Minnesota Cities Magazine
More from May-Jun 2017 issue

From the Bench: Court Upholds City’s Blight Ordinance

Illustration of a car that has fallen apartCRIMINAL LAW
Blight ordinance
On Sept. 5, 2014, during a routine blight inspection, Lester Prairie Chief of Police Robert Carlson saw a maroon car parked in Renee Vasko’s front yard. The car’s registration tabs had expired in 2012. Vasko was notified that she was in violation of the City of Lester Prairie’s blight ordinance that prohibits the open storage of unregistered or inoperative motor vehicles and was given 10 days to remedy the condition. On Oct. 24, 2014, the city towed Vasko’s car, and the district court ultimately convicted her of a petty misdemeanor for violating the ordinance.

Vasko appealed, and the Minnesota Court of Appeals reversed the conviction, holding that the ordinance was ambiguous, and that the ambiguity must be resolved in Vasko’s favor. The Court of Appeals reasoned that the ordinance was unclear regarding how long a blight condition had to exist before the city could give notice requiring a property owner to remove it. The Minnesota Supreme Court reversed the Court of Appeals’ decision and held that the ordinance was not ambiguous and that the ordinance’s plain language prohibits individuals from keeping a junk or abandoned vehicle or other scrap metal on their property for longer than 30 days without a special use permit. The Supreme Court remanded the case, holding that the city had presented sufficient evidence to support Vasko’s conviction. State v. Vasko, 889 N.W.2d 551 (Minn. 2017).

Recreational use immunity
James Ariola sued the City of Stillwater after his son, Jack, died in 2012 from a brain infection caused by a Naegleria fowleri (NF), an amoeba that lives in water. Jack was exposed to NF while swimming in Lily Lake, a body of fresh, untreated water in Stillwater. The city moved for summary judgment based in part on statutory recreational use immunity, which generally provides cities with immunity from claims based on the use of parks and recreation areas. There is an “adult trespasser exception” to recreational use immunity. Under this exception, a plaintiff must establish three things to overcome recreational use immunity by which injury or death was caused: (1) a concealed or hidden artificial condition that was (2) created or maintained by the city, and that (3) the city knew the condition was likely to cause death or serious bodily harm.

Ariola claimed that the city should have known about NF and the link to swimming in Lily Lake because of the published articles regarding A.B., a Stillwater resident who died in 2010 from the same brain infection after swimming in three Washington County bodies of water, including Lily Lake. Ariola deposed three city officials, and all three testified that they had not seen or read any articles reporting on A.B.’s death, NF, and the link to swimming in Lily Lake. The district court granted summary judgment in the city’s favor, holding that it was entitled to recreational use immunity. The Minnesota Court of Appeals affirmed, concluding that nothing in the record established that any city employee had actual knowledge of NF and the link to swimming in Lily Lake. The Court of Appeals held that a plaintiff who asserts the adult trespasser exception must establish that a city had actual knowledge of an artificial condition that is likely to cause death or serious bodily harm, and that constructive knowledge (should-have-known standard) is not sufficient. Ariola v. City of Stillwater, 889 N.W.2d 340 (Minn. Ct. App. 2017). LMCIT represented the City.

Data requests must be made to responsible authority or designee
Coon Rapids Police Officer M.M. arrested Troy Scheffler and charged him with disorderly conduct and obstruction of legal process. Afterward, Scheffler attended Officer M.M.’s unrelated family court hearing. Officer M.M. reported the incident to the Anoka Police Department (APD), and the APD created an incident report and a two-page supplement. Michael Scott, a contract attorney for the City of Anoka, received a copy of the report and supplement. Scheffler requested the report in person at the APD. The records manager provided the incident report, but refused to provide the supplement because the case was “under investigation.” Scheffler’s attorney submitted a request in writing asking that Scott provide the supplement in accordance with the Minnesota Government Data Practices Act (MGDPA). Scheffler and his attorney also returned to the APD and asked for the supplement, but records staff told them the supplement did not exist. Scheffler never received a copy of the supplement from the APD, Scott, or Scott’s law firm, but Scheffler later requested and received a copy of the supplement from the city employee designated as the responsible authority for receiving government data requests in the city’s MGDPA policy.

Scheffler sued the city, Scott, and Scott’s law firm for MGDPA violations. The district court ruled that the city, Scott, and Scott’s law firm had not violated the MGDPA. The Minnesota Court of Appeals affirmed and held that a person seeking government data must make a request to the government entity’s specified responsible authority or designee before claiming a violation of the MGDPA for failure to provide data or for failure to provide a reason for denial of a request for data. The Court of Appeals also held that the MGDPA does not recognize responsible authorities or designees by operation of the apparent authority principles in common law, and that because the records staff, Scott, and his law firm were not the city’s responsible authority or designees, they had not violated the MGDPA by failing to produce the requested data. Scheffler v. City of Anoka, 890 N.W.2d 437 (Minn. Ct. App. 2017). LMCIT represented the City.

Official immunity
Wayne Kendall was working as a snowplow operator for the Garden City Township when he arrived at a steep, icy hill on a dead-end road, with access only from the top. Kendall was driving a sanding truck equipped with a snowplow. Kendall began backing his truck down the hill, making sure that sand landed on each stretch of ice before his wheels hit it. After sanding the first 50 feet, Kendall discovered that the sand was not sliding correctly into the truck’s auger. Kendall recruited Steven Igou, a volunteer passerby, to assist him by climbing into the truck’s sand box and using a shovel to keep the sand mixture from clogging. Kendall began to back the truck down the hill, and a quarter of the way down, the truck started sliding backwards. Igou jumped off the truck, landed 25-30 feet away from the truck, and injured himself. Igou sued Kendall and the township for negligence.

The district court granted summary judgment in favor of Kendall and the township, holding that they were entitled to official immunity and vicarious official immunity respectively. The Minnesota Court of Appeals affirmed, holding that Kendall was entitled to official immunity and the township was entitled to vicarious official immunity because Kendall was engaged in discretionary actions when he recruited Igou to assist him and when he drove the truck with Igou in the sand box. The Court of Appeals also held that Kendall’s actions were not willful or malicious because there was no evidence of bad faith on his part. Igou v. Garden City Township, No. A16-0999 (Minn. Ct. App. Dec. 19, 2016) (unpublished opinion).

Clean Water Act
The Minnesota Pollution Control Agency (MPCA) issued a National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit to the City of Winsted for its wastewater treatment plant, which discharges within the South Fork of the Crow River watershed. The permit requires the facility to upgrade its technology and to move its discharge point by the permit’s expiration in 2021. The MPCA has adopted water quality standards designed to protect Minnesota rivers and streams from excess algae based on its authority under the federal Clean Water Act (CWA) and state statutes. Before issuing the permit to the city, the MPCA conducted a “reasonable potential” analysis under the CWA to investigate whether the discharge would cause a violation of any water quality standards.

The Minnesota Center for Environmental Advocacy challenged the permit issuance, claiming that the MPCA failed to comply with the CWA. The Minnesota Court of Appeals upheld the permit issuance, holding that because federal regulations are ambiguous regarding the data that the MPCA must consider in determining whether activity under a permit has the reasonable potential to cause or contribute to a violation of water quality standards, courts must defer to the MPCA’s reasonable interpretation of the regulations. Minnesota Center for Environmental Advocacy v. City of Winsted, 890 N.W.2d 153 (Minn. Ct. App. 2017).

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

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