NUISANCE ABATEMENT and MUNICIPAL INFRACTIONS Prepared by Anne E.H. Loomis 1175 8 th Avenue Marion, IA 52302 319-377-9405 158 Main Street McGregor, IA 52157 563-873-8912 [email protected]
NUISANCE ABATEMENTand
MUNICIPAL INFRACTIONS
Prepared byAnne E.H. Loomis
1175 8th AvenueMarion, IA 52302
319-377-9405
158 Main StreetMcGregor, IA 52157
563-873-8912
NUISANCE ABATEMENT AND MUNICIPAL INFRACTIONS
I. MUNICIPAL AUTHORITY TO ABATE NUISANCES ..................................................................... 1
A. STATE LAW........................................................................................................................................... 1
B. CASE LAW RE: MUNICIPAL AUTHORITY TO ABATE NUISANCES............................................................ 1
II. MUNICIPAL AUTHORITY RE: MUNICIPAL INFRACTIONS.................................................... 2
A. STATE LAW........................................................................................................................................... 2
B. CASE LAW RE: MUNICIPAL INFRACTIONS.............................................................................................. 2
III. INSTRUCTIONS TO CITY STAFF................................................................................................... 3
EXHIBIT A - ORDER TO ABATE NUISANCE ...................................................................................... 9
EXHIBIT B – LETTER TO COMPLAINANT........................................................................................10
EXHIBIT C – CITATION FOR MUNICIPAL INFRACTION..............................................................11
EXHIBIT D – CONFIDENTIAL INFORMATION FORM ...................................................................13
EXHIBIT E – VERIFICATION AND AFF RE: MILITARY SERVICE..............................................14
EXHIBIT F – PROPOSED SETTLEMENT AGREEMENT..................................................................15
EXHIBIT G – CLERK’S CERTIFICATE................................................................................................17
EXHIBIT H – ORDER ACCEPTING SETTLEMENT AGREEMENT ...............................................18
EXHIBIT I - REPORT TO THE COURT OF NONCOMPLIANCE ....................................................19
EXHIBIT J – RULE TO SHOW CAUSE APPLICATION.....................................................................21
EXHIBIT K – RULE TO SHOW CAUSE AFFIDAVIT .........................................................................22
EXHIBIT L – RULE TO SHOW CAUSE ORDER .................................................................................24
EXHIBIT M – PRECIPE............................................................................................................................25
EXHIBIT N – NOTICE OF GARNISHMENT ........................................................................................26
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EXHIBIT O – LETTER TO CLERK........................................................................................................27
EXHIBIT P – LETTER TO SHERIFF .....................................................................................................28
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NUISANCE ABATEMENT AND MUNICIPAL INFRACTIONS
I. Municipal Authority to Abate Nuisances
A. State Law
Iowa Code (text of sections in appendix)§364.12 Responsibility for public places§80.39 Disposal of Personal Property
§321.89 Disposal of Vehicles
B. Case Law re: Municipal Authority to Abate Nuisances
City of Independence v. Purdy, 46 Iowa 202Iowa,1877A city has the right and power by resolution to require lots within the city limits uponwhich water becomes stagnant to be filled up by the owners thereof.
Bush v. City of Dubuque, 28 N.W. 542Iowa,1886A city has no right, without the owner's consent, to raise the grade of a lot higher than isnecessary for the abatement of the nuisance caused by water stagnating there.
Sioux City v. Simmons Warehouse Co., 129 N.W. 978Iowa,1911Under Code, § 696, empowering cities to prevent annoyance from anything dangerous,offensive, or unhealthy, and to cause any nuisance to be abated, a city anticipatingdanger from the obstruction of a stream within its limits, may declare by a generalordinance that no structure shall be erected over the stream without leaving a specifiedarea unobstructed for the flow of the water in its natural channel, provided the ordinanceis reasonable; and one violating the ordinance must show that the requirement isunreasonable, and that his structure does not imperil the safety of the public as to freepassage of the water of the stream at any stage, resulting from causes which may intheir nature and extent be anticipated.
Wilson v. City of Ottumwa, 164 N.W. 613Iowa,1917The power conferred by Code Supp. 1913, § 696, authorizing municipal corporations toabate nuisances, can be exercised only in accordance with ordinance regularly and legallyadopted.
Hancock v. City Council of City of Davenport, 392 N.W.2d 472Iowa,1986Municipality, in exercise of its police power, may declare and abate nuisances by adoptingand enforcing reasonable ordinances, but power is subject to procedural due processrequirements. U.S.C.A. Const.Amend. 14.
City of Iowa City v. Iowa Dist. Court for Johnson County, Iowa, 456 N.W.2d 178Iowa,1990Cities have authority to investigate, to declare, and to seek abatement of nuisances.I.C.A. § 364.1.
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Kelley v. Story County Sheriff, 611 N.W.2d 475Iowa,2000While the police power is very broad, and not capable of exact definition, it is notboundless, and, as a rule, is subject to constitutional limitations, and while police powermay allow public nuisances to be abated, in all such cases, the necessity for summaryaction must exist, and one who would justify on the ground of necessity must be able toconvince a jury that the occasion was present which authorized his act.
City of Muscatine v. Northbrook, 619 N.W.2d 362, 2000City may pursue a personal judgment to recover demolition costs incurred by the city inabating a nuisance
Meyer v. Jones, 696 N.W.2d 611Iowa,2005Before a city can declare a property a nuisance and order its abatement in a non-emergency situation, the city should inform the property owner of the city's declarationthat a property is a nuisance, inform the owner of what the owner must do to prevent thecity from abating the nuisance at the owner's expense, and provide the owner with ahearing to contest the declaration and abatement order.
II. Municipal Authority Re: Municipal Infractions
A. State Law
Iowa Code364.3. Limitation of powers364.22. Municipal infractions (NOTE NEW ADDITIONS PER 2010 SF 434)
B. Case Law re: Municipal Infractions
PARKING OF VEHICLES, REMOVAL OF JUNK AND JUNK VEHICLES
Kistler v. City of Perry, 719 N.W.2d 804, 2006The seizure of junk vehicles without a pre-deprivation hearing denied the plaintiffs dueprocess.
CITY OF DES MOINES v. Stan GRUEN
457 N.W.2d 340 (Supreme Court of Iowa)
June 20, 1990, As Corrected Sept. 11, 1990.
Landowner was found guilty in the District Court, Polk County, Joel D. Novak, J., ofviolation of a municipal ordinance which restricts the parking and storage of lawfullyunregistered vehicles to enclosed buildings, at least when such vehicles are parked andstored in a residential neighborhood. Landowner appealed. The Supreme Court,McGiverin, C.J., held that the ordinance was not "inconsistent" with the statute whichprovides that automobile dealers may lawfully possess unregistered vehicles undercertain conditions, and thus, the ordinance did not violate the Home Rule Amendment.Affirmed.
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III. Instructions to City Staff
NUISANCE ABATEMENT – Process that I advocate after City Staff have beenunsuccessful in otherwise resolution of the matter with property owner
1. Prepare and serve Order to Abate nuisance
a. See Exhibit A hereto
b. Responsible party is the owner of the property, unless there is a contract of
record, in which case the contract purchaser is the responsible party.
c. Serve the Order to Abate on the Responsible Party*
i. Personally delivered
ii. Certified mail (to address in county records)
iii. Send copy of Order to Abate to complaining citizen so they know
the City has taken action. (See example Exhibit B hereto)
Note: Service is “complete” when it is either personally delivered, or when the certified
mail is sent. It is not necessary to have proof of anyone receiving the certified mail.
2. Note date for compliance, inspect property.
3. If property not in compliance, make decision whether City will abate nuisance (if
so, continue here), or if City will pursue municipal infraction (if so, skip to municipal
infractions below). Most common abatement activities are for the removal of trash due to
concerns that trash/refuse/rubbish will decompose causing health concerns, i.e. smell,
rodents, etc.
4. If the City is going to abate the nuisance, no further notice is necessary, however
most cities give one last notice, via regular mail or posting on the door, to alert the owner
as to the date and time the City will come by to remove the junk or trash.
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5. If the City abates the nuisance, the Clerk will need to bill the property owner for
the costs thereof. If they do not pay the Clerk may assess the costs to abate the nuisance
pursuant to Iowa Code Section 364.12(3) or pursue a civil suit for collection of costs.
MUNICIPAL INFRACTIONS – Process to file with Court and Procedure
1. Fill out forms:
a. Citation – Municipal Infraction (Exhibit C hereto)
b. Verification of Debtor (Exhibit E hereto)
c. Confidential Information (Exhibit D hereto)
2. Take or mail forms to Clerk of Court; along with $10.00 per Defendant for the
Clerk to serve the notice by certified mail. Most clerks are asking for a filing fee now,
which is currently $85.00.
a. If you send your documents to the Clerk by mail, be sure to enclose a self
addressed, stamped envelope for them to send you a file stamped copy of
all of your documents.
b. Notes on service of the Notice – any party not properly served will not be
held responsible by the Court for the Municipal Infraction
i. Need $10.00 service fee for each party being served. If it is a
husband and wife, you will need enough for two persons. Each
person named as a Defendant needs to get his/her own notice
ii. You cannot serve the Citation yourself. It is a violation of the
Iowa Rules of Civil Procedure for a party to serve its own notice.
The notice must be served by the Clerk by certified mail or by a
hired process server (private or County Sheriff). It is cheaper to
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serve by mail as a private process server costs $25.00 or more. If
the certified mail is not accepted by the Defendant, you will need
to hire a process server to serve the Citation.
iii. If the Clerk of court serves by certified mail, there is no need for
you to file any proof of service. *
iv. If you have the Citation served by a hired process server, you
will need to file a proof of service executed by them. If you use a
private process server, they will prepare their own “proof of
service” and give it to you. You will then need to file this with the
Clerk before the trial date. If you use the Sheriff to serve, upon
receiving payment of the fee, the Sheriff will file its own proof of
service with the Clerk.
*Note: keep an eye on the return postcard in matters concerning husband and wife
defendants. Each defendant must sign for their own copy of the citation. A spouse cannot
sign for the other. Frequently the post office doesn’t pay attention to this, and you will
lose one of the owners as a defendant for lack of good service.
3. If the Citation is served by Certified Mail, the Defendant has 20 days from the
date they accepted the Certified Mail to respond to the Citation; if the Citation is
served by a process server, the Defendant has 20 days from the date of service (make
sure you get the proof of service on file – see above). The Defendant responds to the
Citation by filing an Answer with the Clerk of Court (the Clerk will provide the
Defendant with this form which gets served on the Defendant with the Citation).
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4. If the Defendant does not file an Answer within the 20 days, the Clerk of
Court will send the case up to the Judge to enter a default judgment. After the default
judgment, you will want to contact the City Attorney for collection of the fine and/or
contempt proceedings.
5. If the Defendant does file an Answer within the 20 days, the Clerk of Court
will send you a copy of the Answer and an Order setting a trial date.
6. If a trial date it set, before trial you should enter into negotiations with the
Defendant in an attempt to settle the case without having to go to trial. Acceptable
settlement would be as follows: (See proposed Settlement Agreement enclosed
herewith as Exhibit F)
a. Defendant pays the court costs (filing fee plus costs of service)
b. Defendant complies with the City Ordinance, and agrees to an order
preventing future violations of the Ordinance
c. City agrees to “suspend” all or a portion of the civil penalty ($750 first
offense, $1000 second and subsequent) so long as Defendant does what he
or she is supposed to do
d. If Defendant does not comply, the City will notify the Court and the fine
(or remainder thereof) will be instated.
7. If you and the Defendant reach a settlement, phone the City Attorney to
prepare the Settlement Agreement for your and the Defendants’ signatures. The City
Attorney will send the Settlement Agreement to the Clerk of Court along with an
Order (sample at Exhibit H hereto) for the Judge to sign accepting the Settlement
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Agreement. After this is done, and the Order is signed, no one will need to attend the
trial.
8. If you and the Defendant do not reach a settlement agreement, you will need
to appear at the trial.
9. At trial you may first be sent to Mediation (certain counties only) where you
and the Defendant attempt to reach a settlement.
10. If Mediation is not successful, you will see the Judge and have a trial.
Remember to bring all important documents with you for the trial in case the
Mediation is not successful. These documents include everything you would need to
prove the violation of the municipal ordinance such as:
a. Original complaint by a citizen regarding the property
b. Order to Abate Nuisance
c. Copies of letters sent to Defendants and received from them by you
d. Notes of phone conversations with the Defendants
e. Pictures taken at the original inspection
f. Pictures taken no more than a day or two before trial date
g. Copy of the City Code sections for Municipal Infraction, as well as the
Code section that is being cited as the violation. Have the City Clerk
certify a copy and ask the Judge to take judicial notice at trial (Exhibit G).
11. After entering all evidence at the trial, the Judge will either enter a ruling at
that time or take it under advisement and mail the ruling to you at a later date.
12. Follow up as in the default judgment, call your City Attorney to assist with
collection of the fine and court costs, or contempt of court proceedings.
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a. Exhibit I “Report to the Court”
b. Exhibits J, K and L regarding contempt
c. Exhibits M, N, O, and P regarding garnishment of bank accounts or pay
from employer.
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EXHIBIT A - Order to Abate Nuisance
CITY OF ____________________, IOWA
ORDER TO ABATE NUISANCE
You are hereby ordered and required as owner, agent, lessee, or occupant of the premisesknown as, 705 Main Street NW, ___________, Iowa to cease and abate a nuisance.
The nuisance consists of: ___________________________________________________________________________________________________________________________________________________________________________________________________
The nuisance shall be abated by: _____________________________________________________________________________________________________________________________________________________________________________________________
You have until _________________ to abate this nuisance.
You may request a hearing before the City Council. Said request must be in writing anddelivered to the City Clerk within 5 days from the date of this order or it will beconclusively presumed that a nuisance exists and that it must be abated as ordered.
If the nuisance is not abated as directed and no request for hearing is made within thetime prescribed, the City may abate the nuisance and assess the costs against the propertyfor collection in the same manner as a property tax or may proceed with the institution ofa municipal infraction. The penalties for municipal infractions are $750.00 for the firstoffense, $1,000.00 for the second and subsequent offenses.
________________ ________________________________________Date __________________, Code Compliance Officer
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EXHIBIT B – Letter to Complainant
ALLEN, VERNON & HOSKINS, P.L.C.Attorneys and Counselors at Law1175 8th Avenue, P.O. Box 488Marion, IA 52302
Donald C. HoskinsJeffrey K. RobisonAnne E.H. Loomis
Kara L. McFaddenDevin Ceres Kelly
319-377-2022319-377-9441319-377-9405Fax 319-377-8147
Writer’s Email:[email protected]
Morris L. Allen, DeceasedJohn G. Vernon, Retired
Gordon R. Gibson, Retired
September 10, 2013
Ronald Smith and Belinda Smith1003 Main StreetSmall City, IA 522___
RE: Loose dog, et. al.
Dear Mr. and Mrs. Smith:
Enclosed is an Order to Abate that is being served on the property owner of 1007North View Drive in regard to the dog running loose, leaving feces and growling atneighbors.
Please keep track of whether or not you are experiencing the same problems afterthe deadline (September 20th) and let me know so I can take further steps, if necessary.
Sincerely,
Anne E.H. Loomis
AL:jsEnc.Cc: City Clerk
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EXHIBIT C – Citation for Municipal Infraction
CITATIONMUNICIPAL INFRACTION
VIOLATION OF AN ORDINANCE OF THE CITY OF MARION
THE CITY OF MARION )C/O Anne E.H. Loomis )P.O. Box 488, Marion, IA 52302 )
Plaintiff ) NO. CISC __________-vs.- )
)______________________________ )______________________________ )______________________________ )
Defendant(s) )
I, THE UNDERSIGNED, STATE THAT THE DEFENDANT(S) DID VIOLATECHAPTER/ ORDINANCE ________ OF THE MARION MUNICIPAL CODE WITHINTHE CORPORATE LIMITS OF THE CITY OF MARION, LINN COUNTY, IOWA,AS FOLLOWS:
The Defendant(s) own property located at _________________, Marion, Iowa, legallydescribed as:
(INSERT LEGAL DESCRIPTION)
Defendant(s) has/have _____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
THE CITY OF MARION, AS PLAINTIFF, SEEKS THE FOLLOWING:
A. The Defendant(s) be assessed a civil penalties pursuant to Marion City Ordinance of$750.00 for each day of violation after the date of this citation, (total not to exceed thelimits of small claims court, $5,000.00); plus court costs.
B. The Defendant(s) be ordered to comply with the city code of ordinances by: ____________________________________________________________________________to be accomplished by this date ____________________. That the Court enter an orderproviding that should Defendant(s) not accomplish the work by this date that the Cityshall be authorized to abate the nuisance and assess the costs thereof to the property.
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C. The Defendant(s) be enjoined and restrained from future violations ofChapter/Ordinance _____ or be subject to appropriate contempt proceedings.
TO ANSWER THE CHARGES OF THIS CITATION, DEFENDANT(S) MUST EACHFILE AN APPEARANCE IN THE COURT AT SMALL CLAIMS DIVISION, LINNCOUNTY COURTHOUSE, THIRD AVENUE BRIDGE, CEDAR RAPIDS, IOWAWITHIN TWENTY (20) DAYS OF THE RECEIPT OF THIS NOTICE.
FAILURE TO APPEAR WITHOUT GOOD CAUSE WILL RESULT IN AJUDGMENT BEING ENTERED AGAINST THE DEFENDANT(S) FOR THE CIVILPENALTY PLUS COURT COSTS AND AN ORDER TO REMEDY THE VIOLATIONAND ENJOIN DEFENDANT(S) FROM VIOLATING THE ORDINANCE IN THEFUTURE.
CIVIL PENALTY MAY BE PAID BY MAKING PAYMENT OF THE AMOUNTREQUESTED TO THE CITY OF MARION BY DELIVERING SAME TO THEMARION CITY HALL, 1100 8TH AVENUE, MARION, IOWA 52302 AT ANY TIMEPRIOR TO THE COURT APPEARANCE.
IF you require the assistance of auxiliary aids or services to participate in courtbecause of a disability, immediately call your district ADA coordinator at 1-319-398-3920 ext. 200. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942.)
__________________________________________(insert name and title)City of ________________
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EXHIBIT D – Confidential Information Form
IOWA DISTRICT COURT IN AND FOR LINN COUNTYSMALL CLAIMS DIVISION
CITY OF MARION, IOWA, )Plaintiff, ) NO. CISC _________
)v. ) CONFIDENTIAL INFORMATION
) FORM________________________________, )
Defendant. )
Personal Identification NumberName (Social Security Number or Employer I.D. Number)
Plaintiff(s) 1.City of Marion _________________________________(City Employer Identification Number)
Defendant(s) 1. ____________________ _______________________________________
2. ____________________ _______________________________________
Information supplied by __________________________________________________________(print or type)
______________________________________ _______________________________________Signature Date
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EXHIBIT E – Verification and Aff Re: Military Service
IN THE IOWA DISTRICT COURT IN AND FOR LINN COUNTY(SMALL CLAIMS DIVISION)
CITY OF MARION, IOWA )) NO. CISC ___________
Plaintiff )-vs.- ) VERIFICATION OF ACCOUNT
) IDENTIFICATION OF JUDGMENT_______________________________ ) DEBTOR AND AFFIDAVIT RE_______________________________ ) MILITARY SERVICE_______________________________ )
Defendant(s) )
STATE OF IOWA ))ss:
COUNTY OF LINN )
I, the undersigned, being first duly sworn, on oath state that I am the Plaintiff or Attorney forPlaintiff in the above entitled matter and I hereby state that the allegations contained in the Petition are trueand correct and I further specifically state that the Defendants have violated the City of Marion municipalcode of ordinances as described in the Citation filed herein and that this verification and affidavit is madepursuant to the provision set out in Section 631.10 of the 2013 Code of Iowa; that there have been nopayments made on the fine thereon, except as shown in the statement attached, and that the balance showndue thereon is true and correct and is the property of the creditor and remains past due and wholly unpaid.
I further state that ________________________________, the Defendant(s) resides at_______________________________________________ and that _______________________________,the Defendant(s) is employed at _________________________________, and that said Defendant orDefendants is/are not member(s) of the Military Forces of the United states Government, and to the best ofmy knowledge is/are not under any legal disability or prisoner in any reformatory or penitentiary.
If you require the assistance of auxiliary aids or services to participate in court because of adisability, immediately call your district ADA coordinator at 1-319-398-3920 ext. 200. (If you are hearingimpaired, call Relay Iowa TTY at 1-800-735-2942.)
_____________________________________________________________City of Marion, Iowa, Plaintiff
By Anne E.H. Loomis, Assistant City Attorney1175 8TH Avenue., Marion, IA 52302
319-377-9405; 319-377-9406 (fax)
Subscribed and sworn to before me the undersigned this _____ day of September, 2013.
_____________________________________________________________Notary Public in and for the State of Iowa
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EXHIBIT F – Proposed Settlement Agreement
IOWA DISTRICT COURT IN AND FOR LINN COUNTYSMALL CLAIMS DIVISION
THE CITY OF MARION, IOWA, ))
Plaintiff, ) NO. CISC 119134)
v. ) SETTLEMENT OF PARTIES)
___________________, ))
Defendant. )
COME NOW, the undersigned parties and do hereby agree that, subject toapproval of Court, the following writing shall establish the settlement of all issues in theabove captioned matter:
FACTS
Defendants own property located at 855 Alpine Road, Marion, Iowa. Defendantshave failed to repair the sidewalk as requested by City of Marion personnel in violationof Marion Municipal Ordinance 141.05. Defendants have agreed to remedy this situationand the parties desire to settle this matter without further hearing by the court.
AGREEMENT
1. Defendants shall make repair to the sidewalk so as to comply with MarionMunicipal Code Chapter 141 at the addresses listed above no later than November 30,2005.
2. Defendants agree to pay the court costs of this proceeding to the Clerk of Courtand $50.00 of the fine to the Plaintiff, paid upon execution of this Settlement Agreement.Plaintiff’s signature hereto is acknowledgment of receipt of this sum from Defendants.
3. In consideration for the foregoing, Plaintiff shall suspend the (remaining) civilpenalty of $700.00 until completion of the agreement in paragraph 1 above.
4. Defendants agree that in the event they do not make repair to the sidewalk by thedate as shown in paragraph 1 above, upon notification of said condition by the Plaintiff,the Plaintiff, City of Marion is hereby authorized to enter upon the Defendant’s propertyand abate the nuisance. That the costs of abatement shall be billed to Defendants, andmay also be assessed against the property as a tax.
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In the alternative, at the sole discretion of the Plaintiff, should Defendants notcomply with this settlement agreement the Plaintiff may initiate contempt proceedingsand request relief thereunder which may include fines and/or jail time.
WHEREFORE, the undersigned respectfully request the Court to accept theabove detailed Settlement Agreement, and enter an Order incorporating same.
Dated: ____________ Dated: __________
City of Marion
By: ________________________________ ______________________________, Defendant
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EXHIBIT G – Clerk’s Certificate
CERTIFICATE OF CITY CLERK
STATE OF IOWA, COUNTY OF LINN, SS:
I, Wesley A. Nelson, being first duly sworn, do hereby depose and certify that Iam the duly appointed, qualified and acting City Clerk of the City of Marion, in theCounty of Linn, State of Iowa, and that as such I have in my possession, or have accessto, the complete corporate records of said City and of its council and officers; thatattached hereto is a true and accurate copy of:
Marion Code of Ordinances, Chapter 52
Witness my name and corporate seal of said City hereto affixed at Marion, Iowa,this _____ day of September, 2013.
____________________________________Wesley A. Nelson, City Clerk
(seal)
Subscribed and sworn to before me by Wesley A Nelson, City Clerk, this ______day of September, 2013.
______________________________________Notary Public in and for said State
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EXHIBIT H – Order Accepting Settlement Agreement
IOWA DISTRICT COURT IN AND FOR LINN COUNTYSMALL CLAIMS DIVISION
THE CITY OF MARION, IOWA, )Plaintiff, ) NO. CISC ___________
)v. ) ORDER
______________, )Defendant. )
NOW, on this ______ day of September, 2013 the Settlement Agreement of theabove named parties coming before the court on the matter of the municipal infraction.
Pursuant to said agreement, the Court Orders the following:
1. The Defendant shall remedy all Marion Municipal Code §153.6 violationsby installing siding over the entire surface of the house exterior, including all trim; doorsand windows should be painted (windows should not be just painted over as they arenow), all work to be completed no later than August 30, 2001. Should Defendant notremedy all such violations by the date provided, Plaintiff is hereby authorized to enterupon the property and abate the nuisance. The costs of abatement shall be paid byDefendant. Plaintiff will notify Defendant of these costs, and if not paid, may assess thecosts to abate this nuisance against the property as a tax.
2. The Defendant is enjoined from further violations of Marion MunicipalCode §153.6 as to the property located at ___________ Avenue, Marion, Iowa, saidinjunction to expire 5 years after the execution of this Order at which time this case shallbe dismissed;
3. The Court imposes a civil penalty of $750.00, however, said penalty issuspended pending compliance by Defendant. If Defendant complies with paragraphs 1and 2 he shall not have to pay the civil penalty or court costs of this action;
4. The City of Marion shall file a written report with the Court on or beforethe ____ day of ___________, 2013, giving Defendant a copy, should Defendant notcomply with paragraphs 1 or 2 above requesting the imposition of the civil penalty.
Defendant to pay costs.Clerk to Notify.
________________________________________________MAGISTRATE/DISTRICT ASSOCIATE JUDGE
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EXHIBIT I - Report to the Court of Noncompliance
IOWA DISTRICT COURT IN AND FOR LINN COUNTYSMALL CLAIMS DIVISION
THE CITY OF MARION, IOWA, ))
Plaintiff, ) NO. CISC 148143)
v. ) REPORT BY PLAINTIFF)
____________________, ))
Defendants. )
COMES NOW, Plaintiff and in report to the court states that since the original
court date and date of Court’s Order (August 2, 2005) counsel for Plaintiff has had no
contact from Defendants or their counsel, that Defendants made cursory inquiry with
staff at the City of Marion, but have not applied for a building permit, nor have they
begun any work on the garage structure to bring it into compliance with City ordinances,
nor have they made any agreement with City staff or counsel for the City as to the work
to be done to the structure.
WHEREFORE, Plaintiff respectfully requests the Court enter an order:
a. granting Plaintiff the relief sought in its original citation, to wit, that the
Defendants be ordered to either move or tear down the garage so as to bring it into
compliance with the City of Marion Zoning Ordinances
b. that Defendants be enjoined for a period of two years from further
violations of the Zoning Ordinances at this address
c. that Defendants be fined $500.00 for each day that the violation of the
City of Marion Zoning Ordinances has been found by the Court to exist
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d. that Defendants be ordered to pay the costs of this action and for such
further relief as is just in the premises.
_______________________________________Anne E.H. Loomis LI 0013827
Allen, Vernon, & Hoskins, P.L.C.1175 8th AvenueMarion, Iowa 52302319-377-9405, fax 319-377-9406ATTORNEY FOR PLAINTIFF
Copy to: Defendants
CERTIFICATE OF SERVICEI certify that I mailed/hand delivered/fax transmitted a copy of the foregoingdocument to which this certificate is attached to the parties or their attorneysof record on September ____, 2013.
______________________________________________________________
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EXHIBIT J – Rule to Show Cause Application
IN THE IOWA DISTRICT COURT FOR LINN COUNTYSMALL CLAIMS DIVISION
THE CITY OF CENTER POINT ))
Plaintiff ) NO. CISC 140622-vs.- )
)________________________ ) APPLICATION FOR
) RULE TO SHOW CAUSEDefendant )
COMES NOW the Plaintiff, City of _________, by counsel and for Application for a Citation inContempt of Court, states to the court as follows:
1. That in the Court's Order of June 3, 2010, the Defendant, _________________, wasordered to bring his property located at __________ Road , Marion, Iowa into compliance with theMarion Municipal Code by October 1, 2010.
2. That the Defendant has violated the Court Order by not bringing his property intocompliance as ordered and as further detailed in the Affidavit of Neal Caraway, City of Marion CodeCompliance Official, filed contemporaneously herewith.
3. That on September 15, 2010, a letter was sent to Defendant attempting to settle thismatter without Court intervention. That the violations of the Court Order and the Code of Ordinances ofthe City of Marion, have not been corrected.
4. That Defendant, has willfully disregarded the Order of this Court by not bringing theproperty into compliance with the City of Marion Code of Ordinances as detailed in the accompanyingAffidavit.
WHEREFORE the Plaintiff prays that this matter be set for hearing to enable Defendant to showcause why he should not be cited and punished for contempt for failure to comply with the Order of thisCourt; that notice be given to him and he be cited and punished by the court for his contempt and that hebe ordered to pay further fines or serve jail time as determined by the Court, plus attorney fees incurredby the Plaintiff in preparation and presentation of this matter in an amount determined by the court to bereasonable.
_______________________________________Anne E.H. Loomis LI 0013827
Allen, Vernon & Hoskins, PLC1175 8th AvenueMarion, Iowa 52302319-377-9405, fax 319-377-9406
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EXHIBIT K – Rule to Show Cause Affidavit
IN THE IOWA DISTRICT COURT FOR LINN COUNTYSMALL CLAIMS DIVISION
THE CITY OF CENTER POINT ))
Plaintiff ) NO. CISC 140622-vs.- )
) AFFIDAVIT IN SUPPORT__________________________ ) OF APPLICATION FOR
) RULE TO SHOW CAUSE)
Defendant )
State of Iowa )) ss.
County of Linn )
I, Neal Caraway, Code Compliance Officer of the City of Marion, being first dulysworn on oath, depose and state as follows:
1. That in the Court's Order of June 3, 2010, the Defendant, was ordered tobring his property located at ___________ Road , Marion, Iowa into compliance with theMarion Municipal Code by October 1, 2010.
2. That I have personally viewed the property at ____________ Road. TheDefendant has not brought his property into compliance with the City Code ofOrdinances as he was ordered. That the following violations still continue at the property:
a. Maintained a property in such condition as to be offensive to the senses,specifically sight, of neighbors as well as public (Violation of Marion Ordinance50.01)
b. Maintained a structure with a roof that is missing shingles and in obvious needof repair (Violation of Marion Ordinance 165.01 referencing InternationalProperty Maintenance Code section 304.1.1(8));
c. Maintained a property with more than 10 junk or unlicensed vehicles(Violation of Marion Ordinances 51.07 and 165.01 referencing InternationalProperty Maintenance Code section 302.8);
d. Maintained a property with an excessive amount of scrap metals, appliancesand debris (Violation of Marion Ordinance 51.02);
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e. Maintained a violation of Marion Ordinances (Violation of Marion Ordinance50.02(26));
f. Operation of a home occupation in violation of the requirements of MarionOrdinance 176.30, including but not limited to violation of 176.30(5) and176.30(6)
3. I believe that Defendant _____________ should be held in contempt of courtfor willfully violating the Court Order as described above.
__________________________________________Neal Caraway, Code Compliance OfficerCity of Marion, Iowa
Subscribed and sworn to before me by Neal Caraway this ___ day of October, 2010.
__________________________________________Notary Public in and for the State of Iowa
Cc: Defendant
CERTIFICATE OF SERVICEI certify that I mailed/hand delivered/fax transmitted a copy of the foregoingdocument to which this certificate isattached to the parties or their attorneysof record on the _____ day of September, 2013.
_______________________________________
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EXHIBIT L – Rule to Show Cause Order
IN THE IOWA DISTRICT COURT FOR LINN COUNTYSMALL CLAIMS DIVISION
THE CITY OF CENTER POINT ))
Plaintiff ) NO. CISC 140622-vs.- )
)_____________________________ ) RULE TO SHOW CAUSE
)Defendant )
NOW, on this ______ day of September, 2013 this matter comes before the courton the Application of the Plaintiff requesting that the Defendants be required to showcause, the court having reviewed said Application and being fully advised in the premisesfinds that the matter should be set for hearing; that notice be given to the Defendants, thatthey be given the opportunity to show cause why they should not be cited for contemptand punished accordingly.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that theDefendants are, and they are hereby ordered to appear before a Judge of this court on the____ day of ____________, 200___ at _________ o'clock ___.m. at the Linn CountyCourthouse, Cedar Rapids, Iowa to show cause why they should not be punished for theircontempt for failing to comply with the Court’s Order entered herein.
IT IS FURTHER ORDERED that a copy of this Rule to Show Cause and a copyof said Application be served upon the Defendants in the manner of service of anOriginal Notice at least 10 days before the date of said hearing.
________________________________________________JUDGE OF THE SIXTH JUDICIAL DISTRICT OF IOWA
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EXHIBIT M – Precipe
IOWA DISTRICT COURT IN AND FOR LINN COUNTYSMALL CLAIMS DIVISION
, )Plaintiff, ) NO. SCSC ______
)v. ) PRECIPE
), )
Defendant. )
STATE OF IOWA )) ss:
LINN COUNTY )
TO THE LINN COUNTY CLERK OF COURT:
Please issue general execution to the Linn County Sheriff on the judgmentrendered herein. I certify that I am the attorney for the Plaintiff and that there is due andowing on said judgment the principal sum of $________, plus interest, of $__________calculated from the ____ day of _________, _____ at the rate of ____ percent per annumfor a total due of $________.
DATED: September 10, 2013
_______________________________________Anne E.H. Loomis AT0004871
Allen, Vernon & Hoskins, P.L.C.1175 8th Avenue, P.O. Box 488Marion, Iowa 52302319-377-9405, fax [email protected]
ATTORNEY FOR PLAINTIFF
Subscribed and sworn to before me on this ______ day of _____________________,200___.
_____________________________NOTARY PUBLIC
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EXHIBIT N – Notice of Garnishment
IOWA DISTRICT COURT IN AND FOR LINN COUNTYSMALL CLAIMS DIVISION
__________________ )Plaintiff, ) NO. SCSC _________
) NOTICE OF GARNISHMENTv. )
)______________________, )
Defendant. )
TO THE ABOVE NAMED DEFENDANT:
YOU ARE HEREBY NOTIFIED that a Garnishment was issued based upon a Judgment against youand the Garnishment was served on Mike McGrath Auto Center, 4610 Center Point Road NE,Cedar Rapids, Iowa who has answered that it is indebted to you.
YOU ARE FURTHER NOTIFIED that unless you file a Motion or Answer or other appropriate pleading to contest theGarnishment within ten (10) days from the Date this Notice was served upon you explaining why you think these funds are exempt fromexecution under state or federal law, a Court Order will be entered condemning the funds and that the funds will be applied against theJudgment. Some examples of exempt funds may include social security benefits A.F.D.C., general assistance, veteran’s benefits andunemployment compensation. These examples are not complete list are not meant to be.
ANY Motion or Answer or other pleading that you file to contest the Garnishment must be filed in the office of the Clerk of theLinn County District Court (small claims division) at the Linn County Courthouse located at Cedar Rapids. If you file to contest thegarnishment a prompt hearing will be set and you will be notified of the hearing. At the hearing you should be ready to explain to the Judgewhy you believe your property is exempt from the Garnishment.
Section 642.14 of the Iowa Code requires that you be told the exact language of Section 630.3A of the Iowa Code. That Sectionreads:
At any time after the rendition of judgment the court, upon application of the judgment creditor or the judgment debtor and upon notice ofthe adverse party as the court shall direct, shall conduct a hearing to determine the reasonably expected annual earnings of the judgmentdebtor for the current calendar year and the applicable limitation upon garnishment as provided in Section 642.21. The court shall alsoconsider in the interest of justice whether a greater amount than provided in Section 642.21 shall be exempt from garnishment. In makingthe determination, the court shall consider the age number and circumstances of the dependents of the debtor, existing federal povertyguidelines, the debtor's maintenance and support needs, the debtor's other financial obligations and any other relevant information. Anorder reducing the garnishment may be modified or vacated upon application of a part to the court, notice to the adverse party and ashowing at a hearing of changed circumstances. An additional filing fee shall not be assessed for proceedings under this section.
YOU MAY WISH TO CONSULT A LAWYER FOR ADVICE AS TO THE MEANING OF THIS NOTICE.
_______________________________________Anne E.H. Loomis AT0004871
Allen, Vernon & Hoskins, P.L.C.1175 8th Avenue, P.O. Box 488Marion, Iowa 52302319-377-9405, fax [email protected] FOR PLAINTIFF
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EXHIBIT O – Letter to Clerk
ALLEN, VERNON & HOSKINS, P.L.C.Attorneys and Counselors at Law1175 8th Avenue, P.O. Box 488Marion, IA 52302
Donald C. HoskinsJeffrey K. RobisonAnne E.H. Loomis
Kara L. McFaddenDevin Ceres Kelly
319-377-2022319-377-9441319-377-9405Fax 319-377-8147
Sender’s Email:[email protected]
Morris L. Allen, DeceasedJohn G. Vernon, Retired
Gordon R. Gibson, Retired
September 10, 2013
Linn County Clerk of CourtLinn County CourthousePO Box 1468Cedar Rapids, IA 52406
RE: City of Marion v ______________CISC ________
Ladies and Gentlemen:
Enclosed please find in duplicate a Precipe in the above-entitled matter. Pleasefile this document and return a file marked copy to the undersigned in the enclosedenvelope. Also enclosed is a Notice of Garnishment, in duplicate, and a letter ofdirection to the Jones County Sheriff with envelope.
Please forward the Notice of Garnishment to the Sheriff along with the writ ofexecution and the letter of directions. Thank you for your assistance. If you have anyquestions, please call.
Sincerely,
Anne E.H. Loomis
AEHH:jsEnc.
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EXHIBIT P – Letter to Sheriff
ALLEN, VERNON & HOSKINS, P.L.C.Attorneys and Counselors at Law1175 8th Avenue, P.O. Box 488Marion, IA 52302
Donald C. HoskinsJeffrey K. RobisonAnne E.H. Loomis
Kara L. McFaddenDevin Ceres Kelly
319-377-2022319-377-9441319-377-9405Fax 319-377-8147
Sender’s Email:[email protected]
Morris L. Allen, Of CounselJohn G. Vernon, Retired
Gordon R. Gibson, Retired
September 10, 2013
Linn County SheriffP.O. BOX 669Cedar Rapids, IA 52406
RE: Marion vs DefendantSCSC _______
Ladies and Gentlemen:
The Linn County Clerk of Court has forwarded to you a general execution in theabove-entitled action. Please commence the following collection action:
Garnish the account of [Defendant] at Bank of the West, f/k/a CommercialFederal Bank, _____________________________________________, CedarRapids, Iowa.
We enclose in duplicate a Notice of Garnishment to be served on the defendant.
Thank you for your assistance. If you have any questions, please call.
Sincerely,
Anne E.H. Loomis
AEHL:js