Tom Borchardt, et al., Relators,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0230

Tom Borchardt, et al.,
Relators,

vs.

City of North Branch,
Respondent,

North Branch Municipal Water and Light Commission,
Respondent.

Filed July 16, 2018
Affirmed
Cleary, Chief Judge

City of North Branch
Resolution No. 117-17-CC

Kevin K. Shoeberg, Kevin K. Shoeberg, P.A., Woodbury, Minnesota (for relators)

Vincent Stevens, Miller & Stevens, P.A., Forest Lake, Minnesota (for respondents)

Considered and decided by Kirk, Pr esiding Judge; Cleary, Chief Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Relators, property owners, challenge a resolution by respondent city and its water
commission authorizing the certification of water-meter-installation charges to the
county auditor for collection wi th relators’ property taxes. Relators argue that the

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certification must be reversed because it is not authorized by law or sup ported by
substantial evidence. We affirm.
FACTS
Oakwood Court is a manufactured home park located on property owned by
relators Tom and Joyce Borchardt in the C ity of North Branch. Oakwood Court is
operated by Oakwood Court Park, LLC (OCP), which is also owned by the Borchardts.
Prior to February 2016, respondent No rth Branch Water and Light Commission
(NBWL) billed for water usage at Oakwood Court based on estim ated, rather than
actual, use. In 2016, NBWL informed the Borchardts that they were required to meter
their main water lines. That year, NBWL and OCP entered in to a cost-payment
agreement to construct and install the required main water meter.
In 2017, NBWL sent the Borchardts current and past-due invoices for
construction costs. After receiving no payment, NBWL sent the Borchardts two notices
of tax certification for $19,887.50 to recover the charges.
The Borchardts challenged the certification and submitte d written objections.
NBWL heard the Borchardts’ objections on December 7, 2017 and elected to proceed
with the certification. Th e Borchardts sent additional written objections for the city
council’s review. On December 12, 2017, respondent City of North Branch passed a
resolution certifying $19,887.50 to the Borcha rdts’ property taxes. The Borchardts
petitioned for a writ of certiorari and this appeal follows.

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D E C I S I O N
A quasi-judicial decision by a municipality is reviewable by a writ of certiorari.
County of Washington v. City of Oak Park Heights , 818 N.W.2d 533, 545-46 (Minn.
2012).
Certiorari review is limited to questions affecting the
jurisdiction of the board, the regularity of its proceedings,
and, as to the merits of the controversy, whether the order or
determination in a particular case was arbitrary, oppressive,
unreasonable, fraudulent, under an erroneous theory of law,
or without any evidence to support it.

Staeheli v. City of St. Paul, 732 N.W.2d 298, 303 (Minn. App. 2007) (quotation omitted).
“As a reviewing court, we will not retry f acts or make credibility determinations, and
we will uphold the decision if the lower tribunal furnished any legal and substantial basis
for the action taken.” Id. (quotation omitted). “The pa rty seeking reversal has the
burden of demonstrating error.” Montella v. City of Ottertail, 633 N.W.2d 86, 88 (Minn.
App. 2001).
The Borchardts argue that the certificat ion should be reversed because NBWL
acted contrary to law. We disagree.
I. NBWL did not act contrary to law.
The Borchardts argue that only charges for nonpayment of water usage may be
certified and that NBWL’s authority to ch arge for water usage does not include the
authority to charge for construction costs. Minn. Stat. § 444.075, subd. 1a (2016)
provides that a municipality may “build, construct, reconstruct, repair, enlarge, improve,
or in any other manner obtain facilities.” “Facilities” includes “waterworks systems,”

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which includes mains. Id., subd. 1(c), (f) (2016). “ To pay for the construction ,
reconstruction, repair, enlargement, impr ovement, or other obtainment, . . . the
governing body of a municipality . . . may impose just and equitable charges for the use
and for the availability of the facilities.” Id., subd. 3(a) (2016) (emphasis added). “The
governing body . . . may provide and covenant for certifying unpaid charges to the
county auditor with taxes.” Id., subd. 3e (emphasis added ). Statutory law expressly
authorizes NBWL to certify the unpaid c onstruction charges against the Borchardts’
property taxes. NBWL’s actions did not violate state law.
The Borchardts also contend that NBWL denied them due process by failing to
provide notice to OCP, the contracting party, and only providing notice to the
Borchardts. Section 444.075 authorizes NBWL to certify charges against the
Borchardts’ property taxes as property owners: a municipality may charge “the owner,
lessee, occupant, or all of them.” Minn. Stat. § 444.075, subd. 3e. Although the
Borchardts dispute which entity operates Oakwood Court, the parties do not dispute that
the Borchardts own the real property located at Oakwood Court. The Borchardts
received proper notice as owners.
The Borchardts also argue that they we re denied a meaningf ul hearing because
members of NBWL and the city council had c onflicts of interest. “An appellate court
may not base its decision on matters outside the record on appeal, and may not consider
matters not produced and recei ved in evidence below.” Thiele v. Stich , 425 N.W.2d
580, 582-83 (Minn. 1988). The record he re is devoid of factual support for the
Borchardts’ claim; accordingly, we decline to review it.

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II. The certification is supported by substantial evidence.
The Borchardts also argue that the certif ication is not supported by substantial
evidence because NBWL did not investigate the disputed claim, weigh evidentiary facts,
or issue any written decisions or findings of fact. In Minnesota:
A decision is supported by substantial evidence when it is
supported by (1) such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion;
(2) more than a scintilla of evidence; (3) mo re than some
evidence; (4) more than any ev idence; or (5) the evidence
considered in its entirety.

Minn. Ctr. for Envtl. Advocacy v. Minn. Po llution Control Agency , 644 N.W.2d 457,
464 (Minn. 2002).
After five invoices, including two past-due notices and an additional notice, went
unpaid, NBWL notified the Borchardts of its intent to certify the unpaid amount to their
property taxes. At the time it made its decision to certify the charges, NBWL had three
letters from the Borchardts objecting to the certification, a letter from NBWL responding
to the Borchardts’ objections, and oral ar gument from the Borchard ts’ attorney at its
special session. Likewise, at the time the ci ty passed its resolution, it had before it an
additional letter from the Borchardts’ attorney objecting to the certification. The record
shows that NBWL had “more than some ev idence” to certify the unpaid construction
costs to the Borchardts’ property taxes.
III. NBWL did not discrimina te against the Borchardts.
The Borchardts also argue that NBWL discriminated against them by refusing to
allow for individual metering in their manufactured home park. NBWL policies allow

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park owners to individually meter their trailers, but the cost is the owner’s responsibility.
North Branch Water & Light Utility Admin. Policy No. 300.0-21.0. NBWL informed
the Borchardts that they could individually meter Oakwood Court, but that their plan
would not conform to NBWL’s rules unless it also included “metering at the main.”
NBWL did not categorically prohibit the Borchardts from individually metering
Oakwood Court.
IV. There are no grounds to rescind the cost-payment agreement.
Finally, the Borchardts argue that th e cost-payment agre ement should be
rescinded because the parties entered into it based on a mu tual mistake of fact. The
Borchardts assert that a functional water me ter already existed on the property, which
neither party was aware of. We need not determine the validity of the cost-payment
agreement to evaluate the arguments on ce rtification. Nevertheless, the nature,
appearance, and locati on of the found meter is disput ed and neither party provided
record support for its arguments. We therefore cannot conclude that both parties made
a mistake of fact.
Affirmed.