Michele Sykes v. Rochester City Council, City of Rochester

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2421

Michele Sykes,
Appellant,

vs.

Rochester City Council,
City of Rochester,
Respondents.

Filed March 2, 2015
Affirmed
Reyes, Judge

Olmsted County District Court
File No. 55CV116597

Michele Sykes, Rochester, Minnesota (pro se appellant)

Pamela L. VanderWiel, Everett & VanderWiel, P.L.L.P., Rosemount, Minnesota
(for respondents)

Considered and decided by Reyes, Presiding Judge; Worke, Judge; and

Johnson, Judge.

UNPUBLISHED OPINION

REYES, Judge

Pro se appellant property-owner challenges respondent-city’s ability to specially

assess her property for work the city did cutting her grass, removing weeds, and

removing trash and debris. On appeal from the district court’s affirmance of the city’s
assessments, appellant makes a number of claims arguing that the city’s assessments

were improper. We affirm.

FACTS

Appellant Michele Sykes is the owner of property in Rochester, Minnesota. In

May 2008, the City of Rochester received several complaints about the condition of

Sykes’s yard. After multiple inspections, the city determined that Sykes’s yard violated

the Rochester Code of Ordinances (RCO) because (1) the yard contained refuse in

violation of RCO § 35.19, .21 (2014) and (2) the yard contained tall grass and weeds in

violation of RCO § 48.03 (2014).

Debris Removal

On May 12, 2008, Susan LeGare-Gulden, Rochester’s Manager of Housing

Inspection Services, received a complaint about an unsafe fence and improperly stored

debris located on Sykes’s property. LeGare-Gulden inspected the yard, met with

neighbors, and left her business card and a summary of her report on Sykes’s front

door. On May 14, LeGare-Gulden sent two notices to Sykes alleging that her fence and

debris violated RCO § 35.24, .21. The notices required correction of the violation no

later than May 20, 2008. LeGare-Gulden returned to Sykes’s property on the morning

of May 20, 2008, and determined that no steps had been taken to correct the violations.

She spoke with Sykes and gave her until the end of the day to make the corrections.

Because no steps were taken as of 5:00 p.m. to correct the violations, LeGare-Gulden

ordered the removal of an unstable fence, broken pots, dead plants, and other debris from

the yard. A $315 bill was levied against Sykes’s property for the debris removal.

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Weed Removal

On May 20, 2008, Rochester’s Parks and Recreation Department received a

complaint of tall weeds in need of mowing at Sykes’s property. The next day, weed

inspector Jacob Ryg examined the property and determined that there was grass and

weeds in excess of ten inches which occupied an area of at least 144 square feet and

were located within 200 feet of the residence, thus violating RCO § 48.03. On May 23,

2008, Ryg notified Sykes of the violation and gave her five days to correct the violation.

Sykes testified that she and a friend mowed the lawn on May 31 and June 2. On June 3,

one of Ryg’s interns inspected the property and determined that the yard remained in

violation. Ryg testified that yards will typically remain out of compliance even after it

is mowed when an owner fails to trim the grass and weeds growing close to objects,

structures, and trees. Sykes admitted that neither she nor her friend had used a trimmer

on her lawn. On June 9, the city hired a contractor to mow the tall grass and weeds

located at Sykes’s property and a $75.25 bill was levied.

Sykes did not pay either bill. The Rochester City Council adopted a special

assessment against Skyes’s property for the weed removal on December 1, 2008, and a

special assessment for the debris removal on December 15, 2008. See Sykes v. City of

Rochester, 787 N.W.2d 192, 194 (Minn. App. 2010). Sykes appealed the city’s adoption

of both assessments, and the district court granted summary judgment in favor of the city,

reasoning that Sykes did not timely serve the notices of appeal for either the weed

removal assessment or the debris removal assessment. See Sykes, 787 N.W.2d at 194.

We reversed, ruling that because the city failed to properly notify Sykes of the

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assessment hearings, both assessments were never adopted. Id. at 198. We set aside the

assessments, “subject to reassessment by the city under section 429.071, subdivision 2.”

Id.

After our reversal, and on notice to Sykes, the city held a public hearing on

November 15, 2010 to consider testimony on the proposed reassessment of Sykes’s

property. Sykes submitted a written statement prior to the hearing. The city continued

the hearing until December 6, 2010, in order to consider Sykes’s statements. At the

December 6 hearing, Sykes submitted a second written statement, and the city again

continued the hearing until December 20, 2010. On January 4, 2011, the city approved

the special assessments for both the weed removal and debris removal. But on July 6,

2011, the city rescinded both assessments because the city attorney advised the city that a

clerical error may have been made. Sykes was informed of the rescissions and was

notified that another reassessment hearing was scheduled for August 1, 2011. Prior to the

hearing, Sykes, for the third time, dropped off a written statement. At the hearing, the

city considered all the testimony and documents which had been submitted at prior

meetings, as well as Sykes’s most recent statement. The city eventually approved the

special assessments for both the weed removal and the debris removal. The district court

affirmed the city’s order, concluding that the removals and assessments were fair,

reasonable, authorized by city ordinance and state statute, and that Sykes received all

process due prior to the assessment. Sykes appeals.

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 DECISION

Sykes makes a multitude of claims on appeal, all of which can be categorized into

one of the following arguments: (1) the city failed to follow the appropriate reassessment

procedures; (2) the district court’s findings of fact are clearly erroneous; (3) the district

court’s findings regarding the credibility of witnesses are clearly erroneous; (4) the

district court abused its discretion by wrongfully excluding evidence; (5) Sykes’s

procedural due-process rights were violated; and (6) the city’s abatement procedures

violate the Equal Protection Clause of the U.S. Constitution. Sykes also makes various

complaints regarding the city’s authority to undertake the abatement procedures. None

are persuasive.

I. Did the city follow the appropriate reassessment procedures?

Sykes alleges that the city did not follow the required assessment procedures.

“Interpretation of a statute presents a question of law, which we review de novo.”

Swenson v. Nickaboine, 793 N.W.2d 738, 741 (Minn. 2011). “The interpretation of an

ordinance is a question of law for the court, which we review de novo.” Eagle Lake of

Becker Cnty. Lake Ass’n v. Becker Cnty. Bd. of Comm’rs, 738 N.W.2d 788, 792 (Minn.

App. 2007).

A. Notice requirement

Sykes argues that the city failed to properly notify her of the assessment

proceedings involving her property. “Proper notice of assessment proceedings is a

jurisdictional prerequisite to any action” by a city council. Klapmeier v. Town of Ctr. of

Crow Wing Cnty., 346 N.W.2d 133, 136 (Minn. 1984). Notice that a city council will

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consider levying a special assessment must be published in the newspaper at least

once, and must be “mailed to the owner of each parcel described in the assessment

roll.” Minn. Stat. § 429.061, subd. 1 (2014).1 “Such publication and mailing shall be

no less than two weeks prior to such meeting of the council.” Id.

Such notice shall state the date, time, and place of such
meeting, the general nature of the improvement, the area
proposed to be assessed, the total amount of the
proposed assessment, that the proposed assessment roll is
on the file with the clerk, and that written or oral
objections thereto by any property owner will be
considered.

Id. The notice must also state the property owner’s rights and responsibilities with

respect to appeal, and “must state in clear language the following information:”

(1) the amount to be specially assessed against that
particular lot, piece, or parcel of land;
(2) adoption by the council of the proposed assessment
may be taken at the hearing;
(3) the right of the property owner to prepay the entire
assessment and the person to whom prepayment must be
made;
(4) whether partial prepayment of the assessment has
been authorized by ordinance;
(5) the time within which prepayment may be made
without the assessment of interest; and
(6) the rate of interest to be accrued if the assessment is
not prepaid within the required time period.

Id. “There must be strict compliance with the statutory notice provisions” and failure to

comply leaves the council without authority to adopt the assessment. Shortridge v.

1
Although the assessments in question are from 2010 and 2011, we note that the relevant
statutes have not been amended since then.

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Daubney, 400 N.W.2d 841, 844 (Minn. App. 1987), rev’d on other grounds, 425 N.W.2d

840 (Minn. 1988). Substantial compliance on the part of the city is insufficient. Id.

On July 12, 2011, the city sent Sykes two notices of the proposed assessments; one

for the weed removal and one for the debris removal.2 Sykes contends that these notices

were deficient because they failed to advise Sykes of the deferment option under Minn.

Stat. § 435.193–.195 (2014). But an examination of the notices belies such a claim. The

notices make specific reference to sections 435.193 and 435.195 when outlining the

deferment option, state that Rochester has in fact adopted the deferral option, and go so

far as to list the conditions in which deferral is available.

Sykes correctly points out that the language in the notice allowing for deferral

for a person retired by virtue of a “permanent physical disability” differs slightly from

the statutory language allowing for deferral for a “permanent and total disability.”

Minn. Stat. § 435.193(a)(1). Admittedly, strict compliance with the statutory notice

provisions is required. Klapmeier, 346 N.W.2d at136. However, the statutory notice

provisions referenced in Klapmeier, and again in Sykes, all relate to the language of

section 429.061, which employs the mandatory phrase “shall.” See Minn. Stat.

§ 645.44, subd. 16 (2014) (explaining that the use of “shall” denotes language which is

mandatory). The notice language of section 435.193(a) is much more permissive,

2
Both notices included her name, legal description of her property, and the amount of the
proposed assessment. Also included was the rate of interest to be charged if the
assessment was not prepaid within the required time period, a description of what that
required time period was, and the person to whom prepayment must be made. It was the
lack of this specific information that caused the city’s previous notices to be deficient.
Sykes, 787 N.W.2d at 196.

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using the phrase “may” and “at [the city’s] discretion.” Minn. Stat. § 435.193(a);

see also Minn. Stat. § 645.44, subd. 15 (2014) (explaining that the use of “may” denotes

language which is permissive). Nothing in section 435.193(a) suggests that the exact

terminology must be copied from the statute if a city decides to employ a deferral

program and, in fact, section 435.193(b) states that it is up to the city to decide how to

determine when a disability exists. See Minn. Stat. § 435.193(b). Moreover, Sykes

has submitted no evidence that she applied for and was denied a deferment, nor has she

shown how this minor change in language prejudiced her in any way. She has made no

claim of disability. Accordingly, in this case, this appears to be a distinction without a

difference.

B. Number of reassessments allowed.

Sykes next argues that the district court misinterpreted Minnesota law because the

city should have been allowed only one reassessment. Sykes bases this argument on the

language of section 429.071, subdivision 2, which states:

When an assessment is, for any reason whatever, set aside by
a court of competent jurisdiction as to any parcel or parcels of
land, or in event the council finds that the assessment or any
part thereof is excessive or determines on advice of the
municipal attorney that the assessment or proposed
assessment or any part thereof is or may be invalid for any
reason, the council may, upon notice and hearing as provided
for the original assessment, make a reassessment or a new
assessment as to such parcel or parcels.

Minn. Stat. § 429.071, subd. 2 (2014).

“Our goal when interpreting statutory provisions is to ascertain and effectuate the

intention of the legislature. If the meaning of a statute is unambiguous, we interpret the

8
statute’s text according to its plain language. If a statute is ambiguous, we apply other

cannons of construction . . . .” Brua v. Minn. Joint Underwriting Ass’n, 778 N.W.2d

294, 300 (Minn. 2010) (quotation and citations omitted). Sykes does not contend that

the language of section 429.071, subdivision 2 is ambiguous. Instead, Sykes argues that

the city is only allowed one reassessment because the plain language of section 429.071,

subdivision 2, uses the phrase “original assessment.” Sykes contends that by using this

phrase, the statute must limit the number of assessments because there can only be one

“reassessement” of an “original assessment.” We disagree. The relevant portion of the

statute states that “the council may, upon notice and hearing as provided for the original

assessment, make a reassessment.” Minn. Stat. § 429.071, subd. 2. The term “original

assessment” is only used to require that the notice and hearing requirements necessary

in the first assessment will be similarly necessary in a reassessment. Nowhere does the

plain language indicate that the number of reassessments is capped at one. Sykes

offers policy considerations for capping the number of assessments at one, but because she

fails to show that section 429.071, subdivision 2, is ambiguous, such considerations are

not appropriate. “We construe statutes to effect their essential purpose but will not

disregard a statute’s clear language to pursue the spirit of the law.” Lee v.

Fresenius Med. Care, Inc., 741 N.W.2d 117, 123 (Minn. 2007).

II. Were the district court’s findings of fact clearly erroneous?

Sykes makes a number of arguments that the district court’ s factual findings

were clearly erroneous. “[W]e review the district court’s factual findings for clear

error. That is, we examine the record to see if there is reasonable evidence in the

9
record to support the court’s findings.” Rasmussen v. Two Harbors Fish Co., 832

N.W.2d 790, 797 (Minn. 2013) (quotations and citations omitted). “To conclude that

findings of fact are clearly erroneous we must be left with the definite and firm

conviction that a mistake has been made.” Id. (quotation omitted).

There is ample evidence on the record supporting the district court’s findings that

Sykes’s property violated Rochester ordinances. During the three-day trial, Ryg

testified about the tall grass and weeds on the property and how he determined that

Sykes’s lawn was in violation. LeGare-Gulden testified about what she witnessed on

the property, including an improperly secured fence, lawn edging, plastic sheeting,

dead plant material, an inoperative grill, and broken chairs. Photographs, documents,

inspection cards, and invoices were all submitted into evidence. Because there is

ample evidence to support a reasoned decision, the district court’s findings will not be

disturbed as clearly erroneous.

III. Were the district court’s findings regarding the credibility of the witnesses
clearly erroneous?

Sykes makes a number of contentions relating to the credibility of the witnesses

that testified against her at trial, going so far as to accuse some of violating the Rochester

Code of Ethics. Appellate courts defer to district court credibility determinations. See

Minn. R. Civ. P. 52.01; see also Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App.

2004) (stating that, on appeal, appellate courts “neither reconcile conflicting evidence nor

decide issues of witness credibility, which are exclusively the province of the

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factfinder”). The district court made detailed and specific findings weighing the

credibility of all of the witnesses, and this court defers to those findings.

IV. Did the district court abuse its discretion by wrongfully excluding evidence?

Sykes contends that the district court abused its discretion when it refused to admit

video of city council meetings, the testimony of one of Skyes’s witnesses, and certain

color photographs. “The admission of evidence rests within the broad discretion of the

[district] court and its ruling will not be disturbed unless it is based on an erroneous view

of the law or constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co.,

567 N.W.2d 42, 45-46 (Minn. 1997) (quotation omitted).

A review of the record reveals that the evidence in question was excluded for

good reason. The district court refused to admit the video because it would be

cumulative of the minutes from the meeting that were already in evidence. The

district court refused to admit the testimony of Sykes’s witness because the testimony

was going to relate to the condition of the property post-2008, and thus would be

irrelevant to whether the 2008 abatement action was reasonable. Finally, the district

court refused to admit photographs because Sykes could not testify as to when the

photos were taken and thus could not establish the proper foundation. “Evidentiary

rulings concerning materiality, foundation, remoteness, relevancy, or the cumulative

nature of the evidence are within the [district] court’s sound discretion.” Johnson v.

Wash. Cnty., 518 N.W.2d 594, 601 (Minn. 1994) (emphasis added) (quotation omitted).

Because there is nothing in the record to suggest that these rulings were based on an

erroneous view of the law, the district court did not abuse its discretion in excluding the

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evidence.

V. Were Sykes’s procedural due-process rights violated?

Procedural due process should “be tailored, in light of the decision to be made, to

the capacities and circumstances of those who are to be heard, to insure that they are

given a meaningful opportunity to present their case.” Sweet v. Comm’r of Human

Servs., 702 N.W.2d 314, 320 (Minn. App. 2005), review denied (Minn. Nov. 15, 2005).

Nuisance-abatement procedures are subject to two overriding principles that serve to

protect the rights of property owners: (1) abatement and removal should be exercised

with caution and (2) notice and the opportunity to be heard should be granted without

restraint. Village of Zumbrota v. Johnson, 280 Minn. 390, 395-96, 161 N.W.2d 626, 630

(1968).

Here, the abatement and removal procedures were exercised with caution.

After her inspection, LeGare-Gulden met with neighbors and left her business card and

a report notifying Sykes of the violation. LeGare-Gulden sent to Sykes two notices of

the violations which stated that Sykes was required to correct them no later than May

20, 2008. When no steps had been taken to correct the violations on the morning

of May 20, LaGare-Gulden spoke with Sykes and gave her until the end of the day.

Ryg, the weed inspector, was equally as cautious, notifying Sykes of the violation and

giving her five days to mow the tall grass. It was not until 11 days later, when the

lawn was still in violation, that Ryg abated the nuisance.

Sykes was granted fair notice and opportunity to be heard. Sykes was allowed an

opportunity to speak at every assessment hearing but refused to do so. Her written

12
statements were entered into the council record and multiple continuances were granted

to review her statements. Although Sykes contends that she should have been notified of

her right to appeal to the Housing Board, no such right exists. The Housing Board is

limited to the Housing Code of Chapters 32 to 39 of the RCO, and thus has no authority

to hear appeals of violations based on tall grass and weeds, which are listed in Chapter

48. See RCO § 33.06 (2014) (limiting the appeals process to a review of violations and

emergency orders which were issued “pursuant to the housing code”). Moreover, while

the debris-removal ordinance is listed within the Housing Code, section 35.23 states that

violations of the debris-removal ordinance will be “subject to abatement by the City as

provided in Section 35.24.” RCO §§ 33.21, subd. 2, .23 (2014). Section 35.24 describes

the exact process the city employed. RCO § 35.24 (2014). Lastly, section 33.06 states

that an appeal will be granted “upon filing in the office of the director of building and

safety a written petition requesting such hearing and setting forth a brief statement of the

grounds therefore. Said petition shall be filed within ten days after the notice or order is

served.” RCO § 33.06. This language only requires appeals to be heard if a petition is

correctly filed. It does not state that the city must notify a violator of the petition process

and Sykes does not claim that she filed a petition and was denied.

Because the record shows that the abatement and removal processes were

conducted with caution, notice, and the opportunity to be heard, Sykes’s due-process

rights were not violated.

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 VI. Whether Sykes’s argument based on the Equal Protection Clause was
properly pleaded.

Sykes argues that an abatement system where city officials investigate properties

based on complaints they receive from the public violates her equal protection rights.

Sykes’s equal protection argument is not properly before this court. Minnesota is a

notice pleading state. Hansen v. Robert Half Int’l, Inc., 813 N.W.2d 906, 917-18 (Minn.

2012); see also Minn. R. Civ. P. 8.01 (requiring pleading to include “a short and plain

statement of the claim showing that the pleader is entitled to relief”). While absolute

specificity in pleading is not required, “[i]t is fundamental that a party must have notice

of a claim against him and an opportunity to oppose it before a binding adverse judgment

may be rendered.” Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983).

Here, Sykes never pleaded a cause of action under the Minnesota or United States

Constitution. Instead, her petition expressly limited the scope of her appeal to chapter

429. Under chapter 429, the options available to a district court reviewing a city’s

adoption of an assessment are limited to “either affirm the assessment or set it aside and

order a reassessment as provided in section 429.071, subdivision 2.” Minn. Stat.

§ 429.081 (2014). Thus, the issues present on appeal are confined to whether the city’s

assessment amount was fair and reasonable, and whether Sykes was provided due process

during the proceedings. See Am. Bank of St. Paul v. City of Minneapolis, 802 N.W.2d

781, 789 (Minn. App. 2011) (affirming the city’s assessment because there was no

evidence that the amount was unreasonable and noting that neither due-process nor

fairness concerns were implicated).

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VII. Do Sykes’s other claims have merit?

Sykes makes a number of other arguments that are equally without merit. Many

of these arguments can be refuted by an examination of the record.

Sykes argues that the city lacked authority under its charter to perform the

assessment. Rochester has been a home-rule charter city since 1904, and section 19.00

of the city charter provides: “For purposes of initiating public improvement projects

financed in part by the use of special assessments, the city may exercise the powers

and shall follow the procedures provided by Minnesota Statutes, Chapter 429, as the

same may be amended from time to time.” Rochester, Minn., City Charter (RCC) ch.

19, § 19.00 (2014). Sykes argues that nuisance abatement does not qualify as a “public

improvement project” and therefore cannot be authorized by the city. While the charter

does not define “improvement” as it relates to nuisance abatement, RCC § 19.00 makes

clear that the city “shall follow the procedures provided by Minnesota Statutes, Chapter

429.” Id. Section 429.021, subdivision 1 lists “improvements authorized” and

specifically provides for the ability “to abate nuisances.” Minn. Stat. § 429.021, subd.

1(8)(2014). Accordingly, the city had authority to perform the assessment.

Sykes argues that the city attorney did not have authority to advise the city council

on the assessment proceedings. But section 8.00 of the charter specifically states that

“[The city attorney] shall attend the meetings of the common council and give his opinion

upon any legal question which may be submitted to him officially by the common

council.” RCC § 8.00 (2014). Furthermore, section 429.071, subdivision 2, provides

that reassessment is appropriate where it is determined “on advice of the municipal

15
attorney that the assessment or proposed assessment or any part thereof is or may

be invalid for any reason.” Minn. Stat. § 429.071, subd. 2 (emphasis added). The

city attorney has authority to comment on the matter.

Sykes briefly contends that she was not provided just compensation for the taking

of her property. Case law is clear, however, that “when the state properly uses its police

powers to abate a nuisance by destroying property, no taking occurs and the landowner is

not entitled to compensation.” City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171

(Minn. App. 2000). Only if the city “fails to follow the proper procedure in razing

property” is a plaintiff entitled to damages. Id. No property was razed in the matter at

hand.

Finally, Sykes offers a number of conclusory statements without providing

any citation or basis in law. These statements will not be considered. Ganguli v. Univ.

of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating that this court does

not address allegations unsupported by legal analysis or citation). This holds true even

for pro se parties, to whom we afford some leeway but who are still generally held to

the same standards as other attorneys. Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119

(Minn. App. 1987).

Affirmed.

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