Coon Rapids snake breeder’s battle with city heads to the court of appeals

Scott Nellis’ battle with the city of Coon Rapids over what he calls his hobby/business of breeding snakes in his Coon Rapids home, which he then sells primarily at reptile shows, is heading to the Minnesota Court of Appeals.

The city’s Board of Adjustment and Appeals last night (Thursday, Dec. 6) rejected Nellis’ appeals of two 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 in a quasi-judicial hearing in which witnesses were sworn 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 to 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, 2013 to pay the penalty and comply with the provisions of the order.

The board’s actions are not appealable to the Coon Rapids City Council, but to the state court of appeals.

And that’s where Nellis said after the hearing that he would be taking his case.

Nellis represented himself before the board and called no witnesses – the city called six – but said he would be hiring an attorney to present his case to the court of appeals.

According to Nellis, he has 60 days from the board’s action to file his appeal with the state court of appeals and the board’s order would be placed on hold during the appeals process.

He was surprised by the board’s action because he has presented written materials, including exhibits, to the board at the hearing and board members did not read them, Nellis said.

Removing the snakes prohibited under the city’s non-domestic animal ordinance would “kill my hobby,” he said.

“They are very expensive reptiles and cost a lot of money,” Nellis said.

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.

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 at 10320 Grouse St. N.W. 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 Humane Society investigator Keith Streff.

A very strong smell of ammonia forced the inspectors to wear masks during the search, the report to the council 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.

In all, there were some 300 non-venomous snakes, about 400 mice and other animals and reptiles, according to the report.,

That arrangement of the cages blocked full access to the window, obstructing egress, according to the report.

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 has been listed as a “2800” property by the city which means that firefighters and police will not enter the premises if there is a call, according to one of the findings of fact presented to the board by Johnson.

That 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.

The council on a 4-3 vote tabled the issue 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, but were unable to find common ground Nellis declined to remove the prohibited snakes, 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 last night.

Board Chairman Gary Wessling said the board could not consider the validity of the city’s ordinances, only whether there had been a violation “by a preponderance of the evidence.”

Witnesses for the city – Marc Nevinski, community development director; Drabczak; Desiree Toninato, Coon Rapids Police Department community policing officer, Nick House and Shannon Moen, Coon Rapids Fire Department inspectors; and Streff – all of whom had been inside Nellis’ home, testified that his hobby/business was not clearly incidental and secondary to the residential because of its intensity.

In Nevinski’s view, Nellis’ hobby-business occupied about 50 percent of the habitable space in the residence.

And to get a permit, it must be a legal use, according to Nevinski.

But Nellis responded that from his measurements his snake-breeding operation took up 23 percent of the habitable space.

He said that when he started breeding snakes as a hobby and later when he decided to make it a hobby-business in 2007, he had checked city ordinances on home occupations and concluded that he did not need a permit.

He has no people coming to his home to buy snakes, nor any sign outside advertising his hobby-business, Nellis said.

At the same time, he had checked to make sure that snakes were not prohibited by city ordinances and found they were not.

He was not aware that the city created the non-domestic animal ordinance in 2010 that placed some his snakes, all of which are non-venomous and harmless, into the prohibited category and thus the existing use should be grandfathered in, Nellis said.

An exception was made in the ordinance for an existing use, cows on more than 20 acres, he said.

Nellis cited state laws governing non-conforming uses and exotic animals that backed up his argument that the snakes should be grandfathered in.

And he said the fact that the city allows pet shops in Coon Rapids to sell the very same snakes that he is banned from having in his home, as well as the exception for the cows in the ordinance, violated his constitutional equal protection rights under the 14th amendment and was discriminatory.

According to Johnson, there was a lot of case law to indicate that the council did not have to grandfather in Nellis’ snakes when it passed the non-domestic animal ordinance – citing prohibition as an example on the national scale – and the non-conforming issue did not apply because the city was unaware of Nellis’ snake breeding at the time of the ordinance.

There are other cities that have similar non-domestic animal ordinances similar to Coon Rapids, Johnson said.

Because the hearing before the Board of Adjustment and Appeals was to determine whether Nellis had violated city ordinance, he was not allowed to argue the constitutionality of the non-domestic animal ordinance, which he has described as “unconstitutional, arbitrary and unscientific.”
abcnewspapers.com/2012/12/07/coon-rapids-snake-breeders-battle-with-city-heads-to-the-court-of-appeals/

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