Price v. City of Junction, Tex.
| Decision Date | 20 June 1983 |
| Docket Number | No. 83-1097,83-1097 |
| Citation | 711 F.2d 582 |
| Parties | John Ed PRICE, et al., Plaintiffs-Appellants, v. CITY OF JUNCTION, TEXAS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bradley C. Miles, San Angelo, Tex., for plaintiffs-appellants.
Graves, Dougherty, Hearon & Moody, David H. Donaldson, Jr., Austin, Tex., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before CLARK, Chief Judge, GOLDBERG and POLITZ, Circuit Judges.
Six residents of Junction, Texas sued the city seeking a declaration that Junction's "junk car" ordinance was unconstitutional. The owners of cars subject to the ordinance also brought a section 1983 action against named city officials. After a number of pretrial stipulations and the dismissal of the section 1983 claim and the named defendants, the suit came before the district judge as a declaratory judgment action with the city as the sole defendant. The plaintiffs sought a declaration that the ordinance was an improper exercise of the city's police power; violated the plaintiffs' procedural due process rights; deprived them of equal protection of the laws; subjected their property to taking without just compensation, and subjected them to warrantless searches and seizures. The district court rejected all of the constitutional claims and upheld the statute. We affirm.
The city of Junction, Texas, responding to what it characterized as "a long history of concern by [its] citizens ... about the junked, wrecked and abandoned vehicles that littered the city," began the process in May, 1979 of implementing a "junk car ordinance." The ordinance which was adopted 1 allowed the city to order the removal The presence of a junked vehicle anywhere in the city constitutes a public nuisance. Exceptions to this were made for: (1) vehicles completely enclosed in buildings where not visible from public or private property; (2) vehicles on private property in connection with the operation of a vehicle dealer or junkyard; and (3) unlicensed antique or "special interest" vehicles stored by a collector on his property and screened from public view by a fence, trees or shrubbery. The ordinance provides for notice to the owner and a public hearing before the city council or its designee before the vehicle may be seized.
or to actually remove junked vehicles from public or private property. 2 A junked vehicle was defined as any inoperative motor vehicle which has both expired license
plates and an invalid motor vehicle safety inspection certificate. The vehicle must be wrecked, dismantled, partially dismantled or discarded or it must remain inoperable for more than 120 days
The council amended the ordinance on May 12, 1980 to broaden the third exception to include all inoperable, unlicensed vehicles. The council then directed the new city attorney, Donnie J. Coleman, to enforce the ordinance. Ms. Coleman prepared a letter that was to be sent to all persons who were considered to be in violation of the ordinance as amended. Her letter ran in the Junction newspaper on Thursday, May 15, 1980. She waited approximately two weeks for voluntary compliance. During this period, she had the local police investigate reports of junked cars and conduct a survey of junked vehicles.
On May 28, 1980, Ms. Coleman sent out the same letter to sixteen people, including all of the people who later became plaintiffs. After receiving their letters, plaintiffs John Ed Price, Arthur D. Wallace, and C.W. Schaefer came into her office and obtained a copy of the ordinance. Ms. Coleman sent out four more groups of letters during June.
On June 2, ten persons, including all of the plaintiffs, requested a hearing before the council. Several of the plaintiffs appeared June 9 at the city council meeting which was attended by sixty to seventy people who supported the ordinance. The council decided to hold a special hearing on June 16. That announcement was made at the meeting and by a form letter mailed to all those who had requested a hearing.
At the hearing, police officer Freddy Gazaway testified that the plaintiffs (and others) were violating the ordinance. The owners did not cross-examine Gazaway. During the hearing, Ms. Coleman explained that the police would need either the owner's permission or a search warrant to examine a vehicle on private property.
The council, on June 23, agreed that nine of the ten owners were violating the ordinance and ordered Ms. Coleman to proceed with enforcement. The next day, Ms. Coleman mailed a letter to these persons notifying them that the council had made a preliminary finding that they were not in compliance with the junked car ordinance. As criminal prosecution began, the car owners filed their suit. Since the filing of this appeal, city officials proceeded with the impounding procedure and have enforced the ordinance against these plaintiffs.
The plaintiffs contend that the "junk car" ordinance might be a valid zoning ordinance, but that it cannot be a legitimate exercise of the city's general police powers because it is an unconstitutional restriction upon the plaintiffs' use of private property which serves no valid public interest. The plaintiffs' brief fails to make clear whether they raise this claim under the federal or state constitutions. Because the plaintiffs cite only Texas cases in this section of their brief, we assume that they are attacking the statute on state constitutional grounds. 3
The plaintiffs argue that the statute is invalid under Spann v. Dallas, 111 Tex. 350, 235 S.W. 513 (1921). Spann held that:
Since the right of the citizen to use his property as he chooses so long as he harms nobody, is an inherent and constitutional right, the police power cannot be invoked for the abridgment of a particular use of private property, unless such use reasonably endangers or threatens the public health, the public safety, the public comfort or welfare. A law which assumes to be a police regulation but deprives the citizen of the use of his property under the pretense of preserving the public health, safety, comfort or welfare, when it is manifest that such is not the real object and purpose of the regulation, will be set aside as a clear and direct invasion of the right of property without any compensating advantages.
235 S.W. at 515. Spann was decided, however, prior to the landmark Supreme Court holding in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), and the 1927 passage of legislation by the Texas legislature giving cities the power to enact zoning laws.
Subsequent Texas cases also distinguish Spann. In City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex.), cert. denied, --- U.S. ----, 103 S.Ct. 570, 74 L.Ed.2d 932 (1982), the Texas Supreme Court upheld the village's ordinance regulating the location of mobile homes. The case is applicable here because while the Court found that the ordinance had the effect of a zoning ordinance, id. at 793, it considered the law as a land-use ordinance passed pursuant to the village's police powers. Id. at 793 n. 4. The Court directs us in reviewing the police powers of municipalities under the Texas Constitution to presume the ordinance is valid. Id. at 792. We may not interfere unless the ordinance is "unreasonable and arbitrary--a clear abuse of municipal discretion." Id. (quoting Hunt v. City of San Antonio, 462 S.W.2d 536, 539 (Tex.1971)). This places an "extraordinary burden" on the party attacking the ordinance to show that "no conclusive or even controversial or issuable fact or condition existed" which would authorize the passage of the ordinance. Id. at 792-93 (quoting Thompson v. City of Palestine, 510 S.W.2d 579 (Tex.1974)). If reasonable minds may differ as to whether a particular ordinance has a substantial relationship to the protection of the general health, safety or welfare of the public, then there exists an issuable fact and the ordinance must stand. Id. at 793. See also City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d 774 (Tex.Civ.App.--Houston 1972, writ ref'd). 4
The stipulated record in this case indicates that the city was concerned about junk cars being a fire hazard and a hinderance in the fighting of fires; an attractive nuisance to children; an obstacle in the luring of professional persons to locate in a city known as "Junky Junction"; a liability in encouraging tourist trade; and an eyesore. While Spann does say that purely aesthetic considerations are not a proper basis for the exercise of police powers, later cases indicate that aesthetics should not be We presume this ordinance to be valid. The plaintiffs then must, under their "extraordinary burden," show us that there are no facts or conditions which would authorize the passage of the ordinance. They have failed to do that. The city on the other hand has shown that the ordinance not only furthers an aesthetic goal, but also serves the interests of the health, safety and welfare of the residents of Junction. We find the ordinance, therefore, to be a proper exercise of the city's police powers.
ignored, but may properly be considered by a city as one of a number of factors followed in the exercise of police powers. City of Houston v. Johnny Frank's Auto Parts Co., 480 S.W.2d at 780; Connor v. City of University Park, 142 S.W.2d 706, 712 (Tex.Civ.App.--Dallas 1940, writ ref'd)
Finally, the plaintiffs argue that the ordinance establishes junked cars as a "nuisance per se " in violation of Texas law. We need only reply that the Texas legislature has determined junk cars to be a public nuisance punishable under state law. Tex.Health Code Ann. art. 4477-9a, § 5.08(a)-(c).
The plaintiffs also complain that the ordinance deprives them of their procedural due process rights under both the federal and state constitutions because they...
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