08/01/2011 - City Council Public Works CommitteeAGENDA
PUBLIC WORKS COMMITTEE MEETING
MONDAY, AUGUST 1, 2011
5:00 P.M.
CONFERENCE ROOMS 2A &B
I. AGENDA ADOPTION
II. CIVIL ENFORCEMENT FOR CERTAIN ZONING CODE CASES
III. OTHER BUSINESS
IV. ADJOURNMENT
4111 City of Eaafl vemo
TO: PUBLIC WORKS COMMITTEE
FROM: CITY ADMINISTRATOR HEDGES
DATE: JULY 26, 2011
SUBJECT: PUBLIC WORKS COMMITTEE MEETING — MONDAY, AUGUST 1,
2011 AT 5:00 P.M.
There will be a meeting of the Public Works Committee at 5:00 a.m. on Monday, August 1,
2011, in Conference Rooms 2A &B. The purpose of the committee meeting is to discuss options
for civil enforcement of certain types of zoning code violations.
As noted in the background, the City typically has good success achieving compliance with code
standards through ordinary education and enforcement methods. Occasionally, there are
situations in which the City may wish to consider other enforcement alternatives and the purpose
of the meeting will be to receive a presentation by the City Attorney and staff on where those
may apply.
Thank you.
/s /Thomas L. Hedges
City Administrator
PUBLIC WORKS COMMITTEE
August 1, 2011
ISSUE:
BACKGROUND:
II. CIVIL ENFORCEMENT OF CERTAIN ZONING CODE CASES
Within the range of zoning enforcement situations, there are some cases, particularly in the
area of property maintenance or outdoor storage, in which corrective notices and citations
either do not resolve a situation or the situations recur and are persistent. In those situations,
the City has the option of pursuing civil enforcement, rather than criminal. There are pros
and cons to each approach, but it will be worthwhile for the Committee to be briefed on the
options and provide a recommendation to the Council as to whether a civil option would be
appropriate to be considered in certain situations. The purpose of the meeting would be to do
that briefing and discuss the merits.
As the Committee is aware, the City's approach to zoning code enforcement is a combination of
complaint based and proactive enforcement efforts. The effort is focused on achieving
compliance as opposed to applying penalties, but there are some cases in which an owner is
resistant or very slow to bring a property into compliance. In those situations, staff works with
the City Attorney to prepare a misdemeanor citation and schedule an appearance in District
Court prosecute the violation.
While the Court may apply a fine or even a jail sentence, most often the judge will add the
weight of a court order to the requirement that the violation be corrected. In almost all cases, the
notification, issuance of a citation or the court direction is sufficient to achieve compliance. In
rare circumstances, the situation recurs and, in those circumstances, the question arises as to
whether additional citations will create sufficient consequences to achieve long term compliance.
Minnesota Law permits cities to pursue injunctive relief in such situations and an overview of
the option and its merits is outlined in the City Attorney's memo, which is attached.
In other cases, such as hoarding or uninhabitable homes, a zoning code violation may be one part
of a more substantial public health and welfare situation. While City zoning enforcement staff
work closely with the Fire Marshal and County Public Health staff to address the possibility of
protection for vulnerable inhabitants and other means of achieving compliance or improving the
property and living situation, there are cases in which standard approaches to compliance or
correction may not be effective. In these cases, Minnesota Law permits cities to pursue
abatement actions and an overview of this option and its relative merits is outlined in the City
Attorney's memo in this regard, which is also attached.
SUMMARY
The City typically has good success with the notification process for identifying and achieving
compliance with the zoning code. In some cases, it is necessary to proceed to the citation step to
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create specific consequences and compel compliance. In a small number of cases, violations
continue or recur despite the use of citations. In those cases, it would be useful to have general
direction as to whether the Committee and Council would wish to consider civil enforcement as
an alternative to traditional enforcement.
ATTACHMENTS:
• City Attorney's memo of April 29, 2011 regarding civil injunctions on pages 5
through (j
• City Attorney's 2emo of October 17, 2008 regarding abatement actions on pages
through ( • f /'
COMMITTEE RECOMMENDATION OPTIONS:
1. Recommend that the City Council consider civil enforcement as an option for certain
ongoing or recurring zoning code enforcement cases or
2. Recommend that the City continue to apply the citation/criminal enforcement method for
all cases or
3. Other recommendation determined from the meeting discussion.
Severson, Sheldon, Dougherty 8 Molenda, P.A.
EVERSON SHELDON
D Q Attorneys 1 Advisors
FROM: Sharon K. Hills, City Attorney
DATE: April 29, 2011
MEMORANDUM
TO: Jon Hohenstein, Community Development Director
Mike Ridley, City Planner
RE: Zoning Code Enforcement Options for Repeat Violators
Our File No. 206 -4768
Sharon K. Hills
Direct: (952) 953 -8844
E -mail: hillss @ssdmlaw.com
In accordance with City staffs request, this memorandum outlines the City's legal options for
zoning code enforcement for repeat violators. This question arose as a result of a specific
property owner repeatedly in violation of the Eagan zoning regulations for unlawful outdoor
storage, but found not guilty by the jury following a trial on the criminal charges.
The City has two legal remedy options to enforce its zoning code:
(1) Criminal prosecution; or
(2) Civil injunction action.
The City regularly proceeds with criminal prosecution of any City Code violation after the
property owner fails to bring the property into compliance upon staff's attempts through written
notices and requests. Utilizing the criminal prosecution method has been generally successful
for the City in obtaining code compliance. However, there have been a handful of cases that,
despite our efforts, the property owners continue to violate the City Code.
The second option, civil injunction action, is a lawsuit served and filed against the property
owner in the civil court. The objective is to obtain a permanent court order mandating
compliance and restraining (enjoining) the property owner from doing specific activity on the
property.
There are advantages and disadvantages for the City to proceed with a civil injunction action,
instead of criminal prosecution, to seek code compliance:
1. Advantage: If the court finds the property owner in violation and issues the injunction
order, the order is permanent and compliance will be required indefinitely. (In a criminal
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proceeding, the court has jurisdiction over the property owner for a maximum of one year
(probation) under which compliance would be required. Once probation terminates, the
property owner is no longer under court order to keep the property in compliance).
2. Advantage: The issues are determined by the judge. (In a criminal prosecution, the
property owner is entitled to a jury trial and it is a jury that determines whether the owner
is in violation of the City Code).
3. Disadvantage: A civil injunction action may be a longer process. Because of the various
steps in a civil action, attorneys' fees will normally exceed what is spent in a criminal
prosecution matter.
4. Disadvantage: Even if the City obtains a civil injunction order, there is no guarantee that
the property owner will comply with the court's order. If the property owner disregards
the court order, the City will need to go back to court for contempt of court proceedings.
However, despite the additional time /costs to proceed with contempt proceedings, the
property owner would be accused of violating the court's order and directive, as opposed
to violating the City's Code as in a criminal prosecution matter.
Based on the foregoing, it is this office's opinion that the best option in the case of a repeat
violator of the City Code is to proceed with a civil injunction action. A civil injunction will
provide the City with a court order permanently prohibiting the owner from conducting the
activity that is in violation of the City Code. If the property owner violates the injunction order,
then the property owner will be in violation of the judge's directive and could be subject to the
penalty of incarceration in the county jail.
SKH/jlt
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RE: 1057 Kenneth Street Abatement
Our File No. 206 -28250
SEVERSON, SHELDON, DOUGHERTY
& MOLENDA, P.A.
TO: Jon Hohenstein, Community Development Director
FROM: Christine J. Cassellius, Assistant City Attorney
DATE: October 17, 2008
BACKGROUND
Both the City of Eagan, through Code Enforcement, and Dakota County, through the Department
of Public Health, have been monitoring the yard and home of the property located at 1057
Kenneth Street in the City of Eagan. The property came to the City's attention due to the
condition of the exterior. The property came to the County's attention based on public health
concerns. It is my understanding that the County was most concerned with the rodent
infestation, mold and lack of operating furnace and no water supply. Both Eagan Code
Enforcement and Dakota County have attempted for several months to have the homeowner
bring the property into compliance with all City codes and remedy the public health concerns.
There is one owner and occupant of the property, Lucille Otterness, who I believe is in her 80's.
Despite the City's and County's efforts, no progress was made to correct the problems on the
property. Representatives from the City and the County were able to gain entrance into the home
on or about Tuesday, October 7 with an administrative search warrant.
After gaining access to the house, the County determined that the property was no longer a
health concern. In an e -mail to the City, the County noted the following:
• The furnace was operating and supplying heat;
• The water supply was operating, water heater and water fixtures were working;
• The toilet was functioning;
• There were clear access paths between rooms;
• Filth remains, particularly in the kitchen, basement bathroom, steps and laundry room.
This filth is characterized by a mix of rodent feces, grime, mold, food and possible cat
feces;
• The basement refrigerator had rotten food in it. The upstairs refrigerator had edible food
in it;
'T
• A smoke detector was present in the basement; and
• The outside yard and garage were unchanged from previous characterizations.
Due to the functioning heat and water, the County has discontinued any abatement procedure and
will only monitor the property for "occupant vulnerability ".
The City has not yet abated any nuisance and assessed the property and seeks input regarding the
process of abatement.
ANALYSIS
"An owner has a duty to make its premises secure as a matter of public safety and may be liable
for the cost of razing it if necessary." First Trust Co. v. Union Depot Place Ltd. P 'ship, 476
N.W.2d 178, 183 (Minn. 1991).
Minnesota Statutes provide the City a method for municipalities to address hazardous buildings
and property. Minnesota Statute defines "hazardous building or hazardous property" as:
any building or property, which because of inadequate maintenance, dilapidation,
physical damage, unsanitary condition, or abandonment, constitutes a fire hazard
or a hazard to public safety or health.
Minn. Stat. § 463.15, subd. 3. In the present case, the property may be declared hazardous to the
public due to the filth and waste on the property and it most surely constitutes both a fire and
health hazard'. The City Council may order the owner of the hazardous property to correct or
remove the hazardous condition of the property. See Minn. Stat. § 463.16. If the owner fails to
correct the hazardous condition within the time allowed pursuant to the City Council's Order, the
City may go to district court seeking the power to enforce the Council's Order, which would
allow the City to go onto the property, correct the hazardous condition, and assess the cost to the
property pursuant to the special assessment procedures described in Minn. Stat. § 429.061 -.081.
To initiate this process, the City Council must receive evidence about the condition of the
property, which generally will require written reports from City staff, and include the pictures of
1057 Kenneth Street. City staff should also include the necessary specific corrections when they
present their written reports to the City Council. The City should invite the owner of 1057
Kenneth Street to describe the condition of the property. It would also be important to invite the
owner of 1057 Kenneth Street to address the City Council or provide a written statement
describing why she believes her property is or is not a hazard.
Having received the evidence at a City Council meeting, the City Council should then discuss the
evidence and determine whether to direct staff to prepare findings of fact based on the evidence
and whether those findings of fact lead to a conclusion that the property is hazardous. If the
Council's findings lead to a conclusion that the property at 1057 Kenneth Street is hazardous, the
Essentially the home is a junk home. The trash, feces and mold constitutes a fire hazard and a public safety hazard.
The rodent infestation could also conceivably spread to neighboring homes causing a public health concern.
Council may order the specific corrections that need to be done and the date by which it needs to
be accomplished.
I recommend that the City Council adopt the findings of fact and conclusions and possibly the
Order at a Council meeting subsequent to the meeting at which they receive the specific evidence
of the hazardous condition. If the Council orders specific actions to be taken, the Council's Order
must be personally served upon the owner of the property and any lienholders of record. The
Order should also include a date by which the work needs to be accomplished.
Pursuant to Minn. Stat. § 463.18, Subd. 2, the owner of the property and each lienholder has
twenty days from the date of personal service to answer the Order and contest any of the required
corrections.
I recommend that whatever staff has been involved in this project prepare a short report
describing specifically their observations of the hazardous condition, plus any conversations they
have had with property owners, and the specific corrections which need to be made.
If the City has to go to court to get the City Council's order enforced due to failure by the owners
to make the correction or if the owners or a lienholder files an answer, this action has priority
over all pending civil actions in a district court and will be tried very quickly. If the court
sustains the City Council's Order, the court will enter judgment for the City and fix a time to
correct the hazardous condition. See Minn. Stat. § 463.21. Also, the City can recover its
attorneys' fees, publication fees, service fees, and filing fees and report those expenses to the
court. The court will then examine the fees and will determine an amount of fees, which the
owner will be required to pay. If the owner refuses to pay, the City's expenses can also be
assessed against the parcel. See Minn. Stat. § 463.22.
In essence, the facts of this should allow for abatement and assessment of both the interior of the
home and the property itself.
cc: Jeff Munsterteiger, Code Enforcement Technician
Mike Ridley, City Planner
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