In re N. Mankato City Council

In re: A resolution of the North Mankato City Council in the matter of a nuisance property located at 229 Allan Avenue, North Mankato owned by Edward R. Borchardt and Ann M. Borchardt.

No. A21-0143

Court of Appeals of Minnesota

October 4, 2021

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

City of North Mankato File No. Resolution 98-20

Karl O. Friedrichs, Friedrichs Law Office, P.A., Mankato Minnesota (for relator Edward R. Borchardt)

Christopher M. Kennedy, Michael H. Kennedy, Kennedy &amp Kennedy, Mankato, Minnesota (for respondent City of North Mankato)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Bratvold, Judge.

REILLY, Judge

In this certiorari appeal, relator challenges a city resolution declaring his property a public nuisance and ordering him to abate the nuisance. Because the evidence before the city council did not adequately support its determination that relator's property constituted a nuisance, we reverse the resolution.

FACTS

This case centers on property owned by relator Edward Borchardt and located at 229 Allan Avenue in North Mankato. Borchardt and his wife took an unconventional approach to lawn care, allowing trees, shrubs, and vegetation to grow freely in their yard. Respondent City of North Mankato (the city) determined that Borchardt's property constituted a nuisance in violation of city ordinances because it contained a "rank growth of vegetation that unreasonably annoyed a considerable number of members of the public." This appeal is taken from the city's resolution declaring the property a nuisance and ordering Borchardt to abate the nuisance.

Borchardt's neighbors had complained about the state of his property for years. The city notified Borchardt as early as 2005 to address an issue with the outdoor storage of materials. In response to further complaints, the city directed Borchardt to address various conditions on his property in 2011, 2016, 2019, and 2020. At the time of this matter, Borchardt had resolved the other issues, but the city remained concerned about the growth of vegetation on the property. The city set the matter for a public hearing before the city council to determine whether the property constituted a nuisance.

The city council held the public hearing in December 2020. Some members of the public provided comments to the city council by email before the hearing. A neighbor who lived across the street from Borchardt said that, while the property used to be in poor condition, it had "improved immensely" and was "not nearly as overgrown as it once was." The neighbor disputed reports that the property was frequented by large numbers of animals and even rats, commenting that he had never seen a rat near the Borchardt property and that animals were common on other properties in the neighborhood too. Other citizens commented that Borchardt's property looked like pollinator plots, which were permissible in the city. Some citizens also complained that the language of the proposed resolution was "highly subjective."

At the hearing, several members of the public spoke in opposition to the proposed nuisance resolution. One citizen commented that Borchardt had been cooperative with the efforts of the city and the neighborhood to help him with his property, and that Borchardt simply did not want to change the way his property looked. Another citizen said that she passed by the property at least once or twice a month and had seen "a tremendous amount of work" that had been done on the property, even though it still looked different from the other properties on the street. Some members of the public also criticized the proposed resolution as vague and subjective.

Other members of the public spoke in favor of the proposed nuisance resolution. One neighbor commented that the property had "been an eyesore" for more than 30 years. She said that the city had sent letters to Borchardt multiple times over the years explaining the improvements that needed to be made, and that despite the progress that Borchardt had made over the past year, the property was still not in good enough condition. Another neighbor told the city council that in the past "you couldn't even see through the vegetation" on Borchardt's property, although it was now possible to see the house. The neighbor complained, "Just try to keep it neat and orderly . . . for your neighbors. Because when we walk down the street we see this, and it's like, it pulls at your heart."

Next, the community development director detailed the history of complaints that the city had received from citizens about the Borchardt property over the years. The director said that there were concerns that the vegetation on the property would attract animals. He explained that, at a previous council hearing, there was testimony about reports of "raccoons, woodchucks, mice, [and] feral cats . . . located around or in the property." The director also said that city staff had offered to come to the property and help Borchardt address the vegetation concerns without charge.

The police chief spoke next, telling the city council about his involvement with helping Borchardt address the issues with the property. He said that he had visited the property in July 2020 and identified problem areas. According to the police chief, the backyard was "significantly overgrown" with sapling trees and other wooded vegetation. The police chief explained that Borchardt had willingly agreed to trim the vegetation and that he had observed Borchardt doing so in July. In September 2020, the police chief again visited the property, and he saw that Borchardt had "trimmed and removed some areas of vegetation, [and] showed some progress." At that point, Borchardt believed that his property was then in compliance with the city's requests, and he told the police chief that he would not do any more work on the property. The police chief disagreed. He said that if he were a neighbor, he "probably would have taken issue with the overgrowth as well." The police chief forwarded the matter to the appropriate authority.

After hearing from the community members, the city council voted to pass the nuisance resolution. The resolution found that Borchardt's property was "maintained in a manner that permits a rank growth of vegetation." The resolution contained findings that the rank growth of vegetation "offer[ed] a habitat for rodents and other animals," was "unsightly," and was "a public health concern." Based on these findings, the resolution determined that the property contained a rank growth of vegetation that "unreasonably annoys a considerable number of members of the public," in violation of city ordinances. The resolution therefore ordered Borchardt to "abate the rank growth of vegetation and bring the property into compliance with" city ordinances by June 1, 2021.

This certiorari appeal follows.

DECISION

Borchardt challenges the city's nuisance resolution. He raises several arguments on appeal, including that the city ordinances on which the resolution was based are unconstitutionally vague, that the city's procedures at the public hearing denied him due process, and that there is insufficient evidence to support the nuisance resolution. We agree with Borchardt that insufficient evidence was presented to the city council to support the resolution. Because we reverse the resolution on that basis, we need not address Borchardt's constitutional arguments. See Kimberly-Clark Corp. & Subsidiaries v. Comm'r of Revenue, 880 N.W.2d 844, 849 (Minn. 2016) (recognizing that appellate courts do not reach constitutional issues if appeal can be resolved on other grounds).

In a certiorari appeal, our review is limited to "questions affecting the jurisdiction of the [decision-making body], the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable fraudulent, under an erroneous theory of law, or without any evidence to support it." Khan v. Minneapolis City Council, 792 N.W.2d 463, 466 (Minn.App. 2010) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992)) (applying this principle to an appeal of a city council's nuisance-abatement decision). We may review only the record before the city council when it made its decision. Id. When we interpret city ordinances, our review is de novo. RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75 (Minn. 2015).

We first address the city's argument that this appeal is not properly before this court. The state contends that this court lacks jurisdiction over this matter because an action is also pending in district court. According to the parties, ^[1] after the city council passed the nuisance resolution, Borchardt originally sued in district court challenging the resolution. The city moved to dismiss the district court action for lack of jurisdiction. Borchardt then petitioned for a writ of certiorari with this court. But the district court has not yet dismissed the case. The district court judge instead chose to keep the district court file open, in case this court determines that the district court is the proper venue for the appeal. The city argues that the district court and the court of appeals cannot have concurrent jurisdiction over this matter and so this court cannot hear the appeal. We disagree.

Without any statute providing for judicial review, this court may review quasi-judicial administrative decisions only by certiorari. Pierce v. Otter Tail County, 524 N.W.2d 308, 309 (Minn.App. 1994), rev. denied (Minn. Feb 3, 1995). The act of a public board is quasi-judicial "if it is the product or result of discretionary investigation,...