A Cowley County District Court judge has ruled in favor of the Cowley County commission in a lawsuit filed by a rural Arkansas City couple.
Victor and Nancy Barnes took the three-member commission to court in a dispute over whether the county had the right to have county employees clean the Barnes’ property and then bill them over $11,000. The 14 acres of land involved is located one-half mile west of U.S. 77 and 252nd Road, in the unincorporated area of the county.
The Barnes hoped to prevent the enforcement of the assessment levied against their property by the?county and, originally,?wanted monetary damages for? the trespass. The money damage claims were later dismissed and were not a part of the final judgment.
In a 21-page decision, District Judge J. Michael Smith granted the commission’s request the other claims be dismissed as well.
A number of properties were found unsafe, unsanitary, and unfit for human use or habitation by the commission which adopted a resolution in 2005 establishing regulations to deal with such problems. They also determined some parcels of land constituted a nuisance because of the accumulation of garbage, junk, appliances, metals, lumber and other waste.
The regulations provide that a group of five county residents may file a petition charging that a structure is uninhabitable or that a parcel of land constitutes a nuisance. The land owner is served with a? complaint and notice of a hearing before the commission. The landowner is given the right to file an answer to the complaint and to present evidence at the hearing.
Following the hearing, the commission decides the fate of the property and may order the landowner to take certain action to deal with the problems. If the landowner fails to comply with the commission’s order, the commission may take care of the problem themselves and then place a lien on the landowner’s property to cover the cost involved.
Five county residents did file a petition in August 2005 complaining about the condition of the Barnes property. The Barnes lived in Philadelphia from September 2005 to September 2006. Notice of the complaint was sent by certified mail and received by the Barnes in January 2006. They were notified a hearing was scheduled to be held in 11 days.
Barnes talked with County Health Department Environmental Technician Jim McGuire and said he would be unable to return to Kansas for the meeting but would be back in late March or early April.
The hearing was held anyway and an order was issued giving the Barnes 30 days to begin clearing the property. The order also stated if the Barnes did not respond to the order, the county might use private contractors to do the work and a lien would be put against the property.
Barnes contacted McGuire in February 2006 to say he would hire people to comply with the order when he returned in April. The county sent another letter to the Barnes that March, again advising them of the problems and warning that county employees would do the work if the Barnes did not within 21 days.
The judgment goes on to say the Barnes hired Ranger Tree Service to do the work because they were returning to Philadelphia. The tree service provided over 58 hours of labor and services which cost the Barnes $3,700. However, the work was not completed.
More than 10 weeks after the March 14 letter, county workers began cleaning the property. The work was finished June 5 and the Barnes presented with a bill for $11,740.75. The cost was assessed to the Barnes property and described as a special assessment. The Barnes have not paid the bill.
Kansas law gives the commission the authority to exercise home rule and establishes the powers, limitations, restrictions and prohibitions as well as the procedure, according to Smith’s ruling.
“The statute clearly permits injunctive relief or?criminal prosecution – but it is equally clear that it does not limit remedial relief to those two actions as the only way a county can legally enforce its resolutions,” Smith wrote. “The procedure of abatement and charging for the expense thereof after notice and opportunity to be heard is not prohibited by any home rule statute.
“The resolution process notified them a complaint had been received and they were given an opportunity to be heard on the merits of the complaint. They failed to attend the hearing and defendant (the county) found the conditions to be hazardous and a nuisance,” he wrote.
The fact the landowners did undertake a brief but incomplete clean-up confirms their understanding of the problem and the clarity of the unacceptable conditions the defendants complained of, the judgment states.
The facts show the Barnes were given more than adequate time to remedy the nuisance conditions and failed to do so. The county elected to finish what the Barnes started and didn’t finish. No fines or penalties were imposed. Only the cost of the remedial abatement was charged against the property, the decision states.
The county’s resolution was neither illegal nor unconstitutional, Smith said. “It was a valid use of county home rule power and provided due process to? plaintiffs by granting an opportunity to be heard before the decision to require abatement was made.
“Plaintiffs failed to appear or present any evidence whatsoever to dispute the complaints made or the investigative report which followed,” he wrote. There is a statutory appeal process available to any person aggrieved by any decision of the commissioners and plaintiffs failed to exercise that exclusive appellate right. They recognized the validity of the complaints by starting to abate the nuisance conditions themselves.”
The Barnes quit that effort and the county finished the job for them, he decided.
