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City vs Thompsona �Y SAM SON LAw OFFICE, P.C. M A Limited Liability Organization 1650 WASHINGTON ST. P.O. BOX 627 BLAIR, NEBRASKA 68008 JOHN E. SAMSON ATTORNEY AT LAW August 11, 2003 The Honorable Darvid D. Quist Washington County District Court 1555 Colfax St. Blair, NE 68008 Re: City of Blair vs. Thompson Dear Judge Quist: TELEPHONE 402 -426 -3600 FACSIMILE 4,02- 426 -4848 E -MAIL SamsonL._11iilunTe1.net This correspondence is submitted as a response to the Defense Memorandum Brief. This Response Brief will comment in the order of the arguments made in the Defendants' "Defense Memorandum Brief'. With that said, I have the following comments, to -wit: THE ZONING CASE. (a) Neb. Rev. Stat. 16 -901. The Nebraska Legislature has given cities of the first class the power to pass zoning ordinances to the unincorporated areas two miles beyond and adjacent to its corporate limits. The City of Blair adopted Zoning Regulations on December 8, 1981 and revised those Zoning Regulations (no change as to salvage yard definitions, etc.) in May, 1997. The Defendants cite in their Brief the case of State of Nebraska vs. Champoux 252 Neb. 769 (1997). In the Champoux case, an individual was cited, convicted and fined $25.00 for violating the Lincoln, Nebraska, Municipal Zoning Code by renting a residence located in an area zoned for single family and two - family dwellings to more than three unrelated people. Mr. Champoux argued that the zoning ordinance was unconstitutional, deprived him of the use of his property and that the zoning ordinance was arbitrary and capricious. The Supreme Court upheld the conviction and fine and in doing so stated that a legislative body (such as a city) in drafting its zoning regulations has the authority to define certain uses and establish certain lines in performing its police powers under the zoning regulations; however, " .. . every line drawn by a legislator leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial function ". (Id at Page 774). Moreover, in the concurring opinion by Justice Gerard, he states that as part of the overall zoning power afforded to cities, that cities have " ... the authority to designate an area as a residential neighborhood, it necessarily follows that a city has the authority to regulate living conditions it finds inimical to its concept of a residential neighborhood. Limiting the use of residences within such district to single family and two - family dwellings is clearly a living condition which the city may regulate to effect its concept of residential neighborhood ". (Id at Page 780) To analogize to our present case, the City of Blair has identified the area of two miles surrounding the City of Blair to the west and north primarily as future residential use and has tried to limit use accordingly (testimony of Rodney Storm). Therefore, the restriction on salvage yards, although discretionary, is a legitimate government interest identified by the City and as such is consistent with the zoning regulations authorized under Neb. Rev. Stat. 16 -901. To allow unfettered use of the area within two miles of the City of Blair would fly in the fact of future development as identified by the Planning Commission and City Council for the City of Blair, Nebraska. (b) Section 103 of the Zoning Ordinance Section 103 of the Blair City Zoning Ordinance establishes the purposes and objectives of the Zoning Regulations for the City of Blair. Clearly, future land use (such as potential residential use surrounding the Defendants' property) is within the stated purposes and objectives of the Zoning Ordinances for the City of Blair and authorized under Neb. Rev. Stat. 16 -901, et seq. (c) Section 501 - General Agricultural District A review of Section 501 demonstrates that the use of the property by Defendants does not meet any of the permitted principal uses under Section 501.02. The Defendants attempt to argue that the use of the property as a "impoundment lot" would be included under the "public service structure" under 501.02(5). If the City attempted to "shoehorn" the Defendants' use under this definition, any private citizen with legal standing would certainly have such action overturned due to arbitrary, capricious and unreasonable application of our Zoning Regulations. Therefore, this Defendants' argument carries no weight. (d) Section 501.04 - Conditional Uses A review of the Conditional Uses under this section clearly show that the only use even remotely close to the Defendants' usage of the property is a "salvage yard ". The City under its discretionary legislative authority and police power has seen fit to limit the uses in the agricultural district. The definition of "salvage yard" is found in Section 303(119). Assuming, arguendo, that the Defendants no longer dismantle or wreck vehicles, or sell parts, there is still a violation under the Zoning Code which the Defendants totally ignore in their Brief, to -wit: 2 "(119) SALVAGE YARD: Any lot or the use of any portion of a lot, for the ... storage ... of machinery, and including motor vehicles or the storage .. of parts and equipment resulting from such dismantling or wrecking, or for the storage or keeping of junk including scrap metals and other- scrap materials, with no burning permitted" (emphasis added)., The Defendants call their activity an "impoundment lot" but the Defendants' designation of the activity does not preclude it from being included within the definition of a "salvage yard ". There is no question that the definition of salvage yard encompasses the "impoundment lot" activities described by the Defendants. Not only does this zoning provision cover the abandoned vehicles regularly towed to and stored upon Defendants' proper . but it also includes the storage of the 18 motor vehicles referred to in the Defendants' testimony and shown on Exhibits 10 and 11. The Defendants state that no injunctive relief is available under the Plaintiff's Amended Petition because the City has failed to show any irreparable injury. The violation of the Zoning Regulations of the City of Blair in regard to its future plans of development within the two mile of area is irreparable injury to the general welfare of the City of Blair and its citizens. Moreover, to allow salvage yards such as that carried on by the Defendants would allow for rodent infestation, wood control, etc. This impact would certainly affect surrounding properties which are developed into residential real estate in the future. Moreover, when one reviews the purposes and objectives of the Zoning Ordinances (Section 103) clearly the use by Defendants of their property is inconsistent with many of the stated purposes and objectives. The fact the Defendants state they are providing a community service is irrelevant to the case at bar. Several towing companies are available to carry on such functions and the Defendants can continue if they find a different storage lot. The fact that the City of Blair entered into a towing agreement with the Defendants is also irrelevant. There is no designation in the agreement of the location of their proposed storage lot and the Defendants would be entitled to tow their impounded cars to any facility which is lawful under the Zoning Regulations of the City of Blair and Washington County, Nebraska. 2. DUE PROCESS ASPECTS. The Defendants state that the present case is "highly unusual" and that their due process has been violated. It appears from the Defendants' Memorandum Brief, that the "due process" of which they speak is Procedural Due Process and not Substantiative Due Process. Obviously, Substantiative Due Process was not raised in their answer and is not preserved as an objection. As this Court is aware, if the Defendants are alleging the ordinance is unconstitutional, Neb. Rev. Stat. 25- 21.159 requires notice of the same and service of notice on the Attorney General. In regard to Procedural Due Process, it appears as though the Defendants break their argument down into two categories, namely: (a) Blair City Clerk had the authority to deny their conditional use application; and, (b) That "two City Council persons stated that they would not vote for the permit ". In regard to these two arguments, I have the following comments. (a) Blair City Clerk "Denial" of Special Use Permit The Defendants state in their Memorandum Brief that "In the presence of her boss" the Blair City Clerk told Carroll Thompson that he need not bother apply for a Conditional Use Permit as it would not be granted. This is Carroll Thompson's recollection of what occurred on November 20` in his driveway. The Court also heard the testimony of Brenda Taylor and Rod Storm and both of them indicated that Rod Storm did the talking and that Carroll Thompson told them that his wife was in town at that time applying for a Conditional Use Permit extension. Assuming, arguendo, that the Defendants' version is correct, the Defendants are hanging their hat on the fact that the Blair City Clerk has the legal authority to deny their Conditional Use Application. They make this assumption in spite of the fact that they had previously made three applications for Conditional Use Permits ( (1) June 22, 1999 - denied by Blair Planning Commission and denied by Blair City Council; (2) September 15, 1999 - initially denied by Blair Planning Commission and ultimately approved for one year by Blair City Council; (3) October 24, 2000 - application for renewal of Conditional Use Permit approved by Blair Planning Commission and approved by Blair City Council for one year). Section 1404 of the Zoning Regulations of the City of Blair set forth the provisions for a public hearing consideration and procedure for any Conditional Use Permit request. Article 14 - Conditional Uses Permitted by Special Review sets forth the procedure necessary for approval of Conditional Use Permits. Nowhere in the procedure is the office of the City Clerk mentioned (and furthermore no mention is made of the office of the City Administrator who is the boss of the City Clerk). The Defendants had been through the process on three occasions prior to November 20, 2001 and unilaterally decided not to continue with the process. The Defendants cite no cases supporting their theory that their Procedural Due Process was violated by their version of comments made by the Blair City Clerk. They unilaterally decided not to pursue this administrative remedy. M (b) Two City Council Members State They Would Not Vote for the Permit Exhibit 8 contains certified copies of all of the Conditional Use Permits filed by the Defendants, the Minutes of the Planning Commission Meetings, the Minutes of the City Council Meetings, and the courtesy renewal letter sent by the Blair City Clerk. It is true that two City Council Members (namely Council Member Abbot and Council Member Realph) both stated that "If the conditions presented by the" Planning Commission were not met by the next year ", neither of them would vote for any further extension of the Conditional Use Permit for the salvage yard. However, to get a full understanding of the admonition given by the two Council Members, one must review not only the November 14, 2000 Minutes but also the November 7, 2000 Planning Commission Minutes, the November 2, 1999 Planning Commission Minutes and the November 9, 1999 City Council Minutes along with the application filed by the Defendants. It should be understood that in 1999 and again in 2000, Fred Bloemer, adjacent property owner, objected vehemently to the Conditional Use Permit and the one year extension of the Conditional Use Permit. At the November, 2000 Planning Commission Meeting, Mr. Tom Cady, County Board Supervisor for Washington County, testified that he was notified of the meeting, that he was against the usage and urged that if there was to be a Conditional Use Permit extension, that it be for a shorter time frame (than the 15 years requested by the Defendants). At the November 14, 2000 meeting, the Blair City Council was aware of the promises made, in writing or verbally, by Defendants (See Defendants' Applications and attachments), in 1999 by Thompsons, and were also made aware of the issues presented at the November 7, 2000 Planning Commission. The Minutes indicate that numerous photographs were received by the Planning Commission and City Council. The Defendants made several promises in 1999 (including planting of 300 trees, promise to install an 8' fence so as to screen the view of the vehicles, agreed to construct a fully - enclosed pole building and that they would remove the accumulation of junk at the northwest corner of the property which they said was "accumulated personally over a 20 year period" and is not related to the vehicles stored by E. T. Towing). It was based on all of this information, including review of photographs of the property, that the two City Council Members admonished the Defendants that any future non - compliance would result in a vote of "No" by either of these Council Members. The admonition by these two City Council Members is analogous to admonitions given by sentencing judges to Defendants when they are placed on probation - if they do not comply with the terms of probation, they will be looking at jail time. This is not a violation of Procedural Due Process but in fact is emphasizing the issues that need to be addressed by the Defendants in order to continue with their impoundment lot. Exhibit 9 (Photographs) bears out the reason the Defendants did not apply for an extension of the Conditional Use Permit which they had held for two years - they had not lived up to their promises nor the conditions established by the Blair City - Council and the Blair City Planning Commission. However, had they gone through the administrative process to seek an extension of the Conditional Use Permit, they would have had every opportunity to explain any hardships or reasons why they had not complied with their promises and the conditions of the Conditional Use Permit. After a public hearing on the renewal request, had the decision of the City Council been arbitrary, capricious and unreasonable, the Defendants would have had the option to seek further review of the District Court of Washington County, Nebraska, by virtue of a Petition In Error. In addition to the request for a Conditional Use Permit, the Defendants could have proceeded upon Section 1601. The applicants could, at any time, have applied to the Planning Commission and City Council for an amendment to the Zoning Regulations. They chose not to. 3. THE NUISANCE CASE. (a) The Defendants cite that the Botsch v. Leigh Land Co. (195 Neb. 509; 205 Neb. 401; and 210 Neb. 290 - three appearances over the same set of facts to the Supreme Court) as saying that a Court of Equity will not usually enjoin the operation of a lawful business. In the Botsch case, the Supreme Court upheld an injunction stopping a feedlot due to the nuisance it was causing to adjacent land owners. This was the matter of a nuisance brought by private citizens and not that of a political subdivision. The Supreme Court affirmed the District Court in shutting down the feedlot until such time as the nuisance was abated. In Flansburgh v. Coffey 220 Neb. 381 (1985), the Defendants cite the proposition of law that "To justify abatement of claimed nuisance, annoyance must be such as to cause actual physical discomfort to one of ordinary sensibilities ". Again, this was an action brought by private citizens against the hog confinement case. The rule of law cited by the Defendants is inapplicable to the case at bar and is taken out of context. The Legislature of Nebraska, by virtue of Neb. Rev. Stat. 18 -1720, gives all cities and villages of this State the power and authority by ordinance to define, regulate and suppress and prevent nuisances and to declare what shall constitute a nuisance ... "every city and village is authorized to exercise such power and authority within its zoning jurisdiction." In Village of Brady vs. Melcher 243 Neb. 728 (1998), the Supreme Court upheld a nuisance ordinance similar to the City of Blair's ordinance. n a 3 All of the cases cited by the Defendants are distinguished from the case at bar because they are private lawsuits (most of which injunctions were granted) against hog confinements or other similar nuisance type operations. 4. CONCLUSION. It is again respectfully submitted by the City of Blair that an Order be entered by the District Court enjoining and ordering the Defendants to remove all of the following items from the Defendants' real estate within a reasonable period of time (hopefully not to exceed 30 days): All motor vehicles which are not owned by the Defendants and stored on the property, whether they are in operable condition or not; 2. That all of the motor vehicles owned by the Defendants (see Exhibits 10 and 11) and stored on the property which are not in operable condition, should be removed from the property; Any other vehicles owned by the Defendants since date of trial which are not in operable condition should be removed from the property; and, 4. The Defendants should be prohibited from using any lot or any portion of lot for the dismantling, storage or wrecking of machinery, farm machinery and including motor vehicles or for the storage or keeping for sale of parts and equipment resulting from such dismantling or wrecking, or for the storage or keeping of junk, including scrap metals or other scrap metals, with no burning permitted. Respectfully submitted. JOHN E. SAMSON JES /km cc: Jeffrey W. McKain P.S. Attached to this Response Brief is a revised chronological summary of events (The chronological summary included in the July 3, 2003 Memorandum Brief is incorrect as to a couple of dates - the attached list is taken from the information contained in Exhibit No. 8 and the other Exhibits received into evidence.) VA CHRONOLOGICAL SUMMARY OF EVENTS Description Date Blair adopts Nuisance Ordinance March 9, 1976 Blair adopts Zoning Regulations December 8, 1981 Carroll Thompson purchases subject real estate March 29, 1985 Defendants apply to the City of Blair for subdivision of their land; subdivision of request is approved by City of Blair creating Lots 1, 2, 3 and 4 of Southcreek 1991 Estates Subdivision City of Blair adopts new Comprehensive Zoning Plan Ordinance September 10, 1996 City of Blair adopts revised Zoning Ordinance (no change to definition of salvage yard, etc.) May, 1997 Defendants purchase E. T. Thompson Towing business 1998 City sends notice to Defendants that it requests the opportunity to inspect their property to see if here is compliance with land use regulations (Exhibit 14) May 10, 1999 City sends letter to Thompsons saying they are zoned RRE and are not eligible to carry on salvage yard/impound lot (Exhibit 7 and Exhibit 15) May 12, 1999 Defendants apply for Conditional Use Permit (Exhibit 8) June 22, 1999 City Council denies Defendants' first request for Conditional Use Permit July, 1999 Defendants make second application for conditional use permit (Exhibit 8) September 15, 1999 Description Date City Council approves Defendants' second request for Conditional Use Permit with exceptions (Exhibit 8) November 9, 1999 City sends courtesy letter reminding Defendants of application deadline for renewal of conditional use permit (Exhibit 8) October 3, 2000 Defendants apply for one year renewal of Conditional Use Permit October 24, 2000 City Council approves extension of Conditional Use Permit with stipulations (two council members advised Defendants that if they have not complied with the promises from the previous year and the ones made at the council meeting, that those council members will not vote in favor of a renewal of the Conditional Use Permit) (Exhibit 8). November-14,2000 City sends courtesy letter to Defendants notifying them of the deadline for application for renewal of the Conditional Use Permit (Exhibit 8) October 24, 2001 Rod Storm and Brenda Taylor drive to Defendants' residence and speak with Carroll Thompson. City's witnesses testify that Rod Storm advised Carroll Thompson that this was the last day for applying for a Conditional Use Permit and that Carroll Thompson stated that "his wife was in town applying for the permit at this time ". November 20, 2001 Defendants do not apply for Conditional Use Permit N/A City of Blair files lawsuit against the Defendants for injunctive relief. December 31, 2001 l IN THE DISTRICT COURT OF WASHINGTON COUNTY, NEBRASKA CITY OF BLAIR, NEBRASKA, ) Plaintiff, ) V. ) CARROLL P. THOMPSON and ) TRACY E. THOMPSON, ) Defendants. ) Case Number CI- 01 -298 DEFENSE MEMORANDUM BRIEF COME NOW the Defendants to submit to the Court the following Memorandum Brief in defense of their interests under attack by the Plaintiff City herein: THE ZONING CASE Defendants contend that their Impound Lot operation does not now currently fit the Plaintiff's definition of a Salvage Yard, that the operation injures no person, that the operation is a necessary and valuable activity taking place at a reasonable location, and that the Plaintiff knew well the location of the Defendants' Im -pound Lot when contracting with the Defendants for Impound Services. Defendants also contend they have been denied Due Process of Law by the Plaintiff, that the Plaintiff has pre- judged the zoning case against the Defendants, announced such pre - judging, and have thus eliminated any meaningful opportunity for the Defendants to be heard in this matter. The Plaintiff's open abandonment of neutrality before hearing is a clear denial of Defendants' Due Process Rights. Defendants further contend that Plaintiff's abandonment of neutrality in this matter reasonably eliminates the Plaintiff's power and auth- 1 ority to Constitutionally deal with matters concerning Defendants' property in the future, and that these matters should be now and hereafter decided by the Court. Considering first the Blair Zoning Ordinance, and especially Section (119) of the definitions which defines a "Salvage Yard ": "(119) SALVAGE YARD: Any lot, or the use of any portion of a lot, for the dismantling, storage or wrecking of mach- inery, and including motor vehicles or for the storage or keeping for sale of parts and equipment resulting from such dismantling or wrecking, or for the storage or keeping of junk including scrap metals or other scrap_ materials, with no burning permitted." Although the Defendants have made minor and incidental use of their property to dismantle or "wreck" motor vehicles in the past, and have sold a few parts as a result of such dismantling in the past, they have testified that the proceeds of such activity have resulted in only 1% of their income. Defendants will willingly give up the right to dismantle or "wreck" vehicles in the future, and are ready to deal with only "whole cars" on the subject property. Full com- pliance to avoid the "salvage yard" label is easy for the Defendants on this point. Defendants do not offer their property for the storage of veh- icles to the public or to individuals. Defendants perform the valuable and necessary function of impounding motor vehicles, usually at the direction or under the direct authority of a governmental entity. This activity is not reasonably covered under the "Salvage Yard" definition. The Defendants' activity could just as reasonably be 2 defined as a "Public Service Structure" under Section 501.02 (5), if we had to shoehorn their use under some section of the Blair Zoning Ordinance. As an essential element of its case on the zoning issue, the Plaintiff alleges in Section 20 of its Amended Petition that the Defendants' activities "will work an irrenairable injury to the health, safety, morals, or general welfare of the City of Blair, Nebraska, and its citizens ". The Defense considers this fantasy, utter nonsense, and certainly an assertion that was never borne out by the testimony or evidence at trial. We are not hurting anyone. We provide a community service. The only resident neighbor to testify had no problem with the Defend- ants' operation. The new, non - resident neighbor to the south of the subject property, Mr. Rohwer, has not seen his property depreciate one cent as a result of Defendants' operation since his date of pur- chase. The testimony of Deputy Ben Scherer underlines the obviously important role Defendants' operation plays in the community. In our age of the automobile, operations such as the Defendants' are necess- ary and good. The particular location of the Thompson's operation is bucolic, beautiful, nearly ideal, and nearly 2 miles outside the City of Blair. The Plaintiff would be hard nressed to ask for a nicer Impound Lot situation. But, of course, we believe they have another, hidden agenda. To suggest that when the Plaintiff contracted with the Defendants for Impound Services that the Plaintiff did not fully contemplate and fully anticipate where the vehicles would be impounded, and approve of such placement wholeheartedly is not a reasonable position under these circumstances. From past satisfactory performance on the part of the Defendants at the present and only location, everyone had a crystal clear idea of where the vehicles would be impounded under the contract. Basic Principles of Equity should preclude Plaintiff's victory on the zoning issue on this point alone, but the Defense has more. DUE PROCESS ASPECTS The Supreme Court of the United States has traditionally placed enormous weight on the neutrality of due process hearings. In this area, indeed, the Court's approach to due process has tended to stress its intrinsic aspects almost as much as its instrumental aspects, focusing on the "moral authority" of the law as well as on the acc- uracy of its application. Thus, "the right to an impartial decision- 1 maker is required by due process" in every case. And since "the 2 appearance of evenhanded justice—is at the core of due process, the Court may disqualify even decision- makers who in fact "have no actual bias" if they might reasonably appear to be biased. fie Arnett v Kennedy, 416 US 134, 197 (1974) 1L Mayberry v Pennsylvania, 400 US 455, 469 (1971) See, eg.,VMorrissey v. Brewer, 408 US 471, 485 -86 (1972) VGoldberg v. Kelly, 397 US 254, 271 (1970) (Borrowed freely from American Constitutional Law 2d, Section 10 -16 (the most current edition now available for this Section) by Laurence H. Tribe 4 1 3 In a April 3, 1975 address given at the University of Pennsyl- vania Law School entitled "Some Kind of Hearing ", Judge Henry J. Friendly first cited Mr. Justice White in Wolff v.�McDonald 418 US 539, 557 -58 (1974) "The Court has consistently held that some kind of hearing is required at some time before a person is finally deprived of his property interests ". Judge Friendly continued his lecture to make a list, in order of importance, of factors to be considered to be elements of a fair hearing. Number one on the list is an Unbiased Tribunal. The lecture is collected at 123 U.Pa. L. Rev. 1267 (1975) . The Supreme Court has further held that both "the appearance and the reality of fairness" were involved in preserving the feeling that "no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the J dar 1b CZ+01-1 Y-) "�, � Code � arbiter is not predisposed against him." 0446 US at 2423(citing)Joint Joint Anti- Fascist Committee V. McGrath, 1/341 US 123, 172 (1951) (Frankfurter,J. , concuring.) . See also 'Aetna Life Ins. Co. v. Lavoie, 106 S. Ct. 1580, 1587 (1986) ( "to perform its high function in the best way,'justice must satisfy the appearance of justice 'll) (ci.tina In re Murchison, J 349 US 133, 136 (1955)) . Our instant case is highly unusual. When we consider Kirp, "Proceduralism and Beaucracy: Due Process in the School Setting," 28 Stanford L. Rev. 841, 863 (1976): "a challenge to a decision based on impressions of the decisionmaker's unreceptiveness is hard to r, forsee; all that Due Process formally demands is a particular structuring of the outward forms of decisionmaking. It readily permits the routinization of the new, enabling the administrator to proceed comfortably 'by the book' without actually altering'the Gu substance of his actions." y What Karp could not foresee was a case, like ours, where the City Clerk, the Defendants' sole conduit of information from the Plaintiff, in the presence of her boss, tells the Defendant Carroll Thompson words to the effect that he need not bother applying for a conditional use permit, as it would not be qranted. Carroll 4 Thompson has sworn and the Defense strenuously maintains that Mr. Thompson was told words to this effect by the Plaintiff's Clerk. Further, the City Clerk testified she was told by two Council- persons that they "would not vote to permit" the Defendants' oper- ation. This constitutes pre - judgment without hearing and effectively nullifies the Defendants' opportunity to be heard. Further, Mr. Rohwer tells us in his testimony that "he was under the belief" that "it was passed ", and, in reasonable effect, his problems with regard to the Defendants had been taken care of. This odious and loathsome combination of ingredients takes us well over any threshhold established in Morrissey v. Brewer (id.) where the Court may disqualify even decision - makers who in fact "have no actual bias" if they might reasonably appear to be biased. These decision - makers announced their bias, nullified Defendants' N real -life opportunity to be heard, violated our due process rights with their pre - judgments, and should be disqualified from further "decision - making "'in the matter of there Defendants. As Plaintiff points out in its Memorandum Brief, we knew the procedure. Yes, we knew it was biased. The City Clerk, in front of her boss, told us so about a month before this lawsuit was filed. It was the Plaintiff , who moved the battle to the level of the District Court. If Defendants were a little gun -shy after their discussion with the City Clerk, you really cannot blame them. The Plaintiff says it hardly seems feasible that we would choose not to attempt to have our conditional use permit renewed a third time. We say that after what we were told by the City Clerk, our choice was quite understandable and reasonable. Although it is costly and it is tough to fight City Hall, the Defend- ants were actually relieved when the Plaintiff brought this matter before a true neutral decision maker. And to underscore the reason- ableness of Defendants' belief in what they were told by the City Clerk, we heard further evidence of pre - judgment by Plaintiff's own witnesses the City Clerk and Mr. Rohwer. Some attention is given in the case. law as to whether these decision makers in the zoning cases are exercising a judicial or a legislative function. Defense contends that it is reasonable to see a judicial function when the decision makers are dealing with indiv- iduals and their property rights, and a legislative function when dealing with lawmaking effecting larger groups or the citizenry as 7 \ a whole. Under Nebraska law, it is clear that these are judicial activities. See Moulton v. Board of Zoning Appeals for the City of Lincoln, Nebraska,V251 Neb. 95, 555 NW2d 39 (Neb 1996): "Zoning board of appeals is vested with discretion to dispose of matters within its province, but its acts are judicial in nature and are subject to review and reversal when they constitute abuse of discretion and are arbitrary." Defendants herein challenge the Blair Zoning Ordinance on the grounds of procedural due process in the Plaintiff's attempt to apply the Ordinance to Defendants.' In State v. Champoux, V252 Neb 769, 566 NW2d 763 (Neb 1997) we see: "To successfully challenge validity of zoning ordinance that does not effect fundamental right (emphasis added) or suspect classification, litigant must prove that conditions imposed by city in adopting ordinance were unreasonable, discriminatory, or arbitrary, and that regulation bears no relationship to purposes sought to be accomplished by ordinance ''. The reasonable correlative concept is that Defendants herein can successfully challenge the ordinance without necessarily Proving all that is required above because we do most certainly assert the denial of our fundamental rights. The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decisionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularily, is to protect his use and possession of property from arbitrary encroachment- to minimize substantively unfair or mistaken deprivations of property, a danger that is espec- ially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free from governmental interference. "See Lynch v. Household Finance Corp., "405 US 538. !quoting Justice Frankfurter in Joint Anti- Fascist Refugee Comm- Ll itte v. McGrath (id.), the Supreme Court, in Connecticut v. Doehr, 1 US 1, 115 LEd2d 1 (1991) states: "fairness can rarely be obtained by secret, one -sided determination of facts decisive of rights." Defense maintains that the fundamental fairness /due process/ neutrality /reasonable opportunity to be heard /decisionmaker bias issues herein trump all other considerations and disqualify the Plaintiff decisionmakers from any further de cisionmaking as relates to these Defendants. "On appeal, a District Court may disturb the decision of a zoning appeals board only when the decision was illegal or is not supported by the evidence and is thus arbitrary, unreasonable, or clearly wrong '. (Eastroads v. Omaha Zoning Board of Appeals, 261 Neb 969, 628 NW2d 677 (Neb 2001). The Defense herein contends that this Court may disturb the Plaintiff's decision, never announced formally but announced on Defendants' driveway and at the trial of this lawsuit, as clearly illegal and clearly wronging the Defendants. 9 The Plaintiff's decisionmakers did not get the opportunity to formally announce their decision because the Plaintiff jumped the matter right up to the District Court—It was still clear at trial that the decision had been made. Any "Hearing" would have been a sham. As Kirp make clear in his Stanford L. Rev. article cited previously herein, many of these hearings probably are sham. But when bias and pre- judgment are pre - announced, Constitutional safe- guards are reasonably and properly triggered. It's a rare case, but it makes a big difference. THE NUISANCE CASE Defense maintains that the trial herein developed no credible or reasonable testimony or evidence that Defendants' present use of the subject property yi.olates any part of the Plaintiff's Nuisance Ordinance, Section 4 -501. Further, we see in Botsch V. Leigh Land Co., 239 NW2d 481, "195 Neb. 509, appeal after remand 288 NW2d 31, 205 Neb. 401, appeal after remand 313 NW2d 696, 210 Neb. 290 (1976): "A Court of Equity will not usually enjoin the operation of a lawful business without regard to how serious may be the grievance caused thereby; in the first instance, at least, it will require the cause of the grievance to be corrected and will enjoin the conduct of the enterprise perpetually after it has been proved that no application of endeavor, science, or skill can effect a remedy, or_ that the owners cannot be induced to conduct it properly." 10 See also for a similar ruling Sarraillon v. Stevenson, 43 NW2d 509, V 153 Neb. 182, 18 ALR 2d 1025 (1950) . Importantly,'Flansburgh v. Co fey, 370 N 2d 127,220 Neb.' <38 ft , � r+1 VVI ` (19 85 ) states: `� �V "To justify abatement of claimed nuisance, annoyance y �� must be such as to cause actual physical discomfort to one of ordinary sensibilities ".�� This same critical idea is also found in the following Nebraska cases, to name Put a few:. W�J Daugherty v. Ashton, 303 NW2d 64, "208 Neb. 159 (1981) �5 �J� i Burgess v. Omahawks, 362 NW2d 27, 1 219 Neb. 100 (1985) J _ -Cline v. Franklin Pork, 361 NW2d 566, '219 Neb 234 (1985) Goeke v. National Farms, 512 NW2d 626, Neb. 262 (1 4) Kaiser v. Western R /C, 477 NW2d 557,239 Neb 624 (1991) The only resident neighbor to testify had no objections at all to the Defendants' operation. The Plaintiff's non - resident witness/ property owner to the south of the subject property has not seen one cent of depreciation caused by the Defendants since his purchase. Mr. Rohwer's testimony was primarily important for the light it shed on the bias /pre - judgment /neutral decision maker issue. The Court also took the opportunity to view the subject property. Defense hopes that view was persuasive that we are not operating a nuisance, that the Plaintiff's photographs are not the best evidence, and that those photos now have little or no probative value. Defense also thinks the Court's viewing will make clear that any deficiencies on our part can be reasonably corrected, as suggested in the Bostch 3 and Sarraillon cases cited previously. Complete abatement is unreasonable under the circumstances, the facts on the ground, and Nebraska case - law. OTHER MATTERS Cases such as Botsch and Sarraillon make clear that the Court has wide powers to fashion and monitor a remedy or "correction" in these cases. Under the rather unique circumstances of this case, where the Plaintiff "Decisionmakers" should be rightfully disqualified for bias and pre - judgment from dealing any further with the property of the Defendants, the Courts powers broaden even further. On another matter, the attorney for the Defense has raised the Constitutional issue at every available opportunity in this case, going back to his first appearance before the Court on the matter of not objecting to the Plaintiff's filing of an Amended Petition herein. With rights as fundamental as those we assert herein, no magic words are necessary On the matter of what may constitute a final, and appealable order in this matter, our definition is found at RRS -1902, and it is the position of the Defense that any order which affects a sub- stantial right of either party is a "final order" and is appealable. To cite In re 1983 -84 County Tax Levy,�220 Neb. 897, 374 NW2d 235 (1985) and Dorhorst v Dorhorst,`'174 Neb. 886, 120 NW2d 36 (1982): "An order is final and appealable when the substantial rights of the parties to the action are determined even though the cause is retained for the determination of matters incidental thereto." 12 Fighting City Hall is never easy, and the Defendant sincerely desires that this litigation can be resolved at the District Court level. We will, however, fight on if necessary to protect the rights and liberties we hold dear. And we will not, under any circumstances, sell the land at a price we consider to be below its fair market value. We believe the underlying issues in this case could have ' been better resolved in an open and honest real estate market than in District Court. The Defendants are appalled at the arrogance and audacity displayed by the Plaintiff in this matter. The Dixie Chicks got in trouble recently for saying they were ashamed the President came from Texas. During the course of this litigation the Defendants have not been particularly proud of living within two miles of Blair. Submitted this 28th day of July, 2003. Jeffrey W. McKain, #15448 Attorney for the Defense 1907 South 19th Street Omaha, Nebraska 68108 (402) 342 -3386 Copy this date to Plaintiff's Attorney Last Page SA�A SON LAw OFFICE, P.%am. A Limited Liability Organization 1650 WASHINGTON ST. P.O. BOX 627 BLAIR, NEBRASKA 68008 JOHN E. SAMSON ATTORNEY AT LAW July 3, 2003 The Honorable Darvid D. Quist Washington County District Court 1555 Colfax St. Blair, NE 68008 Re: City of Blair vs. Thompson Dear Judge Quist: TELEPHONE 402 - 426 -3600 FACSIMILE 402 - 426 -4848 E -MAIL SamsonLawCHunTel.net This correspondence is submitted as a Memorandum Brief in support of the two causes of action for injunctive relief brought by the City of Blair against Carroll and Tracy Thompson. I respectfully submit the following, to -wit: FACTS The Defendants admit in their Answer to the Amended Petition as follows: (a) That the City of Blair is a Political Subdivision and is a First Class City; (b) That the City, pursuant to Ordinance No. 1488 (Exhibit 13) was adopted by the City and that it contained, among other things, nuisance regulations; (c) That the City, pursuant to Ordinance No. 1798 (Exhibit 2) adopted the Comprehensive Zoning Regulations for the City of Blair and furthermore, that as a First Class City, the Plaintiff exercised extra - territorial zoning jurisdiction over all lands within two miles of the City of Blair, Nebraska; (d) That Carroll P. Thompson and Tracy E. Thompson are the owners of Lots 2, 3 and 4, Southcreek Estates, a Subdivision in Sections 9 and 10, Township 18 North, Range 11 East of the 6 P.M., Washington County, Nebraska, and furthermore, that said real estate is within the two mile extra - territorial zoning jurisdiction of the City of Blair, Nebraska. 2. Exhibit 20 sets forth the Minutes, Comprehensive Plan and the 1981 Zoning Regulations as certified by the City Clerk for the City of Blair, Nebraska. Exhibit 20 establishes that the City of Blair adopted Zoning Regulations on December, 8, 1981. Carroll Thompson testified that: (a) From the date he purchased the property (March 29, 1985) through 1998, he hauled scrap metal and old vehicles to the property and then hauled them to salvage yards (Exhibit 21:Pages 6 -7). (b) Since he purchased the E. T. Towing business (in 1998) he has towed impounded vehicles to the property (Exhibit 21:Pages 6 -7). (c) He intends to dismantle some of the cars on the property and use those parts on his vehicles so that his vehicles are in working order (Exhibit 21:Pages 9 -10). (d) He has 18 vehicles that belong to he and/or his wife - of the 18: he indicated are antiques and marked them in red on Exhibit 9. Seven of the 8 are not covered but open to the elements and one is covered with a tarp (Exhibit 21:Pages 12 -14). These vehicles are not in working order and are to be "restored" by Mr. Thompson. (Exhibit 21:Page 25) vehicles are marked with blue and two in working condition and one is in good working condition (Exhibit 21:Pages 15 -16). 4 1984 pickup, 1985 pickup, 1987 pickup and 1989 pickup are marked in blue and labeled Nos. 3, 4, 5 & 6. The 1985 pickup has no engine, the 1989 pickup is wrecked and the 1987 pickup is drivable (Exhibit 21:Pages 17- 18;Page 25). (e) Of the 18 vehicles that are his, 8 are to be scrapped and 10 that he is fixing up to sell for extra money (Exhibit 21:Pages 25 -26). 4. A chronological summary of events is as follows: AA Description Date Blair adopts Nuisance Ordinance March 9, 1976 Blair adopts Zoning Regulations December 8, 1981 Carroll Thompson purchases subject real estate March 29, 1985 Defendants apply to the City of Blair for subdivision of their land; subdivision of request is approved by City of Blair creating Lots 1, 2, 3 and 4 of Southcreek 1991 Estates Subdivision City of Blair adopts revised Zoning Regulations (no change as to salvage yard definitions, etc.) May, 1997 City of Blair adopts new Comprehensive Zoning Plan Ordinance September 10, 1996 City of Blair adopts revised Zoning Ordinance (no change to definition of salvage yard, etc.) May, 1997 Defendants purchase E. T. Thompson Towing business 1998 City sends notice to Defendants that it requests the opportunity to inspect their property to see if there is compliance with land use regulations (Exhibit 14) May 10, 1999 City sends letter to Thompsons saying they are zoned RRE and are not eligible to carry on salvage yard /impound lot (Exhibit 7 and Exhibit 15) May 12, 1999 Defendants apply for Conditional Use Permit (Exhibit 8) June 22, 1999 City Council denies Defendants' first request for Conditional Use Permit July, 1999 Defendants make second application for conditional use permit (Exhibit 8) September 15, 1999 91 Description Date City Council approves Defendants' second request for Conditional Use Permit with exceptions (Exhibit 8) November 9, 1999 City sends courtesy letter reminding Defendants of application deadline for renewal of conditional use permit (Exhibit 8) October, 2000 City Council approves extension of Conditional Use Permit with stipulations (two council members advised Defendants that if they have not complied with the promises from the previous year and the ones made at the council meeting, that those council members will not vote in favor of a renewal of the Conditional Use Permit) (Exhibit 8). November 9, 1999 City sends courtesy letter to Defendants notifying them of the deadline for application for renewal of the Conditional Use Permit (Exhibit 8) October 24, 2001 Rod Storm and Brenda Taylor drive to Defendants' residence and speak with Carroll Thompson. City's witnesses testify that Rod Storm advised Carroll Thompson that this was the last day for applying for a Conditional Use Permit and that Carroll Thompson stated that "his wife was in town applying for the permit at this time ". November 20, 2000 Defendants do not apply for Conditional Use Permit N/A City of Blair files lawsuit against the Defendants for injunctive relief. December 31, 2001 ARGUMENT Violation of Zoning Regulations and Violation of Nuisance Ordinance As the Court is aware, the City of Blair alleges that the Defendants are in violation of two separate and distinct provisions of the Rules and Regulations of the City of Blair, namely: El (a) Section 4 -501 et seq. of the Municipal Code of the City of Blair which specifically provides the definition of nuisance and also provides for the abatement of such nuisance; and, (b) Comprehensive Zoning Ordinance of the City of Blair, specifically Section 501, which contains the restrictions associated with the General Agricultural District (and the definition of "salvage yard" found in Section 303(119)). I will address my argument in regard to the nuisance violation first and the zoning code violation second. 2. Nuisance Violation The City of Blair adopted the nuisance code in March 9, 1976. This code was revised in approximately 1997 (Exhibits 13 and 22); however, in regard to the definition of nuisance, the 1976 version and the 1997 version are identical in language. The Defendants purchased their property on or about March 29, 1985. Secondly, Carroll Thompson testified that he had hauled some vehicles and equipment to and from his property in the 1980s. It was not until he purchased the E. T. Thompson Towing business that the "majority of the vehicles and equipment" were hauled onto his property after such acquisition. He acquired the E. T. Thompson Towing business in approximately 1998. The nuisance regulations for the City of Blair pre- existed the ownership of the property by Mr. Thompson. In addition, the Supreme Court in the case of Village of Brady vs. Melcher 243 Neb. 728 (1998) clearly stated that "Ordinarily a property owner does not have and cannot acquire a vested right, or a constitutional privilege to maintain or continue a nuisance ". In the Village of Brady case, the Village of Brady filed a lawsuit against the Defendant to enjoin and abate the parking, storing and maintaining numerous vehicles which were not being moved or operated; allowing weeds to grow up around the vehicles and parts and allowing trash and litter to accumulate on the premises. The Village of Brady Code is similar to Blair's in that it states: "No person ... shall allow any partially dismantled, inoperable, wrecked, junked or discarded vehicle to remain on such property longer than thirty days...." The City of Blair Code Section regarding motor vehicles is as follows: "All places used or maintained as junkyards or dumping grounds or for the wrecking or disassembling of automobiles, trucks, tractors or machinery of any kind, or for the storing or leaving of worn out, wrecked or abandoned automobiles, trucks, tractors or machinery of any kind, or for the storing or leaving of any machinery or equipment used by contractors or builders ... which said places are kept or maintained so as to essentially interfere with 5 i the comfortable enjoyment of life or the property of others or which are so unsightly as to tend to depreciate property values in the vicinity thereof." The Supreme Court in Brady stated that a nuisance ordinance is not unconstitutional in that the City "could rationally find that unlicensed vehicles stored on private property outside of enclosed buildings could threaten the public health and safety. Vehicles such as those stored on the lots involved in the present case could attract vermin or rats or pose an attractive nuisance for children." The Supreme Court further stated that pursuant to Neb. Rev. Stat. 18 -1720, all cities and villages in the state are hereby granted the authority to regulate and prevent nuisances within the extra - territorial zoning jurisdiction of the City. (In this case, within two miles of the City of Blair). Lastly; the Supreme Court stated that "This Court also gives weight to the fact that the District Court viewed the premises and inspected the property prior to rending a decision in the case." In analogizing the present case with the Brady case, it is clear that the City of Blair has met its burden of proof in establishing that a nuisance exists and that abatement of the nuisance is appropriate. The Supreme Court clearly stated that there are no grandfather rights for nuisance violations. The Supreme Court affirmed the District Court in ordering that the Defendants remove the vehicles from the Defendants' property. This is the request being made by the City of Blair. Section 4 -502 has an additional requirement that a nuisance "essentially interfere with the comfortable enjoyment of life or the property of others or which are so unsightly as to tend to depreciate property values in the vicinity thereof." In this case, two expert witnesses testified on this specific point, namely: (a) Russell Nelsen Russell Nelsen is a certified and registered appraiser in Washington County, Nebraska. He clearly testified that the pictures shown on Exhibit 9 clearly were so unsightly as to tend to depreciate the values of property in the area and that it also essentially interferes with the comfortable enjoyment of life. In his opinion, the appearance of the Defendants' property looked like a "junk yard" and was very unsightly. (b) John Rohwer John Rohwer is the current owner of the adjacent property and is a real estate agent and developer. Mr. Rohwer clearly stated that had he known that the vehicles located on the Defendants' property were not going to be moved, he either would not have purchased the property or would have paid far less for the property. It was his understanding from the real estate agent that the vehicles were going to be removed from the 0 property and it was on that information that he paid the purchase price he paid for the property. Please remember that 4 -502 is only one definition of nuisance. Lastly, Section 4 -501 of the Municipal Code, as alleged in the Plaintiff's Petition, sets forth the general definition of nuisance. Clearly, the Court can find that a violation of any of the elements set forth in Section 4 -501 also would subject the Defendants to abatement of the nuisance sanctions. (The specific items set forth in Section 4 -502 are only examples of nuisance and are not all- inclusive of all examples of nuisance). Violations of Zoning Regulations The Second Cause of Action sets forth the allegation that the Defendants are in violation of the Zoning Regulations of the City of Blair, Nebraska. Specifically, the operation being carried on by the Defendants is not a "Permitted Principal Use" under the General Agricultural Zoning District. The only provision of the Zoning Regulations of the City of Blair which could permit the Defendants to carry on their business activities would be found under Section 501.04 and would also require a Conditional Use Permit. It would appear the only conditional use allowable would be a "salvage yard" as defined in Section 303(119): "Any lot or the use of any portion of a lot for the dismantling, storage or wrecking of machinery, farm machinery and including motor vehicles or for the storage or keeping for sale of parts and equipment resulting from rom such dismantling or wrecking or for the storage or keeping of junk including scrap metals or other scrap materials, with no burning permitted ". Carroll Thompson clearly testified that: (a) The operation of their impound lot includes (i) storage of motor vehicles, (ii) some dismantling of motor vehicles, and (iii) for sale of some parts and equipment resulting from the dismantling or wrecking of motor vehicles. Any one of these three events would subject the use of the ground to the City of Blair Zoning Regulations. On many occasions, the Supreme Court has held that injunctive relief is the proper remedy to prevent continuing violation of a lawful zoning ordinance. The burden of proof is on one who attacks the validity of a zoning ordinance, valid on its face and enacted under lawful authority and to prove fact which establishes invalidity ( City of Imperial, Nebraska vs. 7 Larry Raile 187 Neb. 404; Webber vs. City of Grand Island 165 Neb. 827; City of Beatrice vs. Williams 172 Neb. 889). In City of Imperial the City brought a Petition for Permanent Injunction against the Defendant to remove a mobile home from a property outside of the City but within the extra - territorial zoning. The Defendant had filed for a variance of the zoning regulation but the variance was denied. Raile did not file a Petition in Error regarding the decision made by the Board of Adjustment. Since the use was not authorized and Raile did not appeal the request for a variance, the Supreme Court affirmed the decision of the District Court enjoining the Defendant from keeping the mobile home on the property. This case is very similar to the present case as the Defendants applied for two Conditional Use Permits and were granted the same. They chose not to continue with the Conditional Use Permit. Obviously, if the Conditional Use Permit had been denied, the Defendants could have filed a Petition in Error with this Court. After the Conditional Use Permit expired, the Defendants did not seek an extension of the Conditional Use Permit but they continued to store vehicles on the property and even increased the number of vehicles (99 vehicles as of April 7, 2003). The Defendants' defense to the zoning allegations carry little weight: (i) Towing Agreement The Defendants did enter into a towing agreement with the City of Blair on December 15, 1999. A close review of the agreement clearly shows that there is no specification of where the Defendants will be towing vehicles but only that the Defendants have "adequate storage facilities to secure and store any motor vehicles towed ". This clearly is no waiver of any zoning or nuisance regulations of the City of Blair. Secondly, the City of Blair never specifically contacted the Defendants to have cars towed. All contacts were made through the Washington County Sheriff's dispatch and there is no evidence that the City of Blair officers would have no idea as to which towing company was called. Captain Ben Scheer stated that there was a "rotating basis" between numerous competing towing companies and that the Washington County Dispatcher had control of who was called to tow. (ii) Denial of Due Process The Defendants state that Brenda Taylor, the Blair City Clerk, on November 20, 2000, told Mr. Thompson 8 not to apply for an extension of his existing permit because he would not get it anyway. This fact is strongly disputed by the City of Blair. However, even if you assume this statement was made, it hardly seems feasible that the Defendants, after having gone through the conditional use process on three occasions, would choose not to attempt to have their Conditional Use Permit renewed a third time. They knew the procedure - they knew the Planning Commission and City Council made the ultimate decisions. It is not justifiable for the Defendants now to argue that a City Clerk had the authority to deny their permit without a hearing. They properly should have filed for their Conditional Use Permit, and if denied, bring a Petition in Error to this Court. 4. Remedy Clearly, the cases cited above grant the District Court the equitable power to enjoin the Defendants from continuing a nuisance and for continuing violation of the Zoning Regulations. Any vehicle which is found to be a nuisance can be ordered to be removed from the property. Any vehicle found to be in violation of the Zoning Regulations of the City of Blair can be ordered to be removed from the property. In addition to the vehicles, Exhibit 9 also shows a pile of trash, litter, cans, construction debris material, etc. This pile of junk is also a violation of the nuisance code for the City of Blair. It is respectfully submitted by the City of Blair that an Order be entered by the District Court enjoining and ordering the Defendants to remove all of the following items from the Defendants' real estate "within a reasonable period of time ": All motor vehicles which are not owned by the Defendants, whether they are in operable condition or not; 2. That of the 18 vehicles owned by the Defendants (see Exhibits 10 and 11) which are not in operable condition should be removed from the property. A complete list of the vehicles which are operable and those which are not operable are contained in Exhibit 21 and Exhibits 10 and 11; and, That the pile of junk and debris shown on Exhibit 9 be removed. Respectfully submitted, JES /km JOHN E. SAMSON 6