Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Loken, Chief Judge
Submitted: February 11, 2010
Before LOKEN, Chief Judge,*fn1 GRUENDER and BENTON, Circuit Judges.
In July 2000, Michael E. Nikolas purchased 6.79 acres of land within three miles of the Omaha city limits, an area in which the City has statutory planning and zoning authority. See Neb. Rev. Stat. § 14-418. The property included a forested area, a ravine, a house, and a dilapidated two-story structure built by a prior owner without necessary building permits that the City had placarded for condemnation. In the following years, Nikolas had a series of zoning and code enforcement disputes with the City's Planning Department and the Douglas County Health Department. In February 2008, he filed this action against the City of Omaha and Planning Department Code Inspector Scott P. Benson, asserting federal constitutional claims under 42 U.S.C. § 1983 and an inverse condemnation claim under state law. The district court*fn2 granted summary judgment dismissing Nikolas's federal claims with prejudice and declining to exercise pendent jurisdiction over his state law claims. Nikolas appeals the dismissal of his federal claims. Reviewing the grant of summary judgment de novo, we affirm. See Lewis v. Jacks, 486 F.3d 1025, 1027 (8th Cir. 2007) (standard of review). We will discuss the issues raised by Nikolas in the context of the two distinct enforcement actions out of which those claims arose.
I. The Debris-Filled Ravine
At some time after he purchased the property, Nikolas dumped construction debris in the ravine, allegedly to stabilize the area and control erosion. When the unsightly debris reached a height of some thirty feet, a neighbor complained to the Douglas County Health Department. On January 15, 2003, the Health Department wrote Nikolas advising that its officers had evidence he was dumping "building rubble and demolition debris" on the property in violation of § 33-27 of the Omaha Municipal Code and ordering him "to cease all illegal dumping activity immediately and apply for written authorization."
On March 1, 2004, Health Department inspector Les Theisen entered the property and photographed the debris. City code inspector Benson accompanied Theisen at the latter's request because, as will become apparent in Part II of this opinion, Benson was already familiar with the property. On March 11, a deputy sheriff issued Nikolas a citation for violating Douglas County's Nuisance Regulation.
The citation referenced § 23-174.10 of the Nebraska Revised Statutes and the Douglas County Regulation that defined nuisances to include: "14. Building, construction, and demolition debris except debris defined as beneficial fill . . . and issued a valid permit." Six weeks later, Douglas County dropped the charge, and the City charged that the debris was a littering violation of § 18-22(b) of the Omaha Municipal Code ("OMC"). Chapter 18 contains the City's nuisance regulations. Section 18-22(b) provides that it is unlawful for the owner "of any lot or ground in the city" to "cause to allow litter to be deposited" or remain on his land.
Nikolas initially pleaded no contest and was found guilty of the charge. He moved to withdraw the plea when the parties failed to negotiate an appropriate remedy. The County Court denied that motion and, in March 2005, sentenced Nikolas to 24 months probation, ten days in jail, and an additional sixty days in jail unless he promptly completed "a mitigation plan acceptable to the City of Omaha Planning Department." Nikolas appealed. The Nebraska Court of Appeals reversed the conviction because of inadequate plea advice. On remand, the proceedings were dismissed in December 2007 for failure to satisfy speedy trial requirements. In this § 1983 action, Nikolas raises various challenges to his prosecution for violating OMC § 18-22(b). These issues were not raised in the state court action.
First, Nikolas argues that § 18-22 is unconstitutionally vague as applied to him, not because its operative prohibition is impermissibly vague, but because Chapter 18 does not "clearly articulate whether § 18-22(b) applies to littering on . . . Property outside the City's corporate limits." Chapter 18 is impermissibly vague, he explains, because it applies to all property "within the city and, at the discretion of the duly designated enforcing officer, all property within three miles of the city limits." OMC § 18-1 (emphasis added). We acknowledge that criminal statutes can be impermissibly vague. See United States v. Washam, 312 F.3d 926 (8th Cir. 2002). But the unusual attempt to apply that doctrine to this prosecution is unsound.
The Nebraska statutes expressly grant the City broad power to control nuisances and littering on property within three miles of the city limits. Neb. Rev. Stat. §§ 14-102(15), 14-103. They also authorize Douglas County to adopt health and safety regulations that apply to all parts of the county not within city limits "except within the unincorporated area where a city . . . has been granted zoning jurisdiction and is exercising such jurisdiction." Id. § 23-174.10. Here, Douglas County initially charged Nikolas with a violation of its nuisance regulations but dropped that charge because those regulations expressly do not apply in an area "over which zoning jurisdiction has been granted to any city or village." The City then charged a violation of OMC § 18-22(b). Thus, the practical effect of Nikolas's argument -- that neither the County nor the City had jurisdiction to take action against a serious health and safety hazard on his property -- is contrary to manifest legislative intent.
We conclude that § 18-1, properly construed, was plainly an exercise of the City's statutory nuisance jurisdiction over all property within three miles of the city limits, subject to the prosecutorial discretion of a "duly designated enforcing officer" to exempt a particular property from some or all of Chapter 18's restrictions. There is no arguable constitutional flaw in this regime. Nor can Nikolas plausibly claim lack of notice that his property was subject to littering and nuisance regulations. Thus, it is not surprising he did not make this strained vagueness argument to the state courts before pleading no contest to the charge of violating § 18-22(b).
Second, for the same reason, Nikolas argues that § 18-1 unconstitutionally delegated legislative authority to apply the criminal provisions of § 18-22(b) to property within three miles of the city limits. He cites no federal case applying the rarely-invoked non-delegation doctrine to a statute conferring upon prosecutors or enforcement officials the discretion to determine what regulatory violations will be prosecuted. This contention borders on the frivolous. Compare United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010).
Third, Nikolas argues that § 18-22(b) as applied to him violated the Ex Post Facto Clause of the United States Constitution because the City did not determine that § 18-22(b) applied to his property until it charged him with a violation, after the alleged littering occurred. This contention is also without merit. As we have explained, Chapter 18 applied to his property from the time of its enactment in 1980, subject only to the discretion of enforcement ...