Declaring Public Nuisances ProcedureBarry A. Lindahl, Esq.
City Attorney
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
balesgQcityofdubuque.org
Mayor Roy D. Buol and
Members of the City Council
City Hall -City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
June 7, 2007
RE: Procedure For Declaring Public Nuisances
Dear Mayor and Council Members:
THE CITY OF
DuB E
City of Dubuque Code of Ordinances Chapter 23 Nuisances, allows the City Manager to
make a determination of a nuisance. However, the Iowa Supreme Court has held in a
recent Iowa City case that the determination of a nuisance must be made by the City
Council in aquasi-judicial evidentiary proceeding with notice and an opportunity for an
evidentiary hearing for the property owner who is the subject of the nuisance
determination.
The purpose of this proposed amendment to Chapter 23 is to conform the language of
the ordinance to the requirement of a notice and an opportunity to be heard.
The procedure for the evidentiary hearing is provided in §§ 1-30 through 1-35 in the City
of Dubuque Code of Ordinances. A copy of those sections is also enclosed for your
information.
Very~incerely, ~
BAL:tIs
Enclosure
rry A. Lindahl, Esq.
y Attorney
cc: Michael C. Van Milligen, City Manager
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Service People Integrity Responsibility Innovation Teamwork
,•
Prepared by: Barry A. Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113
ORDINANCE NO. 36 -07
AMENDING CITY OF DUBUQUE CODE OF ORDINANCES CHAPTER 23
NUISANCE, SECTION 23-43 RELATING TO THE PROCEDURE FOR THE
DECLARATION OF A PUBLIC NUISANCE
Section 1. City of Dubuque Code of Ordinances § 23-43 is amended to
read as follows:
Sec. 23-43. Public Nuisances Prohibited; Authority To Abate:
(a) The creation, maintenance, or continuation of a public
nuisance is hereby declared unlawful and is prohibited.
(b) Upon application of the City Manager for a declaration of a
nuisance, the City Council, after notice to the property owner of the
grounds therefore, shall hold a hearing on the application as
provided in § 1-30, et seq. of this Code. Upon declaration of a
nuisance, the City Council may direct the City Manager to abate or
cause to be abated public nuisances in any manner authorized by
law, including, but not limited to, Chapter 1, Article II of this Code.
Section 2. This Ordinance shall take effect on publication.
Passed, approved and adopted thelsth day of June , 2007.
Attes~
~~
eanne F. Schneider, City Clerk
Roy D. I~((ol, Mayor
Effect of Amendment
Sec. 23-43. Public Nuisances Prohibited; Authority To Abate:
(a) The creation, maintenance, or continuation of a public nuisance is hereby
declared unlawful and is prohibited.
(b) Upon application of the City Manager for a declaration of a nuisance, the
City Council, after notice to the property owner of the grounds therefore, shall
hold a hearing on the application as provided in ~ 1-30, et seq. of this Code.
Upon declaration of a nuisance, the City Council may direct tThe City Manager +s
~~ ~+h~ri~or) to abate or cause to be abated public nuisances in any manner
authorized by law, including, but not limited to, Chapter 1, Article II of this Code.
ARTICLE IV. PROCEDURE FOR THE CONDUCT OF EVIDENTIARY HEARINGS
BY THE CITY COUNCIL
Sec. 1-30. Purpose and intent.
(a) It is the purpose of this article to establish an orderly, efficient and expeditious
process for evidentiary hearings before the city council.
(b) The provisions of this article shall apply to a proceeding required by constitution,
statute or ordinance to be determined by the city council after an opportunity for an
evidentiary hearing. (Code 1976, § 1-30)
Sec. 1-31. General.
(a) A record of the entire proceedings shall be made by tape recording or by any
other means of permanent recording determined to be appropriate by the city council.
(b) Reporting. The proceedings at the hearing may also be reported by a court
reporter at the expense of any party.
(c) Continuances. The city council may grant continuances for good cause shown.
(d) Oaths, certification. The city council or any member thereof has the power to
administer oaths and affirmations.
(e) Reasonable dispatch. The city council and its representatives shall proceed with
reasonable dispatch to conclude any matter before it. Due regard shall be shown for the
convenience and necessity of any parties or their representatives. (Code 1976, § 1-31)
Sec. 1-32. Form of notice of hearing.
The notice to parties shall be substantially in the following form, but may include other
information:
"You are hereby notified that an evidentiary hearing will be held before the Dubuque
City Council at on the day of 19, at the hour ,upon the notice and
order served upon you. You may be present at the hearing. You may be, but need not be,
represented by counsel. You may present any relevant evidence and will be given full
opportunity to cross-examine all witnesses testifying against you. You may request the
issuance of subpoenas to compel the attendance of witnesses and the production of books,
documents or other things by filing an affidavit therefor with the city clerk." (Code 1976,
§ 1-32)
Sec. 1-33. Subpoenas.
Filing of affidavit. The city council may issue a subpoena for the attendance of witnesses
or the production of other evidence at a hearing upon the request of a member of the city
council or upon the written demand of any party. The issuance and service of such
subpoena shall be obtained upon the filing of an affidavit therefor which states the name
and address of the proposed witness; specifies the exact things sought to be produced and
the materiality thereof in detail to the issues involved; and states that the witness has the
desired things in the witness' possession or under the witness' control. A subpoena need
not be issued when the affidavit is defective in any particular. (Code 1976, § 1-33)
Sec. 1-34. Conduct of hearing.
(a) Rules. Hearings need not be conducted according to the technical rules relating to
evidence and witnesses.
(b) Oral evidence. Oral evidence shall be taken only on oath or affirmation.
(c) Hearsay evidence. Hearsay evidence may be used for the purpose of
supplementing or explaining any direct evidence, but shall not be sufficient in itself to
support a finding unless it would be admissible over objection in civil actions in courts of
competent jurisdiction in this state.
(d) Admissibility of evidence. Any relevant evidence shall be admitted if it is the type
of evidence on which responsible persons are accustomed to rely in the conduct of
serious affairs, regardless of the existence of any common law or statutory rule which
might make improper the admission of such evidence over objection in civil actions in
courts of competent jurisdiction in this state.
(e) Exclusion of evidence. Irrelevant and unduly repetitious evidence shall be
excluded.
(fj Rights of parties. Each party shall have these rights, among others:
(1) To call and examine witnesses on any matter relevant to the issues of the hearing;
(2) To introduce documentary and physical evidence;
(3) To cross-examine opposing witnesses on any matter relevant to the issues of the
hearing;
(4) To impeach any witness regardless of which party first called the witness to testify;
(5) To rebut the evidence against the party; and
(6) To self-representation or to be represented by anyone of the party's choice who is
lawfully permitted to do so.
(g) Official notice.
(1) What may be noticed. In reaching a decision, official notice may be taken, either
before or after submission of the case for decision, of any fact which may be judicially
noticed by the courts of this state or of official records of the city or its departments and
ordinances of the city.
(2) Parties to be notified. Parties present at the hearing shall be informed of the matters to
be noticed, and these matters shall be noted in the record, referred to therein, or appended
thereto.
(3) Opportunity to refute. Parties present at the hearing shall be given a reasonable
opportunity, on request, to refute the officially noticed matters by evidence or by written
or oral presentation of authority, the manner of such refutation to be determined by the
city council.
(h) Inspection of the premises. The city council may inspect any building or premises
involved in the appeal during the course of the hearing, provided that:
(1) Notice of such inspection shall be given to the parties before the inspection is made;
(2) The parties are given an opportunity to be present during the inspection; and
(3) The city council shall state for the record, upon completion of the inspection, the
material facts observed and the conclusions drawn therefrom. Each party then shall have
a right to rebut or explain the matters so stated by the city council. (Code 1976, § 1-34)
Sec. 1-35. Method and form of decision.
(a) Hearings before the city council where a contested case is heard before the city
council, no member thereof who did not hear the evidence of has not read the entire
record of the proceedings shall vote on or take part in the decision. The city council may
designate a member or members to preside over the receipt of evidence. Such member or
members shall prepare findings of fact for the city council.
(b) Form of decision. The decision shall be in writing and shall contain findings of
fact, a determination of the issues presented, and the requirements to be complied with. A
copy of the decision shall be delivered to the parties personally or sent to them by
certified mail, postage prepaid, return receipt requested.
(c) Effective date of decision. The effective date of the decision shall be stated
therein. (Code 1976, § 1-35)