Andrew Ellis, Relator, vs. City of Minneapolis, Respondent.

Andrew Ellis, Relator, vs. City of Minneapolis, Respondent. A06-1063, Court of Appeals Unpublished, June 26, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1063

 

Andrew Ellis,
Relator,
 
vs.
 
City of Minneapolis,
Respondent.

 

Filed June 26, 2007

Affirmed in part, reversed in part, and remanded; motion granted

Minge, Judge

Concurring specially, Harten, Judge

 

City of Minneapolis Department of Licenses and Consumer Services

 

 

Dennis S. Schertz, Schertz Law Office, 530 Helen Street North, P.O. Box 133, Hudson, WI 54016 (for relator)

 

Jay M. Heffern, Minneapolis City Attorney, Erik Nilsson, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            In this certiorari appeal, relator challenges respondent-city's decision to demolish his building, arguing that it violated required procedures, was not supported by substantial evidence, and was arbitrary and capricious.  Relator also moves to strike the document entitled "Findings of Fact, Conclusions and Recommendations."  Because of material, unanswered inconsistencies regarding this document, we grant the motion to strike.  Because absent this document, the demolition decision does not comply with ordinance-required procedures and the record does not permit meaningful review by this court, we reverse and remand with instructions.  Because we remand, we do not reach either the question of substantial evidence or certain allegations that the action violated required procedures.  We affirm with respect to other claims that the action was procedurally deficient and arbitrary and capricious.

FACTS

 

            Relator Andrew Ellis, a former Minneapolis building inspector, owned a four-unit apartment building in South Minneapolis.  On the morning of January 10, 2006, the building was badly damaged by a fire.  Due to its condition, the City of Minneapolis, Inspections Division (Inspections) sought to demolish the building that day.  But because relator said that he would provide Inspections with a report from a structural engineer to assure the city that temporary shoring of the building was feasible, the building was not demolished.  Relator provided the report and shored up the building. 

            On January 12, Inspections advised relator that he needed to commence "stabilization work" to avoid demolition of the building.  The city also notified relator that prior to undertaking stabilization work, he had to provide "structural plans designed by a register[ed] engineer" and obtain a building permit.    

            On February 2, Inspections notified relator that it would consider condemning the property as a nuisance if certain conditions were not addressed by April 5.  The record indicates that between January and April relator attempted to initiate rehabilitation of the building.  On February 28, relator obtained a remodeling permit.  But the next day, Inspections rescinded the permit because relator had not furnished a rehabilitation plan prepared by a design professional licensed by the state to assure compliance with the Minnesota building code.  Relator claims that he was not aware of this requirement until March.  In any event, relator never supplied such professionally prepared plans.

            On April 10, 2006, relator's building was condemned by Inspections, and the following day a stop-work order was posted at the building and sent to relator.  On April 21, Inspections notified relator that his property had been declared a nuisance and that on May 17, 2006, a hearing would be held before the Public Safety and Regulatory Services Committee (PSRS Committee) of the Minneapolis City Council, at which time Inspections would recommend that the building be rehabilitated or demolished.  The notice further advised relator that he could participate in the hearing, that he had specific rights incident to such participation, and that if he wished to contest Inspections' recommendation, he must provide "a statement itemizing the cost to rehabilitate the building in order to demonstrate the feasibility of rehabilitation."

            On May 17, 2006, the PSRS Committee held a hearing to determine whether to demolish relator's building.  Four of the six city council members on the committee were present; the vice-chair of the committee chaired the hearing.  Also present were relator, his attorney, an assistant city attorney, Thomas Deegan (the director of Inspections), and three neighborhood residents.  Deegan summarized the history of the property, its current status, and the cost of rehabilitating the building and recommended demolition.  Relator's attorney then addressed the committee at length.  He objected to Deegan's analysis and conclusion, recounted relator's frustrations in trying to work with the city, summarized relator's work in obtaining bids and estimating the cost of rehabilitating the building, and asked that relator be allowed to proceed with rehabilitation.  Relator's attorney presented various documents, including relator's detailed repair estimate, a narrative by relator, and various items of correspondence.  Three neighborhood members spoke about the building's history and condition and urged demolition.  A council member asked Deegan to explain the substantial gap between the estimate of the Inspections division that it would cost more than $500,000 to rehabilitate the building and bring it up to code and relator's estimate that he could repair the building for $135,000.  Deegan responded.  That council member then spoke briefly on the merits of the demolition recommendation, stated that he agreed that relator's building should be demolished, and moved for demolition.  The motion was seconded and approved by the PSRS Committee, and the matter was forwarded to the full city council. 

            On May 26, 2006, the Minneapolis City Council considered the PSRS Committee's demolition recommendation and voted on a motion that included this subject and eight other agenda items.  The record of the May 26 council meeting was subsequently published in Finance and Commerce with the statement that:

[The PSRS Committee] recommends that the proper City Officers be authorized to demolish [the] property . . . in accordance with the Findings of Fact, Conclusions and Recommendations which are on file in the Office of the City Clerk and made a part of this report by reference.

 

            Following the city's decision, relator brought this certiorari appeal and applied to the city for a stay of demolition.  The city did not grant a stay, and relator appealed the stay issue to this court.  By order of the special term panel, we remanded the stay request to the city.   Although no further documentation of the parties' resolution of the issue is included in the record on appeal, this court was advised that relator's building was demolished.  During the time for briefing, relator moved to strike the document titled "Findings of Fact, Conclusions and Recommendations" from the record filed with this court by the city.    

D E C I S I O N

 

            A municipality's decision to demolish a building is generally quasi-judicial.  City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171 (Minn. App. 2002).  The proper procedure for challenging the actions of municipalities is by a certiorari appeal.  Larson v. New Richland Care Ctr., 538 N.W.2d 915, 918 (Minn. App. 1995), review granted (Minn. Dec. 20, 1995) and order granting review vacated (Minn. Mar. 4, 1997). 

            Our review on certiorari is limited to "questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it."  Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted).  These are essentially the same standards that we use to review agency action under the Minnesota Administrative Procedure Act (APA).  Minn. Stat. § 14.69 (2006); Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 483 (Minn. App. 2002).  This court will not retry facts or make independent credibility determinations, and will uphold the decision if the tribunal "furnished any legal and substantial basis for the action taken." Senior v. City of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996) (quotation omitted).

I.

            At the outset, we consider relator's motion to strike the city's "Findings of Fact, Conclusions and Recommendation" from the record.  This document was submitted by the office of the Minneapolis city attorney.  "The papers filed in the trial court [or agency], the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases."  Minn. R. Civ. App. P. 110.01.  On appeal, this court does not base its decision on evidence outside the record.  Rostamkhani, 645 N.W.2d at 483. 

            The challenged document sets forth 11 findings by the Minneapolis City Council and states at the end: "Dated: City Council Action 5/26/06."  The document recites that the property was identified as a nuisance, recites that a hearing was held, and references recommendations from the PSRS Committee, Inspections, and "CPED" for demolition.  Relator furnished an affidavit stating he never saw this document until November 17, 2006.  Relator's attorney, by affidavit, stated that when he inspected the record at the city clerk's office on August 23, 2006, and gathered documents to include in his appendix for this appeal, the file did not contain the challenged document.  The affidavit of relator's attorney further states that upon learning that the document was included in the city's brief, relator re-checked the record and discovered that the document was now on file.  Relator claims that the document was included in the record after this appeal was commenced and that the city had no authority to open the record to include the document. 

            The city never sought to supplement the record.  The city did not respond to relator's motion to strike and does not address relator's motion in its brief.   Moreover, the "Verbatim Transcript" of the Minneapolis PSRS Committee proceedings on May 17, 2006, prepared by the office of the city clerk, neither includes findings nor refers to the document.  In fact, because the staff supposedly prepares proposed findings after the PSRS Committee hearing, because the Committee acted on the demolition proposal on that May 17 date, and because there is no record of any subsequent Committee meeting on the demolition of this property, it is unlikely that the PSRS Committee has reviewed the challenged documents.[1]  Finally, and most importantly, the "Verbatim Transcript" of the meeting of the Minneapolis City Council for May 26, 2006, apparently prepared by the city clerk, makes no mention of the findings or the council's approval of that document.  This is in stark contrast to the published account of the proceedings.

            The circumstances surrounding this document are more than troublesome; they implicate the integrity of the city's procedure.  The record of the city council's official proceedings, published in Finance and Commerce on June 3, 2006 shortly following the city-council demolition vote, recites that the PSRS Committee "recommends that the proper City Officers be authorized to demolish said property . . . in accordance with the Findings of Fact, Conclusions and Recommendations . . . on file in the Office of the City Clerk . . . ."  This creates an unexplained discrepancy between the published notice and the "Verbatim Transcripts" of the PSRS Committee and the city council meetings certified by the office of the Minneapolis city clerk.  Relator has furnished affidavits that have been described.  Other than pointing to the disputed findings and the Finance and Commerce notice, respondent provides no response to relator's challenge.  In fact, we do not even have a certification of the record on appeal by the city clerk; the clerk's office did not date stamp or otherwise identify when the challenged document was filed.  Because we conclude that relator has made a prima facie showing that the Findings document is not properly part of the record and there is no response from respondent, we grant the motion to strike.

II.

            Next, we consider whether the city's decision to demolish relator's building was procedurally sufficient.  We review the process afforded a party de novo.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999). 

            A.        Notification

            Relator claims that the city's process was deficient because the city did not send him the order approved by the city council, as required by city ordinance.  At all times relevant to this appeal, the Minneapolis ordinance in question provided:

[the] [d]ivision of inspections staff shall prepare findings and an order based upon the evidence and record of the [Council Committee's] hearing.  The committee shall make the findings and such order as it deems appropriate based upon the evidence and record of the hearing. . . .  After council approval the order shall be mailed to the last known address of the owner to whom the building is registered with the division of inspections . . . .

 

Minneapolis, Minn., Code of Ordinances § 249.50(b) (2004).  At oral argument, the city conceded that it did not mail the order to relator.  But the city argues that its failure to provide proper notice did not prejudice relator. 

            Here, relator received notice of both the public committee hearing and the city council hearing.  He was aware that the building had been declared a nuisance, that it had been condemned, and that demolition was to be considered.  Relator attended and was represented by counsel at the PSRS Committee hearing and was present at the city council hearing.  We agree with relator that the city's failure to provide him notice and a copy of the written decision violates the procedure set forth in the city ordinance and may frustrate an individual's ability to meaningfully challenge a demolition decision.  But, on this record, relator has been fully aware of the demolition proceeding and decision, immediately initiated this appeal, and has not alleged or shown any actual prejudice in this regard.[2]  Without any showing of prejudice, we decline to invalidate the city's action on the ground of failure to serve the demolition order.

            B.        Findings

            Relator also claims that the city's procedure was deficient "[because] neither the Committee nor Inspections made the ‘findings and order' required by the City's own ordinance."  The Minneapolis city ordinance previously quoted requires such findings and an order "based upon the evidence and record of the hearing [and requires the] committee [to] make the findings and such order as it deems appropriate based upon the evidence and record of the hearing."  Minneapolis, Minn., Code of Ordinances                 § 249.50(b).  The Minneapolis city ordinance also requires the city council to "approv[e]" the written order.  Id. 

            In addition to the motion to strike challenge, there are two difficulties with the findings in this appeal.  First, the ordinance procedure for making findings is detailed.  Id.  It appears that first the PSRS Committee holds a hearing, next the staff drafts proposed findings based on the record, then the PSRS Committee makes findings, and finally the city council acts presumably adopting the findings.  Id.  On this record, even with the excluded document, it is not possible to determine if these steps were properly taken.

            Second, this court has held that the absence of written findings makes meaningful appellate review nearly impossible.  Ganguli v. Univ. of Minn., 512 N.W.2d 918, 923 (Minn. App. 1994).  Municipal discretion is not unlimited; municipalities' decisions must be explained.  Id.  The requirement that municipalities justify their decisions in writing works to hold municipalities accountable by requiring them to show that they have considered all of the evidence presented, weighed conflicting evidence, and made their decisions in accordance with the governing law.  See Carter v. Olmsted County Hous. & Redev. Auth., 574 N.W.2d 725, 729-30 (Minn. App. 1998).    

            Because we have already concluded that the city's findings document should be stricken from the record, there are no findings.  In this circumstance, the city failed to comply with its own ordinance, and we are unable to meaningfully review its decision to demolish relator's building.  We conclude that the city's decision to demolish relator's building was procedurally deficient and reverse and remand.  

            C.        Other Procedural Matters

            Relator also claims that the city's demolition process was fatally deficient because he was not afforded the right of cross-examination at the hearing, he was not timely informed that he had an obligation to obtain plans prepared by licensed engineer or architect, and he was not allowed to address the Minneapolis City Council.  Because the record does not indicate that relator requested the opportunity to cross-examine any witness, we do not consider that claim.[3]  The question of how or when relator learned or should have known of the requirement for a design professional is appropriate for factual findings, and we do not anticipate findings on that question.  The obligation of the city council to hold an open, participatory hearing is addressed subsequently in connection with our consideration of the claim that the city's action was arbitrary and capricious. 

III.  

            Next, we must determine the appropriate remedy for the city's failure to adopt findings.  The general rule is that when a governmental body makes a decision without an explanation, the decision is arbitrary and capricious, and the decision should be reversed.  In re Livingood, 594 N.W.2d 889, 895 (Minn. 1999).  In Livingood, the supreme court held that the county board's improper denial of appellant's request for a conditional use permit required reversal directing the county to issue the permit.  Id.  The court refused to remand for reopening of the record or new findings, indicating that where adequate findings are not included in the record, municipalities will not be allowed to engage in after-the-fact justification of earlier decisions.  Id. at 894.  But in Livingood, the county conceded that there was insufficient evidence in the record to support its decision, and there was a dramatic misrepresentation regarding the availability of the record.  Id. at 894. 

            In contrast, in White Bear Rod & Gun Club v. City of Hugo, the supreme court remanded the city's denial of a conditional use permit back to the city so that it could prepare appropriate findings for its decision.  388 N.W.2d 739, 742 (Minn. 1986).  Such a remand was appropriate there because, unlike Livingood, the court was "left in the dark as to what the city council made of all [the] evidence."  Id. at 742 n.4.  We conclude that the combined rule of Livingood and White Bear is that if the record appears to be sufficient to permit adequate findings and there is no showing of bad faith on the part of the municipality, a remand for proper findings, as opposed to outright reversal, is the appropriate remedy for a municipality's failure to prepare proper findings.

            This case is more analogous to White Bear than to Livingood.  Here, the city represents that there is substantial evidence in the record to support its decision to demolish relator's building.  We note that the record furnished by the city attorney's office is extensive.

            Because there is a record on which findings can be made, because there has been no showing of bad faith, and because the proper procedure for preparation of findings can be followed, we reverse and remand to the city with instructions to make written findings in compliance with Minneapolis Code of Ordinances section 249.50(b), responsive to the issues raised by appellant, and sufficient to permit meaningful review of its demolition decision.  Because we have struck the findings document, we do not have findings before us and we cannot determine whether there is substantial evidence to support unknown future findings.[4]  On remand, the city shall clearly identify the record that it had before it on prior consideration of the matter.  The city shall not re-open the record to supplement the evidentiary basis for its decision. 

IV.

            The final issue raised by relator is whether the city's decision to demolish relator's building was arbitrary and capricious.  A decision is arbitrary and capricious only if: 

(1) it relied on factors not intended by the ordinance; (2) entirely failed to consider an important aspect of the issue; (3) offered an explanation that conflicts with the evidence; or (4) it is so implausible that it could not be explained as a difference in view or the result of the city's expertise. 

 

Rostamkhani, 645 N.W.2d at 484.

 

            "We have consistently stressed the importance of agencies employing their expertise to reach independent decisions and not to simply ‘rubber stamp' the findings of a hearing examiner."  City of Moorhead v. Minn. Pub. Utils. Comm'n, 343 N.W.2d 843, 846 (Minn. 1984).  But the administrative decision-making body need only show that it made an independent decision based on the record before it.  See In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 274 (Minn. 2001).  A city council's agreement with the committee's recommendation, standing alone, does not indicate a lack of independent review.  See In re Universal Underwriters Life Ins. Co., 685 N.W.2d 44, 46 n.3 (Minn. App. 2004).

            Minnesota law permits municipalities to enact and enforce ordinances that address the problem of hazardous buildings.  Minn. Stat. § 463.26 (2006); Meldahl, 607 N.W.2d at 171.  Pursuant to this authority, the City of Minneapolis enacted Chapter 249 of the City Code, which governs the city's handling of vacant buildings and nuisance conditions.  Minneapolis, Minn., Code of Ordinances § 249 (2004).              Relator argues that both the PSRS Committee's decision and the city council's decision to demolish relator's building were arbitrary and capricious because both decision-making bodies, according to relator, failed to exercise any discretion in arriving at their decisions.  To the extent there are no findings in the record, we agree that the city's actions are arbitrary and capricious, and we have already remanded for findings.

            Relator's argument that the PSRS Committee's process for deciding to recommend demolition of relator's building was arbitrary and capricious is not supported by the record.  The Committee had before it Inspections' recommendation to demolish the building, heard an oral summary of the basis for the recommendation from an Inspections official, had photographs of the property following the fire, received statements from several neighbors recommending demolition of the building, and had the parties' rehabilitation estimates.  The PSRS Committee also had before it and heard an oral summary of evidence submitted by relator.  Moreover, at the hearing, the Committee inquired as to the difference in relator's rehabilitation estimate and the city's.  Based on this record, we cannot say that the PSRS Committee failed to exercise its discretion. 

            Next, we consider whether the city council's process for consideration of the committee's recommendation was arbitrary and capricious.  Our determination whether the city acted arbitrarily and capriciously is essentially rational-basis review.  The bar is not high.  But this deferential standard of review is no license for wholesale delegation of the city council's responsibilities to committees.  Delegation is permissible, necessary, and even desirable, particularly within large governmental organizations.  See 2 Am. Jur. 2d Administrative Law § 65 (2004).  Here, such delegation is explicitly provided for by Minneapolis ordinance.  See Minneapolis, Minn., Code of Ordinances §§ 249.40, 249.50 (2004) (providing for a committee hearing process to determine whether nuisance conditions should be rehabilitated or razed).  But despite this present-day necessity of delegating government functions to administrative bodies, Minnesota law ultimately grants "the governing body of any municipality" discretion to "correct or remove the hazardous condition of any hazardous building."  Minn. Stat. § 463.161 (2006).  Likewise, the Minneapolis City Charter gives the city council the power to abate nuisances.  Minneapolis, Minn., City Charter ch. 4, § 12 (2004).  While significant delegation is permissible, the city council still must exercise some discretion in approving the committee's recommendation. 

            The city council consideration was brief, and no new evidence was presented.  The record does not disclose whether council members were furnished or had available to them the record from the hearing of the PSRS Committee.  At oral argument, the city indicated that members of the public, including relator, were not permitted to speak at the meeting.  The transcript indicates that the city council voted to approve demolition of relator's building with eight other items on the agenda.[5]  The only relevant portion of the transcript reads: "Item #10 authorizes demolition for another 249 property at 3448 20th Avenue South."  All of the present council members then voted "Aye" on "Items 2 through 10."  Although the process was highly abbreviated, the city council's agreement with Inspections and with the PSRS Committee does not in itself mean that the council "rubber stamped" the Committee decision.  On this limited record, we are not able to say more than that without the document titled "Findings of Fact, Conclusions and Recommendation," the city's actions are arbitrary and capricious.

            Based on the record before us, we conclude that without appropriate findings, the city's actions were arbitrary and capricious.  On remand, the city is obliged to make appropriate findings in a lawful manner.  The method in which the city proceeds will determine whether it acts arbitrarily and capriciously.  We conclude that the record before us does not support the determination that the city's actions were otherwise so arbitrary

and capricious as to require an outright reversal of the city's demolition decision.[6]

            Affirmed in part, reversed in part, and remanded; motion granted.

Dated:

 

 

HARTEN, Judge (Concurring Specially)

I concur with the panel's opinion but add a practical note.  The record before us of the city's proceedings here displays an enigmatic undertaking that somehow culminated in the demolition of relator's building.  In our government of laws at any level, local, state, or national, the end does not justify the means.  Government has prescribed dutiesand the people have prescribed rights.  Wisdom dictates that in the long run, it is always more efficient to do things in compliance with procedural mandates.  Here, the record fails to show that relator was afforded the procedural fairness assured by the Minneapolis ordinance.  Such failure must be remedied by requiring that the effort be repeated in compliance with law.  And so it is here.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] The process for preparation and adoption of findings is set forth in the ordinance.  This is considered in section IIB of this opinion.

[2] We do not find any document in the record supplied on appeal that contains operative language adopted by the Minneapolis City Council authorizing demolition of relator's property.  No issue is made of this on appeal, and we do not further pursue the question.

[3] We note that the notice of the PSRS Committee hearing advised relator that he had a right to cross-examine.  An amendment to the city ordinances, not in effect at the time of relator's hearing, gives "[p]arties having an interest in the property . . . the right to question witnesses at the hearing."  Minneapolis, Minn., Code of Ordinances § 249.45(g) (2006) (effective Oct. 1, 2006).  Because the city's decision to demolish relator's building clearly affects a property interest and because the proceedings before the PSRS Committee and the city council are the only hearings provided by law, relator has a constitutional due process right to a fair hearing.  See Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976).

[4] Relator specifically challenges findings that there is no evidence that he can use the building and that he did not furnish an estimate of the cost of rehabilitation.  Although we acknowledge that these findings are dubious, because we strike the findings document and remand for new findings, we do not further consider this challenge.

[5] Relator does not challenge and we do not reach the question of whether a municipality may combine several quasi-judicial matters in a single council action.  However, we note that if a matter requires separate findings of fact, such a procedure is awkward at best.

 

[6] In reviewing the transcript of the PSRS Committee hearing, we note that it is silent on how the record was made.  There is no reference to exhibits or documents being introduced.  However, relator does not challenge and we do not reach any issue regarding the integrity or existence of the record.  We note that some local units of government and state agencies utilize hearing examiners and administrative law judges to conduct such proceedings and prepare recommended findings.