A date for oral arguments has been set by the Minnesota Court of Appeals in Coon Rapids resident Scott Nellis’ appeal of Coon Rapids’ issuance of two citations against him over his home-based hobby and business of breeding snakes.
The hearing will take place 10:05 a.m. Thursday, July 18, at the Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Blvd., St. Paul.
The three-judge panel assigned to the appeal comprises Francis Connolly, Edward Cleary and retired judge Doris Ohlsen Huspeni.
According to the appeal courts information, attorney Timothy Baland, representing Nellis, will make his case for 15 minutes with Douglas Johnson, assistant Coon Rapids City Attorney, getting 15 minutes to respond, before Baland has another five minutes for rebuttal.
But Baland said the judges will often interrupt the presentation with questions. “Then you are in the hot seat,” Baland said.
The appeals court can take up to 90 days to render a decision following the oral arguments July 18.
Both Baland and Johnson have filed briefs with the court, first Baland outlining the reasons for the appeal, then Johnson in response before Baland was allowed to file another brief to rebut Johnson’s arguments.
His second brief was limited to just responding to Johnson’s brief, as well as length, according to Baland.
Nellis appealed to the court the decision by the Coon Rapids Board of Adjustment and Appeals Dec. 6, 2012, that rejected his appeals of the administrative citations issued by the city and upheld by the city’s hearing examiner.
Specifically, the citations accuse Nellis of being in violation of city code by maintaining an illegal home occupation and keeping nondomestic animals.
The board, which comprises residents appointed by the Coon Rapids City Council, agreed with the arguments of Johnson, who presented the city’s case at a quasi-judicial hearing, 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 nondomestic 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.
Nellis was given until April 6 to comply with the order and pay a $300 fine, but those were put on hold when Nellis took the case to the court of appeals, the next step in the process.
In his brief to the appeals court, Baland listed three reasons why the court should uphold the appeal.
• The citations must be vacated because the search warrant obtained to search Nellis’ home was not supported by probable cause, thus the evidence gained from that search must be suppressed.
The judge did not have a substantial basis for determining that probable cause existed to issue a search warrant, according to the brief.
“The execution of the search warrant by 11 different persons was not reasonable and violated relator’s (Nellis) constitutional right to be free from unreasonable search and seizure,” Baland’s brief states.
But in his response, Johnson said that the level of probable cause required for an administrative search warrant is less than needed for a criminal search warrant and is controlled by reasonableness.
In his view, the search warrant was reasonable because a neighbor, described in the brief as a “known confidential reporting party,” reported a strong foul smell coming from Nellis’ backyard, that Nellis had told him that he bred snakes and had about 100 inside the home and the smell of feces from inside the home when the resident was talking with Nellis at his front door was overwhelming, according to Johnson.
Everything reported by the informant was corroborated through the investigation, Johnson wrote.
In addition, the number of people executing the search warrant, 11, was reasonable because “each had a specific role to play in assessing the potential violations as delineated in the warrant,” he wrote.
According to Baland, the administrative search warrant probable cause issue could be impacted by a case currently before the Minnesota Supreme Court, which is expected to rule on what level of probable cause is needed for an administrative search warrant.
• The ordinances on which the citations were based are unconstitutional and applying them to Nellis violates his constitutional rights.
According to Baland, the city’s home occupation ordinance is vague and written in such a way that it encourages unconstitutional “arbitrary and discriminatory enforcement,” especially in not defining “incidental and secondary.”
As to the nondomestic animal ordinance, Baland argues that Nellis’ animals were allowed prior to the ordinance’s adoption in 2010 and therefore should have been “grandfathered”; that was discussed by the council, but not included in the final vote on the ordinance.
The ordinance discriminates against Nellis because it allows pet stores in the city to sell the same types of snakes that Nellis breeds and the council, in adopting the ordinance, did approve an exception for a cattle owner, he writes in the brief.
According to Johnson, both terms “incidental” and “secondary” are identified in the dictionary and Baland did not cite any case law that the ordinance is vague.
“In short, ‘clearly incidental and secondary’ is an easily-understood phrase that captures the prohibition of a use that detracts from the core of what it means to live in a residential dwelling,” Johnson wrote.
In his reply to Johnson’s brief, Baland writes that numerous other suburban cities have ordinances that define the amount of square footage that must be used by a “home occupation” to cause an ordinance violation.
According to Johnson, Nellis’ residence is a home for snakes, not humans.
But Baland in his reply argues that when nondomestic animal ordinance was adopted, there is no indication that the council considered any evidence concerning whether nonvenomous snakes are dangerous and pose a risk of harm to humans.
In his brief, Johnson said the argument that the ordinance is unconstitutional because it does not have a “grandfather” clause has significant holes and misinterprets the law of nonconforming uses.
The ordinance is regulatory, not zoning; it prohibits the possession of certain animals in the city no matter where they are possessed, he wrote.
As well, Johnson denies that Nellis was singled out by the city in enforcing the ordinance against him and not others. Nellis was cited only after the city investigated a citizen complaint and no evidence has been shown that the city failed to do this in any other case where a complaint was received, he wrote.
As to the exception in the ordinance for the cattle owner, Johnson writes that the council was aware at the time that the cattle business was operating in the city, but not Nellis’ snake breeding.
“Yes, cattle and snakes are both nondomestic animals under the ordinance, but that is a far cry from saying that cattle are just like snakes for the purposes of allowing one to remain, but not the other.”
• The board did not consider Nellis’ objections to the square footage in his house and the amount of space devoted to his hobby calculated by the city nor to the characterization of his snakes as vicious or harmful.
According to Johnson, staff sought to regulate the volume of the home occupation by proposing 25 percent of the square footage number as reasonable, absent a specific number spelled out in the ordinance, but the board was not obligated to go with that figure.
In his reply, Baland said Nellis submitted two letters from herpatology experts, magazine articles and a position statement from the United States Association of Reptile Keepers to the board in support of his position that nonvenomous snakes pose little risk of harm to humans, but the board did not consider them and erred in not doing so..
According to Nellis, he had sold a lot of his snakes over the past year, and at the time of the December 2012 hearing, he had about 220, of which more than 100 – pythons and boas – would be considered illegal under the city’s nondomestic animal ordinance.
He sells some of his snakes at reptile shows he attends during the year and also online, but not by people coming to his home, Nellis said.
Nellis’ activities came to the attention of the city in October 2011 when Leya Drabczak, housing inspector, went to the backyard 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 and business.
Executing an administrative search warrant to search the inside of the home, Drabczak was accompanied by members of the Coon Rapids Police and Fire departments and Animal Humane Society investigator Keith Streff.
A very strong smell of ammonia forced the inspectors to wear masks during the search, Drabczak’s report stated.
According to the report, 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 nonvenomous 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, the report 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, it stated.
As a result, the property has been listed as a “2800” property by the city, meaning that firefighters and police would not enter the premises if there were 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 decision, City Attorney Dave Brodie and Community Development Director Marc Nevinski met with Nellis at his home in March 2012, but 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 2012.
Peter Bodley is at email@example.com