Nuisance Abatement

Note:

It is important to involve your city attorney in matters involving derelict properties. While a few options and general procedures are addressed here, many situations will present unique circumstances that must be specifically considered. This article should not take the place of the advice from someone familiar with the specific facts relating to a particular property.

In my experience, there are very few issues that will generate more contact with elected officials than derelict properties. Fortunately, all cities have a certain level of authority to deal with these types of matters.

Abatement Of Nuisances

When courtesy contact with the owner and citations for violations are not effective, the city has the option to abate nuisance conditions for the public good. It should be noted that not all ordinance violations will constitute a nuisance. The condition must be detrimental to the public’s health and safety; if it meets this standard, it may be abated.

Prior to the city undertaking the work to remedy the nuisance, the city must follow certain procedures to ensure that the property owner receives due process. If the city follows the correct process, the costs incurred by the city to abate the nuisance will become a debt of the owner and a lien on the property.

Because dangerous buildings are addressed under separate statutes from other nuisances, they will be addressed separately here.

Dangerous Buildings

Sections 67.400–67.450, RSMo provide for demolition or repair of buildings or structures that are damaged or deteriorated so as to be detrimental to the public health, safety or welfare, and declared to be a public nuisance.

If the owner fails to act, the statutes allow the city to take certain actions with respect to a derelict structure including demolition. The city should have an ordinance in place that provides procedural safeguards including adequate notice and a full evidentiary hearing. Section 67.410 RSMo lists several provisions that should be addressed in the city’s ordinance.

Once the city has identified a derelict structure as a nuisance, the city must notify the owner and all interested parties, 1 including occupants, mortgage companies and lien holders that the

chimney; a collapsed second floor and roof; and a parapet that had separated from the structure. Reading the court’s opinion, it appears that the City did a good job of documenting, on a dayto-day basis, the visible movement and collapse of portions of the structure over a period of several days. Following the demolition, the City provided the owner with notice and a hearing.

When courtesy contact with the owner and citations for violations are not effective, the city has the option to abate nuisance conditions for the public good.

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The notice must be personally delivered to the owner and interested parties or sent via certified mail, return receipt requested. 2 If the owner or an interested party cannot be found, the statute does allow for publication of the notice. 3 Publication is also an option if the owner is deceased and the matter is not before the probate court and heirs are unknown.

The notice should: (1) specify the property that has been declared a nuisance; (2) order the action that must be completed (repairs, boarding up, demolition); (3) set forth a “reasonable” time for commencement of the work; and (4) set forth a date, time and location for an evidentiary hearing 4 that is more than 10 days after the date of the notice. A full and adequate hearing includes the right to be represented by counsel, the right to present evidence, and the right to examine the city’s evidence. The city should consider making a record even if no party appears for the hearing; a transcript of the hearing where the city’s evidence is presented will provide support for any subsequent order to demolish or repair the building. The city’s evidence should be competent and substantial. 5 Following notice and hearing, the city’s designated official must issue an order to the owner and other interested parties that details his or her findings and orders the necessary actions to be taken in order to remedy the nuisance building. 6 Owners and interested parties have the opportunity to appeal the official’s order to the circuit court. 7 It should be noted that the statute authorizes the city to provide for emergency measures in its ordinance that may be undertaken when there is an immediate danger. 8 Emergency measures should only be taken in the most extreme situations. Years ago, Kansas City correctly took such emergency actions in demolishing a building. 9 The building was severely damaged and was subject to collapsing walls; a leaning Other Nuisances

Abatement of other nuisances also begins with the city’s determination that a particular condition is a nuisance. Many cities have ordinances that list conditions deemed to be nuisances.

Section 67.398 RSMo sets forth the general procedures for abatement of nuisances.

Similar to the dangerous building process, a detailed written notice must be sent to the property owner and, if the property is not owner-occupied, to the occupant of the property. 10 The notice must (1) contain a description of each condition of the property that is declared to be a public nuisance; (2) set forth the action that will remedy the nuisance; and (3) set forth a reasonable time, not less than 10 days, 11 in which the owner has to commence removal of each condition identified. 12

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Although Section 67.398 does not expressly require a hearing, the general principles of due process dictate that the owner and occupant should be given at least an opportunity to be heard. Therefore, the city may want to consider whether to automatically provide a date and time for hearing in the written notice or make some other provision allowing the owner and occupant to state their position to city representatives.

The written notice must be given by personal service or by first-class mail to both the occupant of the property at the property address, and the owner at the last known address of the owner, if not the same. 13 Many cities post the notice at the property. While this may be a good way to make an extra effort to reach the resident, it does not, alone, satisfy the statutory requirement.

A Search Warrant Is Required For Inspection And Abatement Of Nuisances

Unless the owner consents to the city’s entry upon private property to either conduct an inspection or perform nuisance abatement, an administrative search warrant is generally required. Written notice and hearing is not a substitute for a warrant. 14 It should be noted that there are limited exceptions to the warrant requirement; a determination of whether an exception applies requires a fact-intensive analysis.

Special Tax Bills And Liens

If work is performed to remove or otherwise abate the nuisance, a tax bill is issued and sent to the owner. The amount is a personal debt of the property owner and a lien on the property until paid. 15 There are various ways to collect the costs incurred for nuisance abatement. However, the city should be prepared for the realization that some abatement costs are simply not collectible; the city should see that not as a failure, but, as a necessary cost of getting rid of a health and safety risk for the benefit of its citizens.

Extraordinary Remedies

When all else fails, the city may have other legal remedies to address ongoing code violations and nuisance conditions. The city may file an action in the circuit court seeking an injunction that is a court order mandating the violations be cured and the property brought into compliance with code. 16 In cases involving residential rental properties and non-responsive landlords, a lawsuit asking the circuit court to appoint a receiver to oversee the property is an option. 17 Essentially, under this process, someone, including the city’s code official, will be appointed by the court to oversee and manage the property. The receiver will use the rents and other income to make repairs and improvements in order to ensure the property’s code compliance.

These remedies are rarely used and require a very specific process. The city attorney’s role in these matters is essential.

Abatement of other nuisances also begins with the city’s determination that a particular condition is a nuisance. Many cities have ordinances that list conditions deemed to be nuisances.

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Conclusion

Properties that are subject to nuisance conditions and ordinance violations have an adverse impact on the neighborhood and, often, present serious health concerns for those in the area. The governing body should consider an approach to code enforcement that is appropriate for the city given the city’s staff and resources. Part of that approach should be to prioritize problem properties because it is not likely that all can be tackled at once.

Stephanie Karr focuses her work on municipal law and has been advising local governments since 1991. She is city attorney and special counsel for several cities. Karr has particular expertise in the area of land use and code enforcement. She has extensively presented on issues involving nuisances and code enforcement to government and attorney groups and has written on the same topics.

End Notes: 1 An informational title report from a title company will identify interested parties that are entitled to notice.

2 Section 67.410.1 (3) RSMo

3 Section 67.410.1 (3) RSMo

4 When dealing with derelict buildings, it is not sufficient to merely offer the opportunity for a hearing and wait for the property owner or other party to request one. Instead, to ensure that the city’s demolition or other orders are valid, the city should schedule and hold a hearing automatically, regardless of whether someone has requested it. Goe v. City of Mexico, 64 S.W.3d 836 (Mo. App. E.D. 2001).

5 Section 67.410.1 (4) RSMo

6 Section 67.410.1 (4) RSMo

7 Section 67.430 RSMo

8 Section 67.440 RSMo

9 Kansas City v. Jordan, 74 S.W.3d 25 (Mo. App. W.D. 2005)

10 Section 67.398.3 RSMo

11 This time may be shortened if the particular condition presents an “immediate, specifically identified risk to the public health and safety”. Section 67.398.3 RSMo

12 Section 67.398.3 RSMo

13 Section 67.398.3

14 Bezayiff v. City of St. Louis, 963 S.W.2d 225 (Mo. App. E.D. 1997)

15 Section 67.410.1(5) and Section 67.398 RSMo

16 See, City of Union v. Julius, 706 S.W.2d 513 (Mo.App.E.D. 1986)

17 Section 441.500 RSMo, et seq.

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