Isaacson v. City St. Paul-Demolition

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1219

Naomi Isaacson,
Relator,

Laureen Marie Ballinger,
Relator,

vs.

City of St. Paul,
Respondent,

St. Paul City Council,
Respondent.

Filed August 7, 2007

Affirmed; motion granted

Minge, Judge

City of St. Paul

File No. 06-439

Rebekah M. Nett, Westview Law Center, P.L.C., 1350 South Frontage Road, Hastings, MN 55033;

Brendan Tupa, Entrepreneurs & Free Markets, PLC, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415; and

Thomas A. Thistle, 976 14th Avenue Southwest, Rochester, MN 55902 (for relators)

John J. Choi, St. Paul City Attorney, Virginia D. Palmer, Assistant City Attorney, 400 City Hall/Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondents)

Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

By writ of certiorari, relators challenge action by respondent city authorizing demolition of their building. Relators argue that the city’s decision was arbitrary and capricious, that the city failed to follow its own procedures, and that changed circumstances make demolition of the building improper. Respondent moves to strike portions of relators’ brief as outside the record. We affirm and grant respondent’s motion.

FACTS

Relators Naomi Isaacson and Laureen Ballinger purchased the property at 1956 Feronia Avenue in St. Paul in September 2002,[1] allegedly without knowledge that the city of St. Paul, respondent, had revoked the building’s certificate of occupancy and classified it as a vacant building. Because the building attracted drug dealers and vagrants, the city had been monitoring the building since 1999. From 1999 to 2003, the city issued numerous summary-abatement notices for various problems with the building.

In June 2003, the city conducted an inspection of the property. Following the inspection, the city served relators with an order informing them that their building was a nuisance and that they were required to repair or demolish the building by July 25, 2003. But after a hearing conducted by the city’s legislative hearing officer and a subsequent hearing before the St. Paul City Council, on September 3, 2003, the council granted relators 180 days to repair the building. Before commencing repairs, relators were required to post a $2,000 performance bond, present a plan, and obtain a permit. At the hearings, relator stated that she intended to rehabilitate the building and that she was working to secure the requisite permits. Relator was informed that if she completed 50% of the rehabilitation project, she could reapply for a 180-day extension.

After 180 days, relators had not corrected the property’s nuisance conditions and had made little rehabilitation progress. A second legislative hearing and city council hearing were held in April 2004. Relator blamed the delays on the city, arguing that it was slow to respond to the rehabilitation plans that had been submitted for approval in August 2003. But according to the city, it was unable to issue the requisite permits because relator did not supply it with adequate information regarding the rehabilitation project. The record also indicates that during the first 180-day period, the city issued several summary-abatement orders because of relators’ consistent failure to properly maintain the property.

Based on the record of the hearings and the evidence offered at the April 2004 council hearing, the city council authorized demolition of relators’ building if relators failed to repair or remove the nuisance conditions within 30 days. The matter languished, no demolition occurred, and in December 2004, the city council stayed its prior demolition order and granted relators 180 additional days to complete rehabilitation of the property. As a condition of that extension, the city required relators to file complete rehabilitation plans, demonstrate their capacity to finance the project, and post a $25,000 performance bond. The bond requirement was later reduced to $2,000.

Following the expiration of the second 180-day extension, relators had still made little progress toward rehabilitation. A city inspector estimated that as of August 2005, relators had only completed five percent of the project. This minimal progress notwithstanding, the city council authorized a 90-day extension in July 2005 and an additional 60 days in September 2005.

In March 2006, another legislative hearing was held. At that hearing, the city offered evidence of the minimal progress towards rehabilitation and neighbors’ dissatisfaction with the condition of the building. Relator offered evidence to show that progress had been made and that rehabilitation was still feasible. Following this hearing, the city’s hearing officer prepared a thorough report summarizing the history of the property, describing the evidence presented at the most recent legislative hearing, and recommending that the city proceed with demolition.

A city council hearing was held on April 19, 2006. On May 3, 2006, the city council decided to “formally vacate the stay on the orders to remove or repair . . . and re-instate[d] the orders to remove or repair . . . [and authorized] the Administration to proceed with demolition [in] 30 day[s].” This certiorari appeal follows.

D E C I S I O N

A municipality’s decision to demolish a building is quasi-judicial. City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2000). A writ of certiorari is the procedure for securing appellate review of such municipal actions. Larson v. New Richland Care Ctr., 538 N.W.2d 915, 918 (Minn. App. 1995), review granted (Minn. Dec. 20, 1995) and order granting review vacated (Minn. Mar. 4, 1997). Our review on certiorari is limited to “questions affecting the jurisdiction of the board, 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.” Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted).

I.

The first issue is whether the city council’s May 3, 2006 decision authorizing demolition was arbitrary and capricious. A decision is arbitrary and capricious only if the decision-making body: (1) relied on factors not intended by the ordinance; (2) entirely failed to take into account an important aspect of the issue; (3) justified its decision in a way that conflicts with the evidence; or (4) made an implausible decision that cannot be explained as a difference in view or the result of the city’s expertise. Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 484 (Minn. App. 2002). The bases for relators’ arbitrary-and-capricious challenge are not clearly formulated. While relators present their arbitrary-and-capricious challenge under multiple theories, their challenge is best understood if simplified into two distinct arguments: first, that the city’s decision was based on insubstantial and misconstrued evidence, and second, that the city failed to consider important facts.

A. Inadequate Evidence

First, relators argue that the city’s decision was arbitrary and capricious because the city has legal authority to order destruction of a building only when the property owner fails to rehabilitate the nuisance property, and, according to relators, they sufficiently rehabilitated the building such that the city was not permitted to demolish the building. Elsewhere, relators argue that the city “misconstrue[d] . . . the evidence” it relied upon in its decision.

Here, in its final decision ordering relators to repair or remove the nuisance, the city council relied on: (1) the report of the hearing officer, who heard substantial testimony regarding the progress of the rehabilitation project at an informal hearing; (2) the hearing minutes documenting the evidence presented; (3) photographs of the building; (4) the testimony of the owner who attempted to explain the history of rehabilitation challenges; and (5) the testimony of neighbors.

This evidence indicates that despite at least four separate decisions granting relators two 180-day extensions, a 90-day extension, and a 60-day extension, relators completed little more than five percent of the rehabilitation. The city began the formal process of requiring repair and abatement of nuisances or removal of the building in June 2003. As of March 2006, 33 months later, most framing, plumbing, heating, insulation, and a multitude of other rehabilitation tasks were uncompleted. The photographs of the building showed little exterior improvement. Moreover, there was evidence that relators were slow to obtain permits, were consistently behind schedule, had recurring financing problems, and were unwilling to commit to a schedule. Neighbors who were initially supportive became frustrated with relators’ minimal progress and the poor condition of the building. For the first two years of the effort, elected city officials were optimistic that relators would successfully rehabilitate the building, stated a willingness to work with relators, and approved extraordinary extensions of time.

Finally, the city’s hearing officer, who had been extensively involved in the hearings beginning in 2003, and who had recommended several extensions in the past, recommended that the city issue a repair-or-remove order. In making her recommendation, the hearing officer noted that she was skeptical whether relators had the financial capacity to complete the project and concerned that relators’ contractor was not competent to complete the project on schedule. There is ample evidence supporting the city council’s determination that relators did not rehabilitate their property on a timely basis. The record does not support relators’ assertion that the council misconstrued this evidence.

B. Consideration of Relevant Factors

Relators also argue that the city council’s decision was arbitrary and capricious because the council “fail[ed] to consider several important factors,” including construction delays, the contractor’s other commitments, and the city’s own contribution to the delays. The record indicates that relators told the hearing officer and the city council that the lack of progress was due to problems beyond their control. The explanations offered by relators for the construction delays may have been part of the reason that the council extended the rehabilitation timeline on several occasions. Relators’ claim that the city failed to consider legitimate construction delays is inconsistent with the multiple extensions they received over a period of almost three years.

Relators appear to argue that the city was obligated to grant their requests for further extensions. But relators cite no legal basis for the proposition that the city is required to take extraordinary steps to facilitate rehabilitation of this building or grant extension after extension. The arbitrary-and-capricious standard of review only requires that the city have a rational basis for its decision; the standard does not guarantee relators a favorable outcome. Ultimately, relators were responsible for complying with the city deadlines and anticipating set-backs. There is evidence in the record that relators did not hire a contractor capable of promptly completing the project.

Relators also assert that the city ignored its own contribution to the delays in rehabilitation. They claim that city officials delayed issuing required permits and that the council imposed an illegal $25,000 bond requirement. See St. Paul, Minn., Legislative Code § 33.03(f) (2007). The city agrees that the bond was set too high. The record does not indicate when the error was noticed. And at oral argument, the parties were unable to clarify the circumstances surrounding the bond reduction. Without an adequate record, we are unable to determine whether relators were materially prejudiced by this excessive-bonding requirement. Relators also provided no specific evidence of the setback in rehabilitation attributable to the city’s delay in issuing relators’ permits. There is ample evidence in the record that notwithstanding relators’ consistent failure to make progress toward rehabilitation of the building, the city was patient with relators over a period of almost three years. Based on the record, we conclude that the city’s decision was not arbitrary and capricious.

II.

The next issue is whether the city failed to comply with its own procedures. First, relators contend that the city failed to follow its own ordinance by failing to grant them “a reasonable time period for completion of the required work.” Relators argue that they are entitled to a minimum of two years in which to rehabilitate the building and obtain a certificate of occupancy.

Relators cite Saint Paul Legislative Code § 33.03(f)(2) (“SPLC”) as a basis for their claim of an extended time. SPLC § 33.03(f)(2) describes the time period provided to building owners seeking to regain a certificate of occupancy after the city conducts its initial code-compliance inspection:

Except as otherwise specified . . ., a certificate of compliance . . . or a certificate of occupancy . . . must be obtained within six (6) months from the date of the original certificate of compliance . . . . One (1) six-month time extension beyond the initial six-month time limitation may be requested by the owner and will be considered by the building official if it can be shown that the code compliance work is proceeding expeditiously and is more than fifty (50) percent complete or if unforeseen conditions have had significant schedule impact on the completion of work.

The provisions for completion of rehabilitation within six (6) months and the six-month extension apply only to property not presently subject to any orders issued to the property pursuant to chapter 43 or 45 of the [SPLC] . . . .

(emphasis added).

SPLC § 33.03(f)(2), read in its entirety, does not support relators’ two-year claim. Relators’ property was classified as a category-III vacant building under SPLC chapter 45 as early as 2003. Because relators’ building was a nuisance building, under the plain language of the ordinance, relators were not, as a matter of right, even entitled to the initial six-month period or to the discretionary six-month extension. There is no colorable basis for relators’ assertion that they were legally entitled to two years to rehabilitate their building. Regardless, we note that relators had two years and nine months from the time their building was first cited and when repair or removal was ordered to the final city council demolition decision.

Relators also assert that the city failed to follow its procedures by neglecting to post notice that the building was a nuisance property before relators’ purchase of the property in 2002. But there is no evidence in the record in support of this claim, and relators have not shown how the city’s alleged failure to properly post notice in 2002 or earlier is relevant to our consideration of the 2006 city decision under review.

In sum, we conclude that relators have not established that the city failed to follow its own procedures.

III.

Two parallel issues remain. They both concern the record on appeal, and they both deal with claimed developments after the city’s action on May 3, 2006, authorizing demolition.

A. Motion to Strike

First, we consider the city’s motion to strike certain parts of relators’ appendix. “The papers filed in the trial court or agency, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Minn. R. Civ. App. P. 110.01; see Minn. R. Civ. App. P. 115.04, subd. 1 (providing that rule 110 applies to certiorari proceedings as far as possible). On appeal, this court may not base its decision on evidence outside the record. Rostamkhani, 645 N.W.2d at 483. “The court will strike documents included in a party’s brief that are not part of the appellate record.” Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). But we recognize that

[i]f anything material to either party is omitted from the record by error or accident or is misstated in it, . . . the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be approved and transmitted.

Minn. R. Civ. App. P. 110.05. The party seeking to supplement the record must show that the omitted supplementary material was properly before the decision-maker when it made the decision appealed from. Stephens v. Bd. of Regents, 614 N.W.2d 764, 769-70 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).

After relators filed their brief, the city moved to strike pages 6 to 39 of relators’ appendix. These parts of the appendix consist of e-mail reports and photographs which relators claim document their progress toward rehabilitating their building. Relators did not file a motion to supplement the record under rule 110.05. And in any event, all of the challenged material is dated after relators filed a writ of certiorari on June 30, 2006. Obviously the material was not, and could not have been, before the city council when it made its May 3, 2006 decision. Relators object to the motion and claim that the documents are necessary for fair consideration of their claim that there has been a change in circumstances. But relators fail to recognize that this appellate court reviews decisions made by the city. We do not compile a record and make initial decisions. Because the challenged portion of relators’ appendix was not part of the record and arose out of activity occurring after the city’s demolition decision, we grant the city’s motion to strike.

B. Changed Circumstances

Finally, relators argue that city is without the authority to demolish their building because they claim that they have recently made substantial progress toward rehabilitation. Although any record supporting this claim is effectively eliminated by our granting the motion to strike, we will address relators’ argument that this court’s decision in City of Barnum v. Sabri, 657 N.W.2d 201 (Minn. App. 2003), is a credible basis for relief.

To properly consider relators’ claim of similarity between their situation and the Sabri case, recognition of the complex history of the Sabri decision is important. In Sabri, the city determined that Sabri’s building was hazardous and ordered Sabri to repair the building within 60 days. More than two years later, the city filed an action in district court for enforcement of its repair order. 657 N.W.2d at 203. The district court entered judgment authorizing the city to raze the building, and thereafter the city authorized demolition. Id. More than a year after the district court’s order, Sabri moved to vacate the demolition orders and judgments and sought a temporary injunction. Id. The city then agreed to reconsider the demolition decision, and the district court denied the temporary injunction as moot. Id. at 203-04. In its reconsideration, the city determined that the building was still a safety hazard and decided to raze the building. Id. at 204. Sabri then went back to the district court seeking relief from the district court’s original demolition order pursuant to Minn. R. Civ. P. 60.02(e) and (f). Id. Sabri sought to introduce new evidence incident to his Rule 60.02(e) motion. Id. This court held that the district court erred in concluding that it lacked authority under rule 60.02(e) to consider post-judgment requests for relief based on changed circumstances. Id. at 206.

Here, in contrast to Sabri, the city of St. Paul is not required to obtain any district court order to proceed with demolition, and the city did not do so. As a result, we are not asked to review a district court ruling on a rule 60.02(e) motion or the refusal by the city to reconsider. Rather, our task is confined to reviewing the city’s final decision ordering relators to repair or remove their nuisance building. Here, the City of St. Paul made the type of decisions that the district court made in Sabri. To be parallel to Sabri, relators would have had to request that the city reconsider and accept additional evidence as a part of that reconsideration. Then, if the city refused the request, relators could appeal asking that we review that decision by the city. Minn. R. Civ. P. 60.02(e) does not authorize the court of appeals to supplement the appellate record. Unlike the district court, the court of appeals does not receive evidence and establish a record. Sabri is not helpful.

Because we have struck extra record documents, because relators base their argument on those stricken documents, and because relators are not appealing a denial of relief by the district court, we reject relators’ Sabri-based claim.

Affirmed; motion granted.

Dated:

[1] The record indicates that both Naomi Isaacson and Laureen Ballinger own the building located at 1956 Feronia Avenue, but the record also indicates that the city council dealt almost exclusively with Isaacson throughout the city hearing process. For ease of reference, when this opinion uses the singular “relator,” it refers to Isaacson.