This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-319

 

City of Wells,

Respondent,

 

vs.

 

Gerald Swehla,

Appellant.

 

Filed October 17, 2000

Reversed and Remanded

Amundson, Judge

 

Faribault County District Court

File No. C4-98-405

 

Wendland Timmerman and David Wendorf, 825 East Second Street, Blue Earth, MN 56013 (for respondent)

 

T. Oliver Skillings, Halverson Law Office, P.O. Box 3544, Mankato, MN 56002 (for appellant)

 

           

            Considered and decided by Amundson, Presiding Judge, Willis, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

 

AMUNDSON, Judge

The Wells city council passed an order that required appellant to either raze and fill to grade his house and garage, or file an answer to the order with the Wells city attorney.  Appellant filed an answer.  In the resulting litigation, the district court ruled that appellant’s property was a public health and safety hazard under Minn. Stat. § 463.15, subd. 3 (1998) and affirmed the city counsel’s order allowing the city to proceed with razing the property. Appellant challenges the district court’s order, alleging that he was not given adequate time to effect the repairs in question.  We reverse and remand.

FACTS

Appellant Gerald Swehla owns a house in the City of Wells (Wells) that, since 1994, has been unoccupied and used as a storage facility for household furnishings, carpentry tools, and personal items.  In April 1998, Tim Langer, the Human Services Registered Public Health Sanitarian for Faribault and Martin Counties, inspected the exterior of the house and garage after neighbors complained about animals on the premises and the building’s state of deterioration.  Langer concluded that Swehla's property constituted a public health nuisance and was not fit for human habitation.

As a result of this inspection, the city council passed an order on August 21, 1998, indicating that the city had received numerous complaints regarding the condition of the structures, and that the deteriorated condition of the property stemmed from inadequate maintenance and abandonment of the property and had resulted in the house being no longer structurally sound and a potential public health nuisance.  The city counsel’s order included the following specific findings from Langer's assessment as grounds for its order:

a.  The perimeter foundation of the house has collapsed in several areas. Holes in the foundation allow rodents and other animals to enter the house.

b.  The garage roof has deteriorated and is no longer weather tight. Large holes were observed in the roof. The structural integrity of the roof is questionable.

c.  The present condition of the house and garage is conducive to the harborage of rodents and other animals. Rodents and wild animals are vectors for several serious human diseases including rabies, hantavirus and leptospirosis.

d.  The property presents a fire safety concern. Combustible debris is found throughout the garage.

e.  Based on an inspection conducted at this location in 1994, it is believed that the interior plumbing is not in compliance with the minimum sanitary requirements of the Minnesota Plumbing Code.

The city council deemed the building beyond repair and ordered Swehla to “[r]aze and fill to grade the house and garage * * * by October 31, 1998.”

Swehla answered and counter-petitioned, requesting the order be dismissed or requiring that Wells be required to pay just and reasonable compensation for the value of the property.  Wells presented the testimony of Tom Halloran, a Minnesota licensed building official.  Swehla engaged Doug Swenson, a private home inspector, to prepare a report that was offered at trial.

At trial, Halloran testified that the damage to the foundation was significant and would require a new foundation.  He testified that the home had significant water damage, and estimated repair costs to bring the house into code compliance to be between $60,000 and $65,000.  Halloran also testified that the property failed to meet the storage facility code so that if the property were to be considered as a storage facility, a majority of the code-compliance issues would still remain.

Swenson testified that many of Halloran’s assessments with regard to the property’s condition were accurate, but he concluded that the home and garage would require much less substantial repairs.  Swenson testified that the foundation required relatively minor repair, and that much of the rotten wood was the natural product of the age of the home, and likely not due to the recent maintenance history.

The district court issued a judgment in favor of Wells, and upheld the order requiring the property to be razed and filled to grade as the structures were deemed a hazardous building under Minn. Stat. § 463.15, subd. 3.  Swehla filed a timely motion for amended findings under Minn. R. Civ. P. 52.02, setting out specific defects in the court's findings. The district court denied Swehla's motion and this appeal followed.

D E C I S I O N

On appeal, this court reviews whether the evidence, viewed in the light most favorable to the district court decision, sustains the findings of fact and whether the findings support the conclusions of law.  Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 428 (Minn. App. 1992), review denied (Minn. June 17, 1992).  Swehla does not materially contest the court’s findings of fact, but instead argues that the facts of the case do not support the court’s conclusions of law.  Conclusions of law and questions of statutory construction are subject to de novo review.  Peterson v. Commissioner of Revenue, 566 N.W.2d 710, 715 (Minn. 1997).  Statutory proceedings providing for the destruction of hazardous buildings should be exercised with great discretion. Village of Zumbrota v. Johnson, 280 Minn. 390, 394, 161 N.W.2d 626, 629 (1968).

I.

Swehla argues that he was not given the opportunity to repair the deficiencies on the premises.  Our inquiry then is whether the city was required to give Swehla the opportunity to repair the home; and, if so, whether Swehla was provided the opportunity to do so.

A.  Right to Repair

The city suggests that the statutory scheme in a chapter 463 proceeding does not mandate that they extend an opportunity to repair the property. 

The governing body of any city or town may order the owner of any hazardous building or property within the municipality to correct or remove the hazardous condition of the building or property or to raze or remove the building. 

Minn. Stat. § 463.16 (1998) (emphasis added).  The city argues that the plain language of the statute grants them the discretion to provide an opportunity to repair a hazardous condition.  But this statutory section simply gives a general grant of authority to the relevant governing body to make both types of orders.  It does not specify what standards are to be applied in each case.  The fact that a governing body may order a building razed or removed, does not mean that granting the building’s owner an opportunity to correct the problem is discretionary.  The statute simply specifies what action is permitted by the government, and does not provide insulation from ordinary constitutional property principles.

Ordering a building to be razed is a drastic measure taken to protect public health and safety.   Zumbrota, 280 Minn. at 394, 161 N.W.2d at 629 (1968).  Such orders compel the destruction of property without compensation.  Id.  Such power cannot be extended to be an arbitrary misuse of private rights.  Id.  The district court must use caution in ordering this remedy and must consider the possibility of repairing the building.  See generally Ukkonen v. City of Minneapolis, 280 Minn. 494, 500, 160 N.W.2d 249, 253 (1968) (where district court allowed property owner time to repair and correct, and the owner failed to do so, district court’s order to raze the building was proper).

The district court found that the cost of repairing the property’s deficiencies to be prohibitive and therefore did not provide Swehla with an opportunity to repair the defects. Swehla testified that he had the ample funds available to repair the buildings.  The truest test of feasibility is whether the property owner, when faced with the prospect of having to make certain and specific repairs within a reasonable amount of time, makes the required investment into the property.  Here, where there is no imminent danger to others, the city, and then the district court, erred by failing to specify what repairs were required in order to remove the building from the ambit of the definition of “hazardous building” in Minn. Stat. § 463,15, subd. 3.

B.  Opportunity to Repair

Respondent argues that even if Swehla had the right to try and cure the property’s defects, he was given “sufficient and reasonable time to cure the hazardous defects existing on the premises.”  The district court made this conclusion based on its finding that

[a]pproximately ten months elapsed between the date [Swehla] received the notice of [the city’s] order * * * and the date of trial * * *.  During this time [Swehla] did not undertake to correct any of the house conditions listed in [the city’s] order.

But the fact that time elapsed between the order and the trial date is irrelevant because the city’s order did not give Swehla the option of repairing his property. Swehla had only two options: razing the building or filing an answer.  He filed an answer.

Although the city’s order did not expressly prohibit Swehla from conducting repairs, it did not specify which repairs were compelled by the alleged hazardous condition, and which were simply preferable.  Furthermore, there was no indication that effort and expense for repair would be wasted; that it would prevent the property from eventually being destroyed.  Without the knowledge of the specific repair required by law, Swehla had no meaningful opportunity to repair the property.

In Zumbrota, the court concluded that the notice given was deficient because it failed to specify precisely what the defendant was expected to do in order to comply with the order.  Zumbrota, 280 Minn. at 396, 161 N.W.2d at 630.  There, notice given by the village council instructed the defendant  “[t]o eliminate the hazardous building * * * and debris”  Id.(omission in original).  The court also found the order deficient because the defendant attempted, but failed, to repair the building adequately.  Id.  The court found the term “hazardous,” to be vague and concluded that defendant was not given sufficient guidance to eliminate the hazardous condition.  Id.  The order here, less specific than the order in Zumbrota, is even more troublesome.  This order directed Swehla to raze his property.  It neither extended an opportunity to repair, nor specified specify what repairs might be sufficiently salutary.  Indeed, the city’s order operates as a disincentive for any action by the owner because any repairs ventured upon the property may prove to be unacceptable or even unnecessary.  It would be manifestly unfair, as the city suggests, to require Swehla, on his own initiative, to repair the buildings when a court might subsequently deem such repair unnecessary or inadequate.  The property owner must be fully appraised of the deficiencies needing repair before being forced to choose between repair, removal, or even filing an answer.  Carpenters, plumbers, electricians, roofers, and lawyers are expensive.  We should require their services with caution.  Swehla should be given a meaningful opportunity to repair his property, including specific repair requests, before the city is permitted to raze it.

 

II.

Swehla also challenges the city’s authority to raze the property on the ground that it does not fit within the statute’s definition of “hazardous building.”  Minn. Stat. §  463.15, subd. 3 (1998), provides:

“Hazardous building or hazardous property” means 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.

Swehla argues that the building could not constitute “a fire hazard or a hazard to public safety or health” because nobody inhabits the structure.  A plainly dubious assertion.  But because we find that Wells failed to indicate which repairs were compelled by the hazardous building statute, we need not address the question of whether the building, in its current state, constitutes a hazardous building.

Reversed and remanded.

 



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