Vill. of Union, Neb., Corp. v. Bescheinen

• Decision Date: 09 June 2015
• Docket Number: No. A-14-821.,A-14-821.
• Citation: Vill. of Union v. Bescheinen, No. A-14-821. (Neb. App. Jun 09, 2015)
• Court: Nebraska Court of Appeals
• Parties: VILLAGE OF UNION, NEBRASKA, A MUNICIPAL CORPORATION, APPELLEE, v. WILLIAM J. BESCHEINEN, APPELLANT.

VILLAGE OF UNION, NEBRASKA, A MUNICIPAL CORPORATION, APPELLEE, v. WILLIAM J. BESCHEINEN, APPELLANT.

No. A-14-821.

NEBRASKA COURT OF APPEALS

June 9, 2015

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Cass County: JEFFREY J. FUNKE, Judge. Affirmed.

Kevin K. Knake, of Law Office of Richard L. Alexander, for appellant.

Mindy Rush Chipman, of Rush Chipman Law Office, for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

MOORE, Chief Judge.

The district court for Cass County found William J. Bescheinen to be in contempt of a prior order which had required him to abate public nuisances on nine of his properties. For a sanction, the court sentenced Bescheinen to a term of 90 days in jail, but stayed the imposition of the sentence for 180 days to allow Bescheinen to abate the nuisances and purge himself of the contempt. Bescheinen appeals from the order finding him in contempt and the sanction imposed. We find no merit to Bescheinen's arguments and affirm.

FACTUAL BACKGROUND

The Village of Union (Village) is a municipal corporation located in Cass County, Nebraska, and organized pursuant to Neb. Rev. Stat. § 17-201 et seq. (Reissue 2012). Bescheinen is a resident of the Village and owns various parcels of real property within the Village's boundaries. On April 5, 2011, the Village's Board of Trustees declared by resolutions that nine of Bescheinen's properties were public nuisances and required Bescheinen to abate the nuisanceswithin 15 days of receiving notice of the resolutions. Commonly described, Bescheinen's nine properties that were declared to be nuisances include: (1) the former schoolhouse; (2) the adjacent school property; (3) the south school property; (4) the laundromat; (5) the feed store building; (6) 125 West Main Street; (7) 123 West Main Street; (8) the County building; and (9) 111 Rock Street. Bescheinen appealed the resolutions passed by the Board of Trustees and requested a hearing before the Board. Following this hearing, the Board of Trustees denied Bescheinen's appeal.

On July 13, 2011, the Board of Trustees declared by resolution that Bescheinen had failed to abate the public nuisances on his properties as declared in the April 5 resolutions. The Board of Trustees also stated that Bescheinen would be fined $10 per day, beginning on July 14, 2011, until he abated the public nuisances on each of the nine properties.

In addition to the daily fines, the Village also initiated litigation in the district court against Bescheinen seeking various relief. Specifically the Village sought (1) a determination that Bescheinen's nine properties were public nuisances in violation of the Village ordinances; (2) an order requiring Bescheinen to abate the nuisances or, upon his failure to do so, an order permitting the Village to abate the nuisances at Bescheinen's expense; (3) an injunction prohibiting Bescheinen from maintaining the nuisances on his properties; (4) a daily $10 fine assessed against each property for Bescheinen's failure to abate the nuisances; and (5) an injunction prohibiting Bescheinen from trespassing on the Village property located at 127 West Main Street. Bescheinen counterclaimed against the Village seeking declaratory relief. He contended that the Village's nuisance ordinances were not enacted according to the proper Village procedure and also failed to comply with Nebraska statutory law. Both parties moved for summary judgment.

On January 18, 2013, the district court filed an order in which it granted summary judgment in favor of the Village and denied Bescheinen's motion. The court found all nine of Bescheinen's properties to be public nuisances and permanently enjoined Bescheinen from maintaining the nuisances on these properties. Further, the court required Bescheinen to take the following action to abate the nuisances within 180 days of the order:

a. Former school house: (1) Repair and replace the bricks in the northeast corner of the schoolhouse or demolish the entire building; (2) Repair and replace any broken out windows or demolish the entire building; (3) Repair and replace the roof of the building or demolish the entire building; (4) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of machinery/equipment; and (6) Remove all scrap iron from the premises or place such scrap iron in covered bins or galvanized iron receptacle[s].

b. Adjacent school property: (1) Remove all trash and litter from the yard of such premises; (2) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of machinery/equipment; and (3) Remove all scrap iron from the premises or place such scrap iron in covered bins or galvanized iron receptacle[s].

c. South school property: (1) Remove all trash and litter from the yard of such premises; (2) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of

machinery/equipment; and (3) Remove all scrap iron from the premises or place such scrap iron in covered bins or galvanized iron receptacle[s].

d. Laundromat: (1) Repair the roof of the building or demolish the entire building; (2) Repair and replace any broken out windows or demolish the entire building; (3) Repair and replace the interior ceiling of the building or demolish the entire building; (4) Remove the trailer from the premises; (5) Paint the building; (6) Remove all trash or litter from the interior of the building; and (7) Repair the front façade of the building or demolish the entire building.

e. Feed store: (1) Repair the roof of the building or demolish the entire building; (2) Repair and replace any broken out or missing windows or demolish the entire building; (3) Repair and replace all rotting wood on the exterior of the building or demolish the entire building; and (4) Repair the structure of the building so that the west wall stops pulling away from the south wall or demolish the entire building.

f. 125 West Main Street: (1) Remove all trash and litter from the yard of such premises; (2) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of machinery/equipment; (3) Remove the scrap iron from the rear of the property or place such scrap iron in covered bins or galvanized iron receptacle[s]; (4) Remove the floor of the former café from the premises; (5) Repair the roof of the building or demolish the entire building; (6) Repair the foundation of the building or demolish the entire building; and (7) Repair and replace the rotten wood on the exterior of the building or demolish the entire building.

g. 123 West Main Street: (1) Remove all trash and litter from the yard of such premises; (2) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of machinery/equipment; (3) Remove the scrap iron from the rear of the property or place such scrap iron in covered bins or galvanized iron receptacle[s]; (4) Remove the floor of the former café from the premises; (5) Repair the roof of the building or demolish the entire building; (6) Repair the founding of the building or demolish the entire building; (7) Repair and replace the rotten wood on the exterior of the building or demolish the entire building; and (8) Repair and replace all broken out or missing windows or demolish the entire building.

h. County building: (1) Remove all trash and litter from the yard of such premises; (2) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of machinery/equipment; and (3) Remove all scrap iron from the premises or place such scrap iron in covered bins or galvanized iron receptacle[s].

i. 111 Rock Street: (1) Remove all trash and litter from the yard of such premises; (2) Remove all wrecked, inoperable, or disabled automobiles or parts of automobiles and all wrecked, inoperable, or disabled machinery/equipment or parts of machinery/equipment; (3) Remove all scrap iron from the premises or place such scrapiron in covered bins or galvanized iron receptacle[s]; and (4) cease storing and leaving equipment on the premises such as drainage tubing and tractors.

In addition to those required actions, the court also ordered Bescheinen to pay a $1,000 fine to the Village and enjoined Bescheinen from trespassing on the Village's property at 127 West Main Street. Bescheinen did not appeal from the order.

On August 2, 2013, the Village filed an application for contempt alleging that Bescheinen had failed to abate the nuisances as required in the January 18, 2013, order. The Village also alleged that Bescheinen had not paid the fines assessed against him in the order. On April 11, 2014, the district court held a show cause hearing on the Village's contempt application.

The Village presented extensive evidence to support its contention that Bescheinen had willfully failed to abate the nuisance properties. The court received numerous pictures of the nine properties received into evidence which demonstrated the conditions of the property at the time of the January 2013 order and prior to the show cause hearing. Duane Hardbarger, the chairman of the Village's Board of Trustees, testified to the findings of his inspections of Bescheinen's properties in May 2012 and January 2014. Hardbarger testified that Bescheinen had not made significant progress to abate the nuisances on the three schoolhouse properties. Specifically, Bescheinen had not fixed the bricks in the northeast...