                    IN THE COURT OF APPEALS OF IOWA

                                 No. 16-1155
                              Filed May 3, 2017


CITY OF MONROE,
      Plaintiff-Appellee,

vs.

DUSTIN M. NICOL and MICHELLE R. STREET,
     Defendants-Appellants.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Terry R. Rickers,

Judge.



      Dustin Nicol and Michelle Street appeal the order awarding title to their

property to the City of Monroe pursuant to Iowa Code section 657A.10A(5)

(2016). AFFIRMED.




      Roger J. Hudson II of R.J. Hudson Law Firm, P.C. West Des Moines, and

Justin Anthony Montello of J Montello Law P.L.L.C., West Des Moines, for

appellants.

      Gilbert R. Caldwell III of Caldwell, Brierly, Chalupa & Nuzum, P.L.L.C.,

Newton, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                          2


DOYLE, Judge.

       Dustin Nicol and Michelle Street appeal the order awarding title to their

property, which the trial court deemed abandoned, to the City of Monroe (City)

pursuant to Iowa Code section 657A.10A(5) (2016). They challenge the statute,

arguing it allows an unconstitutional taking of property without just compensation.

Because the statute is a permissible exercise of police power rather than an

unconstitutional taking, we affirm.

       I. Background Facts and Proceedings.

       The record is not crystal clear, but it appears Nicol and Street bought

property in Monroe in 2011 or 2012. They took title by warranty deed in 2013.

Beginning in May 2013, and over the two years that followed, the City sent them

five letters regarding their failure to maintain the property. Nicol and Street failed

to clean up the property, and in April 2015, the City filed municipal infractions

against Nicol and Street, citing the couple for violating several ordinances

regarding junk, vehicles, and garbage on the property.          After a compliance

hearing in August 2015, the court entered judgments against Nicol and Street

assessing civil penalties and ordering them to fully abate the violations. They did

not do so. Additionally, Nicol and Street have failed to pay property taxes on the

property since purchasing it. No utilities have been in use at the property since

June 2015.

       In January 2016, the City petitioned for title to Nicol and Street’s property,

alleging it was abandoned within the meaning of section 657A.10A(3). Nicol and

Street moved to dismiss the action on the ground the statute is unconstitutional.

Specifically, they argued chapter 657A allows the taking of private property for a
                                             3


public purpose without just compensation to the owner. The court denied the

motion, finding chapter 657A is a legitimate exercise of police powers and does

not violate the Federal or Iowa Constitutions. At the conclusion of a bench trial,

the court found the property met the definition of abandoned under chapter 657A

and entered an order awarding its title to the City.

       Nicol and Street appeal.1

       II. Scope and Standard of Review.

       Because the case was tried in equity, our review is de novo. See City of

Waterloo v. Bainbridge, 749 N.W.2d 245, 247 (Iowa 2008). We also review

constitutional issues de novo. See Bowers v. Polk Cty. Bd. of Supervisors, 638

N.W.2d 682, 688 (Iowa 2002).

       Statutes are presumed to be constitutional. See id. In order to rebut that

presumption, Nicol and Street must show that the statute is unconstitutional

beyond a reasonable doubt.         See id.       In addition, they “must negate every

reasonable basis upon which the statute could be upheld as constitutional.” Id.




1
  The parties’ appendix violates Iowa Rule of Appellate Procedure 6.905 in numerous
respects. The appendix contains no table of contents. See Iowa R. App. P.
6.905(2)(b)(1) & (4). The appendix contains no list of relevant docket entries. See Iowa
R. App. P. 6.905(2)(b)(2) & (5). The documents included in the appendix are not in
proper order. See Iowa R. App. P. 6.905(6). The name of each witness whose
testimony is included in the appendix is not inserted at the top of each appendix page
where the witness’s testimony appears. See Iowa R. App. P. 6.905(7)(c). Furthermore,
the appendix contains duplicates of documents. While we may appear to be just
nitpicking, we are not. The three-volume appendix was very difficult to navigate. As we
have repeatedly observed: Rule compliance lightens the court’s burden and promotes
judicial efficiency because compliance begets uniformity, and uniformity eases the
court’s navigation through the thousands of briefs and appendices it reviews each year.
See, e.g., In re Estate of Woodroofe, No. 11-0900, 2012 WL 3854642, at *1 n.1 (Iowa
Ct. App. Sept. 6, 2012).
                                           4


       III. Constitutionality of Iowa Code section 657A.10A.

       Iowa Code section 657A.10A(1)(a) provides that “a city in which an

abandoned building is located may petition the court to enter judgment awarding

title to the abandoned property to the city.” A building is “abandoned” if it “has

remained vacant and has been in violation of the housing code or building code

of the city in which the property is located.”       Iowa Code § 657A.1(1).        The

legislature has provided a list of factors the court must consider in determining

whether a building is abandoned. See id. § 657A.10A(3)(a)-(m). The factors

include: whether the owner has paid the property taxes, whether utilities are in

use at the property, whether the property is unoccupied, and whether the

property complies with the housing code. See id. If, after considering these

factors, the court determines the property is abandoned, it must award title to the

city. See id. § 657A.10A(5).

       Nicol and Street argue section 657A.10A is an unconstitutional taking

under both the Takings Clause of the United States Constitution and its

counterpart in the Iowa Constitution, which prohibit the taking of private property

for public use without just compensation.2 See U.S. Const. amends. V, XIV; Iowa

Const. art. I, § 18. In order to decide this question, we must first determine

“whether the restrictions and conditions imposed by [the statute] amount to a

taking of property under eminent domain or simply a regulation under the police

power of the state.”     Woodbury Cty. Soil Conservation Dist. v. Ortner, 279




2
 This issue was raised before the Iowa Supreme Court in Bainbridge, 749 N.W.2d at
247, but the appellant’s failure to preserve error precluded the supreme court’s review.
                                          5


N.W.2d 276, 277-78 (Iowa 1979).         The distinction is important because the

regulation of property

       for purposes that are declared, by valid legislation, to be injurious to
       the health, morals, or safety of the community, cannot, in any just
       sense, be deemed a taking or an appropriation of property for the
       public benefit. Such legislation does not disturb the owner in the
       control or use of his property for lawful purposes, nor restrict his
       right to dispose of it, but is only a declaration by the State that its
       use by any one, for certain forbidden purposes, is prejudicial to the
       public interests. . . . The power which the States have of prohibiting
       such use by individuals of their property as will be prejudicial to the
       health, the morals, or the safety of the public, is not—and,
       consistently with the existence and safety of organized society,
       cannot be—burdened with the condition that the State must
       compensate such individual owners for pecuniary losses they may
       sustain, by reason of their not being permitted, by a noxious use of
       their property, to inflict injury upon the community.

Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104, 144-45 (1978)

(alteration in original) (quoting Mugler v. Kansas, 123 U.S. 623, 668-69 (1887)).

Because section 657A.10A was enacted to remedy “the existence of unsafe

abandoned buildings,” Bainbridge, 749 N.W.2d at 251, it relates to the safety,

health, or welfare of others and was an exercise of police power, see Penn. Cent.

Transp. Co., 438 U.S. at 144-45; Stone v. City of Wilton, 331 N.W.2d 398, 402

(Iowa 1983) (“Land use restrictions (such as at issue here) reasonably related to

the promotion of the health, safety, morals, or general welfare repeatedly have

been upheld even though the challenged regulations destroyed or adversely

affected recognized real property interests or flatly prohibited the most beneficial

use of the property.”).

       We note that the exercise of police power may amount to a taking if it

deprives the property owner of the substantial use and enjoyment of the property.

See Woodbury Cty., 279 N.W.2d at 278. Before a statute may be imposed on
                                            6


behalf of the public as a permissible use of police power, “it must appear (1) that

the interests of the public require such interference, and (2) that the means are

reasonably necessary for the accomplishment of the purpose, and not unduly

oppressive upon individuals.”       Kasparek v. Johnson Cty. Bd. of Health, 288

N.W.2d 511, 517 (Iowa 1980). In determining whether the statute is reasonable,

we consider “such things as the nature of the menace against which it will

protect, the availability and effectiveness of other less drastic protective steps,

and the loss which appellants will suffer from the imposition of the ordinance.” Id.

(quoting Goldblatt v. Town of Hempstead, 369 U.S. 590, 595 (1962)).

       Section 657A.10A affords the property owner a minimum of sixty days

after the filing of the petition to correct the situation that led to the city to initiate

the proceeding. See Iowa Code § 657A.10A(2) (providing the city may request a

hearing “[n]ot sooner than sixty days after the filing of the petition”), (4) (providing

in the alternative that the court may enter judgment granting the city title to the

property if the city “can establish to the court’s satisfaction that all parties with an

interest in the property have received proper notice and . . . did not make a good-

faith effort to comply with the order of the local housing or building code official

within sixty days after the filing of the petition”). Although loss of title to property

is a significant loss, it is not unreasonable; an action under section 657A.10A is

undertaken as a final resort against those property owners who have otherwise

failed to comply with housing codes, building codes, nuisance laws, or tax

assessments when less drastic steps toward compliance have failed.                    For

instance, in the present case, Nicol and Street were served with a petition for title

to abandoned property in 2016, only after the City unsuccessfully attempted to
                                          7


obtain compliance by sending letters regarding ordinance violations in 2013 and

2014 and citing them for multiple ordinance violations in 2015—and after the

court assessed them civil penalties and ordered them to abate the violations.

       Furthermore, even in the event of a complete taking, the State is not

required to compensate a property owner if it “can show that the owner’s ‘bundle

of rights’ never included the right to use the land in the way the regulation

forbids.” Iowa Coal Mining Co. v. Monroe Cty., 555 N.W.2d 418, 431 (Iowa

1996) (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992)).

Section 657A.10(A) provides a sanction for those who use their property in a

manner that was already prohibited. Because the statute does “no more than

duplicate the result that could have been achieved in the courts—by adjacent

landowners (or other uniquely affected persons) under the State’s law of private

nuisance, or by the State under its complementary power to abate nuisances that

affect the public generally, or otherwise,” it is not a constitutional taking for which

compensation is required. Lucas, 505 U.S. at 1029.

       AFFIRMED.
