Back to the Jan-Feb 2022 issue

Court of Appeals Reverses City’s Public Nuisance Resolution

Yard vegetation

A red lawnmower, green grass, and blue skyEdward Borchardt filed a lawsuit challenging a resolution that the North Mankato City Council had adopted declaring his property a public nuisance and ordering him to abate the nuisance. The resolution determined that Borchardt’s property was a public nuisance because it contained a “rank growth of vegetation that unreasonably annoyed a considerable number of members of the public” and it “was a public health concern.” Borchardt and his wife had allowed trees, shrubs, and vegetation to grow freely in their yard, and the city had received several complaints about their property for years.

At a public hearing in December 2020, some members of the public spoke in support of the City Council’s finding that the Borchardt property was a public nuisance, and some spoke against such a finding. The Minnesota Court of Appeals reversed the City Council’s public nuisance determination, concluding that the resolution was not adequately supported with evidence in the record to show that the property had caused any adverse public health effects. The Court of Appeals also noted that the public nuisance determination was a quasi-judicial decision, and that a certiorari appeal to the Minnesota Court of Appeals is the proper method for challenging such a determination because there is no state statute that provides for an alternative method of review.

In re: Resolution of the North Mankato City Council in the Matter of a Nuisance Property, No. A21-0143 (Minn. Ct. App. Oct. 4, 2021) (nonprecedential opinion).

First Amendment

Sally Ness was involved in a dispute with the City of Bloomington involving the use of a public park called Smith Park. The city had approved a conditional use permit authorizing the Al Farooq Youth and Family Center to operate a school, day care, and place of assembly at a property next to Smith Park. A city-approved joint use agreement allows the center to use the park for its programs, and its charter school uses Smith Park for recess.

Ness lives in the Smith Park neighborhood and describes herself as the point person for delivering neighborhood concerns to the city about the center’s alleged violations of its agreements regarding use of the park and surrounding parking spaces. Ness recorded videos and took photos from public sidewalks and streets around the park, the driveways and homes across the street from the park, and within the park itself. She documented her concerns by posting the videos and photos on a Facebook page and an internet blog.

Bloomington police officers contacted Ness several times while investigating harassment complaints against her, primarily based on her recording and photography of children at the park. Ness ultimately sued the city, two of its police officers, and the Hennepin County attorney for violations of her First Amendment free-speech rights under the U.S. Constitution. She sought a judicial declaration that a state harassment statute and a city ordinance that prohibits the photography and recording of children in a public park without consent are unconstitutional.

The district court dismissed the lawsuit and denied Ness’ motion for summary judgment (court-ordered judgment without a trial). The 8th U.S. Circuit Court of Appeals affirmed the district court decision in part and reversed it in part. The Court of Appeals affirmed the dismissal of Ness’ challenge to the state harassment statute as being moot (no longer active), noting that the state Legislature had subsequently amended the statute. But the Court of Appeals ordered the district court to enter judgment in Ness’ favor on the claim that the city ordinance is unconstitutional under the First Amendment as applied to her activity. The Court of Appeals concluded that Ness’ video recording and photography are entitled to protection under the First Amendment “because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.”

Ness v. City of Bloomington, 11 F.4th 914 (8th Cir. 2021).

City costs

The City of Hutchinson removed a hazardous building on Mohammed Shahidullah’s property using the procedures authorized under the Minnesota Hazardous or Substandard Buildings Act (MHSBA). About three years after the building was condemned and demolished, the city made a motion in district court seeking to recover the costs, including attorney fees, that it had incurred to remove the building.

steam shovel removing a buildingThe district court granted the city’s motion and awarded it a judgment in the amount of $42,124.98. Shahidullah represented himself on appeal and primarily argued that the city’s application for expenses was untimely under the Minnesota Rules of Civil Procedure. The rules generally impose a 45-day deadline (after the entry of a final judgment) for seeking costs in contested proceedings.

The Minnesota Court of Appeals affirmed the district court’s decision. The Court of Appeals concluded that the city’s motion for costs was not untimely because the MHSBA governs the motion, not the Minnesota Rules of Civil Procedure, and the MHSBA does not impose any deadline for submitting a motion for costs. The Court of Appeals noted: “Because the Legislature provided a distinct procedure for a municipality to recover expenses under the MHSBA, we assume that the Legislature intended for this procedure — and not a conflicting procedure found elsewhere — to apply to all matters brought under the MHSBA, whether contested or uncontested.”

City of Hutchinson v. Shahidullah, No. A20-1519 (Minn. Ct. App. Sept. 27, 2021) (nonprecedential opinion).

Planned unit development

The developer and individual residents of the Tii Gavo housing development filed a lawsuit, challenging the City of Scandia’s decision to deny their application to increase the number of authorized boat slips in the Tii Gavo marina. Tii Gavo is a planned unit development (PUD) that the city approved through a conditional use permit (CUP). Under the city’s zoning regulations, a PUD is described as a type of development that allows for “flexibility from the strict application of zoning standards in exchange for an improved design benefiting the public.” The development currently has 29 lots for homes, and the CUP permits up to 37 residential lots. 

Tii Gavo residents have access to the nearby Big Marine Lake. As part of the development agreement for the housing development, a channel was dredged to connect Painted Turtle Bay to Big Marine Lake, a project that required approval from the Minnesota Department of Natural Resources (DNR). The waterfront lot on Painted Turtle Bay has a communal dock with 19 boat slips for Tii Gavo residents, which is the maximum number allowed under the development agreement and the CUP. The application that the developer and residents filed with the city sought to amend the CUP and the development agreement to authorize 10 more boat slips. The City Council voted unanimously to deny the application after receiving public input, holding a public hearing, and considering recommendations from several sources, including the DNR, the Carnelion-Marine-St. Croix Watershed District, the city planner, and the city Planning Commission.

Boats in a marinaThe developer and residents sued, claiming that the city’s decision was arbitrary and violated their rights to procedural due process. The district court granted summary judgment (court-ordered judgment without a trial) in the city’s favor. On appeal, the developer and residents claimed the city decision was arbitrary because the city had applied the incorrect shoreland ordinance to their application. In addition, they argued, several technical defects in the decision- making process had resulted in procedural unfairness. The Minnesota Court of Appeals affirmed the district court’s decision, holding that even if the city had erred as to the boat-slip calculation under the shoreland ordinances, it had provided other reasons that were legally sufficient and factually supported in the record. This was enough to support the city’s decision to deny the application. The Court of Appeals also concluded that the record did not support the claims of the developer and Tii Gavo residents regarding the alleged technical defects.

Stalland v. City of Scandia, No. A20-1557 (Minn. Ct. App. Aug. 16, 2021) (nonprecedential opinion). Note: The League of Minnesota Cities Insurance Trust represented the city.

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: or (651) 281-1232.