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MN: Snake breeder seeks Supreme Court’s

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Posted by: EricWI at Sat Nov 9 20:01:50 2013  [ Report Abuse ] [ Email Message ] [ Show All Posts by EricWI ]  

Snake breeder seeks Supreme Court’s review of his appeal

Coon Rapids resident Scott Nellis is going to the Minnesota Supreme Court in an effort to overturn two citations issued by the city of Coon Rapids over his home-based hobby and business of breeding snakes.

Attorney Timothy Baland, representing Nellis, filed a petition for review with the state Supreme Court Oct. 30 following the decision by the Minnesota Court of Appeals in a ruling Oct. 7 to affirm the city’s action.

Nellis had appealed the action of the Coon Rapids Board of Adjustment and Appeals to uphold the staff-issued citations to the court of appeals.

According to Doug Johnson, assistant Coon Rapids attorney who presented the city’s case to the Board of Adjustment and Appeals and to the appeals court, the city has 20 days to respond to Nellis’ petition to the Supreme Court.

Under its rules, the Supreme Court has 60 days to decide whether it will hear Nellis’ appeal or deny the petition, but the court generally takes only 40 days from the date of the petition to make a determination, Johnson said.

“Until the Supreme Court acts, city action to enforce the citations will stay on hold,” he said.

According to Baland’s petition for review to the Supreme Court, the appeals court did not rule on the constitutionality of the ordinances under which the city cited Nellis.

In his appeal, Nellis challenged the constitutionality of the Coon Rapids home occupation ordinance on the grounds of vagueness and the non-domestic animal ordinance for not having a “grandfather” clause, violating equal protection and not being supported by a rational basis, Baland states in his petition.

In addition, the Board of Adjustment and Appeals acted “arbitrarily and capriciously” in affirming the two citations and that the enforcement of the ordinances against Nellis was discriminatory, according to Baland.

Baland, in the petition, argues that resolution of the constitutionality of the city ordinances, on which the appeals court did not rule, “will have a possible statewide impact because many city, county and local ordinances are similar to the ordinances being challenged.”

In Baland’s view, the petition meets at least three of the prerequisites specified in the rules of the supreme court for taking up the case on appeal.

They are constitutionality, possible statewide impact and harmonization and clarification of the law, he wrote.

The Board of Adjustment and Appeals Dec. 6, 2012 had rejected Nellis’ appeal of the administrative citations issued by the city and upheld by the city’s hearing examiner.

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 attorney Johnson 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 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 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.

According to Baland, Nellis has been raising snakes in his Coon Rapids home since 1996 and first checked applicable city ordinances before doing so, and he checked again in 2007 when he decided to turned his hobby into a hobby/business and started a website.

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.

Following a complaint from a neighbor of an odor coming from Nellis’ property, the city was issued a search warrant of his property which was executed Oct. 26, 2011.

At that time, Nellis had some 300 nonvenomous snakes, plus 400 mice and other animals and reptiles in his home, but by the December 2012 hearing, he said he had about 220 snakes, of which more than 100 – pythons and boas – would be considered illegal under the city’s non-domestic animal ordinance.

According to Johnson, the city’s home occupation ordinance requires that the occupation be “clearly incidental and secondary” to the residential nature of the home, which in Nellis’ case it is not.

The city’s non-domestic animal ordinance was put in place in 2010 and was not unconstitutional minus a “grandfather” clause because the ordinance is regulatory, not zoning; it prohibits the possession of certain animals in the city no matter where they are possessed, he said.

Nor was Nellis singled out by the city in enforcing the ordinance against him and not others because the citations were written Nellis only after the city investigated a citizen complaint Johnson said.

Writing the opinion for the appeals court panel, Judge Doris Huspeni rejected the arguments raised in Nellis’ appeal and could not find any basis for concluding that the city had acted unreasonably.

Huspeni wrote that the district court had a “substantial basis for concluding that probable cause existed” for the administrative search warrant.

The appeals court did not find the city home occupation ordinance vague. “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 non-domestic animal ordinance was unconstitutional because it did not have “grandfather” clause.

According to Huspeni, Nellis offered 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.

Nor did the appeals court find that the board acted arbitrarily and capriciously in affirming the two citations, Huspeni wrote.


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