City of West St. Paul v. Krengel

CRIPPEN, Judge

(dissenting).

Minnesota’s 1987 nuisance-abatement statute prescribes a process leading to a mandatory district court injunction that deprives the owner of use of her property for one year. Minn.Stat. § 617.81-.83 (2006).5 I respectfully disagree with the *346majority’s construction and application of these statutory provisions, and I would affirm the district court’s decision. For alternative reasons, in my opinion, the court was obligated to provide the prescribed statutory relief in the circumstances of this case. First, proof of appellant’s failure to comply with the 2005 agreement of the parties demonstrates that she continues to maintain, without abatement, a nuisance as defined by law; and that this condition, in and around her home, on this record, has existed for approximately 15 years. Alternatively, after appellant failed to comply with the plan, respondent was entitled to injunctive relief upon proof of the disturbances stated in the nuisance notice that was issued in 2005 to initiate these proceedings. For these reasons, appellant did not suffer an unwarranted loss of use of her property under the 2006 district court injunction orders.

Municipal action under the statute unfolds in prescribed stages. When evidence surfaces that gives the prosecuting authority “reason to believe that a nuisance is maintained or permitted,” the prosecutor is authorized to serve a written notice that states, among other things, a summary of the evidence prompting the prosecutor’s belief. Minn.Stat. § 617.81, subd. 4. Significantly, this notice advises the recipient of three options: (1) abatement of the nuisance within 30 days; (2) “otherwise resolv[ing] the matter” with the prosecutor in the same time frame; or (3) suffering “the filing of a complaint for relief in district court that could, among other remedies, result in enjoining the use of the building for any purpose for one year.” Id., subd. 4(b).

The recipient’s timely and adequate response to the notice — when she “abates the conduct constituting the nuisance” or “enters into an agreed abatement plan ... and complies with the agreement within the stipulated time period” — eliminates the prosecutor’s right to seek a judicial injunction “regarding the nuisance activity described in the notice.” Minn.Stat. § 617.82(a).

Thus, the statute gives the notice recipient two choices “regarding the nuisance stated in the notice,” abate this nuisance or “resolve” this nuisance with an “agreed abatement plan.” The statute does not limit the term or the nature of the steps that constitute abatement under the plan; in other words, nothing in the statute stands in the way of an agreement like the one formulated by these parties, lasting for a year and calling for correction of conduct underlying the occurrence of nuisance events rather than the cessation of those event. Id.

The majority sees the evident pattern of the statute upset at this point by Minn. Stat. § 617.82(c), which states that the prosecutor may proceed to seek a judicial injunction when there is “cause to believe that a nuisance described in section 617.81, subdivision 2, exists.” Minn.Stat. § 617.82(c).

*347The parties in this case adopted a one-year abatement plan. As a result, when appellant indisputably “failed to comply” with the plan, a year had passed and appellant asserted that the unabated nuisance did not in fact “exist” because “behavioral incidents” had not been “committed within the previous 12 months.” Minn.Stat. § 617.81, subd. 2 (defining acts constituting a nuisance).

A The Continuing Nuisance

Commission of “behavioral incidents” constituting a nuisance includes “maintaining a public nuisance in violation of section 609.74, clause (1) or (3).” Id. The section referred to deals with maintaining or permitting a condition that, inter alia, “unreasonably annoys, injures or endangers” the community. Minn.Stat. § 609.74 (2006). Proof that this condition is maintained is proof that the nuisance exists, thus permitting the prosecutor to seek an injunction as stated in section 617.82(c).

It is reasonable to conclude, under these statutes, that respondent’s prosecutor proved and the district court properly determined that there existed on appellant’s property, because the abatement plan failed, an ongoing nuisance; the record shows that she maintained and continued to “maintain” — without abatement — an “incident” in the form of a “condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public.” Id. In my opinion, the continuous existence of a festering set of circumstances that has included 180 police responses over 15 years can reasonably be considered a static, existing nuisance. The abatement plan sought to cure the nuisance conditions; appellant’s noncompliance with the abatement plan perpetuates the nuisance that has produced both disturbing affects on neighboring property and investment of substantial municipal police resources.

The legislature anticipated that nuisance-abatement remedies would include injunctions, specifically providing for disuse for a year, and said in passing that there might be “other,” unspecified remedies. Minn.Stat. § 617.81, subd. 4(b)(3). But for injunctive remedies, of course, there must be something to enjoin. In the context of this law, there must be some remaining reason to deprive appellant of the use of her property for a year. It is reasonable under the governing statutes to conclude that the district court properly determined the cause for an injunction in this case; the prosecution evidence showed that the nuisance stated in the 2005 notice continued to exist.

B. Specified Disturbances

Alternatively, if appellant’s nuisance is labeled episodic rather than static, it is among reasonable interpretations of the statute to read it as a demand for injunc-tive relief upon proof of the episodes first stated in the abatement notice.

The original nuisance notice is permitted when a prosecutor “has reason to believe that a nuisance is maintained or permitted.” Minn.Stat. § 617.81, subd. 4(a). The notice must specify the nuisance that is maintained. Id. If the parties choose an abatement agreement and the recipient complies with this agreement, “the prosecuting attorney may not file a nuisance action ... regarding the nuisance activity described in the notice.” Minn.Stat. § 617.82(a). The prosecutor may seek an injunction upon “cause to believe” that a nuisance “exists.” Id., § 617.82(c).

Read together, the provisions of Minn. Stat. § 617.82 are in harmony: If the notice recipient abates or resolves the nuisance, the prosecutor must take no action; if the notice recipient fails to abate the *348nuisance or to comply with the abatement plan, the prosecutor may act. Respondent contends that the existing nuisance regards the activities described in the original notice. The serious nuisance recited in 2005 is the thread running through every stage of action in this case, and it has not been abated as provided by law. In this statutory scheme of action, the abatement plan, when it is chosen by the parties, has the nature as respondent has characterized it, a tolling of abatement-enforcement steps while efforts are made to voluntarily address the nuisance problem reported earlier.

Adding weight to respondent’s contention, Minn.Stat. § 617.82(e), the same subsection that says the prosecutor may seek injunctive relief when a nuisance exists, expressly provides that his burden is for “proof of a nuisance described in section 617.81, subdivision 2.” As the majority observes, the section defining nuisances speaks of those that exist, determined by examining acts committed in the prior year; the majority states the view that the year must be the period immediately before the proof. But as respondent suggests, the statute fails to resolve, upon failure of an abatement plan, whether the “nuisance” addressed in the stated burden of proof is the nuisance stated in the original notice, as it then existed, or another nuisance currently observed. It may be either without offending the words stated and the scheme of action provided in the statute.

C. Resolving Ambiguities

The language of the public nuisance abatement act fails to clearly define terms and prescribe the process, creating ambiguities that must be resolved by established standards on statutory construction. It is not clear from the language of Minn. Stat. § 617.82 whether new episodes of disturbance must exist or whether failure to comply with an abatement plan perpetuates the former nuisance — proven either by showing the failure to comply or by also showing the original disturbances. Not surprisingly, when respondent provided appellant with a second notice immediately before court proceedings, the prosecutor fully stated both the precipitating disturbances and appellant’s specific failures respecting the abatement plan. In my opinion, there are dominant reasons to resolve these ambiguities in the fashion underlying the district court’s deliberations and findings of fact:

(1) The nuisance-abatement statute contemplates a series of steps that govern the parties “regarding the nuisance activity described in the (initial) notice.” Minn. Stat. § 617.82(a). These include an abatement plan that might reasonably last for a year and reasonably deal with explosive conditions that must be remedied to end the risk of continuous disturbances. It does mischief to this statute to interpret and apply it in a fashion that alters its usefulness. We are to construe the statute “to give effect to all its provisions.” Minn. Stat. § 645.16. And we are to take into account the need for the law, the mischief it aims to remedy, the object it aims to attain, and the consequences of a particular interpretation. Id., § 645.16(1), (3), (4), (6). The object of construction of laws is to effectuate the legislative intent. Id.; Minn.Stat. § 645.17 (2006).

(2) The statutory tie between the initial notice and the subsequent injunction action is ratified by the chosen language of the parties in their 2005 abatement plan. They expressly anticipated, when addressing the July 2005 abatement notice and the nuisance it reported, that the prosecutor could seek an injunction in the event that appellant failed to comply with the plan. In the same instrument, appellant *349committed herself to remedial steps that did not occur; she did not merely agree to be sure that no disturbance occurred during a one-year waiting period. Respondent proceeded in this case as anticipated in (1) the advisory stated in the 2005 abatement notice, (2) the statutory provision on noncompliance, and (3) the language on consequences stated in the abatement plan itself. The understanding and the conduct of the parties suggests the common meanings of the statutes, which are to be construed “according to their common and approved usage.” Minn.Stat. § 645.08(1) (2006).

(3) In a practical sense, the demand for current disturbances creates barriers on the future formulation of abatement plans, adding to the legislative scheme the urging that abatement plans either should be short in duration or should only call for a cessation of disturbances. These are barriers that may be adverse to the interests of both municipal authorities and notice recipients. The prosecutor in this case is penalized for what is evidently a display of sound prosecutorial discretion. Rather than attempting to monitor the behavior of intoxicated guests in appellant’s home, the prosecutor attempted to understand a problem and to attempt to deal with it most effectively by addressing its roots and choosing a reasonable time to address the problems. The agreement was a natural, reasoned, and laudatory approach of both parties to the nuisance problem. It is axiomatic that we are limited by what the legislature has said, having no freedom to add to or alter its enactments.

(4) Although the consideration can rightfully be seen as secondary to others already stated, “the legislature intends to favor the public interest as against any private interest.” Minn.Stat. § 645.17(5). The statute invites the interpretation chosen by the district court, and this is consistent with an important public interest in property uses that are not threatening to others.

(5)Finally, deference to the public interest goes beyond the protection of municipal efforts to control public nuisances. The injunction challenged on this appeal, as mandated by the statute, deprived appellant of her property, and she has candidly disclosed to us in motion documents that she anticipates the collateral consequence of unrequited damage if the matter is not reviewed. It is equally evident that appellant anticipates proceedings to ascertain damages in the event we determine that the city was not entitled to the injunction that the district court granted. In my opinion, appellant has not met her burden to show that she is entitled to an award of damages on a theory of wrongful taking; the injunction sought and obtained by respondent was warranted by law.

For the reasons stated, I respectfully dissent from the majority decision.

. These statutory provisions are simply structured. The topic of the act is the matter of obtaining an injunction or order of abatement; "[i]n order to obtain” this relief, these statutes "must be followed.” Minn.Stat. § 617.81, subd. 1. Section 617.81 defines the acts constituting a nuisance at subdivision 2 and delineates the notice requirements at subdivision 4. Minn.Stat. § 617.82, which is the center of controversy in this case, describes the procedure following a notice:

(a) If the recipient of a notice under section 617.81, subdivision 4, either abates the conduct constituting the nuisance or enters into an agreed abatement plan within 30 days of service of the notice and complies with the agreement within the stipulated time period, the prosecuting attorney may not file a nuisance action on the specified property regarding the nuisance activity described in the notice.
(b) If the recipient fails to comply with the agreed abatement plan, the prosecuting attorney may initiate a complaint for relief in the district court consistent with paragraph (c).
(c)Whenever a prosecuting attorney has cause to believe that a nuisance described in section 617.81, subdivision 2, exists with*346in the jurisdiction the attorney serves, the prosecuting attorney may by verified petition seek a temporary injunction in district court in the county in which the alleged public nuisance exists, provided that at least 30 days have expired since service of the notice required under section 617.82, subdivision 4. No temporary injunction may be issued without a prior show cause notice of hearing to the respondents named in the petition and an opportunity for the respondents to be heard. Upon proof of a nuisance described in section 617.81, subdivision 2, the court shall issue a temporary injunction. Any temporary injunction issued must describe the conduct to be enjoined.

Finally, the use of ''shall” in Minn.Stat. § 617.83 requires the district court to issue an injunction upon proof of a nuisance. See Minn.Stat. § 645.44, subd. 16 (2006) (stating " ‘[sjhair is mandatory”).