Court of Appeals 04.13.10

The Court reverses the Saint Paul city council on a building-demolition order, finding that the Council “entirely failed to consider an important aspect of the issue.”  The leading source of frustration in dealing with nuisance properties is the absurd length of time it takes to get through the process.  This opinion re-emphasizes why delays and postponements are, like it or not, the right choice.  This property either sat vacant or was used as an unauthorized duplex for at least seven years.  The City had posted summary abatement notices on the property four times since 2007.  Following another inspection in October, 2008, the City began the nuisance-building removal process.  The owner got notice and was supposed to abate by Devember 15.  It’s not clear whether the owner started work right away, but it wasn’t done by Dec. 15.  A hearing was set for February.  The owner had done some work but not all.  The hearing was continued for 2 weeks, and the owner pulled some additional permits but apparently wasn’t done.  There was also some dispute about the exterior of the building.   The matter was heard before the Council two weeks later.  The owner appeared with a packet of materials (it’s not clear what was in the packet, since somehow it never made it into the record) and disputed parts of the staff report.  However, it’s evident that the work was, at best, in progress. Following 13 minutes of discussion, the councilmember for the ward including the property expressed his frustrations with the history of the property going back to 2004, and led a unanimous vote for demolition.

To the Court, however, the history doesn’t matter.  The sole concern is the current existence of a nuisance – apparently determined at the minute of decision, without reference to past history, work deadlines, or even completion at the time of the decision.  The Court scolds the city council for ordering demolition on “stale” staff reports based on the October 2008 inspection and later drive-bys of the property.    In doing so, I think they go too far in making it appear that showing up on the day of decision with a packet of photos is all it takes to prevent nuisance abatement; let’s hope that’s not the rule.  The crucial aspects seem to be: a) not updating the “nuisance” opinion to address the work the City had issued permits for; b) the relatively short Council consideration of the item; and c) that the “money quote” from a councilmember (likely the only thing said by any member, knowing St. Paul meetings) focused solely on past frustration with the property, and not its current status. 

The takeaway: stay focused on why a property remains a nuisance on the day of the Council’s decision.  Missed deadlines and past conditions won’t support the decision by themselves.

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Supreme Court affirms Krengel case

This morning, the Supreme Court released its opinion affirming the decision in West St. Paul v. Krengel.  The Court of Appeals previously ruled against the City’s use of a nuisance-abatement injunction because the City lacked evidence of two instances of public nuisance within a 12-month period.  The Supreme Court “simplified” the analysis, finding that Krengel had “abated” the nuisance and thus the law barred the City from seeking the injunction.  The Court makes clear that the amount of time the nuisance is cleared doesn’t matter, though timing was central to the Court of Appeals opinion: “the abatement of statutorily-defined nuisance activity … prevents the prosecuting attorney from seeking an injunction under the Public Nuisance Law.”  In a footnote to that sentence, the Court refuses to interpret “within 12 months,” finding it irrelevant.

By shaping their ruling this way, the Supreme Court has either exposed a big hole in the nuisance-abatement statute or rendered a section of it effectively meaningless.  When a city gets to the point (usually after a long, long history with the property) of filing for a nuisance injunction, the property owner has three choices: fight, fix the problem immediately, or enter into a nuisance abatement plan.  In developing a nuisance-abatement plan, especially for a behavioral nuisance problem like in the Krengel case, the city wants to get at some of the underlying causes behind the nuisance, like chemical dependence, and wants to be able to verify compliance.  Despite a clause in the statute which seems to indicate that the city can pick up the injunction case if there’s a failure to comply with the abatement plan, the Supreme Court today rules that the “abatement” of a nuisance completely severs any ability to pursue the injunction.  Without the ability to bring the injunction back before the court, there is no remedy available to a city for failures to comply with the nuisance abatement plan which are not in themselves public nuisances.  All agreement terms beyond “knock it off” are unenforceable.

With that as the rule, it’s not clear why cities should even bother with agreements – either the nuisance exists or it doesn’t.  If the city can’t follow through on making the owner address root causes or even agree to compliance inspections, there’s no upside to stopping the injunction process because the owner promises to straighten things out.  Remember, barring someone from their property for a year is a compliance tool of last resort, after code citations and other efforts to solve the problem have utterly failed.  At this stage, there’s no trust between the city and the landowner.  From the City’s perspective, it seems better to get the temporary injunction and then discuss achieving compliance over time.  This doesn’t seem to be what the Legislature had in mind (it made several tweaks to timing provisions in reaction to the Court of Appeals decision).  Without a statutory remedy for abatement-agreement problems (say, making those a basis for obtaining an injunction, or at least allowing the parties to agree to make them the basis for an injunciton), a public-nuisance injunction case is going to be an all-or-nothing matter.