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Government is out of Control! OverCriminalization
Cities, Counties, States & the Feds are Overcriminalizing Petty Violations of Municipal Codes that Shouldn't Apply on Private Property unless Health & Safety Hazard. |
| "Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?" - Henry David Thoreau |
In Palo Alto, CA, a 61-year old grandmother was arrested and almost went to jail,because "her hedge of xylosma bushes was more than 2 feet tall".
This was covered in the Monday, December 8, 2003 edition of the Daily Press, which commented "While she won her fight with cancer, she couldn't prevail over city hall. But frankly, she shouldn't have had to try.".
Check out the grandma's story at http://www.stopcityfraud.com/gma/ (Criminalizing Unsatisfactory Hedge Pruning)
The Founding Fathers set up a Constitutional Republic, where the representatives could make laws to help the people, but not regulate the people. Regulations could only be made against businesses (commerce). In theory, if someone in commerce did something potentially hazardous, he had to be regulated. But the protections against government interference in your home (your castle) was absolute, unless you had major hazards to your neighbors.
Unfortunately, today, very few understand the arguments between the Federalist and the Anti-Federalists, both of which agreed with the limitations on government presented above.
Some have proposed that "Government" should have been termed "Defensement", because that was to be its sole purpose.
Collectivists (Communists, Socialists, Marxists, Leninists, Fascists, Nazis, the Ultra-RightWing , & Ultra-Liberals want the Government to take full control from the People in the name of the Collective.
The Founding Fathers fought for the Rights of the Individual - each of the People.
The Group - the Collective - only exists in principle, but has no rights itself.
The Government was to be the Servant of the People, not the Master
2 Peter 2: 2-3) warns us "and through covetousness shall they with feigned words make merchandise of you"
A legislative body may not, under the guise of the police power, impose restriction that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities (McKay Jewelers v Bowron).
A municipality may not, either at common law or under statutory power, designate property use a nuisance by mere declaration, when in fact it is not. City of Lake Forest v. Evergreen Holistic Collective, 138 Cal. Rptr. 3d 332 (Cal. App. 4th Dist. 2012), as modified, (Mar. 29, 2012) and review granted and opinion superseded, (May 16, 2012).
The existence of a nuisance cannot be predicated solely on violation of an ordinance, where the act prohibited is in itself indifferent and no duty exists apart from the ordinance. Cook v. Normac Corp., 176 Md. 394, 4 A.2d 747 (1939).
To be enjoinable as a public nuisance, an interference with collective social interests must be both substantial and unreasonable. Monks v. City of Rancho Palos Verdes, 167 Cal. App. 4th 263, 84 Cal. Rptr. 3d 75 (2d Dist. 2008), as modified on denial of reh'g, (Oct. 22, 2008) and review denied, (Dec. 17, 2008).
A provision that the storage of abandoned junk including abandoned or junk motor vehicles is a nuisance is unconstitutional. The storage of abandoned automobiles may not be a nuisance per se but must be shown to be a nuisance on the basis of the danger to public health and welfare. Kadash v. City of Williamsport, 19 Pa. Commw. 643, 340 A.2d 617 (1975).
A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. Whether an interference is unreasonable, in the public nuisance context, depends on whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or whether the conduct is proscribed by law. Sinotte v. City of Waterbury, 121 Conn. App. 420, 2010 WL 2036172 (2010).
A “public nuisance” is one which affects an entire neighborhood or community, while a “private nuisance” affects only a single person or a determinate Yates v. Kemp, 979 N.E.2d 678 (Ind. Ct. App. 2012), transfer denied, 985 N.E.2d 338 (Ind. 2013).
A public nuisance consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all, in a manner such as to offend public morals, interfere with the use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons. City of New York v. Smart Apartments LLC, 39 Misc. 3d 221, 959 N.Y.S.2d 890 (Sup 2013).
City and state nuisance laws were not unconstitutionally overbroad; nuisance laws did not prohibit property owner from storing, accumulating, or parking his personal property or the property of others on his real property, rather, they prohibited owner from storing the property in a manner that constituted a nuisance. City of Fargo v. Salsman, 2009 ND 15, 760 N.W.2d 123 (N.D. 2009).
“A man’s house is his castle” was written by the famous jurist Sir Edward Coke in 1628, and still applies today.
I would suggest studying the California Municipal Law Handbook (“MLH”, hereafter), found in some Public Law Libraries KFC 752.A15 C35, and online at Contiuing Education at the Bar ("CEB"). MLH Chapter 1, Section C “Constitutional Grants of Municipal Authority §1.14” delineates the 5 powers of a Municipal Authority: 1) Police Power, 2) Taxing Power, 3) Eminent Domain Power, 4) Public Works Power, 5) Corporate Power. It explains how Police Powers can only be exercised when there is a Health or Safety Hazard. Obviously, the Taxing Power, Eminent Domain Power and Public Works Power do not obtain here. When the Police Power can’t be used, because there is no Health or Safety Hazard, then the City can only use its Corporate Power, which is limited to “Municipal Affairs”. There is nothing on most private property that is a Health or Safety Hazard that could allow the City’s Police Power on the Private Property, and nothing on most Private Property can qualify for a “Municipal Affair” to allow the City to use its Corporate Power. Anything the City does without the Capacity to use its Police Power or its Corporate Power for a Municipal Affair is without Jurisdiction or Capacity, and it is acting outside the law or “Under Color of Law”. Then it acts under “Color of Law”, the Commissioners, Councilmen, and other agents can be sued in their individual capacities for acting under Color of Law as Civil Rights Violations of 42 USC 1983, and possibly in Conspiracy.
Get This Book!
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The Heritage Foundation’s new book on overcriminalization, an oppressive use of the power to prosecute and punish someone as a criminal – the greatest power any civilized government regularly uses against its own citizens.
Cities in CaliforniaIn California, Cities have often gotten totally out of hand, so the Legislature had to start restricting them more. In 1967, the ability of Municipal Corporations to issue Citations or Notice to Appear was repealed (former Penal Code 853.1 to 853.4). In 1970, the California Legislature repealed provisions for municipalities to enact ordinances or regulations imposing restrictions equal to or greater than those imposed by the state. California Health and Safety Code 17958.5, requires that the Building Code can only be amended for geographical, topographical, or climatic reasons, not by whim..(see Briseno v. City of Santa Ana 6 Cal.App.4th 1378, 8 Cal.Rptr.2d 486 (4th Dist 1992), Building Insustry Assn. V. City of Livermore, 45 Cal.App.4th 719, 52 Cal.Rptr.2d 902 (1st Dist 1996), Baum Electric Co. v. City of Huntington Beach 33 Cal.App.3d 572, 109 Cal.Rptr. 260 (4th Dist 1973), Gonzales v. Santa Ana 12 Cal.App.4th 1335, Cal. Apt. Assn v. City of Fremont 97 Cal.App.4th 693. California Health and Safety Code section 17958 now requires Cities and Counties to adopt and amend their codes with the latest Building Code within 6 months for uniformity or face loss of use of their existing Building Codes. As a further check, California Health and Safety Code 17958.7, which required that findings be made for the necessity of the Building Code amendments for geographical, topographical, or climatic reasons, and that those findings be filed with the State. Many Cities are using False Pretexts for Domination, usually labeled an unreasonable application of the Municipal Code or Building Code, because it is not for any needed purpose or exigent circumstance. “A legislative body may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. (McKay Jewelers vs. Bowron).” In Chantiles vs. Lake Forest II Master Homeowner’s Assn, 37 Cal.App.4th 914,922, (1955), the Court terms the [government’s] actions as “a clear cut case of a ‘nanny state’ - nanny in almost a literal sense - going too far. These actions flew in the face of one of the most ancient precepts of American society and Anglo-American legal culture. “A man’s house is his castle” was not penned by anonymous, but by the famous jurist Sir Edward Coke in 1628.” “It is of far greater concern to effectuate an incremental whittling away of private property rights absent demonstrable public harm.” Hurwitz v. City of Orange, (September 24, 2004) (cite as: 2004 WL 2129731 (Cal. App. 4 Dist.) “the city now asserts that it should not be penalized…” “*12 There is a central flaw in this theory. It assumes that the local public entity determination of nuisance are absolutely immune from judicial scrutiny, such that even a transparently flimsy, transparently pretextual finding of nuisance would be enough to immunize the entity from any obligation to pay compensation.” “That is simply too broad a model of nuisance law. And, if there ever was a case where a city’s finding of “nuisance” could be found by a trial court to be pretextual (as a cover for the substantive taking of property, or as here, a property right), this is it. “in substance, the sequence shows that the city was not using its police power to abate a nuisance. Rather, it was trying to use its police power to abate nuisances as a fig leaf to hide the rather naked expropriation of an existing property right.” “We need only add that there is precedent for the point that a public entity cannot mask what is substantively a taking merely by invoking its nuisance power. We have already discussed the Leppo case, directly on point, where the court awarded damages after a city preemptively demolished a building as a nuisance.” Most Cities have no charter granting them exclusive jurisdiction for “Municipal Affairs”, and thus, each as a Municipal Corporation with the limited powers of a General Law City, is subject to County and State Codes and Statutes, with which it is in conflict. (An ordinance which prohibits the same acts which are forbidden by state law is void to extent that it duplicates state law. People v. Commons (Super. 1944) 64 Cal.App.2d Supp. 925, 148 P.2d 724; see Municipal Corporations 592(2). The police powers of a city under Government Code 38660 include the power to regulate construction, but not maintenance and use, unless they are unsafe for renters and the public: it is not designed to protect the owner from himself. Health and Safety Code section 17912. “Rules and regulations promulgated pursuant to the provisions of this part and building standards published in the State Building Standards Code, relating to the erection or construction of buildings or structures, shall not apply to existing buildings or structures or to buildings or structures as to which construction is commenced or approved prior to the effective date of the rules, regulations, or building standards, except by act of the Legislature, but rules, regulations, and building standards relating to use, maintenance, and change of occupancy shall apply to all hotels, motels, lodginghouses, apartment houses, and dwellings, or portions thereof, and buildings and structures accessory thereto, approved for construction or constructed before or after the effective date of such rules, regulations, or building standards.”Building Code 3401 essentially grandfathers in existing structures that are safe. Many Cities still go beyond their authority in the application of Building Codes. The City's Building Official, Code Enforcement Dept., and Dept. of Community Development all work under the auspices of the California Department of Housing and Community Development, whose vesting authority is delimited in 2001 California Building Code section 101.17. I am researching this now. One interpretation is that they have no authority to act against existing single-family residences occupied by owners. This Housing Law was to protect Tenants from Slumlords, not to protect owners from themselves.The definitions of Residential applications, in 2001 California Building Code section 310 for Group R Occupancies and by Group Classifications delimited in 2001 CBC 301, may not apply to a single family residential home that is not rented out, and does not have common toilet or kitchen facilities. Once you are aware that these "Municipal Corporations" are run "for profit", in that their CAFR (Comprehensive Annual Financial Report) shows that have millions of dollars in investments. They are leeching money from the people to build investments. This is not the Republic that all local forms of government were supposed to be guaranteed to be. Join us in returning Government to the People. Help us teach Renegade Bureaucrats their Constitutional Limits. Contact Jim Krage at jimk@cyberdude.com if you want to help. PUBLIC NUISANCE or PRIVATE NUISANCE?Public nuisance has been defined by H. Luntz, A.D. Hambly and R. Hayes, Torts Cases and Commentary, (1980) 826 as:“Some act or omission likely to affect the comfort or safety of people generally which is such as to amount to a criminal offence punishable at common law or by statute and which causes greater damage or inconvenience to the plaintiff than to the generality of the public.” As this definition indicates, unlike private nuisance, which is only a tort, public nuisance is like a crime. Trivial nitpicking about backyard chipped paint is not a public nuisance. Cf. UWA Law Review - Nuisance and Solar Law The City has no power to abate a private nuisance.There is no substantial nuisance that can possibly be public. There is no interference with public health, with public safety, with public morals, with public peace or with public convenience. Any of those so-called pollutants would be private, not public, if they existed, but they don’t even exist.A private nuisance would be a civil matter, not a public nuisance. To be considered “public”, a nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several. City of Phoenix v Johnson, 51 Ariz 115 (1938), Pennsylvania Coal Co. Mahon, 260 US 393 (1922), Higgins v Connecticut Light & Power Co, 129 Conn. 606 (1943), People v Brooklyn & Queens Transit Corp, 258 App. Div 753, 15 N.Y.S.2d 295, (1939), affirmed 283 N.Y. 484, 28 N.E.2d 925, (1940). The condition must unlawfully obstruct the public in the free use of public property (Black’s Law Dictionary, Sixth Edition, at 1230). In In re Zorn, 59 Cal.2d 652, 652 (1963), the California Supreme Court held that a barber shop was a public place, stating: “’public’ has been defined as “Common to all or many; general; open to common use,” “and” “Open to common, or general use, participation, enjoyment, etc.; as a “public Place,” I,e,, ‘common to all or many: general; open to common use.” It is well established that the City has the legal burden to prove there is an “immediate threat” to the public health, welfare, and safety. The City must prove that the type of harm the public nuisance is allegedly causing is the type of harm that the City needs to protect the public from. Additionally, the type of harm must also be of a type where “substantial and irreparable harm” would be suffered were it not for the action of the City. Such a finding has not been presented nor has it been supported by the facts, evidence, or testimony presented. “It is said that even at common law a city or town has power to abate a public nuisance. Usually it has statutory power, vested in its governing body, to declare and abate public nuisances. [8] But neither at common law nor under such express power can it, by its mere declaration that specified property is a nuisance, make it one when in fact it is not." (14 A.L.R.2d § 8, p. 82.)”. Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711 at page 718 “While we have not found authority in California that states where the burden of proof lies, other jurisdictions have held that the municipality has the burden of proof of the nuisance and the necessity for its immediate abatement. (See Solly v. City of Toledo, supra, at p. 466; Crossman v. City of Galveston, 112 Tex. 303 [247 S.W. 810, 815, 26 A.L.R. 1210]; Lawton v. Steele, 152 U.S. 133, 135 [38 L.Ed. 385, 388, 14 S.Ct. 499].) We feel that the reasoning of these cases should be applied here. Such conclusion is consistent with the rule requiring the state to have the burden of proving Leppo v. City of Petaluma (1971) 20 Cal.App.3d 711 at page 718 Civil Code section 3480 provides: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal." For the entire community to be affected by the back yard, the back yard would have to be plainly visible by, or accessible to, the general public or contain a health or safety hazard. Most back yardsi are surrounded on all sides by a tall, vision obscuring fence. Members of the general public are not allowed into the back yard. ANY NUISANCE THAT IS NOT A PUBLIC NUISANCE IS A PRIVATE NUISANCECalifornia Civil Code 3481 defines that any nuisance that is not a Public Nuisance under 3480 is a Private Nuisance. (There is no other)Civil Code 3481. “Every nuisance not included in the definition of the last section is private.” THE CITY CANNOT USE ITS POLICE POWER TO ABATE A PRIVATE NUISANCE THAT IS NOT A HAZARD OF ANY KINDThe City has no Jurisdiction to abate a “Private Nuisance” in this situation, because it is not a “Municipal Affair”.Civil Code 3494 allows the City to abate a Public Nuisance, not a Private Nuisance. Civil Code 3494. “A public nuisance may be abated by any public body or officer authorized thereto by law.” Code of Civil Procedure 371 allows a neighbor to sue for a Nuisance or the City to abate a Public Nuisance, but it does not allow the City to abate a Private Nuisance. Code of Civil Procedure 371 “An action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code, and by the judgment in that action the nuisance may be enjoined or abated as well as damages recovered therefor. A civil action may be brought in the name of the people of the State of California to abate a public nuisance, as defined in Section 3480 of the Civil Code, by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists.” In the Calif. Supreme Court case People ex. rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 at page 1104: “Civil Code sections 3480 and 3481 divide the class of nuisances into public and private. A public nuisance is one which "affects at the same time an entire community or neighborhood, or any considerable number of persons." People ex. rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 at page 1105, “To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable.” In Echevarrieta v. Rancho Palos Verdes (2001) 86 Cal.App.4th 472: Echevarrieta was ordered to trim a tree in his back yard that was over 16 feet high and obscured the public view. It was a public nuisance because it was viewable by the general public Matthew Bender, Cal. Forms of Pleading & Practice, Ch. 391, “Nuisances”, states: “Defendant may assert First Amendment rights as an affirmative defense if the injunction sought would restrict freedom of expression. This defense is most likely applicable in cases involving ``moral nuisances’‘ [see, e.g., People ex rel. Busch v. Projection Room Theater (1976) 17 Cal. 3d 42, 58-59, 130 Cal. Rptr. 328, 550 P.2d 600 ].” This would apply to miscellaneous Objets d’Art which are protected by the First Amendment and Fourteenth Amendment, and by the “substantial and unreasonable interference” test in People ex. rel. Gallo v. Acuna (1997) 14 Cal.4th 1090 at page 1105. |
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