State v. Champoux

• Decision Date: 15 October 1996
• Docket Number: No. A-95-958,A-95-958
• Citation: 5 Neb.App. 68,555 N.W.2d 69
• Parties: STATE of Nebraska, Appellee, v. Steven M. CHAMPOUX, Appellant.
• Court: Nebraska Court of Appeals

Page 69

555 N.W.2d 69

5 Neb.App. 68

STATE of Nebraska, Appellee, v. Steven M. CHAMPOUX, Appellant.

No. A-95-958.

Court of Appeals of Nebraska.

Oct. 15, 1996.

Syllabus by the Court

1. Constitutional Law: Statutes: Ordinances. The constitutionality of a statute or ordinance is a question of law.

2. Judgments: Appeal and Error. Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

3. Ordinances: Jurisdiction: Appeal and Error. Neb.Rev.Stat. § 24-1106 (Reissue 1995) does not except from the jurisdiction of the Court of Appeals consideration of the constitutionality of an ordinance.

4. Constitutional Law: Ordinances: Presumptions: Proof: Appeal and Error. In passing upon the constitutionality of an ordinance, an appellate court begins with a presumption that the ordinance is valid; consequently, the burden is on the challenger to demonstrate the constitutional defect.

5. Municipal Corporations: Ordinances: Zoning: Proof. To successfully challenge the validity of a zoning ordinance that does not affect a fundamental right or involve a suspect classification, a litigant must prove that the conditions imposed by the city in adopting the ordinance were unreasonable, discriminatory, or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance.

6. Constitutional Law: States. A state may impose higher standards on the basis of state law and may guard individual rights more fervently than the U.S. Supreme Court does under the federal Constitution.

7. Municipal Corporations: Ordinances: Zoning: Public Health and Welfare. In enacting zoning ordinances to provide for the public health, safety, and general welfare, a municipality may consider the quality of living in its community and may attempt to promote values important to the community as a whole.

Peter W. Katt and Lisa K. Piscitelli, of Pierson, Fitchett, Hunzeker, Blake & Loftis, for appellant.

Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.

IRWIN, SIEVERS and INBODY, JJ.

IRWIN, Judge.

Steven M. Champoux appeals his conviction under a Lincoln municipal ordinance. The Lincoln Municipal Code generally provides that one may rent only to families property that is zoned for single-family or two-family use. The municipal ordinance in question defines a family as including not more than three unrelated persons. On appeal,

                Champoux challenges the constitutionality of the ordinance's definition of "family."   For the reasons stated below, we affirm
                

FACTS

On February 7, 1994, a criminal complaint was filed in the county court for Lancaster County, alleging Champoux had unlawfully allowed "more than three unrelated persons to live in a building ... in violation of the use regulations for the R-2 Residential District." On February 16, Champoux moved to quash the complaint for the reason that "Lincoln Municipal Ordinance Section 27.03.220 is unreasonable and arbitrary in violation of the Due Process Clause of the Constitution of the State of Nebraska." This motion was overruled.

On November 17, a trial was held on stipulated facts, which are as follows: Champoux owns and maintains rental property at 1840 Hartley Street in Lincoln. On the date cited in the complaint, January 26, 1994, Champoux was renting the property at issue to five unrelated persons, all of whom lived on the property. This property is one side of a duplex and is located in an "R-2 Residential District," which is zoned for single-family or two-family use. Lincoln Mun.Code § 27.03.220 (1994) defines a family as "[o]ne or more persons immediately related by blood, marriage, or adoption and living as a single housekeeping unit in a dwelling.... A family may include, in addition, not more than two persons who are unrelated for the purpose of this title." At trial, Champoux preserved his constitutional challenges based on his due process rights under the Nebraska Constitution and his tenants' rights to association and privacy under the 1st and 14th Amendments to the U.S. Constitution. On November 28, Champoux was found guilty and fined $25.

In his December 22 appeal to the district court, Champoux again challenged the ordinance defining "family" based on the constitutional grounds discussed above. The district court concluded that the challenged ordinance was constitutional and affirmed the judgment of the county court. This appeal timely followed.

ASSIGNMENTS OF ERROR

Champoux assigns that the district court erred in finding that § 27.03.220 did not violate the Due Process Clause of the Nebraska Constitution and in finding that § 27.03.220 did not violate his tenants' rights to privacy and association guaranteed by the 1st and 14th Amendments to the U.S. Constitution.

STANDARD OF REVIEW

The constitutionality of a statute or ordinance is a question of law. Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995); Village of Brady v. Melcher, 243 Neb. 728, 502 N.W.2d 458 (1993). Regarding matters of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review. State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996); Johnson v. Holdrege Med. Clinic, 249 Neb. 77, 541 N.W.2d 399 (1996).

ANALYSIS

Jurisdiction.

Before reaching Champoux's claims that the ordinance in question is unconstitutional, we must address whether we have jurisdiction to address his claims. Neb.Rev.Stat. § 24-1106 (Reissue 1995) provides that an appeal shall be taken to "the Court of Appeals except in capital cases, cases in which life imprisonment has been imposed, and cases involving the constitutionality of a statute." Section 24-1106 does not except from the jurisdiction of this court consideration of the constitutionality of an ordinance. See, also, Neb.Ct.R. of Prac. 9E (rev. 1996).

Due Process Claim.

Therefore, we turn to Champoux's claim that the zoning ordinance in question violates the Due Process Clause of the Nebraska Constitution in that it unduly restricts his use of his property. In passing upon the constitutionality of an ordinance, an appellate court begins with a presumption that the ordinance is valid; consequently, the burden is on the challenger to demonstrate the constitutional defect. State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996); Kuchar, supra. "The validity of a zoning ordinance will be presumed in the absence of clear and satisfactory In a challenge to a statute or ordinance under either the Due Process Clause or the Equal Protection Clause, the degree of judicial scrutiny to be focused on the statute is a " 'dispositive question.' " Robotham v. State, 241 Neb. 379, 382, 488 N.W.2d 533, 538 (1992) (quoting Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989)). To successfully challenge the validity of a zoning ordinance that does not affect a fundamental right or involve a suspect classification, a litigant must prove that the conditions imposed by the city in adopting the ordinance were unreasonable, discriminatory, or arbitrary and that the regulation bears no relationship to the purpose or purposes sought to be accomplished by the ordinance. See, Robotham, supra; State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991); Giger v. City of Omaha, 232 Neb. 676, 442 N.W.2d 182 (1989); Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964). "[C]lassifications appearing in social or economic legislation require only a rational relationship between the state's legitimate interest and the means selected to accomplish that end. The ends-means fit need not be perfect; it need only be rational." State v. Michalski, 221 Neb. 380, 389, 377 N.W.2d 510, 517 (1985).

evidence to the contrary." Bucholz v. City of Omaha, 174 Neb. 862, 865-66, 120 N.W.2d 270, 273 (1963).

The interests set out by the city in support of the ordinance in question are the "sanctity of the family, quiet neighborhoods, low population, few motor vehicles, and low transiency." Brief for appellee at 17. Champoux argues that although the zoning ordinance was presumably enacted pursuant to legitimate governmental objectives, the city "has provided no evidence that the lack of a biological relationship between the inhabitants of a dwelling increases traffic, parking problems, noise, disturbances, and destroys the character of the single-family neighborhood." Reply brief for appellant at 7. As a result, he argues, the city has "failed to show that the ordinance is reasonably related to these objectives." Id. However, as discussed above and contrary to Champoux's arguments, Nebraska jurisprudence requires that Champoux demonstrate the constitutional defect in the zoning ordinance. See, Conklin, supra; Kuchar v. Krings, 248 Neb. 995, 540 N.W.2d 582 (1995).

The U.S. Supreme Court has addressed the constitutionality of a zoning ordinance that defined a family to include any number of related persons or a total of two unrelated persons. The Court held that the ordinance bore a rational relationship to per missible missible state objectives and, thus, was constitutional. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). The Court reasoned:

The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds.

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one.... The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

416 U.S. at 9, 94 S.Ct. at 1541.

Nonetheless, a state may...