Thank you for sharing with us your very useful manual, Mr. Nervig.
I greatly value your written summation of your City v. Ogden argument.
(Pity that the U.S. Supreme Court didn't have benefit of hearing from you in City of New London v. Kelo...)

David Hanson
Hofmeyer & Hanson PC
Fayette Iowa


----- Original Message -----
From: "Jim Nervig" <realestate@iabar.org>
To: realestate@iabar.org
Sent: Thursday, May 17, 2018 9:47:29 AM
Subject: [ISBA RealEstate]  Nuisance Abatement

Yesterday, I was a speaker at the wonderful 2018 Nuisance Abatement Conference in Ames that was put on by the Iowa League of Cities. If you are involved in municipal law matters, I highly recommend attending League seminars. They are very informative. 

At yesterday’s seminar, Waterloo City Attorney Dave Zellhoefer and I spoke on the tools in the box available to cities that are dealing with nuisance violations so severe that the cities’ only final alternative is to take title to the nuisance real estate. Dave is an expert on the use of the judicial procedures under Iowa Code chapter 657A.10A. This procedure has come to be used very effectively. Originally intended to be used only in the case of residential dwellings, the statutes have been amended effectively to expand the use to include commercial buildings. The City of Des Moines has even used the procedures to take title to a skyscraper building downtown where there was no known owner, significant code violations and multiple liens. 

I spoke at the seminar on a second alternative—use of tax sale certificate foreclosure—to facilitate a city’s taking of title to a nuisance property. Back in 2005, I worked with Iowa county treasurers to completely revise Iowa tax sale statutes. Some of the new amendments we drafted were focused on having special tax sale categories for nuisance, vacant and abandoned properties at the third-Monday-in-June annual tax sale. These categories allow cities to designate properties for them to have exclusive purchase rights at the tax sale. Normally, a tax sale certificate purchaser has to wait a year and nine months after the sale to start foreclosure proceedings. Under the special rules for nuisance property category tax sale to cities, a city can begin foreclosure after only three months from the tax sale. I was very excited that we were able to obtain passage of the new tax sale procedures in 2005, but I have been disappointed that very few cities and towns are aware of this extremely time-effective, cost-effective alternative. I don’t want to sound like a Crusader, but I want to be very, very clear that the tax sale certificate alternative REALLY WORKS! TRY IT! 

For example, one of the cities for which I am city attorney recently was faced with a house fire that destroyed the above-foundation house, leaving an open foundation that was a huge safety problem. The house had been sold on contract. The contract seller was living outside Iowa. The contract buyer recently died. The circumstances were that the property was worth about $50,000 at the time the contract was entered. After the fire, there would be a cost of $20,000 to demolish the remaining building structure and to restore the property as a vacant lot suitable for residential construction. As a vacant lot, the property was valued at $4,000. It is obvious that it was not in the owners’ prudent economic interest to abate the nuisance. One could not expect an owner voluntarily to pay $20,000 to yield an asset with a value of $4,000. To this problem, the most effective solution is for the city to obtain an assignment of the outstanding tax sale certificate, and to begin foreclosure. The foreclosure procedures allow a tax deed to be issued 90 days after completion of service of redemption notices. After obtaining the tax sale deed and taking possession, the city would record a 120-day affidavit that would confirm marketable title after expiration of the 120-day period with no claims being filed. Then the city would be in full control of the property. The city would demolish the building mess and be in a position to market the property to a builder to have a new home built that would be on the tax rolls. VERY FAST AND VERY EFFECTIVE! 

I also spoke on a separate issue relating to nuisance abatement—mobile home parks. I recently represented a mobile home park in Des Moines which the City officials sought to close down and evict the 30 families living in mobile homes in the park. The case went before the Iowa Supreme Court in City of Des Moines v. Ogden. The Court unanimously ruled that there was no evidence in the record that the targeted mobile home park was more unsafe than any other mobile home park. This decision is of tremendous importance. The Constitutions prevent government from taking private property without paying just compensation. The one exception to this constitutional protection is that government does not have to pay just compensation for the termination of a dangerous nuisance. I have long been worried that governments might seek to avoid paying compensation for the termination of uses that they consider ugly and unsightly by falsely asserting that the uses are dangerous nuisances. Now, more than ever, we are faced with very powerful governmental officials WHO LIE TO US. My strongest argument to the Supreme Court was that our courts cannot merely give blind deference to a governmental dishonest sham assertion of a public safety justification to mask the true purpose to eliminate ugly and unsightly structures. I have become well informed over time about the tremendous hurdles that are faced by our poorest citizens. Make no mistake about it, the disparity between the rich and poor is continuing to widen at an accelerating pace. Our city leaders have the goal of furthering gentrification by eliminating ugly and unsightly land uses and replacing them with higher and better, and more attractive, uses of land. It is evident that the poorest among us live in ugly and unsightly homes. Unfortunately, this often places the interests of city leaders and the poor in polar opposition. An obvious answer is for city leaders to recognize that they represent all their citizens, rich and poor, and to utilize constitutional urban renewal procedures to promote gentrification. Under urban renewal, the city is required to pay landowners just compensation for taking property, and to pay tenants relocation benefits. This clearly is an area of the law that our courts will be required to address again in the future. 

For your reference, I have attached my outline from the seminar. I hope you find it instructive. And, please, let me know if you have any questions. 

Jim Nervig 

Brick Gentry P.C. 
6701 Westown Parkway, Suite 100 
West Des Moines, Iowa 50266 
Phone: 515-274-1450 
Fax: 515-274-1488 
jim.nervig@brickgentrylaw.com 



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