United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1679
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Michael E. Nikolas, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
City of Omaha, et al., *
*
Defendants - Appellees. *
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Submitted: February 11, 2010
Filed: May 17, 2010
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Before LOKEN, Chief Judge,* GRUENDER and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
In July 2000, Michael E. Nikolas purchased 6.79 acres of land within three
miles of the Omaha city limits, an area in which the City has statutory planning and
zoning authority. See Neb. Rev. Stat. § 14-418. The property included a forested
area, a ravine, a house, and a dilapidated two-story structure built by a prior owner
without necessary building permits that the City had placarded for condemnation. In
the following years, Nikolas had a series of zoning and code enforcement disputes
*
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
with the City’s Planning Department and the Douglas County Health Department. In
February 2008, he filed this action against the City of Omaha and Planning
Department Code Inspector Scott P. Benson, asserting federal constitutional claims
under 42 U.S.C. § 1983 and an inverse condemnation claim under state law. The
district court1 granted summary judgment dismissing Nikolas’s federal claims with
prejudice and declining to exercise pendent jurisdiction over his state law claims.
Nikolas appeals the dismissal of his federal claims. Reviewing the grant of summary
judgment de novo, we affirm. See Lewis v. Jacks, 486 F.3d 1025, 1027 (8th Cir.
2007) (standard of review). We will discuss the issues raised by Nikolas in the
context of the two distinct enforcement actions out of which those claims arose.
I. The Debris-Filled Ravine.
At some time after he purchased the property, Nikolas dumped construction
debris in the ravine, allegedly to stabilize the area and control erosion. When the
unsightly debris reached a height of some thirty feet, a neighbor complained to the
Douglas County Health Department. On January 15, 2003, the Health Department
wrote Nikolas advising that its officers had evidence he was dumping “building rubble
and demolition debris” on the property in violation of § 33-27 of the Omaha
Municipal Code and ordering him “to cease all illegal dumping activity immediately
and apply for written authorization.”
On March 1, 2004, Health Department inspector Les Theisen entered the
property and photographed the debris. City code inspector Benson accompanied
Theisen at the latter’s request because, as will become apparent in Part II of this
opinion, Benson was already familiar with the property. On March 11, a deputy
sheriff issued Nikolas a citation for violating Douglas County’s Nuisance Regulation.
1
The HONORABLE LAURIE SMITH CAMP, United States District Judge for
the District of Nebraska.
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The citation referenced § 23-174.10 of the Nebraska Revised Statutes and the Douglas
County Regulation that defined nuisances to include: “14. Building, construction, and
demolition debris except debris defined as beneficial fill . . . and issued a valid
permit.” Six weeks later, Douglas County dropped the charge, and the City charged
that the debris was a littering violation of § 18-22(b) of the Omaha Municipal Code
(“OMC”). Chapter 18 contains the City’s nuisance regulations. Section 18-22(b)
provides that it is unlawful for the owner “of any lot or ground in the city” to “cause
to allow litter to be deposited” or remain on his land.
Nikolas initially pleaded no contest and was found guilty of the charge. He
moved to withdraw the plea when the parties failed to negotiate an appropriate
remedy. The County Court denied that motion and, in March 2005, sentenced Nikolas
to 24 months probation, ten days in jail, and an additional sixty days in jail unless he
promptly completed “a mitigation plan acceptable to the City of Omaha Planning
Department.” Nikolas appealed. The Nebraska Court of Appeals reversed the
conviction because of inadequate plea advice. On remand, the proceedings were
dismissed in December 2007 for failure to satisfy speedy trial requirements. In this
§ 1983 action, Nikolas raises various challenges to his prosecution for violating OMC
§ 18-22(b). These issues were not raised in the state court action.
First, Nikolas argues that § 18-22 is unconstitutionally vague as applied to him,
not because its operative prohibition is impermissibly vague, but because Chapter 18
does not “clearly articulate whether § 18-22(b) applies to littering on . . . Property
outside the City’s corporate limits.” Chapter 18 is impermissibly vague, he explains,
because it applies to all property “within the city and, at the discretion of the duly
designated enforcing officer, all property within three miles of the city limits.” OMC
§ 18-1 (emphasis added). We acknowledge that criminal statutes can be
impermissibly vague. See United States v. Washam, 312 F.3d 926 (8th Cir. 2002).
But the unusual attempt to apply that doctrine to this prosecution is unsound.
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The Nebraska statutes expressly grant the City broad power to control nuisances
and littering on property within three miles of the city limits. Neb. Rev. Stat. §§ 14-
102(15), 14-103. They also authorize Douglas County to adopt health and safety
regulations that apply to all parts of the county not within city limits “except within
the unincorporated area where a city . . . has been granted zoning jurisdiction and is
exercising such jurisdiction.” Id. § 23-174.10. Here, Douglas County initially
charged Nikolas with a violation of its nuisance regulations but dropped that charge
because those regulations expressly do not apply in an area “over which zoning
jurisdiction has been granted to any city or village.” The City then charged a violation
of OMC § 18-22(b). Thus, the practical effect of Nikolas’s argument -- that neither the
County nor the City had jurisdiction to take action against a serious health and safety
hazard on his property -- is contrary to manifest legislative intent.
We conclude that § 18-1, properly construed, was plainly an exercise of the
City’s statutory nuisance jurisdiction over all property within three miles of the city
limits, subject to the prosecutorial discretion of a “duly designated enforcing officer”
to exempt a particular property from some or all of Chapter 18’s restrictions. There
is no arguable constitutional flaw in this regime. Nor can Nikolas plausibly claim lack
of notice that his property was subject to littering and nuisance regulations. Thus, it
is not surprising he did not make this strained vagueness argument to the state courts
before pleading no contest to the charge of violating § 18-22(b).
Second, for the same reason, Nikolas argues that § 18-1 unconstitutionally
delegated legislative authority to apply the criminal provisions of § 18-22(b) to
property within three miles of the city limits. He cites no federal case applying the
rarely-invoked non-delegation doctrine to a statute conferring upon prosecutors or
enforcement officials the discretion to determine what regulatory violations will be
prosecuted. This contention borders on the frivolous. Compare United States v.
Guzman, 591 F.3d 83, 93 (2d Cir. 2010).
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Third, Nikolas argues that § 18-22(b) as applied to him violated the Ex Post
Facto Clause of the United States Constitution because the City did not determine that
§ 18-22(b) applied to his property until it charged him with a violation, after the
alleged littering occurred. This contention is also without merit. As we have
explained, Chapter 18 applied to his property from the time of its enactment in 1980,
subject only to the discretion of enforcement officials not to prosecute. Thus, the
alleged littering was prohibited by § 18-22(b) long prior to its occurrence.
Finally, Nikolas did not sue Douglas County or its health inspector whose
photos of the debris-filled ravine helped establish probable cause for the nuisance and
littering citations. Nor does he argue that inspector Theisen violated the Fourth
Amendment when he entered the property and took those photos on March 1, 2004.
Rather, Nikolas argues that § 18-7 of Chapter 18 violates the Fourth Amendment,
facially and as applied to him, because it authorizes Planning Department inspectors
“to enter any premises in the city or its extraterritorial jurisdiction at any reasonable
time,” without requiring that they obtain a warrant. Theisen acted under Douglas
County authority. Thus, the facial attack on § 18-7 is irrelevant. Cf. United States v.
Stephens, 594 F.3d 1033, 1037-38 (8th Cir. 2010); Roark v. South Iron R-1 School
Dist., 573 F.3d 556, 562 (8th Cir. 2009). It is also without merit. An ordinance such
as § 18-7 simply authorizes enforcement action. If action taken pursuant to that
authority violates Fourth Amendment warrant requirements, the resulting criminal
prosecution may be tainted, but that does not render the authorizing statute
unconstitutional. See, e.g., Camara v. Municipal Court, 387 U.S. 523 (1967).
City code inspector Benson did accompany health inspector Theisen on March
1, 2004, but Benson’s presence did not cause either the nuisance or littering citations.
In sweeping fashion, Nikolas argues that all of Benson’s warrantless searches violated
the Fourth Amendment but discusses only his March 1, 2004, search of the garage,
addressed in Part II of this opinion. Benson’s undisputed affidavit explained that he
visited the property several times during the pendency of the littering proceedings to
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inspect the condition of the debris in the ravine and other open areas. If Nikolas
intended to include these searches in his unfocused argument, we summarily reject the
contention as contrary to the well-established principle that police officers may enter
and search “open fields” without a warrant. See Oliver v. United States, 466 U.S. 170
(1984); United States v. Pennington, 287 F.3d 739, 745 (8th Cir.), cert. denied, 537
U.S. 1022 (2002). Thus, the attack on § 18-7 is irrelevant even as to inspector
Benson’s actions.2
For the foregoing reasons, we affirm the dismissal of all § 1983 claims for
damages or other relief arising out of or related in any way to the prosecution of
Nikolas for littering his property with construction and other debris.
II. The Dilapidated Garage.
When Nikolas purchased the property, the second structure had been placarded
for condemnation and removal because it was in serious disrepair and was unlawfully
built without necessary permits. The Chief Housing Inspector gave Nikolas written
notice of this action in August 2000 and, in November, ordered him to appear and
show cause why the structure should not be condemned and removed. This hearing
was continued several times over the next two years while Nikolas obtained repair
permits and replaced the siding, roof, and windows on the structure. On September
2
Moreover, Benson acted under authority granted by the Property Maintenance
Chapter of the City’s Municipal Code, which provides that, “[i]f entry is refused or
not obtained, the code official is authorized to pursue recourse as provided by law.”
OMC § 48-34. Benson testified that, on at least two occasions, he was refused entry
to residential premises, obtained a warrant, and returned. The difference in the
authorizing language in § 48-34 and § 18-7 is neither troublesome nor surprising.
Chapter 48 covers maintenance of existing structures, whereas nuisance violations
frequently occur outside the home in areas either visible from public lands or within
the “open fields” exception to Fourth Amendment warrant requirements.
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27, 2002, the City Planning Director wrote Nikolas regarding the condemnation.
Describing the structure as “Converted into garage. REPAIRED,” the notice stated:
This is to inform you that the inspection conducted by Scott P. Benson,
Housing Inspector, on September 26, 2002, confirmed that the above-
referenced property complies with Chapter 43 of the Omaha Municipal
Code, Unsafe and Dangerous Buildings.
Therefore, the City authorizes the release of the placarding . . . dated
April 7, 2000 . . . filed with the Douglas County Register of Deeds.
Also on September 26, Nikolas applied for electrical permits to install a disposal, a
furnace, a range, a dryer, air conditioning, a dishwasher and 35 outlets in the garage,
and in October he applied for a mechanical permit to install an air conditioning unit.
Although he intended to convert the upper floor of the garage into living quarters for
himself and his mother, he discontinued this construction work in December 2002
after receiving a letter from the local electric utility advising:
The City of Omaha Planning Department has informed us that your
property is not zoned for 2 residential units on the same property.
Therefore, the City of Omaha Permits and Inspections Department can
not issue a permit or give us authorization to connect service without a
valid address. . . . Once you have obtained a valid address, you can
obtain a permit from the City of Omaha Permits and Inspections
Department. The City of Omaha will do a final inspection, and will
authorize us to connect your service.
Nikolas did not apply to divide his property and obtain a second address.
When code inspector Benson accompanied health inspector Theisen to inspect
debris in the ravine on March 1, 2004, Benson first knocked on the front door of the
main residence to contact Nikolas or his tenant. At this time, Benson averred, he -
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saw that the ‘garage’ had now been renovated to obviously serve as a
second residence on the property. The garage featured patio doors, sky
light windows, glass block windows of the type used for bathrooms,
plumbing piping entering and exiting the building, furnace venting
exiting the building, an air conditioning unit attached to the building, and
residential-style bow windows. These things are indicative of a
dwelling, not a garage.
Benson then circled the garage and “looked in every window and door.” Inside, he
saw unfinished work, tools, ladders, and construction materials. He knew that this
part of the City was zoned to prohibit two separate residences on the same lot. He
knew that Nikolas’s construction permits had expired, some without final inspections.
He knew that the garage had not been inspected or approved for use as a dwelling. He
perceived the garage had no functioning electricity, which is a code requirement for
a lawful dwelling unit. Based on this visual evidence that the approved use as a
garage was changing to unlawful use as a dwelling unit, Benson placed a placard on
the sliding glass door leading directly outside from the upper level, where the
dwelling-like improvements were being installed, to the top of the incline against
which the garage was built. The placard warned in large letters, “DANGER -
CLOSED,” followed in smaller print by this notice:
This structure has been determined to be unsafe, unfit for human
occupancy, or unlawful, and is ordered closed by the City of Omaha
Planning Department. Its occupancy has been prohibited by the City
Code Official. Any person who occupies this structure . . . may be
prosecuted and punished by a fine of up to $500 and/or imprisonment of
up to six months.
Nikolas did not appeal this action to the Planning Department’s building board
of review, which likely would have stayed inspector Benson’s notice until the appeal
was heard. See OMC §§ 48-101 and 102. Instead, he unsuccessfully applied to the
Planning Department in 2005 to have the garage approved as an “accessory
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apartment,” see OMC § 55-763(a), and then, nearly four years after the placarding,
filed this federal court damage action. On appeal, Nikolas argues that inspector
Benson violated the Fourth Amendment by searching the garage without a warrant
and violated Nikolas’s procedural due process rights by placarding the property.
A. Fourth Amendment Issues. Nikolas argues that inspector Benson
conducted unreasonable warrantless searches when he left the driveway, circled the
garage, and peered in its windows. It is clear that, without a warrant, Benson could
enter the property through its open gate and proceed up the driveway to the front door
of the main residence to ask for consent to search inside any part of the residence. See
United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006), cert. denied, 549 U.S.
1259 (2007); United States v. Weston, 443 F.3d 661, 667 (8th Cir.), cert. denied, 549
U.S. 956 (2006). Likewise, viewing the exterior of the garage while proceeding up the
driveway required no warrant. See Air Pollution Variance Bd. v. W. Alfalfa Corp.,
416 U.S. 861, 864-65 (1974); Widgren v. Maple Grove Twp., 429 F.3d 575, 584-85
(6th Cir. 2005); United States v. Raines, 243 F.3d 419, 421-22 (8th Cir.), cert. denied,
532 U.S. 1073 (2001). Indeed, “visual observation is no ‘search’ at all.” Kyllo v.
United States, 533 U.S. 27, 32 (2001). Nor did inspectors Benson and Theisen need
a warrant to proceed from the unfenced residence to inspect portions of the property
that fall within the open fields doctrine, such as the ravine. See United States v.
Hayes, 551 F.3d 138, 147 (2d Cir. 2008); United States v. Traynor, 990 F.2d 1153,
1157 (9th Cir. 1993). Thus, the only arguable Fourth Amendment violation was
Benson walking from the residence to the garage, walking around the garage, and
looking in its windows.
Applying the multi-factor test in United States v. Dunn, 480 U.S. 294, 301
(1987), the district court concluded that Benson did not need a warrant to approach
the garage and peer in its windows because the garage was not part of the curtilage of
the residence some thirty to forty-five feet away. We agree with this conclusion,
which is consistent with our decisions that have applied Dunn to other garages and
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barns. See United States v. Gerard, 362 F.3d 484, 488 (8th Cir.), cert. denied, 543
U.S. 928 (2004); United States v. Mooring, 137 F.3d 595, 596 (8th Cir.), cert. denied,
525 U.S. 902 (1998); see also United States v. Cousins, 455 F.3d 1116, 1122, 1124
(10th Cir.), cert. denied, 549 U.S. 866 (2006).
Moreover, even if Nikolas had an expectation of privacy in the garage
warranting protection comparable to that afforded the curtilage of a residence, we
conclude that Benson’s minimally intrusive exterior search and look through the
windows was constitutionally reasonable. Based on our review of Benson’s photos
of the garage exterior, it is obvious that he had probable cause to conclude on March
1, 2004, that the structure was in the process of being changed from a lawful garage
to an unlawful dwelling, and that it was unsafe and unfit for human occupancy in its
unfinished, unapproved condition. Thus, Benson could simply have placarded the
property and left. Instead, he looked in the windows, seeing more signs of on-going
construction and conversion of the upper level to a residence. Although Camara
established that housing and building inspectors need consent or a warrant to enter a
residence to search for code violations, Nikolas cites no case holding that an inspector
who is lawfully on the premises and who sees an apparent public health and safety
violation from the exterior of a detached structure needs a warrant before looking in
the window to confirm or refute the apparent violation.
B. Placarding and Due Process. Nikolas argues that placarding the garage
without prior notice and an opportunity to be heard violated his constitutional right
to procedural due process. We disagree. Without question, procedural due process
requires notice and an opportunity to be heard before a private building may be
condemned as a nuisance and demolished. See Hroch v. City of Omaha, 4 F.3d 693,
695 (8th Cir. 1993). But the City had such procedures, as Nikolas well knew in March
2004. The garage was placarded and under an order to be demolished and removed
when Nikolas bought the property in July 2000. He promptly received a “First Notice
of Violation,” which extended the condemnation proceedings, and then an opportunity
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to appear and be heard in November 2000 before the demolition order was enforced.
He took good advantage of these predeprivation procedures, persuading the Planning
Department to continue the condemnation proceedings for nearly two years while he
remedied the conditions that made the garage unsafe and unfit. The Department then
released the structure from condemnation in September 2002 as a lawfully permitted
garage. Nikolas knew these procedures were available when the garage was
replacarded in March 2004, but he did not pursue them.
An additional issue of predeprivation due process could arise if placarding of
a structure as unfit for human occupancy caused a severe temporary deprivation, such
as the emergency closing of a retail establishment. We decline to address that issue
because the short answer here is that posting the placard on March 1, 2004, caused no
deprivation or interference with a protected property interest. The placard was merely
a prominent reminder of what Nikolas already knew, as well as a warning to the
general public that applicable zoning and building code restrictions prohibited any
person from occupying (living in) the garage. Nikolas argues that he was deprived of
other uses of the structure. Benson denied at his deposition that the placard barred
uses other than occupancy, testimony consistent with provisions of the Municipal
Code that separately prohibit occupancy and use. See OMC §§ 43-111, 48-122. In
any event, the summary judgment record contains no evidence that Nikolas was
denied a use other than occupancy, or that he was denied permission to undertake
other uses. From this record, it appears that his only pre-placarding use, storing tools
and construction materials, continued after placarding. Thus, at a minimum, summary
judgment on this tenuous due process claim was properly granted for failure of proof.
The only other “use” Nikolas wanted -- occupancy -- was unlawful before and after
the placarding.
For the same reason, Nikolas’s argument that placarding the garage was an
unreasonable seizure is without merit. Nothing was seized. From a Fourth
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Amendment perspective, the placarding bore no resemblance to the condemnation and
physical destruction of buildings that we upheld in Hroch, 4 F.3d at 696-97.
III. Conclusion.
Finally, Nikolas argues that the district court abused its discretion in denying
his post-dismissal motion to amend the complaint if we determine that he did not
adequately plead a procedural due process claim. Like the district court, we have
considered that claim on the merits. Accordingly, there was no abuse of discretion.
The judgment of the district court is affirmed.
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