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City of Collinsville v. Seiber

OPINION FILED APRIL 1, 1980.

THE CITY OF COLLINSVILLE, PLAINTIFF-APPELLEE,

v.

JAMES SEIBER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. THOMAS GIBBONS, Judge, presiding. MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

The plaintiff, City of Collinsville, filed complaints against the defendant, James Seiber, alleging that he committed a nuisance at two separate locations (his residence property and his business property) on August 1, 1978, in that he "permitted or maintained an unsightly yard or premises where there is an accumulation or deposit of vehicles, equipment, junk, wrecked or disabled automobiles, trucks, material, waste and earth" in violation of paragraph 9.16.140 of its Municipal Code. The case was tried before a jury, defendant was found guilty, and a fine of $250 was imposed on each complaint. Judgment was entered on the verdicts.

Defendant appeals, alleging (1) that the ordinance was unconstitutional; (2) that the evidence failed to prove a nuisance; (3) that he was not given proper opportunity to abate the nuisance; and (4) that he was the subject of selective prosecution. We affirm the judgment.

The city ordinances in issue were promulgated pursuant to powers authorized by sections 1-2-1 and 11-60-2 of the Municipal Code (Ill. Rev. Stat. 1977, ch. 24, pars. 1-2-1 and 11-60-2), and in pertinent part provide:

"1.20.010 General penalty. A. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of the ordinances of the city is guilty of a misdemeanor. Except in cases where a different punishment is prescribed by any ordinance of the city, any person convicted of a misdemeanor under the ordinances of Collinsville shall be punished by a fine of not more than five hundred dollars.

Division 9.16 Nuisances

9.16.010. It is hereby declared to be a nuisance for any person within the limits of the city to commit any of the following described acts:

9.16.140. To permit or maintain an unsightly yard or premises where there is an accumulation or deposit of any vehicle, equipment, junk, wrecked or disabled automobile, trucks, material of any nature, waste or earth.

9.16.190. Abatement-Notice Required. Whenever the Mayor or other authorized Municipal Officer finds that a nuisance or other condition listed in this Division 9.16 exists, he shall cause to be served upon the property owner or occupant a written notice to abate the nuisance within a reasonable time after notice.

9.16-250. Fine as alternate or concurrent penalty. In addition to or as an alternate penalty for violation of this Division 9.16, the owner or occupant may be prosecuted under the provisions of Division 1.20, Section 1.20.010 of the Collinsville Municipal Code."

At trial, the evidence disclosed that defendant operated a sanitation service in Collinsville known as Seiber's Sanitation & Hauling, which consisted of garbage and trash collection and buying and selling scrap iron, metal and similar items. He had been in business at the same location for 30 years on property that was originally zoned residential but was presently zoned commercial.

One of plaintiff's witnesses, a city police officer, testified that he went to both locations and took photographs depicting the condition of the premises on August 1, 1978, and again on August 28, 1978. All photographs were introduced in evidence, and they depicted a variety of items scattered about the premises — motor vehicles, a disabled van, a truck bed, a kitchen sink, barrels, old tires, tree limbs, weeds, twisted metal pieces, scraps of metal and iron, and other debris. The city clerk testified that he was on the property on August 1, 1978, and that he observed "garbage trucks, parts of garbage trucks, storage of iron, scraps of iron, and general debris" at one location, and "abandoned garbage trucks, high weeds, general disarray and debris at the other."

Defendant testified that all of his vehicles were registered except two. Some were used to haul various items connected with the business, and others were kept for sale, either in toto or as parts. He stated that all were either operational or could be made so by the addition of batteries or tires. Garbage and trash were stored on the property in containers "until such time as we have a big truck load" to take to the landfill. On cross-examination regarding the trash and debris on the ground shown in one photograph, defendant stated that the area had been cleaned up since the complaint was filed. He contends that he cannot be guilty of creating a nuisance because his business — whether denominated a junk yard or a sanitation service — is a legitimate one, and the items found on his property are actually marketable as salvage, although plaintiff refers to them as junk.

In support of his defense of selective prosecution, defendant testified that he entered into a garbage collection contract with the city in 1972, and that thereafter a dispute arose over construction of the contract, necessitating his suing the city. He was unsuccessful in this litigation, but contends that plaintiff brought the instant suits in retaliation. Defendant called the city attorney as a witness, showing him several photographs of other property in the city which allegedly depicted conditions similar to those in the present case. The witness was unable to recall if these alleged violators had been prosecuted, but stated that "a lot of times they [landowners] will abate the nuisance before we prosecute."

In rebuttal the city introduced evidence of all the criminal complaints and notices to abate which it had filed against other individuals under the nuisance ordinance. The city clerk testified that the great majority of violations never reached the complaint stage because in most cases, after notice, the alleged nuisances were abated by the owners by informal agreement with the city. The ...


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