Buhler v. Stone

CROCKETT, Justice:

Plaintiff, Fred Buhler, sought a declaration that Utah County Ordinance 1970-1, quoted below, which deals with the keeping of premises in unclean and unsightly conditions, was unconstitutional and asked that the County be enjoined from enforcing it. His averments are: that it is vague and uncertain; that it is not within the county’s police power; and that it does not contain the procedural requirements of due process of law. The district court rejected those contentions and the plaintiff appeals.

Plaintiff is a steel worker and farmer residing at Highland, in Utah County. He owns approximately 40 acres of land; and in the area adjacent to his home has accumulated over 250 old automobiles and other adjunctive materials.

On March 6, 1973, the Utah County Commission sent Mr. Buhler a letter advising him that the old cars and materials on his property constituted a violation of County Ordinance 1970-1 and that he should correct the situation within 30 days. As a consequence thereof a meeting was arranged on April 26, 1973, which the plaintiff, the County Commissioners and the County Attorney attended. Pursuant to the discussion the plaintiff was given until June 25, 1973, to clean up his premises; and this was confirmed in a letter to him May 8, 1973. The Plaintiff having done nothing to improve the situation, on July 6, 1973, another letter was sent informing him that the cars and materials would be removed and the property cleaned up by the County.

Instead of conforming to the County’s request, plaintiff brought this action challenging the ordinance. The parts which bear on this controversy are:

Section 3-13-2. Real property to be kept clean. It shall be unlawful for any person . . . owning or occupying any real property in the unincorporated area of Utah County to fail to control the growth of injurious and noxious weeds on such property or to fail to remove from such property . . . any such weeds or any refuse and any unsightly or deleterious objects or structures iipon notice from Utah County as provided in this Chapter.
Section 3-13-3. Control of unsightly wastes. It shall be unlawful for any person to cause or permit junk, scrap metal, waste paper products, discarded building materials, or any unused abandoned vehicle, vehicles, or abandoned parts, machinery or machinery parts, or other waste materials to be in or upon any yard, lot, or piece of property within the unincorporated area of this County . . . whenever said items shall be unsightly and in public view.

An initial observation applicable to this problem is that legislative acts are entitled to a presumption of validity; and that the courts should interfere with the *294legislative prerogative only with reluctance.1

Concerning the charge of vagueness, it should be realized that legislation must necessarily be in somewhat general terms because it is obviously impossible to describe in detail every act and circumstance a statute or ordinance is intended to deal with. It is but sensible and practical that courts should take into consideration the difficulties involved in describing such conditions with the last degree of precision of language.2 The pertinent parts of the ordinance should not ■ be viewed in isolation for the purpose of finding fault with them and declaring it unconstitutional; they should be viewed in light of the total context and purpose; and an enactment should not be declared void for vagueness unless it is so deficient that it is susceptible of no reasonable construction which would make it operable. It is our opinion that if the ordinance is read in the light of the foregoing principles it meets the requirements set forth in State v. Packard;3 that persons of ordinary intelligence, who desire to know the law and abide by it, can tell what their conduct should be.

In attacking the ordinance as not within the police power, plaintiff argues that that authority of government does not extend to the regulation of appearance and esthetics. It is true that the police power is generally stated to encompass regulation of matters pertaining to the health, morals, safety or welfare. But those are generic terms. The promotion of the general welfare does not rigidly limit governmental authority to a policy that would “scorn the rose and leave the cabbage triumphant.” Surely among the factors which may be considered in the general welfare, is the taking of reasonable measures to minimize discordant, unsightly and offensive surroundings; and to preserve the beauty as well as the usefulness of the environment.4

Applicable to the issues above discussed, and even more so to the question of notice, is the fact that the plaintiff is not entitled to challenge the ordinance and have it declared void as an abstract proposition, or because it may unjustly affect someone else.5 He may do so only if his personal interests are adversely affected by the defects he complains of. The matter of notice is covered by Section 3-13-11 of the ordinance:

where the violation exists, [the County] shall serve notice in writing upon the owner or occupant of such property, either personally or by mailing notice, . . . requiring such owner or occupant ... to eradicate or destroy or remove, the weeds, refuse, objects, or structures, causing the violation within such time as the County Board of Health . . . may designate which shall be no less than ten (10) days after the date of services of such notice.

It is the plaintiff’s contention that because the ordinance in itself does not provide for a formal hearing before the County can interfere with his property, that it does not meet the requirements of due process of law.6 We disagree with that contention. As the facts herein re*295cited show, the compliance with the provisions of the ordinance gave the plaintiff ample notice and a full opportunity for a hearing and determination as to whether the condition of his premises was offensive and in violation of the ordinance. Reasonable notice and opportunity to be heard is what due process of law entitles him to.7 His contenion that it has been denied him is refuted by the procedure which was available to him and which has been pursued, including the bringing of this action and having a trial and determination made in the district court, and a review by this court.

In accordance with what we have stated herein, we are not persuaded that we should disagree with the holding of the trial court which refused to declare the ordinance in question unconstitutional; and which dissolved the temporary injunction and ordered the plaintiff to comply with the ordinance.

Affirmed. No costs awarded. (All emphasis added.)

HENRIOD, C. J. and TUCKETT, J., concur.

. See Newcomb v. Ogden City Public School, etc., 121 Utah 503, 243 P.2d 941; Kent Club v. Toronto, 6 Utah 2d 67, 305 P.2d 870.

. See State v. Cole, 18 Ariz.App. 237, 501 P.2d 413.

. 122 Utah 369, 250 P.2d 561.

. For cases holding such protection of the general welfare is a valid exercise of the police power, see Oregon City v. Hartke, 240 Or. 35, 400 P.2d 255; State v. Diamond Motors, Inc., 50 Haw. 33, 429 P.2d 825; Cromwell v. Ferrier, 19 N.Y.2d 263, 279 N.Y.S.2d 22, 225 N.E.2d 749.

. Greaves v. State of Utah, Utah, 528 P.2d 805; Walgreen Co. v. State Board of Equalization, 70 Wyo. 193, 246 P.2d 767; 16 Am. Jur.2d, Constitutional Law, Sec. 119.

. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349; and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556; and Cf. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

. Ibid.