted illegally. Iowa R. Civ. P. 1.1401. Our review of a certiorari proceeding is for correction of

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errors at law. Waddell v. Brooke, 684 N.W.2d 185, 190 (Iowa 2004). Meyer has the burden of "showing the inferior tribunal, board, or official exceeded its jurisdiction or otherwise acted illegally." Id. at 189

IV. Analysis.

A. Procedural Due Process. When a state action threatens to deprive a person of a protected liberty or property interest, a person is entitled to procedural due process. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 690 (Iowa 2002). The due process clause of the Fourteenth Amendment to the United States Constitution requires the city to provide a property owner with adequate notice and hearing before it exercises its police power to declare and abate a nuisance in a non-emergency situation. U.S. Const. amend. XIV, § 1; Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973). "Notice must be reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." In re Estate of Borrego, 490 N.W.2d 833, 837 (Iowa 1992). Before a city can declare a property a nuisance and order its abatement in a non-emergency situation, the city should inform the property owner of the city's declaration that a property is a nuisance, inform the owner of what the owner must do to prevent the city from abating the nuisance at the owner's expense, and provide the owner with a hearing to contest the declaration and abatement order. Hancock v. City Council, 392 N.W.2d 472, 475-76 (Iowa 1986).

B. The City's Code Provisions. Pursuant to its home rule power, the city adopted as part of...