RES 21-90City of Elk River
City Council
Resolution 21- 90
A Resolution of the City Council of the City of Elk River
Declaring the Property at 136901861 Avenue NW a Public Nuisance
and Accepting a Consent Decree for its Remediation
WHEREAS, the property located at 13690186a' Avenue NW, Elk River, Minnesota 55330
("Subject Property"), is in the jurisdictional boundary of the City of Elk River; and
WHEREAS, the City of Elk River received numerous complaints and/or observed the
exterior accumulation of junk/rubbish/refuse located in the front and rear yard, of the above
Subject Property; and
WHEREAS, City of Elk River staff conducted an inspection of the Subject Property on
May 24, 2019, and observed and documented the exterior accumulation of junk/rubbish/refuse.
Staff determined that the condition of the Subject Property constituted violations of, among other
things, Elk River City Code Chapter 46, Art. II, Section 46-34(a) (4) and City Code Chapter 46, Art. II,
Section 46-32 (a) (5); and
WHEREAS, City of Elk River staff sent the registered owner of the Subject Property a letter on
May 24, 2019 identifying the above -mentioned City Code violations and requesting that the owner bring
his property into compliance; and
WHEREAS, follow up inspections were conducted by City of Elk River staff from June 21,
2019 — October 23, 2019 during which staff identified continuing and ongoing City Code violations; and
WHEREAS, the registered property owner legally responsible for the Subject Property was
issued an Order to Correct on October 23, 2019, for the aforementioned violations of City Code; and
WHEREAS, follow up inspections by City of Elk River staff subsequent to the Order to Correct
revealed continuing and ongoing violations of the City Code; and
WHEREAS, on November 22, 2019 a Legal Letter was sent to the Subject Property owner by
the Elk River City Prosecutor, giving the owner ten (10) days within which to contact the City staff to
remedy the ongoing City Code violations; and
WHEREAS, from December 5, 2019 — May 29, 2020, additional follow up inspections of the
Subject Property were conducted by City of Elk River staff which revealed little to no progress made
in bringing the Subject Property into compliance with the City Code; and
WHEREAS, on May 29, 2020 a second Legal Letter was sent to the Subject Property owner
by the Elk River City Prosecutor, giving the owner ten (10) days within which to contact the City staff
to remedy the ongoing City Code violations; and
WHEREAS, on June 18, 2020 additional follow up inspections of the Subject Property revealed
continuing and ongoing City Code violations; and
WHEREAS, on June 26, 2020 a citation was issued to the Subject Property owner for the
following City Code violations:
30-124 (d)(8) — Inoperable vehicles
30-934 (a)(2) — Property maintenance
30-934 (a)(3) — Parking on grass
46-34 (a)(2) — Inoperable vehicles, junk, junk vehicles, debris, and unlicensed vehicles
46-34 (a)(5) — Outside storage of construction materials in excess of 1 % of the total area
R
WHEREAS, on March 5, 2021 follow up inspections revealed continuing and ongoing City
Code violations; and
WHEREAS, as of March 30, 2021, the Subject Property owner failed to pay the citation or
request a hearing date. As a result, all violations were certified as convictions and the fines were sent to
collections; and
WHEREAS, on April 12, 2021 a second citation was issued to the Subject Property owner for
the following City Code violations:
30-124 (d)(8) — Inoperable vehicles
30-934 (a)(2) — Property maintenance
30-934 (a)(3) — Parking on grass
46-34 (a)(2) — Inoperable vehicles, junk, junk vehicles, debris, and unlicensed vehicles
46-34 (a)(5) — Outside storage of construction materials in excess of 1% of the total area
WHEREAS, as of November 15, 2021, fines associated with the aforementioned citations
remained unpaid; and
WHEREAS, it has been determined by City Council, as stated by City Code Chapter 46,
Article II, Section 46-34 (a) (4), that the depositing of garbage, trash, rubbish, bottles, cans and
other refuse on a public right-of-way or on private property shall be declared a nuisance affecting
public peace and safety; and
WHEREAS, it has been determined by City Council, as stated by City Code Chapter 46,
Article 11, Section 46-32 (a) (5), that the accumulations of manure, rubbish, tin cans or other debris
shall be declared a nuisance affecting public health; and
WHEREAS, the Subject Property meets the definition of a hazardous property as defined
by Minnesota Statute 463.15 Subdivision 3, as follows:
M. S. 463.15 DEFINITIONS
Subd. 3. Hazardous building or hazardous property.
"Hazardous: building or hazardous property" means 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.
WHEREAS, Minnesota Statute 463.16 grants the governing body of any municipality the
authority to order the owner of a hazardous property to correct or remove the hazardous condition of
the property, which reads as follows:
M, S. 463.16 REPAIR OR REMOVE HAZARDOUS PROPERTY CONDITION. The
governing body of any municipality may 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.
WHEREAS, Minnesota Statute 463.161 grants the governing body of any municipality
the authority to abate any hazardous condition of any hazardous property, which reads as. follows:
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M. S. 463.161 ABATEMENT.
In the manner prescribed in section.463.21 the governing body of any municipality may
correct or remove the hazardous condition of any hazardous building or property; the
cost of which shall be charged against the real estate as provided in section 463.21 except
the governing body may provide that the cost so assessed may be paid in not to exceed
five equal annual installments with interest therein, at eight percent per annum.
WHEREAS, based upon the foregoing, the City is entitled to seek abatement of the
aforementioned violations of the City Code by initiating abatement procedures allowed under Minnesota
Statute Chapter 463; and
WHEREAS, on November 15, 2021 the Subject Property owner requested additional time to
remediate the nuisances and stay litigation and in exchange, asked the City to enter into a Consent Decree,
a copy of which is attached hereto as Exhibit A.
NOW, THEREFORE, BE IT RESOLVED that based on the findings, above, the Elk. River.
City Council hereby declares the Subject Property located at 13690 186 h Avenue NW, Elk River,
Minnesota 55330 a hazardous property and a public nuisance.
BE IT FURTHER RESOLVED that notwithstanding the declaration of the Subject Property
as constituting a hazardous property, the Elk River City Council hereby approves and accepts the Consent
Decree and agrees to afford the Subject Property owner additional time to remediate the nuisances, as set
forth in the Consent Decree, and authorizes the Mayor and City Administrator to sign the same on behalf
of the City.
BE IT FURTHER RESOLVED by the Elk River City Council that if the Subject Property
owner fails to comply with the terms and conditions in the Consent Decree, the City Administrator and/or
his designee is authorized to pursue other legal means to gain compliance by the Subject Property owner,
including the initiation of abatement procedures pursuant to Minnesota Statute Chapter 463.
Passed and adopted this: & day of December 2021.
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Tina Allard, City Clerk
EXHIBIT A
CONSENT DECREE,
SPECIAL ASSESSMENT AGREEMENT,
WAIVER OF HEARING AND APPEAL
TIUS CONSENT DECREE & AGREEMEiv'T is made and entered into by and
between the City of Elk River, a Minnesota municipal corporation ("City'); and Joseph John
("Property Owner") and is effective as of the date of the last signature of the parties.
RECITALS
A. Joseph John is the fee owner of the following described real property, located in
the City of Elk River, Sherburn County, Minnesota ("Subject Property"), at 13690 1861' Avenue
NW, Elk River, Minnesota; legally described as the W 210 FT OF E 639 FT OF N 176 FT OF S
769 FT OF SE 1-4 OF NE 14; Parcel Identification Number: 75-131-1460.
B. Joseph John resides at the Subject Property.
C. The Property Owner was informed of various City Code violations on the Subject
Property including inoperable vehicles; property maintenance issues; parking on the grass; junk,
junk vehicles, debris and unlicensed vehicles; and outside storage of construction materials; all
of which is unsightly and does not comply with applicable laws or regulations. The City
considers these conditions to create a nuisance.
D. The City and Property Owner have attempted to work together since
approximately May of 2019 in order to remediate the nuisances found on the Subject Property.
City Staff spoke with Property Owner on numerous occasions since May of 2019 to the present.
During these conversations Property Owner promised to work towards remediation of problems
on the Subject Property. Over this period, Property Owner was not able to remediate the
problems on the Subject Property.
E. Between May 23, 2019 and April 12, 2021, several formal notices have been sent
by the City and its legal counsel to the Property Owner requesting him to remediate the
nuisances found on the Subject Property. Additionally, the Property Owner was served with a
criminal citation for the nuisances found on the Subject Property on June 26, 2020 and April 12,
2021.
F. To date, the conditions on the Subject Property have not been brought into
compliance.
G. The City now intends to begin civil litigation against the Subject Property and
Property Owner to remediate the nuisances on the Subject Property.
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H. Now, Property Owner seeks additional time to remediate the nuisances found on
the Subject Property. Property Owner also wants the City to stay litigation in order to avoid
incurring litigation expenses, which would ultimately be assessed to the Subject Property. In
exchange, the Property Owner asks the City to enter into this Consent Decree and the other
Agreements found in this document.
CONSENT DECREE
NOW, THEREFORE, IN CONSIDERATION OF THEIR MUTUAL
COVENANTS, THE PARTIES HERETO AGREE AS FOLLOWS:
A. Property Owner shall remediate all the nuisances found on the Subject Property
on or before Neven*w 3, 2921 Those remedial measures are detailed in Exhibit A. The rights
and responsibilities set fort&* this agreement shall be limited to those remedial measures
detailed in Exhibit A. \ 4
April 1, 2022----- I----
B. The City Building Official, or his desin e, will inspect and judge whether
nuisance conditions on the Subject Property comply with City Ordinances, the State Building
Code, or any other applicable law or regulation. It shall be his decision, and his decision alone,
which shall govern the decision as to whether conditions on the Subject Property comply with
applicable law or regulation.
C. If the Building Official determines that the conditions on the Subject Property do
not comply with applicable law and regulation by the deadline stated above, Property Owner
grants the City permission, in the form of a license, to enter the Subject Property to inspect or
remediate nuisance conditions found on the Property. This license shall last for a period of one
year beginning the day after the deadlineFa�il.
.This license shall allow the City
to enter the property for the purpose oftion or remediation upon twenty-four (24) hour
notice by telephone, email, or first-classThis license authorizes the City to remediate the
issues detailed iii Exhibit A. (JkL 11�ZZ ��q
D. The Property Owner acknowledges and agrees to reimburse"t�he City for the cost
of the remediation or repair, and other associated costs such as Staff time or legal fees and costs.
In the event that this amount is not paid within thirty -days from the date an invoice is tendered,
Property Owner agrees that the City may apply this amount as a special assessment to the
Subject Property, as set forth below.
E. Property Owner acknowledges that he grants the rights and concessions to the
City herein knowing that they have certain legal rights as set forth throughout ti-i s document and
as set forth at Iaw. Property Owner agrees to waive his legal rights upon entering into this
Consent Decree and Agreement. The City encourages Property Owner to seek advice from
independent legal counsel to review and understand his legal rights and the contents of this
document. By signing this document, Property Owner indicates he has had adequate time to
consult with legal counsel and has decided to waive his legal rights. These legal rights include
but are not limited to everything discussed in this document. In particular, Property Owner
waives the following:
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i. The right to require the City to obtain a court order allowing its employees,
contractors, or representatives to enter or remediate the Subject Property;
ii. The right to require the City to specify the nature of each nuisance issue found on
the Subject Property, and to ask a Court to decide whether any nuisance alleged
by the City is in violation of law or regulation; and,
iii. The right to require the City to follow the statutory procedure to assess a debt
against the Subject Property.
F. The City will assess the Subject Property for the cost to remediate nuisances
found on the Subject Property. The final assessment shall be the actual cost of the remediation
plus the cost of associated engineering, legal and administrative costs. The special assessment
principal shall be payable in equal installments over ten years, plus an amount of interest as
determined by statute and at the time the City Council adopts a special assessment in this
instance. The rate of interest is shall be no greater than. 5%. Interest shall begin accruing as of the
date these costs are adopted by the City Council. Each installment of the special assessment
principal and interest will become due and payable on the same schedule as the property taxes
for the Subject Property beginning in the year the special assessment is imposed. Default by
failure to pay any amount of an installment or interest when due shall cause the balance of all
outstanding or remaining installments to become due and payable immediately or on -demand as
the City may require.
G. Property Owner waives any and all procedural and substantive objections to the
remediation of his Property and special assessments, including, but not limited to, hearing
requirements and any claims that the assessment exceeds the benefit to the Subject Property.
Property Owner waives any right to appeal pursuant to Minn. Stat. §429.081.
H. rrqperty Owner may prepay the entire special assessment without interest if paid
in full by Thereafter, prepayments together with applicable interest would be
permitted asp vided in State law:
I. Property Owner agrees to provide to the City, at no cost to the City, the right-of-
way, temporary easements or licenses necessary for the City to remediate the Subject Property.
T. This Agreement shall be binding upon Property Owner and Property Owner's
successors and assigns. This Agreement or any special assessment imposed pursuant to this
Agreement may be recorded against the title to the Subject Property and it shall run with the
property.
K. Property Owner agrees that for purposes of this Agreement the Subject Property
shall not be subject to Minnesota Statute Section 273.111, (also known as "Green Acres).
L. No remedy herein conferred upon or reserved to the City or other governmental
agencies are intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy given
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under this Agreement or now or hereafter existing at law or in equity or by statute. The City may
pursue the remedies available under this Agreement independently from the remedies available
to any other entity, which may attempt to take legal action against the Subject Property or
Property Owner.
M. No delay or omission to exercise any right or power accruing upon any default
shall impair such right power, or shall be construed to be a waiver thereof, but any such right and
power may be exercised from time to time and as often as may be deemed expedient by the City.
N. In the event any provision of this Agreement shall be held invalid, illegal, or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof, and the remaining provisions shall not in any way be
affected or impaired thereby.
O. Whenever any default occurs and the City shall employ attorneys or incur other
reasonable expenses for the collection of payments due or to become due or for the enforcement
or performance or observance of any obligation or agreement on the part of the Property Owner
herein contained, the Property Owners agrees that he shall, on demand therefore, pay to the City
the reasonable fees of such attorneys and such other reasonable expenses so incurred by the City.
P. Except as specifically stated herein, the payment of this special assessment shall
be governed by Minnesota Statutes Chapter 429.
FOR THE CITY OF ELK RIVER
As approved by a majority vote of the City Council.
BY:
�ayor Joh J. Dietz,
ATTES �
Tina Allard, City Clerk
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PROPERTY OWNER:
DATED: fI ^ /-,5� - I
I decla
correct
Signed
State o:
County
BY: ' 4
Joseph John
everything I have stated in this document is true and
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Exhibit A - JOHN PROPERTY GOALS:
Eliminate all existing city code violations
ITEMS "TO-DO" TO BRING THE PROPERTY INTO COMPLIANCE:
Actual
TASK Due Date Completion
Date
• Remove or dispose of all unlicensed inoperable vehicles 4/1/2022
(including automobiles, campers, watercraft, and trailers).
• All licensed and operable vehicles (including automobiles,
4/1/2022
campers, watercraft, and trailers) are to be relocated to an
approved surface including asphalt, concrete, or
compacted class 5 gravel.
• Disposal of rubbish and clutter including mechanical parts
4/1/2022
and equipment, tires, lumber, pallets, pipe, appliances,
scrap metal, machinery, and household items (firewood
may stay if it is stacked neatly). This list is not all
inclusive.
City Code Violation List
30-124(d)(8) Unlicensed/Inoperable Vehicles
4/1/2022
46-34(a)(2) Inoperable Vehicles
4/1/2022
30-934(a)(3) Parking on Approved Surface
4/1/2022
30-934(a)(2) Clean and Uncluttered Landscape
4/1/2022
46-32(5) Rubbish — Public Health
4/1/2022
46-34(a)(4) Rubbish — Peace and Safety
4/1/2022
46-34(a)(5) Construction materials > 1 %
4/1/2022