Okhuysen v. City of Starkville

• Decision Date: 11 January 2022
• Docket Number: 2020-CA-00662-COA
• Citation: 333 So.3d 573
• Parties: Walter P. OKHUYSEN, Appellant v. The CITY OF STARKVILLE, Mississippi and D. Lynn Spruill, Appellees
• Court: Mississippi Court of Appeals

333 So.3d 573

Walter P. OKHUYSEN, Appellant

v.The CITY OF STARKVILLE, Mississippi and D. Lynn Spruill, Appellees

NO. 2020-CA-00662-COA

Court of Appeals of Mississippi.

January 11, 2022

ATTORNEY FOR APPELLANT: GARY GOODWIN, Columbus

ATTORNEY FOR APPELLEES: CHRISTOPHER JAMES LATIMER, Columbus

BEFORE WILSON, P.J., GREENLEE AND WESTBROOKS, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Walter Okhuysen owns a vacant house and property on Garrard Road in Starkville. Following a public hearing, the Starkville Board of Aldermen adjudicated the property to be "in such a state of uncleanliness as to be a menace to the public health, safety and welfare of the community." Miss. Code Ann. § 21-19-11(1) (Rev. 2018). The Board's decision authorized the City to clean up the property if Okhuysen failed to do so himself and to assess Okhuysen for the cleanup costs and a penalty. See id. Okhuysen appealed the Board's decision to the circuit court, and the circuit court affirmed. On appeal, Okhuysen argues, inter alia, that the Board's decision must be reversed because it was based on a warrantless search of his property in violation of Article 3, Section 23 of the Mississippi Constitution. For the reasons discussed below, we agree that the City's warrantless search of the property was unconstitutional and that the Board's decision must be set aside. Accordingly, we reverse and render the judgment of the circuit court and the Board's adjudication that the property is a public menace.

FACTS AND PROCEDURAL HISTORY

¶2. In January 2019, Jeff Lyles, a code enforcement officer for the City of Starkville, went onto Okhuysen's vacant property on Garrard Road in Starkville without Okhuysen's permission and without a warrant. Lyles was investigating possible Code violations and took photographs of alleged Code violations. The photos show an abandoned truck and various other debris, junk, scrap materials, and construction materials scattered around the house and throughout a wooded area on the property. The photos also show overgrown vegetation around the house and the surrounding wooded area.

¶3. The City subsequently sent Okhuysen a letter notifying him in general terms that his property was in violation of section 94-27(d) of the City Code.¹ The letter stated that Okhuysen had ten days to bring the property into compliance with the City Code and warned that a failure to do so could result in a summons to appear in municipal court and fines, penalties, and other assessments.

¶4. In March 2019, Lyles, in his official capacity, filed a complaint against Okhuysen in municipal court. The complaint alleged that Okhuysen had unlawfully and willfully violated section 94-27(d). The complaint quoted section 94-27(d) at length (see supra note 1) but made no specific allegations. In June 2019, Lyles filed an amended complaint, adding a charge that Okhuysen had unlawfully and willfully violated chapter 54, article IV of the City Code, which, subject to certain exceptions, makes it unlawful and a misdemeanor to keep a "junked vehicle" on real property within the city limits. In August 2019, following a trial, the municipal judge found Okhuysen guilty of ordinance violations and fined him $1,000. Okhuysen appealed his conviction to circuit court.

¶5. After Okhuysen appealed his conviction, the City sent him a new letter, again alleging in general terms that his property was in violation of section 94-27(d) of the City Code. This letter again stated that Okhuysen had ten days to bring the property into compliance with the Code and warned that a failure to do so could result in a summons to appear in municipal court and fines, penalties, and other assessments. The letter was largely identical to the letter that the City sent Okhuysen in January 2019 but added the following: "also, subject for 21-19-11 of the City's Code of Ordinances." This addition was actually an inaccurate reference to Mississippi Code Annotated section 21-19-11(1), which authorizes a municipal governing authority to hold a hearing and adjudicate a property "to be a menace to the public health, safety and welfare of the community." Under the statute, if the property is deemed a public menace, and "if the owner does not [clean the land] himself," then the city "shall proceed to clean the land, by the use of municipal employees or by contract." Id. Thereafter, the city may "adjudicate the actual cost of cleaning the property and may also impose a penalty not to exceed [$1,500] or fifty percent ... of the actual cost, whichever is more." Id. "The cost and any penalty may become a civil debt against the property owner, and/or, at the option of the governing authority, an assessment against the property." Id.

¶6. On September 6, 2019, Okhuysen's attorney wrote to the City requesting a detailed list of the issues that needed to be remedied. He asserted that without such detail, Okhuysen could only "guess" as to the alleged violations of the City Code. On September 11, 2019, the City's Community Development Director, Simon Kim, responded with a letter that included a series of photographs depicting the alleged violations. These included photos of an abandoned truck and other debris, junk, scrap materials, and construction materials scattered throughout the yard. The letter also included photos of poison ivy and what Kim perceived to be "excessive growth of weeds and other noxious plants on the land." The letter also stated that the property was "infested with chiggers, mosquitoes, and other harmful insects." In a footnote the letter stated, "This property may be a subject for [ Mississippi Code Annotated section] 21-19-11. However, the City is not intending to utilize this instrument at this time through this letter."

¶7. At the October 1, 2019 meeting of the City's Board of Aldermen, Kim recommended that the Board set a public hearing under section 21-19-11 to determine whether Okhuysen's property was a public menace. The Board adopted Kim's recommendation and set the matter for a public hearing before the Board on November 5, 2019. The City posted notice of the hearing at the subject property and at City Hall and sent notice to Okhuysen and his attorney by certified mail.

¶8. Okhuysen and his attorney appeared at the November 5 meeting of the Board of Aldermen. Kim presented the photos included in his letter to Okhuysen and summarized the alleged Code violations. Kim stated that he believed that the property was a public menace under section 21-19-11.

¶9. Okhuysen's attorney reported that the truck on the property had been repaired and would be moved soon. He also argued that the City had never described the alleged Code violations or the conditions constituting a public menace with sufficient specificity. He stated that despite multiple requests, the City had never given Okhuysen a list of specific actions that needed to be taken to clean up the property. Finally, Okhuysen's attorney argued that Lyles, the code enforcement officer, had violated Article 3, Section 23 of the Mississippi Constitution by trespassing and inspecting the property without a warrant. He argued that "the Mississippi Supreme Court has always said [Section] 23 protects all of your property, not just your house [and] not just your curtilage of your house either." One of the aldermen asked the city attorney whether Lyles lawfully went onto Okhuysen's property. The city attorney stated that in his opinion, Lyles had authority to go onto Okhuysen's property under section 54-107 of the City Code, which states that "the building official or his designees may enter upon private property" to examine vehicles for the purpose of enforcing the Code provisions deeming "junked vehicles" a "public nuisance."

¶10. The Board voted six-to-one to declare the property a menace to the public health, safety, and welfare of the community under section 21-19-11. The Board further directed Kim to give Okhuysen "an additional list specifically defining and enumerating the action[s] the City" would require Okhuysen to take to clean up the property. The Board ordered that Okhuysen would have "until January 5, 2020, to clean the property consistent with the list or the City [would] take steps to clean the property consistent with [ section] 21-19-11."

¶11. The following day, Kim sent a letter to Okhuysen. This letter included the same photos and was largely identical to the September 6 letter. However, for each photo and alleged violation, Kim added an instruction to Okhuysen to remove the subject material or vegetation from the property.

¶12. On November 15, 2019, Okhuysen filed a notice of appeal of the Board's decision in the Oktibbeha County Circuit Court. On appeal in the circuit court, Okhuysen argued that the City violated his right to due process of law by failing to provide sufficient pre-hearing notice of the conditions that allegedly made his property a public menace; that the City violated Article 3, Section 23 of the Mississippi Constitution by trespassing on his property and searching his property without his consent and without a warrant; and that the City failed to prove that his property was a public menace under section 21-19-11.

¶13. The circuit court affirmed the Board's decision. The court held that the City complied with the statutory notice requirements and gave Okhuysen sufficient notice of the conditions that made his property a public menace. In addition, the court held that Lyles did not trespass on Okhuysen's property because the City Code authorized him to go onto the property for purposes of inspection and enforcement. Finally, the court held that the Board's decision was supported by substantial evidence and was not arbitrary or capricious. Okhuysen appealed the circuit court's decision, and his appeal was assigned to this Court.

ANALYSIS

¶14. A decision of a municipal governing authority will be reversed if the decision is not supported by substantial evidence, if the decision is arbitrary or capricious, or if the governing authority...