Code of Ordinances Amendment - Title 6 Construction/Building Materials Public Nuisances Copyrighted
February 5, 2018
City of Dubuque Action Items # 4.
ITEM TITLE: Code of Ordinances Amendment- Title 6 Construction and
Building Materials and Public Nuisances
SUMMARY: City Manager recommending approval of an amendment to
the City of Dubuque Code of Ordinances Section 6-4-3(S)
to add time frames in which certain construction and
building materials must be used at a building site to avoid
becoming a public nuisance.
ORDINANCE Amending City of Dubuque Code of
Ordinances Title 6 Health, Housing, Sanitation and
Environment, Chapter 4 Nuisances, Section 6-4-3 Public
Nuisance Defined; Public Nuisance Defined; Public
Nuisances Enumerated
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Motion B; Motion
A
ATTACHMENTS:
Description Type
Construction and Building Materials and Public City Manager Memo
Nuisances-NNM Memo
Staff Memo Staff Memo
Ordinance Ordinance
Suggested Nbtion Wording Supporting Documentation
THE CITY OF Dubuque
�
AIFA�erlwGh
UB E '�� III►
Masterpiece on the Mississippi Z°°'�w'2
7A13 2017
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Construction and Building Materials and Public Nuisances
DATE: January 29, 2018
Assistant City Attorney Maureen Quann recommends City Council approval of an
amendment to the City of Dubuque Code of Ordinances Section 6-4-3(S) to add time
frames in which certain construction and building materials must be used at a building
site to avoid becoming a public nuisance.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
�� �� ���
Mic ael C. Van Milligen �� �
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Teri Goodmann, Assistant City Manager
Cori Burbach, Assistant City Manager
Maureen Quann, Assistant City Attorney
Dubuque
THE CITY OF �
DUB E ������
�.�:I,.�.��►
�
Masterpiece on the Mississippi Z°°''Z°12
2013�2017
MAUREEN A. QUANN, ESQ.
ASSISTANT CITY ATTORNEY �
To: Mike Van Milligen
City Manager
DATE: January 17, 2018
RE: Construction and Building Materials and Public Nuisances
Introduction
This memorandum presents a proposed amendment to the City of Dubuque Code of
Ordinances (City Code) Section 6-4-3(S) for your review and City Council consideration.
Background
City Code Section 6-4-3(S) states that certain construction and building materials
constitute a public nuisance. The City Code Section currently states:
Whatever is injurious to the public health or safety or an obstruction to the
free use of property so as to interfere with the comfortable enjoyment of life
or property by the public shall be deemed a "public nuisance." A "public
nuisance" shall include, but not be limited to, the following:
(S) Construction And Building Materials: Outdoor storage of
construction and building materials, except those that are stored in a
manner to protect their utility, prevent deterioration, and are
reasonably expected to be used at the site.
Discussion
While the drafters of the ordinance intended to imply some sort of time limitation with the
phrase "reasonably expected to be used at the site," the absence of an express time
limitation makes the meaning of the word "reasonably" ambiguous and open to
interpretation. In a recent court case, a defendant successfully argued that the phrase
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563)589-4381 /FAx (563)583-1040/EMa�� mquann@cityofdubuque.org
"reasonably expected to be used at the site" did not create a time limit, but questioned
whether or not the materials made sense for the job. Consequently, the court found that
building materials that had been in place at the site for more than one year all would
someday be used in a remodeling project, and therefore were "reasonably expected to
be used at the site." Although successfully argued in court, this meaning of the phrase
"reasonably expected to be used at the site" was not the original intent of the ordinance.
The judgment in the case, 01311 DUCICV106215, is attached to provide the court's
review of the city's ordinance.
The proposed amendment creates time frames in which the materials must be used at
the site to avoid becoming a public nuisance. The proposed amendment states:
Whatever is injurious to the public health or safety or an obstruction to the
free use of property so as to interfere with the comfortable enjoyment of life
or property by the public shall be deemed a "public nuisance." A "public
nuisance" shall include, but not be limited to, the following:
(S) Construction And Building Materials: Outdoor storage of
construction and building materials, except those that are stored in a
manner to protect their utility, prevent deterioration, and are used at I
the site within the timespan of an applicable building permit, one
hundred eighty days, or a time frame proposed by the property owner
and approved by the city.
The proposed amendments are italicized for your reference.
The proposed amendments offer flexibility for types of projects and project schedules.
Materials must be used either a) within the timespan of an applicable building permit
(when projects require a building permit); b) within one hundred eighty days (for projects
that do not require a building permit); or a time frame proposed by the property owner
and approved by the City. These time frames allow the property owner flexibility for short
or long-term projects but also provide the City with information it can share with citizens
who inquire about the status of building and construction materials at sites. Construction
and building materials at sites past the time frames set forth above will constitute public
nuisances under the proposed amendments, even if it "makes sense" that the materials
will used for the project.
Recommendation
I recommend that the attached proposed amendment to City Code Section 6-4-3 is
forwarded to the City Council for review, consideration, and approval, establishing time
frames for construction and building materials at sites throughout the city.
MAQ:jmm
2
Attachments
cc: Mark Dalsing, Chief of Police
Mary Rose Corrigan, Public Health Specialist
Alvin Nash, Housing and Community Development Director
David Johnson, Interim Building Services Manager
Jeff Zasada, Building Inspector II
3
E-FILED 2018 JAN 03 9:37 AM DUBUQUE- CLERK OF DISTRICT COURT
IN THE IOWA DISTRICT COURT, IN AND FOR DUBUQUE COUNTY
CITY OF DUBUQUE,
Plaintiff, Case 013ll DUCICV10621�
v.
JUDGMENT
ALFRED KOPCZYK,
Defendant.
BE IT REMEMBERED that on the 18`�' day of December, 2017, this matter came before
the Cotirt for hearing on a Citation issued by tlle Plaintiff, City of Dubuque, on May 12, 2017,
file-stamped May 30, 2017, against the Defendant, Alfred Kopczyk, alleging violation of City of
Dubuque Code Section 6-4-3(S). The Plaintiff City of Dubuqtie, appeared by and through
Assistant City Attorney Mauceen Quann. The Defendant appeared personally and with counsel,
Mr. Stuart Hoover.
The matter was recorded. Trial lasted for approximately two hours. Offeeed into
evidence were Plaintiffs Exhibits 1 through 3 and Defendant's Exhibits A through N. Admitted
into evidence were Plaintiffs Exhibits 1 through 3 and Defendant's Exhibits A through N. Mr.
Jeff Zasada testified on behalf of the City. Mr. David Stuart and Mr. Alfred Kopczyk testified on I
behalf of the defense.
The Court, having reviewed the Court file, received evidence, and heard the arguments of
the parties, heceby makes the following Findings of Fact, Conclusions of Law and enters the
disposition herein.
FINDINGS OF FACT
1. The Citation herein was issued on May 12, 2017, and was filed on May 30, 2017,
against the Defendant, Alfred Kopczyk (hereinafter`'Defendant"), 1375 Locust Street, Dubuque,
Iowa 52001, alle�in� violation of City of Dubuque Code Section 6-4-3(S).
2. The Citation alle�es that the Defendant failed to comply with a Notice of
Violation sent April 27, 2017, regardin�the City of Dubuque's Public Nuisance Ordinance by
having stored building materials in the rear of the property with no plan or permit to use these
materials onsite.
3. Plaintiff is repcesented by and through Assistant City Attoi7ley Maureen Quann,
and the Defendant is represented by Stua►•t Hoover of Blair & Fitzsimmons, P.C.
,
E-FILED 2018 JAN 03 9:37 AM DUBUQUE - CLERK OF DISTRICT COURT
4. The Defendant's primaiy residence address is 4815 West Parkview Drive,
McCullom Lake, Illinois 60050. Defendant is the current o�vner of 1375 Locust Stc•eet,
Dubuque, Iowa 52001 (hereinafter'`Residence").
5. The individual having issued the Citation on behalfi of the City of Dubuque is
Building Inspectoc Jeff Zasada (heceinafter"Zasada''). Zasada has 12 yeacs of work expecience
with the City of Dubuqtie and is the individt�al who filed the Citation against the Residence
ho�vevec, the initial complainant to the City is unknown. The original complaint to the City by
the complainant was made on or about April 27, 2017.
6. Mr. David Stuart is a friend and business partner of Defendant. He is a consultant
on history preservation, a contractor in paving and masonry, as well a consulting engineer. He
owns the property across the street from the Defendant.
7. Following the initial complaint made on or about April 27, 2017, but prioc to the
issuance of the Citation, Zasada inspected the outside of the Residence, more specifically the
back parking lot, and observed a number of brick or block materials stacked on pallets. Some
stacks were covered in shrink-wrap and some were not. Some had pallets sitting on top of them
and some did not(see Exhibits G, H, and I). According to Zasada's testimony at the time of
trial, it appeared to him that the materials stored at the Residence did not look as if thece were to
be used for any ctu-rent or imminent project of the homeowner, and there appeared to be no plan
of action as to their upcoming usage. Further, to date, no permit had been issued to the
Defendant by the City for their usage.
8. A review of Exhibits G, H and I depict a series of stacked pavers in the back of
the Residence. As it pertains to EYhibit l, the blocks were taken fc•om a barn on Highway 20
leaving the Dubuque area. Defendant paid someone to chip off the mortar that was on the block.
Each block cost him approximately $2�.00 apiece. Defendant testified that their only reasonable
use would be for a construction project. The reason they were placed undec skids was to prevent
adolescents from the community fi�om tampering or removing them from the premises. �
9. Defendant testified that he had use for all of the materials. Defendant explained
the intended use of the bricks and fencing material shown in his exhibits. He detailed the
upcoming installation of a patio in the flat area located in EYhibit M. He also detailed f�irther
plans to use the pavecs for the back parkin� lot of the Residence—the area seen in Exhibits H
and I—so as to enclose the area and erect a fountain. His plan for the blocks in Exhibit I is to
use them for planter boxes. The Court finds these assertions by the Defendant to be credible.
10. However, due to unfoceseen circtimstances that required more immediate
attention at the Residence, financially, the projects to be undertaken for the use of the materials
behind the Residence had been put on hold. Because of more pressing matters surrounding the
upkeep and cemodel of the Residence, the materials have remained i�l the back parking lot.
1 1. Aside from financial delays, Defendant further testified that some of the intended
projects mentioned above �vere on hold until he has all the matecials to complete the project. At
E-FILED 2018 JAN 03 9:37 AM DUBUQUE - CLERK OF DISTRICT COURT
this time, he is simply storin� the materials onsite until such time the pcojects are ready to move
for�vard; some materially, some tinancially, and some for both.
l2. [t is undisputed that all of the materials have been stacked on the prope►-ty for a
little ovec a year, including the black fencing found in Exhibit G. In fact, the barn blocks in
Exhibit G have been there foc approximately t�vo yeai•s. The Defendant was clear in that he did
not have a timeline in which these tasks were to be completed; however, a review of City of
Dubuque Code Section 6-4-3(S) does not require the property owner to utilize the materials
stored on site within a specified period of time; simply that they be stored in a mannec to protect
their utility, prevent deterioration, and be reasonably expected to be used at the site stored.
13. In revie�ving the e�hibits, the Court notes that the blocks are palletized, organized,
stacked only so high and done so to avoid breakage or theft and are thus stored in such a manner
to protect their utility. Fucther, based upon the testimony of Mr. David Stuart, said materials ace
stored away from a salt spcay that of which appears to be the limited ma�uler i►1 which they
�voufd deteciorate and are thus, stoced in a manner to prevent deterioration. As the materials are
blocks and largely purposed for use outdoors furthec measures would seem cumulative and
unnecessary. The Court finds that the Defendant's cucrent method of maintenance and storage is
sufficient to satisfy these two pron�s of the three pronged exception listed in the Code.
li. Furthec, the Court finds that the construction materials at issue are not of a nature
where a reasonable person would be precluded from believing they could be used at the
Residence. In fact, given the historic nature of the Residence, it's extremely plausible that such
materials would be utilized for the purposes described above by the Defendant. Further, such
items could be used for the constc-uction of said projects—that which do not require a permit by
the City.
14. Although the Defendant does not have a timetable oc timeline in which said
projects are to be completed, the Court concludes that all requirements to the exception of a
nuisance in the City of Dubuque have been met, as the Code does not explicitly require a fi�ame
of time in which these bricks or materials are to be used on the property before they no longer
meet the eXception outlined by the Code. The requirement listed in the City's Citation that the
Defendant present a plan or permit to use such materials is not supported by the language of the
Code.
15. For the above stated reasons, the Co�irt finds that the State has failed to meet its
burden of proof.
CONCLUSIONS OF LAW
1. The Court has jurisdiction of the parties and subject matter involved herein.
2. The burden of proof is on the Plaintiff, and pursuant to Iowa Code Section
364.�2(6)(b) said burden is proof by clear, satisfactory and convincinb evidence.
E-FILED 2018 JAN 03 9:37 AM DUBUQUE - CLERK OF DISTRICT COURT
3. City of Dubuque Code Section 6-4-4(S) states that a public nuisance shall include
the �'outdoo►•sto►-age of construction and building materials, except those that ace stored in a
manner to protect their utility, prevent deterioration and are reasonably expected to be used at the
s ite".
4. The Court has exair►ined the credibility of the evidence and the �vitnesses hei�ein.
5. The Court must decide the facts from the evidence. The Court considers the
evidence using its obsecvations, common sense and experience. The Court will tiy to reconcile
any conflicts in the evidence, but if tlle Court cannot, tlle Court accepts the evidence it finds
more believable.
6. In determining the facts, the Court may have to decide what testimony to believe. ,
The Coui�t may believe all, part or none of any witness's testimony. In determining what
testimony to believe, the Court considers the reasonableness and consistency of the testimony
with other evidence and internally whether a witness has made inconsistent statements, as well as
the witness's appearance, conduct, intelligence, memory, knowled�e of the facts, interest in the
trial, motive and/oc bias and prejudice.
JUDGMENT
IT IS, THEREFORE, ORDEEZED that the matter herein against the Defendant,
Mr. Kopczyk, be DISI�IISSED.
Court costs are heceby assessed against the City.
The Clerk of Court shall furnish copies of this Order to counsel of record. -
E-FILED 2018 JAN 03 9:37 AM DUBUQUE- CLERK OF DISTRICT COURT
- �
'<\
, ,. ��{ ,
`�L''�:F.nM�`:.:j
�l�_H
�'*- �:
State of lowa Courts
Type: OTHER ORDER
Case Number Case Title
DUCICV 106215 DUBUQUE V KOPCZYK
So Ordered
C����rw+c���
� ���
Matthevi Boleyn,Magistrate
First)udicial District of lowa
Electronically signed on 2018-01-03 09:37:57 page 5 of 5
Prepared by: Maureen A. Quann, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 589-4381
ORDINANCE NO. 2-18
AMENDING CITY OF DUBUQUE CODE OF ORDINANCES TITLE 6 HEALTH,
HOUSING, SANITATION AND ENVIRONMENT, CHAPTER 4 NUISANCES, SECTION
6-4-3 PUBLIC NUISANCE DEFINED; PUBLIC NUISANCES ENUMERATED
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
DUBUQUE, IOWA:
Section 1. Section 6-4-3 of the City of Dubuque Code of Ordinances is amended
to read as follows:
6-4-3: PUBLIC NUISANCE DEFINED; PUBLIC NUISANCES ENUMERATED:
Whatever is injurious to the public health or safety or an obstruction to the free use of
property so as to interfere with the comfortable enjoyment of life or property by the public
shall be deemed a "public nuisance". A "public nuisance" shall include, but not be limited
to, the following:
S. Construction and Building Materials: Outdoor storage of construction and building
materials, except those that are stored in a manner to protect their utility, prevent
deterioration, and are used at the site within the timespan of an applicable building permit,
one hundred eighty days, or a time frame proposed by the property owner that has been
approved by the city.
Section 2. This Ordinance takes effect on publication.
Passed, approved, and adopted the 5th day of February 2018.
,O 4,1
Roy D. BuoIayor
Attest:
/Yr'
Kevin' Firnstahl, City Clerk
EFFECT OF AMENDMENT
6-4-3: PUBLIC NUISANCE DEFINED; PUBLIC NUISANCES ENUMERATED:
Whatever is injurious to the public health or safety or an obstruction to the free use of
property so as to interfere with the comfortable enjoyment of life or property by the
public shall be deemed a "public nuisance". A "public nuisance" shall include, but not be
limited to, the following:
S. Construction And Building Materials: Outdoor storage of construction and
building materials, except those that are stored in a manner to protect their utility,
prevent deterioration, and ��� ����^^�"'., ��^�^+�^' +^ "��re used at the site within the
timespan of an applicable buildinq permit, one hundred eiqhtv days, or a time frame
proposed by the property owner that has been approved by the city.
STATE OF IOWA
DUBUQUE COUNTY
{SS:
CERTIFICATION OF PUBLICATION
I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper
on the following dates: February 09, 2018, and for which the charge is $17.62.
Subscribed to before me, a Notary Public in and for Dubuque County, Iowa,
this APO day of -cam , 20 .
OFFICIAL
PUBLICATION
ORDINANCE NO. 2-18
AMENDING CITY OF
DUBUQUE CODE OF .I
ORDINANCES TITLE 6
HEALTH, HOUSING, -!
SANITATION AND EN
VIRONMENT, CHAP-
TER 4= NUISANC
SECTION '64-3, PUB-
LIC NUISANCE °DE-
FINED; PUBLIC NUI-
SANCES NUMER-
ATED
NOW, THEREFORE,
BE IT ORDAINED BY
THE,...CITY. COUNCIL
OF THE CITY OF
DUBUQUE, IOWA
Section 1.,Section 6-4 .
3 ,' of the City
Dubuque ":Code of
Ordinances is amended
to read as follows:
PUBLIC NUI-
SANCE DEFINED; PUB-
LIC NUISANCES. ENU
MERATEDtevz
Whaeriis injurious
to the public health or
safety or,an obstruc-
tion too the; free' use of
property so asto
interferer; with the
comfortable;. enjoyment,
of: life or, property by
the public shall - be
deemed a "public nui-
sance". A"public nui--
sance ''shall include,
but not be limited to,
the following:
'S. Construction and
Building Materials: Out
door storage of con-
struction and building
materials, except those
that are stored in a
manner to protect their
utility, prevent deter-
ioration, and are used
at the site within the
Notary Public in and for Dubuque County, Iowa.
timespan of 'an ap-
plicable building per
mit, one " hundred
eighty days, or a time
frame Proposed by the
property owner that
has been appro(ed 'by.l
the city.
Section 2, This
Ordinance,.takes effect
on publication.`
Passed, approved,
and adopted ;the 5th
day,of Februai 2018.
/s/Roy D. Buol, Mayor
Attest: /s/Kevin S.
Firnstahl City Clerk.
PUbhshed officially in
the Telegraph Herald
newspaper on the 9th
day of February 2018.
/s/Kevin S. Firnstahl,
it/2/9` City Clerk
EY l WESTERMEYEER
a+
I`�; fp
�u1,C 15 tF.
nh�
Myd:ou;l,��+, ;ion 1 _ t>:n. Feb r.0