The Minnesota Court of Appeals has denied Coon Rapids resident Scott Nellis’ appeal of two citations issued by the city of Coon Rapids over his home-based hobby and business of breeding snakes.
The three-judge appeals court panel handed down its decision Monday morning following a hearing July 18.
Writing the opinion for the appeals court panel, Judge Doris Huspeni rejected the arguments raised in the appeal and could not find any basis for concluding that the city had acted unreasonably.
“We are pleased with the decision of the court of appeals,” said Assistant City Attorney Doug Johnson, who represented the city in the case.
“We will know shortly if Mr. Nellis intends to appeal the decision.
“Assuming there is no appeal, we look forward to working with Mr. Nellis and his attorney to ensure he is in compliance with our code requirements.”
According to Timothy Baland, Nellis’ attorney, he talked with his client following the appeals court decision Monday and they are considering options, including a possible appeal to the Minnesota Supreme Court.
To do that Baland would have to file a petition for review to the Supreme Court within 30 days of the appeals court ruling, he said.
Then it’s up to the Supreme Court to decide whether to hear the appeal or not, Baland said.
Baland’s appeal of the city citations against Nellis did raise issues about the constitutionality of the city’s ordinances, he said.
While the appeals court looked at the appeal thoroughly and considered all arguments in the case, he was disappointed by the appeals court decision, Baland said.
“I don’t play to lose,” he said. “But there are still options out there.”
Nellis appealed to the court the decision by the Coon Rapids Board of Adjustment and Appeals Dec. 6, 2012, that rejected his appeal 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 nondomestic animals (snakes).
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 the 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 possesses 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 this year 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.
In his brief to the appeals court, Baland listed 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 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.
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.
• The ordinances on which the citations were based are unconstitutional and applying them to Nellis violated his constitutional rights, Baland said.
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 argued that Nellis’ animals were allowed prior to the ordinance’s adoption in 2010 and therefore should have been “grandfathered in.”
In addition, 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 wrote in his 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 brief, Johnson said the argument that the ordinance is unconstitutional because it does not have a “grandfather” clause 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 denied 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 wrote that the council was aware at the time that the cattle business was operating in the city, but not of Nellis’ snake breeding.
• 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.
Writing for the appeals court panel, Huspeni stated that the district court had a “substantial basis for concluding that probable cause existed” for the administrative search warrant and it was issued properly.
Addressing the argument that the execution of the search warrant by 11 different people was not reasonable and violated Nellis’ constitutional right to be free from unreasonable searches and seizures, Huspeni stated that Nellis does not allege the use of force, much less anything that amounts to excessive force, and he provides no further argument or authority to support his assertion that city officials acted unreasonably.
The appeals court did not find the city home occupation ordinance vague as Baland argued in the appeal.
“Because the ordinance clearly prohibited Nellis’ use of the property, his void-for-vagueness claim fails,” Huspeni wrote.
The appeals court also rejected Baland’s argument that the city’s nondomestic animal ordinance was unconstitutional because it did not have grandfather clause.
According to Huspeni, Nellis offers no discernible argument and no authority for application of this principle of real-property law to municipal animal regulation.
City ordinances are presumed constitutional and the burden of proving they are unconstitutional is on the party bringing the challenge, according to Huspeni.
In the first of two equal-protection constitutional issues, Huspeni wrote that there was nothing in the record to support Nellis’ claim that the city singled him out in enforcing the nondomestic animal ordinance while not enforcing it against pet stores, therefore “this argument is beyond our scope of review.”
And on the other equal-protection issue, Huspeni wrote that the appeal fails to show how the city’s promotion of agriculture by making the exception for cattle in the nondomestic animal ordinance is not rationally related to the city’s legitimate interest in promoting the public’s health and welfare.
In her opinion, Huspeni wrote that according to Nellis, his pythons and boas are harmless to humans, but the board of appeals and adjustment heard testimony from an Animal Humane Society officer that snakes in general and city-prohibited snakes can be dangerous to humans, especially to those who lack the knowledge to handle them.
The appeals court’s function was not to engage in fact finding, nor to second guess the board’s credibility determinations, she wrote.
“We therefore decline to find that the snakes prohibited … pose no threat to humans and conclude that Nellis has failed to meet the burden of proving that the ordinance is unreasonable and unconstitutional,” Huspeni wrote.
Nor did the appeals court find that the board acted arbitrarily and capriciously in affirming the two citations, she wrote.
According to Nellis, he had sold a lot of his snakes since the city’s first involvement in October 2011 when he had some 300 nonvenomous snakes, plus 400 mice and other animals and reptiles in his home.
At the time of the December 2012 hearing, he had about 220 snakes, of which more than 100 – pythons and boas – would be considered illegal under the city’s nondomestic animal ordinance, Nellis said.
Nellis sells some of his snakes at reptile shows he attends during the year and also online, but not by people coming to his home, he said.
Peter Bodley is at firstname.lastname@example.org