by Victoria Heldt

Larry Naber v. City of Minneapolis
(Minnesota Court of Appeals, May 29, 2012)

Larry Naber owns a home in the City of Minneapolis that he vacated in 1996.  In 2001 the City sent a letter to Naber requesting him to apply to the City’s vacant building registration (VBR) program.  Naber paid the $400 registration fee annually and took part in the VBR program from 2001 until 2008.  During those years, the property incurred several minor zoning code violations, all of which Naber remedied in a timely fashion.

In 2009 the City cited three code violations (brush/branches, tall grass/weeds, and an inoperable vehicle) which Naber timely remedied.  In September 2009 Naber received a letter from the City requesting he pay a $6,360 registration fee for the VBR program that year.  He refused to pay and the Minneapolis City Council levied the sum as a special assessment against the property.  In district court, the special assessment was affirmed.  The court determined the property qualified for the VBR program since it was unoccupied for 365 days and incurred zoning code violations.  Naber appealed to the Court of Appeals.

The City’s VBR program operates pursuant to MCO §249.10 and works “to enhance the livability and preserve the tax base and property values of buildings within the city.”  The ordinance states that a building is vacant if (among other factors) it is “unoccupied for a period of time over three hundred sixty-five (365) days and during which time an order has been issued to correct a nuisance condition pursuant to section 227.90.”  First, the parties disagreed as to who bears the burden of proof to show the property qualified for the VBR program.  After analyzing precedent, the Court determined that the City bears that burden and that it failed to satisfy it.

Naber argued the fact that his property qualified for the VBR program in 2009 because it was vacant for 365 days and incurred zoning code violations.  He did not deny its vacancy, but rather that the zoning code violations did not meed the code’s nuisance definitions.  According to the code, in order for tall grass to constitute a nuisance condition it must measure eight inches tall or have gone (or about to go) to seed.  Naber noted there was no evidence in the record that the grass measured eight inches tall or that it was about to go to seed.  The picture provided in the record does not indicate the height of the grass.  The Court agreed with Naber and concluded the district court’s finding that the grass was a nuisance condition was not supported by the record.

Naber next argued the violation for fallen branches.  The existence of a branch in a yard is not a nuisance condition and the district court did not find the branch was a health, safety, or fire hazard.  The City’s only witness did not testify about the branch and the picture provided in the record shows only a small branch in the back yard.  The Court determined the district court’s finding that the fallen branch was a nuisance condition was erroneous.

Naber finally argued that the vehicle placed on his property was not a nuisance condition.  He admits that it was parked on the property without current license plates or registration, but asserts that it was not on the property in such a way as to constitute a nuisance.  It was parked on a designated parking pad similar to that of a neighbor.  The City argued that, regardless of the manner in which it was parked, an inoperable vehicle on the property is in itself a nuisance.  The Court disagreed.  It looked to the language of the statute.  An “inoperable vehicle” was listed within a sentence as one of several nuisance conditions separated by a comma.  The sentence ended with the phrase “in such a manner as to constitute a nuisance.”  The Court found that this phrase applied to the entire sentence, so an inoperable vehicle must be parked “in such a manner as to constitute a nuisance” in order to be a nuisance condition.  The Court rejected as erroneous the district court’s finding that the vehicle was a nuisance.

Since the Court of Appeals found that Naber’s property did not qualify for the VBR program it reversed the district court’s decision.