Posted by: Patricia Salkin | August 3, 2010

8th Circuit Court of Appeals Upholds Constitutionality of Enforcement Action and Search of the Property

Following a complaint by a neighbor, the owner of 6.97 acres within three miles of Omaha (over which the City has zoning authority) was ordered by the health inspector to cease dumping construction debris in a ravine. The health department inspector entered the property and photographed the debris, accompanied by a code inspector. The inspector discovered that a dilapidated garage, previously slated for condemnation but renovated by the owner, had been illegally converted to a residence, and he therefore placarded the structure as prohibited for occupancy.  Following a history of litigation over the enforcement action that ultimately ended  in a reversal of conviction due to inadequate plea advice, the owner filed an action in federal court alleging a violation of 42 USC 1983 and an inverse condemnation claim under state law.  The district court dismissed the action, and the property owner appeals the federal claims.

The Eighth Circuit Court of Appeals affirmed, and held that the law authorizing enforcement outside city limits and within three miles “at the discretion of the duly designated enforcing officer” was not unconstitutionally vague. The owner’s argument, that neither the county nor the city had authority to enforce nuisance laws, was contrary to legislative intent. Entry onto the property to photograph conditions did not require a warrant under the open fields doctrine; the inspectors’ search of the structure by exterior observation and looking in the windows was minimally intrusive and constitutionally reasonable. The Court also held that posting the structure without notice and hearing did not violate due process protections because the city has condemnation procedures that provide these protections, and that the posting did not deprive the owner of lawful use.

Nikolas v. City of Omaha, 605 F.3d 539 (C.A.8 (Neb.), 5/17/2010).

The opinion can be accessed at: http://www.ca8.uscourts.gov/opndir/10/05/091679P.pdf


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