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Wednesday, June 25, 2008

Bank of America vs City of Saint Paul

Please click onto the COMMENTS for the opinion.


Blogger Bob said...

This opinion will be unpublished and
may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Bank of America, FSB, et al.,


City of St. Paul,


Filed February 17, 1998

Davies, Judge

St. Paul City Council
File No. 97724

H. Le Phan, James F. Baldwin, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN 55101 (for relators)

Peg Birk, St. Paul City Attorney, Stephen J. Christie, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.


By certiorari relators challenge a resolution of the St. Paul City Council ordering the immediate repair or demolition of a St. Paul apartment building. We affirm.

Relators Bank of America and Department of Housing and Urban Development (HUD), respectively the mortgagee of a St. Paul apartment building and the mortgage guarantor, appeal a St. Paul City Council resolution ordering them to repair or demolish the building within five days. Respondent City of St. Paul contends that the building is a public nuisance that must be abated immediately.

A legislative hearing to consider a resolution ordering the building's owners to repair or demolish the building was held on June 3, 1997. According to testimony, the building has been vacant and boarded since its certificate of occupancy was revoked in January 1997. Several summary abatement notices ordering repairs to the building were issued following the boarding, but no repairs were made. A city inspector found 162 code violations during an inspection and estimated the total cost of correcting the violations at approximately $40,000. Relators testified that the mortgagor-owner had abandoned the property and relators planned to foreclose on the building's mortgage. Based on the testimony and records produced at the hearing, the legislative hearing officer found that the building was a public nuisance and that its rehabilitation was not economically feasible; he recommended that the council approve the proposed resolution.

The council held a public hearing on June 11, 1997. At the hearing, relators stated that Bank of America intended to foreclose on the building and turn it over to HUD, which would resell it "as is." Relators estimated the market value of the building at $58,100 and stated that rehabilitation of the building to code would cost less than $16,000. (A second city inspector estimated the cost of repairs at $39,100.) Records produced at the council hearing show more than 130 police calls to the building between June 1994 and April 1997, including several after the building was vacated. A representative from a group of neighborhood residents testified in favor of demolishing the building.

The council adopted the findings of the legislative hearing officer and unanimously approved the resolution ordering repair or demolition of the building. The council set a five-day deadline. The order for demolition was stayed pending appeal.

Relators argue that the council's order to repair or demolish the building is arbitrary, capricious, and unsupported by substantial evidence.[1] This court can modify or reverse a city council decision that is "arbitrary and capricious" or "unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. § 14.69(e), (f) (1996).

Routine municipal decisions should be set aside only in those rare instances where the decision lacks any rational basis, and a reviewing court must exercise restraint and defer to the city's decision.

City of Mankato v. Mahoney, 542 N.W.2d 689, 692 (Minn. App. 1996).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a scintilla of evidence." Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977)). In this case, the council adopted the legislative hearing officer's findings and heard credible testimony from two separate city inspectors that repairing the building to code would not be economically feasible. There have been dozens of police calls to the building, including several after the building was vacated and boarded. The council's decision to order the immediate repair or demolition of the building was supported by substantial evidence.

A decision is arbitrary and capricious only when it "is based on whim or is devoid of articulated reasons." BAL, Inc. v. City of St. Paul, 469 N.W.2d 341, 343 (Minn. App. 1991). Relators complain that the five-day repair period set by the council is arbitrary and capricious, given the repairs needed. But at the public hearing relators requested additional time to complete foreclosure proceedings, not to repair the building. Relators did not make a firm offer to abate the nuisance created by the condition of the building; nor did relators indicate that they would be willing to make the necessary repairs if the compliance period were extended. The council's decision to order the immediate repair or demolition of the building was not arbitrary or capricious.



Judge Jack Davies

February __, 1998

[ ]1 Relators' claim that the resolution effects a taking of their property is not properly before this court because relators did not raise that issue during the proceedings below. This court generally does not consider issues raised for the first time during certiorari proceedings. REM-Canby, Inc. v. Minnesota Dept. of Human Servs., 494 N.W.2d 71, 76 (Minn. App. 1992), review denied (Minn. Feb. 25, 1993). Even if relators' takings claims were properly before this court, it is a long-standing principle of law that "rights of private property are subservient to the public right to be free from nuisances which may be abated without compensation." State v. Guilford, 174 Minn. 457, 465, 219 N.W. 770, 773 (1928); see also York v. Hargadine, 142 Minn. 219, 221, 171 N.W. 773, 774 (1919) (demolition of "that which endangers life and property * * * is not in any sense a taking of private property for public use, entitling the owner to compensation").

4:29 PM  
Anonymous Anonymous said...

Wow, Bank of America is a big player. This is just the first snowball in what will be a major avalanche with big banks and the Dipshitty of St. Paul.

5:46 PM  
Anonymous Jeff Matiatos said...

This victory by the city reinforces Coleman and companys efforts to demolish as many homes as they can with our tax dollars.

However, the relators did not ask for an extension to make repairs but instead wanted to forclose and sell it to HUD.

Had the relators had certification from HUD that a deal was in the works for HUD to take the property, The council would not have voted for demolition given the deep pockets of HUD to get things done.

Banks just want to unload and not lose money.

Jeff Matiatos

8:56 PM  
Anonymous Anonymous said...

That is why the "Marsha" hearings happen to give people additional time to deal with the properties before the issue comes to the council.

You would be hard pressed to find any building that didn't get an extension if asked for before demo orders happened.

The famouse Jessimine house had FIVE YEARS....


Chuck Repke

11:40 PM  
Anonymous Anonymous said...

si after 5 years what was the big deal Chuck" The city stopped them from finsihing so they could strong arm the owner and then tear it down if they didn't get their way.

11:44 PM  
Anonymous Anonymous said... is a long-standing principle of law that "rights of private property are subservient to the public right to be free from nuisances which may be abated without compensation." State v. Guilford, 174 Minn. 457,
- snip-

Read that again folks. That is your Federal lawsuits going out the door with the rest of the trash. The assumptions that you all make about property rights in society in this or any other democracy just don't hold water.

The "property rights" advoactes as a rule are such capitalistic zealots that they forget the basic frame work of democracy and representitive government is to protected the weak and powerless from the wealthy and powerful. It is to even the table in the control of the country.

Most of the property rights discussion would suggest that we live in some fudal state where each person is the prince of his land and that the public (acting as the government) has no right to determine what should happen in that part of the country that I own.... "I am the king of my castle!" Well, it just ain't the case. Never was since the founding of the country and never will be as long as we remain a sovereign nation.

When the government gave out the land patten a hundred or two hundred years ago on the land you own, it maintained the public's police powers and the public's right of eminent domain. It didn't give those away and it won't. The land is still a part of the country those public rights still exist.


Chuck Repke

8:47 AM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

9:30 AM  
Anonymous Bill Cullen said...

Does a boarded up property "endanger life and property?" Isn't that the threshold the court should have used to conclude the removal is not capricious?

I thought cities board property to protect the property -- now it is an argument for dangerous property?

Knocking down a property due to police calls is interesting. Who here thinks criminals change their way because a home is bulldozed?

Bill Cullen.

4:47 PM  
Anonymous Anonymous said...

Bill - at this point not advocating anything being bull dozed but... your property rights are limited.

For a house to be a house it has to be habitable. Or, it isn't a house anymore.

The City can tell you that you have a structure on a piece of residentially zoned land and its failure to be habitable is creating a nuisance that is adversly effecting the public and they CAN abate the nuisance.

That has been the law of the land for over 200 years in this country. When the government first sold the land it did not give up its police powers over it. And it will not. One of those powers is zoning and in such it can require only houses to be in residentially zoned land and to remove your pile of sticks if it isn't a house anymore.


Chuck Repke

5:23 PM  
Anonymous Anonymous said...

Interesting Chuck! We will all look forward to the day one of your tenants causes mass destrcution of your rental property and you are facing demo. See Chuck your buddies won't remain in full power forever to protect your property, just like all representitives they too will at some point be replaced.

7:31 AM  
Anonymous Anonymous said...

5:23 PM said ...Chuck Repke

For a house to be a house it has to be habitable. Or, it isn't a house anymore.

Lets bulldoze Thune's home, and we can call it even.


7:08 PM  

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