City attorney says that shouldn’t deter code-enforcement program
The homeowners claimed harassment and selective enforcement by the city of Burnsville. The city claimed its actions against them were by-the-book measures to enforce city code.
The homeowners won in court, but the city says it won’t be deterred in its efforts to safeguard the appearance of Burnsville neighborhoods.
Criminal complaints accusing Scott and Mary Lundquist of two counts each of misdemeanor code violations were dismissed Oct. 30 by Dakota County District Judge Arlene Perkkio.
The complaints centered on the couple’s failure to properly screen or remove a yard-waste bin, an extension ladder and other items outside their home at 905 Kaymar Lane earlier this year. The city brought the charges after repeated warnings by a city inspector went unheeded.
Perkkio ruled that the city’s use of zoning ordinances in the criminal case against the Lundquists was “overbroad and arbitrary.”
The case comes at a time when Burnsville, at the City Council’s direction, is redoubling efforts to enforce code violations that officials say can diminish neighborhood appeal.
This spring, the city began a program of street-view, “proactive” inspections that over three years will canvass the entire city — including all single-family, rental and business properties — for code violations.
The city also began a system of reinspection fees for repeat follow-up visits to properties with unremedied violations. At a stormy public hearing Sept. 3 several property owners — including the Lundquists — contested their fees.
The Lundquists’ three reinspection fees of $110, $110 and $180 were put on hold, pending the outcome of the criminal case, which the city initiated in June, Scott Lundquist said.
An attorney who practices in Lakeville, Scott Lundquist represented the couple in court and filed for dismissal of the misdemeanor charges.
“I’ve lived in Burnsville since 1981. I basically grew up out there,” Lundquist said. “I was embarrassed by this whole event and very annoyed. It thought it was a classic example of government getting too involved in our everyday life.”
After losing in court, the city will review its ordinance provisions, enforcement procedures and communications with residents about code violations, City Attorney Joel Jamnik said.
“I will not recommend that we discontinue our enforcement procedures,” Jamnik said. “We tell people that your (garbage or recycling bin) needs to be inside or screened from view. Most people can understand what that means.”
Scott Lundquist said he never kept his yard-waste bin in the garage because “it stinks.” He said he kept it behind a shrub tree by the side of the house, but, at one point, it got blown out into the yard.
It was first seen by a city inspector Jan. 30. The first letter, from inspector Ted Oakland, was sent to the Lundquists Feb. 1.
A city court filing in the criminal case includes four letters sent to the couple. Three also cite outdoor storage of the extension ladder, which Lundquist said came from his mother’s house after she moved, and other items, including a parts washer cited in one letter. He said he didn’t have a place for the ladder in the garage (where it is now stored) and set it alongside the house next to a parked car.
“If you knew it was there, or if you looked at our house with binoculars, you could see this ladder,” Lundquist said. “If you knew it was there, you could probably keep picking it out.”
The yard-waste bin was visible to the inspector from the street on some visits and not on others, said Lundquist, who continues to keep it outside.
“At some point the letters got to the point of harassing us,” he said.
The violations were cited during a period of multiple snowstorms, when fixing the problems would have been a challenge, Lundquist said. Plus, he and his wife were away from home much of the time, he said.
Lundquist maintains the city’s property-related ordinance provisions are sometimes contradictory and prone to selective use and interpretation. He says the ordinance provisions don’t give “fair warning” of criminal violation.
He and his wife were charged under two provisions. One requires garbage and recycling containers kept outdoors to be screened from view by fencing, shrubs or other means of “opaque screening,” according to letters sent to the Lundquists by Oakland.
The other prohibits exterior storage, with exceptions such as properly stored recreational vehicles and patio or lawn furniture, according to the letters.
Burnsville property owners “store hoses outside, bins, balls, hockey nets, portable basketball hoops,” Lundquist said. “All kinds of exterior storage goes on in the city of Burnsville.”
The city itself “stores pallets, garbage bins, waste bins, covered and uncovered,” he said. “They store canoes outside at Lake Alimagnet and Lac Lavon.”
“Generally speaking,” said City Attorney Jamnik, “the specific governs the general. If you have a specific rule regarding garbage collection, that should be subject to interpretation or application even if you have something else that deals with outdoor storage.”
Judge Perkkio ruled that city ordinance is “so indefinite as to encourage arbitrary and discriminatory enforcement.”
She ruled that the “opaque screening” provision is “vague and contradicts other code sections.”
She noted that Mary Lundquist provided photos of other properties, including city-owned properties, whose own noncompliance with city code shows “the inspector’s arbitrary enforcement of the zoning code.”
The city maintained that some of the photos came from zoning districts other than the one governing the Lundquist’s property and that enforcement of code violations is a lengthy process with various stages.
“The mere existence of unscreened waste containers in the city of Burnsville does not satisfy the defendant’s burden of proving that the enforcement of the code against the defendant is arbitrary and capricious,” said a city brief contesting the Lundquists’ motion to dismiss the charges.
Most homeowners who have been cited for improperly stored garbage or recycling bins understand and accept the action against them, Jamnik said.
“We’ve had the majority of residents comply with that,” he said. “And if they haven’t complied with it, they’ve received a notice from protective inspection services and worked with the code enforcement officers to figure out what would satisfy that standard. And it hasn’t been a problem in 98 percent of cases.”
Council Member Mary Sherry said complaints about neighborhood appearance were the ones she heard most when campaigning last summer for a second term.
And complaints about unscreened garbage containers top the list, said Sherry, a vocal proponent of the crackdown on code violations.
Putting the entire city on an inspection cycle ensures that “nobody is being singled out,” she said. The city will also inspect properties in response to specific complaints.
“I’ve had far more people compliment the council and city staff for addressing the issue of deteriorating properties and appearance in this community than I have had complaints about the fact that we were enforcing these codes,” she said.