“The Court’s decision is extremely positive for many other homeowners who live near retaining walls. The City of Minneapolis tried to force this resident to pay for the City’s wall, citing an inapplicable ordinance section of the City’s Ordinance Code and then litigating with her for more than two years. I am pleased that we were able to prove that the City was wrong from the beginning.”
Most residential ordinance violations are about fixing something on your property that causes a public safety or health risk, has a modest repair cost, and is easily remedied. The most absurd part of my ordinance violation was that it was never mine to fix in the first place.
In 2008, the cost of the ordered repair was estimated at $70,000 to $90,000, the retaining wall I was ordered to repair wasn’t on my property, the City chose to litigate against me, and the costs mounted to hundreds of thousands of dollars and raged on for half a decade.
Amazingly, the City cites an average of 250 property owners each year with the same ordinance violation that I received.
At first, I believed it must have been my responsibility because the City cited me. I (wrongly) assumed they could not be wrong. I was cited in September 2008 under the Housing Maintenance Code section 244.1590 and ordered to repair or replace a large retaining wall that supported the public sidewalk in Linden Hills. I obtained estimates and inquired about permits.
The cost to repair the retaining wall was staggering to me – I had only paid $100,000 for my house. A $90,000 citation is enough to bankrupt the average American, to disrupt college savings plans, retirement plans, or wedding plans. The City provided the added threat that if I did not comply, they would fix it and assess my taxes.
It caused me to forgo an addition that I wanted to make to my home. The violation that the City enforced and litigated hung over my property for more than 5 years and effectively prohibited me from selling my house.
Shortly thereafter I discovered in the City’s own records that the retaining wall was not on my residential property, but 8’ in the City’s public right-of-way easement and not my responsibility.
Also in the City’s own records was the information that the City graded the streets and installed the sidewalks. In doing so, they are responsible for the retaining walls that were installed when they cut away the natural slope, not me.
When I contacted the City to get the wrongful violation removed and get an unbiased hearing, City officials of all levels refused. I ran into a rules centric culture that was comfortable with a rigid adherence to the This Is The Way We Have Always Done It. In other words, the financial hardship the violation conveyed on me, the unlawfulness and the public dimension were unpersuasive.
In my case, I was ordered to pay $90,000 for a Public Works project that was not mine, and there are many others who have the same violation who have been forced to pay. It is a more difficult violation to sort out for the average homeowner because of the lack of familiarity with property issues compared with, say, parking ordinances.
It's analogous to a homeowner receiving, in addition to their regular tax statement, a separate demand from the City to single-handedly pay for public snow plowing or for the repair of all the potholes in the streets for $90,000. It's a city expense, not one for a single homeowner to receive the entire burden. As residents, we trust the City to apply the ordinances (laws) correctly and fairly. They are tasked with this basic role. We don’t want them to unjustly burden any one group at the expense of another.
Recently, I was able to help a resident in Edina get his retaining wall fixed. His circumstances were virtually identical to mine - except that he lived in Edina. The City was highly responsive, the Mayor came out to look at the wall, agreed to repair it, and Edina stated they wanted to "do the right thing" and "did not seek to re-write case law." It was a business-like experience for all sides and the matter was promptly resolved at a low cost and consistent with the law.
Three years into the dispute, I still did not have a good explanation of the City's unbending position. “I have consulted with numerous staff on this issue and comfortable with City’s authority on this matter. I’d urge you to file a claim with the city on this matter if you are disputing our authority. Retaining walls are the responsibility of the adjacent parcel,” said Minneapolis Public Works Coordinator.
I offered to pay for half the City’s retaining wall ($45,000), just to bring this to closure. The city's attorneys, Mayor, and City Council members refused to negotiate and did not listen to my case.
Because the City refused to budge or comply with the law, the case proceeded to court: First to district court, then to the Minnesota Court of Appeals and last to a 3-day jury trial. In October 2013, the jury decided in my favor and against the City, ending with an Order for the City to fix their retaining wall. The City had effectively exhausted their appeal options.
Evidence at trial revealed what my lawyer and I had known all along: that the City had no legal or factual basis to demand that I pay for their retaining wall.
Each year the City cites several hundred homeowners under the same ordinance they used against me. In other words, people who are my neighbors who trust the City to apply the laws fairly and can’t afford to pay for $90,000 projects that aren’t theirs. Between 2006 and 2010, the City’s own records show that they have cited nearly 700 homeowners with retaining walls using Minneapolis Code of Ordinance § 244.1590, the same ordinance they incorrectly used against me.
This court decision is extremely positive for many people who live near retaining walls. I want to share the information I have accumulated during the last six years with others who face a similar situation with the City or their neighbors. To educate others, I have made a website to help other retaining wall owners: www.FixThisWall.com.
As for the wall? The City has not fixed their wall, despite the Court ordering them to do so more than a year ago. Over six years ago it was the City that declared their dilapidated retaining wall was a risk to the public’s safety. As for me? I'm looking for a home in Edina.
Elizabeth Howell, December 10, 2014
Please share this post by clicking the link below.