Attorney Timothy Baland, representing Nellis, filed documents with the court of appeals Monday contesting the decision by the Coon Rapids Board of Adjustment and Appeals Dec. 6, 2012 that rejected Nellis’ appeals of the administrative citations issued by the city and upheld by the city’s hearing examiner.
Specifically, the citations accused Nellis of being in violation of city code by maintaining an illegal home occupation and keeping non-domestic animals.
The board, which comprises residents appointed by the Coon Rapids City Council, agreed with the arguments of Assistant City Attorney Doug Johnson, who presented the city’s case at a quasi-judicial hearing in which witnesses were sworn in and were subject to cross-examination, that Nellis’ operation is not an allowed home occupation accessory use because it is not clearly incidental and secondary to the residential use of the property and that he possessed prohibited snakes under the city’s non-domestic animal ordinance.
The action approved unanimously by the four-member board ordered Nellis to remove all animals from the city prohibited by code; reduce the total square footage of his home occupation in the home to be no more than 25 percent of the habitable square footage; and reduce the ammonia level inside the home to be less than one part per million inside the residence, with no ammonia detectable outside the home.
In addition, the board ordered Nellis to pay a civil penalty of $300 to the city, but gave him 120 days to April 6 to pay the penalty and comply with the provisions of the order.
With Nellis’ appeal to the court of appeals that deadline for paying the $300 civil penalty will be put on hold until the appeals court issues its ruling.
The board’s actions cannot be appealed to the Coon Rapids City Council, only to the state court of appeals.
In his petition for a writ of certiorari to the state appeals court, Baland requested an oral hearing which would take place before a three-member appeals court panel of judges.
In his filing, Baland gives five reasons for Nellis’ appeal.
• Nellis’ constitutional right to be free from unreasonable searches and seizures was infringed because the search warrant obtained to search his property was not supported by adequate probable cause and because the manner in which the search warrant was executed was unreasonable given the circumstances due to the excessive display of force used in executing the search warrant.
• The city’s ordinance prohibiting the possession of certain species of snakes as well as the home occupation ordinance are unconstitutional on their face and in their application to Nellis because, among other reasons, they are unconstitutionally vague, do not have a rational basis and were applied to Nellis’ situation in a discriminatory, unreasonable and unconstitutional manner.
• The non-domestic animal ordinance banning the possession of certain species of snakes does not contain a “grandfather” clause for Nellis to continue his previously permitted use.
• The ordinance governing appeals to the Board of Adjustment and Appeals and appeals hearings is unconstitutional because, among other reasons, it violated Nellis’ constitutional rights to due process, does not affirm Nellis’ rights to have witnesses against him sequestered and does not provide that Nellis may make such a request.
• The Board of Adjustment and Appeals erred in affirming the two citations issued against Nellis.
“The appeal has some really good legal arguments and constitutional issues that needs to be addressed by the court of appeals,” Baland said.
“There are some civil and constitutional rights that have been infringed.”
According to Johnson, the city, in all likelihood, will send Baland a DVD of the Board of Adjustment and Appeals hearing.
Baland will have to hire a court reporter to transcribe the DVD for a written record to be submitted to the appeals court, Johnson said.
According to Baland, once the transcript has been filed with the appeals court, he has 30 days to submit a brief, the city has 30 days to file a response, then he has another 10 days to reply.
A hearing will be then set before a three-judge panel of the court, after which the court will issue a ruling in 90 days, Baland said.
Removing the snakes prohibited under the city’s non-domestic animal ordinance would “kill my hobby,” Nellis said following the December hearing.
According to Nellis, he has sold a lot of his snakes over the past year, and now has about 220, of which more than 100 – pythons and boas – would be considered illegal under the city’s non-domestic animal ordinance.
He sells some of his snakes at reptile shows and also online, but not by people coming to his home, Nellis said.
His activities came to the attention of the city in October 2011 when Leya Drabczak, housing inspector, went to the rear of his split-entry home on Grouse Street following a complaint of a foul smell coming from a pile of wood shavings used for animal bedding that had been disposed of in the backyard and via an Internet search, she learned about Nellis’ snake breeding hobby/business.
An administrative search warrant was obtained from a judge to search the inside of the home, for which Drabczak was accompanied by members of the Coon Rapids police and fire departments and Animal Humane Society investigator Keith Streff.
According to the staff report to the city council, one room on the main floor and three other areas on the lower level housed snakes of various sizes and species in commercial cages with glass fronts and sliding doors. The cages were stacked on top of one another from floor to ceiling.
In all the rooms, the cages were around the perimeter of the rooms.
But in the main floor room the cages were also stacked in an island in the center of the room, with the walkways between the cages less than three feet in width, the report stated.
At that time, there were some 300 non-venomous snakes, about 400 mice and other animals and reptiles, according to the report.,
The arrangement of the cages blocked full access to the window, obstructing egress, it stated.
The fire department and North Metro Chemical Assessment Team did an air quality inspection and found the levels of ammonia gas were elevated and higher than is normally found in a residential home, the report stated.
As a result, the property was listed as a “2800” property by the city which meant that firefighters and police would not enter the premises if there was a call, according to one of the findings of fact presented to the Board of Adjustment and Appeals by Johnson.
The inspection prompted staff to issue an order for Nellis to remove his snakes based on a staff determination that there were air quality issues, inadequate mechanical systems, fire code safety issues and the use of extension cords instead of permanent wiring.
Early last year, the council on a 4-3 vote tabled a decision to give staff a chance to resolve the issues with Nellis.
Following the council action, City Attorney Dave Brodie and Community Development Director Marc Nevinski met with Nellis at his home in March 2012.
But they were unable to find common ground, Nellis declining to remove the prohibited snakes and stating that he had reduced the number of snakes and live rats as well as the amount of ammonia.
That prompted the issue of the administrative citations by the city, Nellis’ appeal, the hearing examiner’s rejection of the appeal and Nellis’ appearance before the Board of Appeals and Adjustment in December.
Peter Bodley is at