This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
City of St. Louis Park,
Gene Bell and Yvonne Bell,
husband and wife,
Filed August 20, 1996
Hennepin County District Court
File No. 9417744
Wayne G. Popham, Christopher A. Lidstad, Popham, Haik, Schnobrich & Kaufman, Ltd., 3300 Piper Jaffray Tower, 222 Ninth St. S., Minneapolis, MN 55402 (for Respondent)
Randall D. Tigue, Nicollet Avenue Professional Bldg., 2620 Nicollet Avenue S., Minneapolis, MN 55408 (for Appellants)
Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Property owners challenge the district court judgment holding that their garage is a hazardous building and authorizing the City of St. Louis Park to raze it. We affirm. FACTS
Appellants Gene and Yvonne Bell constructed a wood-frame garage in 1975. On September 26, 1994, after inspection, respondent City of St. Louis Park (the City) passed a resolution ordering appellants to raze within 20 days and remove the garage as a hazardous building. The City subsequently filed in the district court a copy of the resolution order and moved the district court to enforce it. The Bells filed an answer. The City moved for summary judgment, which was functionally denied by the court's finding that there were disputed fact issues. At the subsequent evidentiary hearing, each party presented expert testimony about the condition of the garage. The district court concluded that because the garage had deteriorated by 50 percent or more from its original structure, it was a hazardous building that required demolition. The district court therefore authorized the City to raze the garage. The Bells appeal.
D E C I S I O N
The Bells argue that the evidence was insufficient to support a finding that the garage must be razed, rather than repaired, under the St. Louis Park Municipal Ordinance. Findings of fact will only be reversed if clearly erroneous, giving due regard to the district court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. "Clearly erroneous" means not reasonably supported by evidence in the record as a whole. Hubbard v. United Press Int'l, 330 N.W.2d 428, 441 (Minn. 1983). We review whether the evidence sustains the findings of fact and whether the findings support the conclusions of law, viewing the evidence in the light most favorable to the district court decision. Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 428 (Minn. App. 1992), review denied (Minn. June 17, 1992).
A "hazardous building" is defined as
Minn. Stat. §subd. 3 (1994). By statute, a city council may
- 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.
Minn. Stat. §(1994). The building owner may then comply with the order or file an answer under Minn. Stat. §(1994); if an answer is filed, the case is treated as a contested case heard by the district court. Minn. Stat. §(1994).
- 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.
The St. Louis Park Ordinances incorporate the statutory definition of "hazardous building." See St. Louis Park, Minn., Ordinance Code § 15-400 (1981). With respect to such buildings, the City Ordinance provides:
- (1) If the hazardous building can reasonably be repaired so that it will no longer constitute a hazardous building under this ordinance, it shall be ordered repaired.
Id. § 15-403 (emphasis added). The ordinance declares such buildings public nuisances. Id. § 15-404.
- * *
- (3) In any case where a hazardous building is 50 percent damaged or decayed, or deteriorated from its original value or structure, it shall be demolished, and in all cases where a hazardous building cannot be repaired so that it will no longer exist as a hazardous building under the terms of this ordinance, it shall be demolished.
Ordering a building to be razed is a somewhat drastic measure taken to protect public health and safety. Village of Zumbrota v. Johnson, 280 Minn. 390, 394, 161 N.W.2d 626, 629 (1968). The district court must use caution in ordering this remedy and must consider the possibility of repairing the building. Ukkonen v. City of Minneapolis, 280 Minn. 494, 500, 160 N.W.2d 249, 253 (1968); Fire Marshal v. Fitzpatrick, 149 Minn. 203, 205, 183 N.W. 141, 142 (1921).
In making its determination, the district court relied on photographs of the building and weighed the testimony of the two experts. It accepted the testimony of the City's expert, who has extensive experience with wooden structures, over that of the Bells' expert, a structural engineer who specializes in concrete. As fact-finder, the district court determined that the building had deteriorated more than 50 percent from its original structure. The district court finding is supported by testimony that the roof was in danger of caving in and had to be replaced, that much of the wood supporting the building was rotting, that part or all of the upper and lower plates had to be replaced, that the siding was coming loose, that part of a wall was missing (which let in rain and snow), and that the existence of mold on the rafters and inside the walls showed extensive water damage. We conclude that the district court's findings of fact are reasonably supported by the evidence as a whole.
The district court also considered the feasibility of repair. In December 1994, the Bells proposed a plan to repair the garage and submitted a sketch of their proposal to the City. The City agreed to review the plan, subject to the Bells' submitting a detailed report from a state-licensed engineer and further subject to a City inspection of the garage interior. The Bells never provided the necessary information, did not voluntarily allow the City to inspect the garage, and ignored the City's request to meet regarding the proposed repairs. In June 1995, the City again inspected the garage and found no evidence of repair. Only hours before the summary judgment hearing, appellant Gene Bell appeared at City Hall to apply for a building permit to repair the garage. The repairs for which the Bells sought a permit were based on the same sketch submitted in December 1994. The permit application proposed re-roofing and replacing trusses, but mentioned nothing about the integrity of the top and bottom plates, the studs, the siding or sheathing on the walls, or repairing the hole in the south wall.
At the evidentiary hearing, the district court heard testimony from the City's expert that the Bells' repair plan was inadequate. It also heard testimony from the Bells' expert that the cost of repair would not be excessive and that only 5 to 10 percent of the structure material required replacement. The district court mentioned this testimony in its findings, although it did not make a specific finding or conclusion that repair was not possible. In its conclusions, however, the district court recognized the ordinance requirement that a hazardous building shall be ordered repaired if it "can reasonably be repaired," but the district court made no provision for repair and thereby tacitly concluded that repair was not reasonable. Accordingly, given the district court's explicit conclusion that the garage had deteriorated more than 50 percent from its original structure, the district court properly identified the Bell's garage as a hazardous building and granted the City authority to raze it. We therefore affirm the district court.