Opposition Brief — Duffy v. City of Long Beach

Supreme Court, U.S,

FILED

IN THE APR 12 1985

SUPREME COURT

OF THE ALEXANDER

UNITED STATES gree sito

October Term 1985

No. 84-1523 0)

RALPH T. DUFFY, JR.-,

Petitioner,

vs.

CITY OF LONG BEACH,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT W. PARKIN,

City Attorney

ARTHUR Y. HONDA,

Senior Deputy

333 West Ocean Boulevard

Suite 1100

Long Beach, California 90802

Telephone: (213) 590-6061

City of Long Beach

Attorneys for Respondent

City of Long Beach

3

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term 1985

No. 84-1523

RALPH T. DUFFY, JR.,

Petitioner,

VS.

CITY OF LONG BEACH,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT W. PARKIN,

City Attorney

ARTHUR Y. HONDA,

Senior Deputy

333 West Ocean Boulevard

Suite 1100

Long Beach, California 90802

Telephone: (213) 590-6061

City of Long Beach

Attorneys for Respondent

City of Long Beach

a nen

TOPICAL INDEX

i i Oi kg kt tt te Se

orapmemer OF FACTS ......s+eee 2

ARGUMENT

I - The Long Beach Ordinance

is a Proper Police Power

Measure and is Not Vague .. 6

II - Petitioner Received a

Due Process Hearing .... ll

III - The Federal Court Should

Abstain From Reviewing

Findings of Public Nuisance

Made by Local Agencies... 15

CONCLUSION e * o 2 * e . * e * o € 18

TABLE OF AUTHORITIES

CASES

Agricultural Labor Relations Board

v. Superior Court (1976)

16 Cal.3d 392, {128 Cal.Rptr. 183] . 2

Berman v. Parker (1954)

348 Uem« 26, [99 L.Ed. ari om o se * * 3

Bonner v. Coughlin

(7€5 Cig. 2975) Si? F.24 i341. « 16

Burford v. Sun Oil Co. (1943)

Ju: Gels -2aea. ter bees 24081. 3s « 2 aD

City of Bakersfield v. Miller (1966)

04 Cal.2a 33, (48 Cal.Rpotr. $89) .. 14, i

Dunitz v. City c. Los Angeles (1959)

170 Cal.App. 2d 399 + a a a e = o 16

Hamilton v. Kentucky Distilleries

& W.Co. (1919)

ana Wels 246, 164 id. 394) 2 2 2 es 6

Kent Island Joint Venture v. Smith (1978)

452 vs Supp. 455 e = — _ — e ” . 7 * 15

Leppo v. City of Petaluma (1971)

20 Cal.App.3d 711,

[97 Cal.Rptr. 840] a 7 om - ” - = e - 14

Metromedia, Inc. v. San Diego (1981)

$33 UsBse 430, 169 beeaBGeawe S600] 2... 8

Mullane v. Central Hanover B. & T. Co.

(1949)

San Usts 3OG, FO6 TesBGs B65i « « 2 « 44

Parratt v. Taylor (1981)

G34 Usa Dats tee 6.88.26 4201 « « » AS

ii

teen

TABLE OF AUTHORITIES

CASES

(continued)

People v. Duffy (1982)

a 8k ie a a ae ae a ae ie ee ee |

Rose v. Locke (1975)

423 U.S. 48, [46 L.Ed.2d 185] tei. - ae

Selby Realty Co. v. City of San Buen-

aventura (1973)

10 Cal.3d 110, [109 Cal.Rptr. 799] . 8

Stoetzner v. City of Los Angeles (1959)

i70 Cal.App.2d 394 . > > >. + > > . . 14

Trainor v. Hernandez (1977)

431 U.S. 434, [52 L.Ed.2d 486] ... 15

Traylor v. City of Amarillo, Texas

(Sth Cir. 1974) 492 F.2d 1156 ... 13

Village of Belle Terre v. Boraas (1974)

416 U.S. 1, [39 LeBG.4g 797} «© ew wow e F

Younger v. Smith (1973)

3U Cal.App.3d 138,

[106 Cal.Retr. 225) .«. «© © © ee eo @ i

STATUTES

California Civil Code

nee See 6 6 6 6 8 ee

MOSSsee S498 « eo oe te ee

~~

California Code of Civil Procedure

3!” Bl % ree |

California Constitution

lee oY ap 6 ae LT i Sr

iii

TABLE OF AUTHORITIES

STATUTES

(continued)

California Government Code

Di i: <£ 6 « 6 6 6 © e@ eo ee F

Section 38610 .. ° ee eS ae ae

Sections 38771 - 38773. 5 ter a? oa a ae

Long Beach Building Reyulations ... 10

Long Beach Municipal Code

DCTP «4 6 6 6 eg 0 te Se

Section &6.76.010 . . «© « «e«eeee VF

Section 16.12.1100 ..«eeeeeee 8

12

Uniferm Building Code ........ 5, 10

United States Code é

42 OeSeCe Section 83 7 * . _ * * > = 16

United States Constitution

pC Ee ee a a ee ee

TEXTBOOKS AND OTHER MATERIALS

Holy Bible

Luke 14:28-30 - ° . . . . . ° + . -

hm

lv

IN THE

SUPREME COURT

OF THE

UNITED STATES

October Term 1985

No. 84-1523

RALPH T. DUFFY, JRe-,

Petitioner,

vs.

CITY OF LONG BEACH,

Respondent.

BRIEF IN OPPOSITION TO PETIT. ON

FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATEMENT OF CASE

Although the petition is couched in

grandiloguent constitutional terms, the

crux of this case is the petitioner's

(Duffy's) prolonged maintenance of a

public nuisance after adverse administra-

tive hearings and a criminal conviction

(after a nolo contendere plea) for that

of fense.

The gist of the City ordinance makes

it a public nuisance to leave a building

in a state of partial construction for

an unreasonable period of time.

The public nuisance here was a par-

tially constructed, exposed, unfinished, |

uninhabited and uninhabitable shell of

a structure which was in that condition

for nearly sixteen years in a well es-

tablished residential area.

The structure was never occupied and

never given final approval by the City

and was euphemistically referred to by

Duffy as my "home". After the decision

of the Ninth Circuit, this nuisance was

abated by the City by demolishing the

structure. |

Thus, the land per se is not in-

volved in the case at bar -- only the

perpetuation of a public nuisance thereon.

The issue here was the "existence"

1

a ee

of that vacant structure in violation of

City ordinances, not the prohibited "use"

or "taking" of property in a constitu-

tional sense.

Duffy's petition is premised on the

anachronistic notion that he can do what-

ever he wants with his property for as

long as he wants, without governmental

interference or without regard to his

neighbors. As noted by the California

Supreme Court in Agricultural Labor

Relations Board v. Superior Court (1976)

16 Cal.3d 392, [128 Cal.Rptr. 183] at

P.403:

"It should scarcely be neces-

sary, as we enter the last quarter

of the 20th century, to reaffirm

the principle that all private pro-

perty is held subject to t.e power

of the government to regulate its

use for the public welfare."

Duffy wanted to build his own home

but his dismal failure proves the truth

of scriptural admonition recorded at

Luke 14: 28-30.

STATEMENT OF FACTS

The original building permit was

issued to Duffy on June 28, 1968; because

of lack of progress, the permit became

void and was renewed ten times; the last

renewal was on May 1l, 1981, and that

permit expired on September 15, 1981.

Pursuant to Section 18.12.1000 of the Long

Beach Municipal Code, this permit cannot

be renewed again. The last known mean-

ingful work on the structure occurred on

December 10, 1979. To build any struc-

ture now, Duffy must obtain a new build-

ing permit and must submit new plans that

comply with current code requirements.

In response to a citizen's complaint,

the City issued Duffy a notice of viola-

tion on August 3, 1976, for maintaining

a partiaily constructed building for an

unreasonable period of time.

Due to lack of response, the matter

was noticed for hearing before the City's

Board of Examiners, Appeals and Condemna-

tion. The Board held a hearing on Novem-

ber 8, 1976, with Duffy present and

granted him six months to reroof and en-

close the building along with reasonable

landscaping.

Nearly two years later, due to non-

compliance, the Board again noticed the

Matter for hezring. Duffy did not appear

at the hearing. The Board declared the

premises to be a public nuisance and

ordered the owner to obtain the required

permits, commence construction within

ten days and complete the project with-

in sixty days. Duffy appealed this order

to the Long Beach City Council and on

October 10, 1978, the Council modified

the Board's order and granted Duffy six

months to complete the exterior and six

additional months to complete the in-

terior.

Due to noncompliance, the matter

was referred to the City Prosecutor for

initiation of criminal action and there-

after Duffy entered a plea of nolo con-

tendere. Duffy was found guilty of vio-

lating probation on three occasions and

probation was revoked after the third

violation. Later, the Long Beach Muni-

cipal Court terminated probation on

August 16, 1982.

The property continued to be main-

tained as a public nuisance so another

hearing was noticed before the Board.

After a hearing on October 18, 1982, with

Duffy present, the Board again found a

public nuisance and ordered completion

Or demolition of the structure by Decem-

ber 18, 1982. Duffy appealed to the City

Council, and on December 7, 1982, the

order was upheld by the Council.

On March 24, 1983, the City served

Duffy its notice of intent to abate the

nuisance.

After nearly fifteen years, Duffy's

structure consisted merely of an open

frame shell with a roof covering. The

front was a "false" front, not part of

the structure but only a temporary ply-

wood covering. The wood frame shell was

exposed to the elements for so long with-

out adequate protective covering that

most of it was deteriorated and unusable.

The framework was never inspected or

approved.

Since 1968, the Uniform Building

Code as adopted by the City under State

law, has been amended in 1970, 1973,

1976, 1979 and 1982. Duffy's original

1968 plans are outmoded and do not comply

with these code changes.

On July 5, 1983, after this suit was

filed in the district court, the City

Council of the City of Long Beach held a

duly noticed public hearing to determine

whether the property located at 370 Flint

Avenue, Long Beach, California was a

public nuisance in violation of Section

8.76.010 A of the Long Beach Municipal

Code. The Council found that the un-

finished structure and premises at 370

Flint Avenue was a public nuisance and

ordered the owner to either complete or

demolish the structure by September 6,

1983; that if the owner failed to comply

with the order, the City was ordered to

demolish the structure.

ARGUMENT

I

THE LONG BEACH ORDINANCE

IS A PROPER POLICE POWER

MEASURE AND IS NOT VAGUE

The police power is reserved to the

states by the 10th amendment to the United

States Constitution. (Hamilton v. Kentucky

Distilleries & W.Co. [1919] 251 U.S. 146,

[64 L.Ed. 194 at 199].)

In California, this power is dele-

gated to cities by Article XI, Section 7

of the State Constitution:

"A county or city may make and

enforce within its limits all local,

police, sanitary and other ordinances

and regulations not in conflict with

general laws."

California Government Code Sections

38771 through 38773.5 provide that a City

may declare by ordinance what constitutes

a nuisance and provide for its summary

abatement at the expense of the person

who created or maintains the nuisance.

A city council may provide for the

summary abatement, destruction or re-

moval of unsafe structures and unsightly

or partially destroyed buildings (Govt.

Code § 38610).

It is authorized to regulate the

construction and removal of buildings

(Govt. Code § 38601).

Section 3491 of the Civil Code sets

out the remedies against a public nui-

sance.

"The remedies against a public

nuisance are:

l. Indictment or information;

2. A civil action; or

3. Abatement."

Section 3479 of the Civil Code de-

fines nuisance as:

"Anything which is injurious

to health, or is indecent or of-

fensive to the senses, or an ob-

struction to the free use of pro-

perty, so as to interfere with the

comfortable enjoyment of life or

property, or unlawfully obstructs

the free passage or use, in the

customary manner, of any navigable

lake, or river, bay stream, canal,

or basin, or any public park,

square, street, or highway, is a

nuisance."

The applicable Long Beach ordinance,

as amended in 1982, reads as follows:

"Section 8.76.010 Nuisance

Conditions

"It is declared a public nui-

sance for any person owning, leas-

ing, occupying or having charge or

possession of any premises in this

city to maintain such premises in

such manner that any of the follow-

ing conditions are found to exist

thereon:

"A. Buildings which are aban-

doned, boarded up, partially de-

stroyed, or left for unreasonably

long periods of time in a state of

Partial construction; provided that

any unfinished building or structure

which has been in the course of con-

struction five years or more, and

where the appearance and other con-

ditions of said unfinished building

Or structure are such that the un-

finished structure substantially

detracts from the appearance of the

immediate neighborhood or reduces

the value of property in the im-

mediate neighborhood or is a nui-

Ssance, shall be deemed and presumed

to have been left for an unreason-

ably long period of time in the

sense of this subsection."

When reviewing police power regula-

tions, a reviewing court reviews and ap-

plies the law in effect at the time of

its review. (Selby Realty Co. v. City of

San Buemaventura [1973] 10 Cal.3d 110,

125-126, (109 Cal.Rptr. 799].)

This is a proper police power mea-

sure regulating structures on private

property, and a structure which is only

partially completed and vacant after

a prolomged period is clearly substan-

dard, am eyesore and detrimental to

the welfare of adjacent property owners.

The broad scope of the police power

is outlined in the landmark case of Ber-

man v. Parker (1954) 348 U.S. 26, [99

L.Ed. 27].

In Village of Belle Terre v. Boraas

(1974) 416 U.S. 1, [39 L.Ed.2d 797],

this court noted at page 416 U.S. 9:

"The police power is not con-

fined to elimination of filth,

stench, and unhealthy places. It

is ample to lay out zones where

family values, youth values, and

the blessings of quiet seclusion

and clean air make the area a sanc-

tuary for people."

More recently, Metromedia, Inc. v.

San Diego (1981) 453 U.S. 490, [69 L.Ed.

2d 800] held that preservation of the

appearance of the city -- aesthetics --

was a legitimate governmental interest

under the police power.

If noise and odors can be abated,

there is no reason why that which offends

the eyes can not be similarly abated as

a public nuisance.

However, the subject City ordinance

is concerned with more than "appearance"

Or the mere lapse of time. With the pas-

sage of time, open and exposed construc-

tion begins to deteriorate. An owner-

builder, like a contractor, must obtain

proper building permits with plans com-

plying with the latest building regula-

tions. Since 1968, the Uniform Building

Code, which is part of the Long Beach

Building Regulations, has been amended

in part in 1970, 1973, 1976, 1979 and

1982. Thus, a building in partial con-

struction for a long period of time not

only becomes deteriorated but the plans

become obsolete. Duffy wanted to build

a house in 1984 based upon 1968 plans

and regulations. He has no vested right

to do so.

Duffy's claim that the ordinance

is vague is specious. He has been re-

peatedly told that the primary violation

was his failure to complete the building

within a reasonable time.

After entering a plea of nolo con-

tendere in 1979, Duffy moved to terminate

or modify his probation and belatedly

raised the vagueness issue. In reviewing

his vagueness argument, the Appellate

Department of the Los Angeles Superior

Court in People v. Duffy (1982) CRA

19410 stated:

"In the matter before us, de-

fendant's conduct plainly falls

within the confines of the instant

ordinance. Defendant is the owner

of a building which does not yet

have walls on all sides or working

electricity. There is no exterior

plastering, paint, window, or door

10

beyond the finished facade. Defen-

dant's house can, without a doubt,

be considered incomplete."

The question of vagueness cannot be

viewed in a vacuum, and mathematical pre-

cision is not required. (Younger v. Smith

[1973] 30 Cal.App.3d 138, 166, [106 Cal.

Rptr. 225].)

As noted in Rose v. Locke (1975)

423 U.S. 48, [46 L.Ed.2d 185] at page

188:

"All the Due Process Clause

requires is that the law give suf-

ficient warning that men may con-

form their conduct so as to avoid

that which is forbidden."

II

PETITIONER RECEIVED

A DUE PROCESS HEARING

The Municipal Court terminated

Duffy's probation on its own motion on

August 16, 1982, even though the pro-

perty was still in violation of the City

Ordinance.

Consequently, the City Council held

another noticed hearing on December 7,

1982, again found Duffy's property in

violation and ordered the abatement of

the public nuisance.

On May 24, 1983, the district court

granted a preliminary injunction against

11

the City to enjoin enforcement of the

abatement order because the witnesses

were not sworn at the hearing on De-

cember 7, 1982.

On July 5, 1983, the City Council of

the City of Long Beach held a duly no-

ticed public hearing to determine whether

Duffy's property was a public nuisance

in violation of Section 8.76.010 A of

the Long Beach Municipal Code. The Coun-

cil found that the unfinished structure

and premises was a public nuisance and

Ordered the owner to either complete or

demolish the structure by September 6,

1983; that if the owner failed to comply

with the order, the City was ordered to

demolish the structure.

The owner of the property and his

attorney Bruce Stark were present at the

hearing. Witnesses were duly sworn and

Opportunity for cross-examination of

witnesses was provided.

Mr. Eugene Zeller, Superintendent

of Building and Safety, reviewed the

history of this nuisance abatement case

after reading Long Beach Municipal Code

Section 8.76.010 A into the record.

Mr. Bob Stump, Principal Building

Inspector, offered pictures of the pre-

mises taken on June 29, 1983, and testi-

12

fied about its condition.

Mr. Dean Hart who lives directly

across the street from Duffy's structure

testified that it has been a fiasco for

the last fifteen years; and that the

structure was an eyesore and has adverse-

ly affected his property values.

Mr. Paul Barris who also lives

across the street from the Duffy rroperty

testified about the unsightly structure

and the decline in property values.

In summary, there can be little dis-

pute that there was a public nuisance

at 370 Flint Avenue, where the structure

was ina state of partial construction

for nearly sixteen years, and where the

premises was an "eyesore" to the neigh-

borhood and negatively affected property

values.

Mr. Duffy was given the opportunity

to testify under oath but chose not to

do so. It would have been helpful if

he had indicated how he would finance

his construction and how long it would

take him to finish.

Traylor v. City of Amarillo, Texas

(Sth Cir. 1974) 492 F.2d 1156, upheld a

city exercising its police power to

abate unrepaired nuisances, when it de-

molished private property without compen-

13

sation or prior judicial determination.

Hearings before local administrative

bodies are informal; they are not trials

and the strict rules of evidence do not

apply. (Stoetzner v. City of Los Angeles

[1959] 170 Cal.App.2d 394.) |

In the case at bar, the basic due

process requirements of “notice and

opportunity for hearing appropriate to

the nature of the case" were met.

(Mullane v. Central Hanover B. & T. Co.

[1949] 339 U.S. 306, 313, [94 L.Ed. 865].)

Duffy attacks the adequacy of the

July 5, 1983, hearing by relying heavily

on the case of Leppo v. City of Petaluma

(1971) 20 Cal.App.3d 711, [97 Cal.Rptr.

840]. His reliance on Leppo is mis-

placed, because the vice there was that

Petaluma, unlike Long Beach, did not

have any hearing before the demolition

order.

It is well established that a nui-

sance may be ordered abated by demoli-

tion of the offending structure if the

nuisance cannot be otherwise abated.

(Stoetzner v. City of Los Angeles [1959]

170 Cal.App.2d 394, 396.) As stated

in City of Bakersfield v. Miller (1966)

64 Cal.2d 93, [48 Cal.Rptr. 889], at

page 103:

14

"In appropriate circumstances

a governmental agency may abate a

public nuisance even though to do

so requires that a building be

demolished."

In the case at bar, it was certainly

appropriate to order the demolition of

an unfinished and unused structure after

nearly sixteen years.

III

THE FEDERAL COURT SHOULD

ABSTAIN FROM REVIEWING

FINDINGS OF PUBLIC NUISANCE

MADE BY LOCAL AGENCIES

One aspect of the federal doctrine

cf abstention provides that abstention is

appropriate where federal review of state

law questions would be disruptive of

state efforts to establish a coherent

policy with respect to a matter of sub-

stantial public concern. (Burford v. Sun

Oil Co. [1943] 319 U.S. 315, [87 L.Ed.

1424]; Trainor v. Hernandez [1977] 431l

U.S. 434, [52 L.Ed.2d 486].)

Like land use decisions, local

agencies and state courts have developed

expertise in matters of public nuisance.

Rarely does a federal court become in-

volved in local public nuisance disputes.

(Kent Island Joint Venture v. Smith [1978]

15

452 F.Supp. 455.)

In Parratt v. Taylor (1981) 451 U.S.

527, (68 L.Ed.2d 420] this court ruled

that not every complaint alleging viola-

tion of Section 1983 under color of state

law for deprivation of property without

due process deserves to remain in federal

court.

Parratt held that the existence of

an adequate state remedy negates the con-

clusion that there was a constitutional

deprivation of property. It quotes

with approval from Bonner v. Coughlin

(7th Cir. 1975) 517 F.2d 1311 the follow-

ing at 451 U.S. 542:

"We may reasonably conclude,

therefore, that the existence of an

adequate state remedy to redress

property damage inflicted by state

officers avoids the conclusion that

there has been any constitutional

deprivation of property without due

process of law within the meaning

of the Fourteenth Amendment."

In the case at bar, Duffy had an

adequate state remedy to review the deci-

sion of the City Council. California

has a well established body of law under

Code of Civil Procedure Section 1094.5

(administrative mandate) to judicially

review the decisions of local administra-

tive bodies. (Dunitz v. City of Los

16

‘

Angeles [1959] 170 Cal.App.2d 399.)

Before filing his action in federal

court, Duffy filed an action in state

court attacking the constitutionality of

the City ordinance and the public hearing

of December 7, 1982.

On January 3, 1983, Duffy's ex parte

application for a temporary restraining

erder was denied.

For some inexplicable reason, Duffy

abandoned that action after the temporary

restraining order was denied ex parte.

Ordinarily, the denial of a TRO is only

the beginning of a lawsuit, not the end.

Duffy did not even serve the com-

Plaint on the City. Instead, he forunm-

shopped and filed this action in the

federal court.

re a a, |! ft My

~

~

CONCLUSION

The petitioner does not raise a sub-

Stantial or important federal question

or show a deprivation of federally pro-

tected‘rights. He merely raises a ques-

tion of fact concerning the existence of

a nuisance. He has had his day in court

(both civil and criminal) on this issue.

For all the foregoing reasons, the peti-

tion for a writ of certiorari should be

denied.

Dated: April 12, i985

Respectfully submitted,

ROBERT W. PARKIN, City Attorney

ARTHUR Y. HONDA, Senior Deputy

BY Aha lo behas

ROBERT W. PARKIN, City Attorney

Attorneys for Respondent

City of Long Beach