This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Bank of America, FSB, et al.,



City of St. Paul,


Filed February 17, 1998


Davies, Judge

St. Paul City Council

File No. 97724

H. Le Phan, James F. Baldwin, Murnane, Conlin, White & Brandt, 1800 Piper Jaffray Plaza, 444 Cedar St., St. Paul, MN 55101 (for relators)

Peg Birk, St. Paul City Attorney, Stephen J. Christie, Assistant City Attorney, 400 City Hall, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondent)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Davies, Judge.



By certiorari relators challenge a resolution of the St. Paul City Council ordering the immediate repair or demolition of a St. Paul apartment building. We affirm.


Relators Bank of America and Department of Housing and Urban Development (HUD), respectively the mortgagee of a St. Paul apartment building and the mortgage guarantor, appeal a St. Paul City Council resolution ordering them to repair or demolish the building within five days. Respondent City of St. Paul contends that the building is a public nuisance that must be abated immediately.

A legislative hearing to consider a resolution ordering the building's owners to repair or demolish the building was held on June 3, 1997. According to testimony, the building has been vacant and boarded since its certificate of occupancy was revoked in January 1997. Several summary abatement notices ordering repairs to the building were issued following the boarding, but no repairs were made. A city inspector found 162 code violations during an inspection and estimated the total cost of correcting the violations at approximately $40,000. Relators testified that the mortgagor-owner had abandoned the property and relators planned to foreclose on the building's mortgage. Based on the testimony and records produced at the hearing, the legislative hearing officer found that the building was a public nuisance and that its rehabilitation was not economically feasible; he recommended that the council approve the proposed resolution.

The council held a public hearing on June 11, 1997. At the hearing, relators stated that Bank of America intended to foreclose on the building and turn it over to HUD, which would resell it "as is." Relators estimated the market value of the building at $58,100 and stated that rehabilitation of the building to code would cost less than $16,000. (A second city inspector estimated the cost of repairs at $39,100.) Records produced at the council hearing show more than 130 police calls to the building between June 1994 and April 1997, including several after the building was vacated. A representative from a group of neighborhood residents testified in favor of demolishing the building.

The council adopted the findings of the legislative hearing officer and unanimously approved the resolution ordering repair or demolition of the building. The council set a five-day deadline. The order for demolition was stayed pending appeal.


Relators argue that the council's order to repair or demolish the building is arbitrary, capricious, and unsupported by substantial evidence.[1] This court can modify or reverse a city council decision that is "arbitrary and capricious" or "unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. § 14.69(e), (f) (1996).

Routine municipal decisions should be set aside only in those rare instances where the decision lacks any rational basis, and a reviewing court must exercise restraint and defer to the city's decision.

City of Mankato v. Mahoney, 542 N.W.2d 689, 692 (Minn. App. 1996).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a scintilla of evidence." Id. (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977)). In this case, the council adopted the legislative hearing officer's findings and heard credible testimony from two separate city inspectors that repairing the building to code would not be economically feasible. There have been dozens of police calls to the building, including several after the building was vacated and boarded. The council's decision to order the immediate repair or demolition of the building was supported by substantial evidence.

A decision is arbitrary and capricious only when it "is based on whim or is devoid of articulated reasons." BAL, Inc. v. City of St. Paul, 469 N.W.2d 341, 343 (Minn. App. 1991). Relators complain that the five-day repair period set by the council is arbitrary and capricious, given the repairs needed. But at the public hearing relators requested additional time to complete foreclosure proceedings, not to repair the building. Relators did not make a firm offer to abate the nuisance created by the condition of the building; nor did relators indicate that they would be willing to make the necessary repairs if the compliance period were extended. The council's decision to order the immediate repair or demolition of the building was not arbitrary or capricious.



Judge Jack Davies

February __, 1998

[ ]1 Relators' claim that the resolution effects a taking of their property is not properly before this court because relators did not raise that issue during the proceedings below. This court generally does not consider issues raised for the first time during certiorari proceedings. REM-Canby, Inc. v. Minnesota Dept. of Human Servs., 494 N.W.2d 71, 76 (Minn. App. 1992), review denied (Minn. Feb. 25, 1993). Even if relators' takings claims were properly before this court, it is a long-standing principle of law that "rights of private property are subservient to the public right to be free from nuisances which may be abated without compensation." State v. Guilford, 174 Minn. 457, 465, 219 N.W. 770, 773 (1928); see also York v. Hargadine, 142 Minn. 219, 221, 171 N.W. 773, 774 (1919) (demolition of "that which endangers life and property * * * is not in any sense a taking of private property for public use, entitling the owner to compensation").