In re: A resolution of the North Mankato City Council in the matter of a nuisance property located at 229 Allan Avenue, North Mankato owned by Edward R. Borchardt and Ann M. Borchardt.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0143

In re: A resolution of the North Mankato City Council in the matter of a nuisance
property located at 229 Allan Avenue, North Mankato owned by Edward R. Borchardt
and Ann M. Borchardt.

Filed October 4, 2021
Reversed
Reilly, Judge

City of North Mankato
File No. Resolution 98-20

Karl O. Friedrichs, Friedrichs Law Office, P.A., Mankato, Minnesota (for relator Edward
R. Borchardt)

Christopher M. Kennedy, Michael H. Kennedy, Kennedy & Kennedy, Mankato, Minnesota
(for respondent City of North Mankato)

Considered and decided by Jesson, Presiding Judge; Re illy, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
REILLY, Judge
In this certiorari appeal, relator challenges a city resolution declaring his property a
public nuisance and ordering him to abate the nuisance. Be cause the evidence before the
city council did not adequately support its determination that relator’s property constituted
a nuisance, we reverse the resolution.
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FACTS
This case centers on property owned by re lator Edward Borchardt and located at
229 Allan Avenue in North Mankato. Borc hardt and his wife t ook an unconventional
approach to lawn care, allowing trees, shrubs, and vegetation to grow freely in their yard.
Respondent City of No rth Mankato (the city) determin ed that Borchardt’s property
constituted a nuisance in violation of city or dinances because it contained a “rank growth
of vegetation that unreasonably annoyed a considerable number of members of the public.”
This appeal is taken from the city’s reso lution declaring the property a nuisance and
ordering Borchardt to abate the nuisance.
Borchardt’s neighbors had complained about the state of his property for years. The
city notified Borchardt as early as 2005 to address an issue with the outdoor storage of
materials. In response to further complaints, the city directed Borchardt to address various
conditions on his property in 2011, 2016, 2019, an d 2020. At the tim e of this matter,
Borchardt had resolved the other issues, but the city remained concerned about the growth
of vegetation on the property. The city set the matter for a pu blic hearing before the city
council to determine whether the property constituted a nuisance.
The city council held the public hearing in December 2020. Some members of the
public provided comments to the city council by email before the hearing. A neighbor who
lived across the street from Borc hardt said that, while the pr operty used to be in poor
condition, it had “improved immensely” and was “not nearly as overgrown as it once was.”
The neighbor disputed reports that the pr operty was frequented by large numbers of
animals and even rats, commenting that he had never seen a rat near the Borchardt property
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and that animals were common on other properties in the neighborhood too. Other citizens
commented that Borchardt’s property looked like pollinator plots, which were permissible
in the city. Some citizens al so complained that the language of the proposed resolution
was “highly subjective.”
At the hearing, several members of the p ublic spoke in opposition to the proposed
nuisance resolution. One citizen commented that Borchardt had been cooperative with the
efforts of the city and the neighborhood to help him with his property, and that Borchardt
simply did not want to change the way his property looked. Another citizen said that she
passed by the property at least once or twice a month and had seen “a tremendous amount
of work” that had been done on the property, even though it still looked different from the
other properties on the street. Some members of the public also criticized the proposed
resolution as vague and subjective.
Other members of the public spoke in favo r of the proposed nuisance resolution.
One neighbor commented that the property had “been an eyesore” for more than 30 years.
She said that the city had sent letters to Borchardt multiple times over the years explaining
the improvements that needed to be made, and that despite the progress that Borchardt had
made over the past year, the property was still not in good enough condition. Another
neighbor told the city counc il that in the past “you c ouldn’t even see through the
vegetation” on Borchardt’s property, although it was now possible to see the house. The
neighbor complained, “Just try to keep it neat and orderly . . . for your neighbors. Because
when we walk down the street we see this, and it’s like, it pulls at your heart.”
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Next, the community development director detailed the history of complaints that
the city had received from citizens about th e Borchardt property over the years. The
director said that there were concerns that the vegetation on the property would attract
animals. He explained that, at a previous council hearing, there was testimony about
reports of “raccoons, woodchucks , mice, [and] feral cats . . . located around or in the
property.” The director also said that city staff had offered to come to the property and
help Borchardt address the vegetation concerns without charge.
The police chief spoke next, telling the c ity council about his involvement with
helping Borchardt address the issues with the property. He said that he had visited the
property in July 2020 and identified problem areas. According to the police chief, the
backyard was “significantly overgrown” with sapling trees and other wooded vegetation.
The police chief explained that Borchardt had willingly agreed to trim the vegetation and
that he had observed Borchardt doing so in July. In September 2020, the police chief again
visited the property, and he saw that Borcha rdt had “trimmed and removed some areas of
vegetation, [and] showed some progress.” At that point, Borchardt believed that his
property was then in compliance with the city’s requests, and he told the police chief that
he would not do any more work on the property. The police chief disagreed. He said that
if he were a neighbor, he “probably would have taken issue with the overgrowth as well.”
The police chief forwarded the matter to the appropriate authority.
After hearing from the community member s, the city counc il voted to pass the
nuisance resolution. The resolution found that Borchardt’s property was “maintained in a
manner that permits a rank growth of vegetation.” The resolution contained findings that
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the rank growth of vegetation “offer[ed] a habitat for rodents and other animals,” was
“unsightly,” and was “a public health conc ern.” Based on these findings, the resolution
determined that the property contained a ra nk growth of vegetation that “unreasonably
annoys a considerable number of members of the public,” in violation of city ordinances.
The resolution therefore ordered Borchardt to “abate the rank growth of vegetation and
bring the property into compliance with” city ordinances by June 1, 2021.
This certiorari appeal follows.
DECISION
Borchardt challenges the city’s nuisance resolution. He raises several arguments on
appeal, including that the city ordinanc es on which the resolution was based are
unconstitutionally vague, that the city’s proc edures at the public he aring denied him due
process, and that there is insufficient evidence to support the nuisance resolution. We agree
with Borchardt that insufficient evidence was presented to th e city council to support the
resolution. Because we reverse the resolu tion on that basis, we need not address
Borchardt’s constituti onal arguments. See Kimberly-Clark Corp. & Subsidiaries v.
Comm’r of Revenue, 880 N.W.2d 844, 849 (Minn. 2016) (recognizing that appellate courts
do not reach constitutional issues if appeal can be resolved on other grounds).
In a certiorari appeal, our review is limite d to “questions affe cting the jurisdiction
of the [decision-making body], the regularity of its proceedings, and, as to merits of the
controversy, whether the order or determin ation in a particular case was arbitrary,
oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any
evidence to support it.” Khan v. Minneapolis City Council, 792 N.W.2d 463, 466 (Minn.
6
App. 2010) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992)) (applying
this principle to an appeal of a city co uncil’s nuisance-abatement decision). We may
review only the record before the city council when it made its decision. Id. When we
interpret city ordinances, our review is de novo. RDNT, LLC v. City of Bloomington, 861
N.W.2d 71, 75 (Minn. 2015).
We first address the city’s argument that this appeal is not properly before this court.
The state contends that this court lacks juri sdiction over this matter because an action is
also pending in district court. According to the parties, 1 after the city council passed the
nuisance resolution, Borchardt originally sued in district court challenging the resolution.
The city moved to dismiss the district court action for lack of jurisdiction. Borchardt then
petitioned for a writ of certiorari with this court. But the district court has not yet dismissed
the case. The district court judge instead chose to keep the district court file open, in case
this court determines that the district court is the proper venue for the appeal. The city
argues that the district court and the court of appeals cannot have concurrent jurisdiction
over this matter and so this court cannot hear the appeal. We disagree.
Without any statute providing for judicial review, this court may review quasi-
judicial administrative deci sions only by certiorari. Pierce v. Otter Tail County , 524
N.W.2d 308, 309 (Minn. App. 1994), rev. denied (Minn. Feb. 3, 1995). The act of a public
board is quasi-judicial “if it is the produc t or result of discretionary investigation,
consideration, and evaluati on of evidentiary facts.” Id.; see also Minn. Ctr. for Env’t

1 We rely solely on the parties’ representations in their briefs and at oral arguments about
the matter before the district court.
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Advoc. v. Metro. Council , 587 N.W.2d 838, 842 (Minn. 1999) (holding that the three
indicia of quasi-judicial acts are (1) inve stigating a disputed claim and weighing
evidentiary facts, (2) applying those facts to a prescribed standa rd, and (3) making a
binding decision regarding the disputed claim).
Here, the city council’s resolution followed a hearing at which various members of
the public spoke and the counc il considered evidence. The c ity council then applied that
evidence to the standard provided in the nuisance ordinances and adopted a binding
nuisance resolution. Thus, the city council’s act was quasi-judicial. In fact, the city agrees
that jurisdiction is proper in this court and not in the district court. But the city maintains
that this court cannot have conc urrent jurisdiction with the di strict court because there is
no final judgment in the district court case. The argument is unpersuasive. This is not an
appeal from the district court’s decision; this court indepe ndently granted certiorari over
the city council’s resolution. We add that, based on the district court judge’s comments,
we are satisfied that the district court will dismiss the action pendin g before it when we
issue our opinion. We may properly exercise jurisdiction over this appeal.
We now turn to the merits of Borchard t’s argument that th ere is insufficient
evidence to support the city council’s adoption of the nuisance resolution. On review of a
certiorari appeal, we do not retry fact s or make credibility determinations. Senior v. City
of Edina, 547 N.W.2d 411, 416 (Minn. App. 1996). We will uphold the decision if there
is “any legal and substantial basis for the action taken.” Id.
The nuisance resolution was based on the de termination that Borchardt’s property
contained a “rank growth of vegetation” that “unreasonably annoys a considerable number
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of members of the public.” The resolution concluded that Borchardt’s conduct violated
two city ordinances. One ordinance declares that public nuisances include “[a]ll noxious
weeds and other rank growths of vegetation upon public or privat e property.” North
Mankato, Minn., Code of Ordinances § 92. 16(H) (2011). The other ordinance provides
that a person maintains a pub lic nuisance if he “[m]aintains or permits a condition which
unreasonably annoys, injures, or endangers the safety, health, morals, comfort or repose of
any considerable number of members of the public.” North Mankato, Minn., Code of
Ordinances § 90.095(A) (1991). When interp reting ordinances, we construe words and
phrases that are not defined according to their plain and ordinary meaning. Reetz v. City
of St. Paul, 956 N.W.2d 238, 245 (Minn. 2021); Cannon v. Minneapolis Police Dep’t, 783
N.W.2d 182, 192-93 (Minn. A pp. 2010) (providing that rules of statutory interpretation
also apply to interpretation of ordinances). We may consider dictionary definitions to
determine the plain and ordinary meaning of a word or phrase. Reetz, 956 N.W.2d at 245.
We also interpret words ac cording to their context within the ordinance. Save Lake
Calhoun v. Strommen , 943 N.W.2d 171, 177 (Minn. 2020 ) (explaining this principle in
context of statutory interpretation).
We first note that some findings in the re solution are not support ed by the record.
The resolution states that the vegetation on Borchardt’s property is “a public health
concern.” But no evidence about adverse health effects was presented at the hearing.2 The

2 In its brief, the city suggested that the vegeta tion may pose a fire or other safety hazard.
The city did not make this argument to the c ity council, nor was any evidence presented
showing that Borchardt’s property might constitute a fire hazard. This therefore does not
support the finding that the vegetation on Borchardt’s property is a public health concern.
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resolution also found that the vegetation “offers a habitat for rodents and other animals.”
The only evidence to support this finding is the testimony of the community development
director that, at some undefined point in the past, someone report ed seeing raccoons,
woodchucks, mice, and feral cats around or on the property. But it was undisputed that
Borchardt had made substantial improvements to his property earlie r in the year. The
director’s testimony does not make clear when the reports of animals occurred and whether
they happened after Borchardt had improved the property. In other words, the record does
not support the finding that rodents or animal s remained a problem when the city council
passed the resolution.
The only finding in the resolution about the property’s harm to the neighborhood
that is supported by the record is that the vegetation is “unsightly.” One neighbor testified
that the property had been an “eyesore” for decades and that people often complained about
it. Another neighbor said that the property wa s “a little bit of a mess” and that looking at
it “pulls at your heart.”
Based on the evidence presented, we conclu de that the record does not adequately
support the city council’s determination that Borchardt’s property contained a rank growth
of vegetation. The ordinance does not defi ne “rank growth.” Nor does the ordinance
provide that vegetation meets the definition of a rank growth if it grows above a particular
height.3 One definition of “rank,” when referring to vegetation, is “[g]rowing profusely or

3 A separate ordinance provides that, if the grass or weeds grow more than six inches tall,
this is considered “prima facie evidence of the failure of the owner and occupant to comply
with” the requirement to cut and control grass and weeds. North Mankato, Minn., Code of
Ordinances § 90.111(A) (2007). The city co uncil did not find that Borchardt violated
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with excessive vigor.” The American Heritage Dictionary of the English Language 1457
(5th ed. 2018). The ordinance declares ra nk growths of vegetati on to be “nuisances
affecting health.” North Mankato, Minn., Code of Ordinances § 92.16(H). And the term
“rank growths of vegetation” is listed alongside the term “noxious weeds.” Id. While the
statute does not define “noxious weeds” eithe r, one definition of “noxious” is “[h]armful
to living things; injurious to health.” American Heritage, supra, at 1207. In the context of
surrounding provisions, we interpret “rank growths of vegetation” to mean vegetation that
grows excessively in a way harmful to public health.
The record provides some support that the vegetation on Borchardt’s property was
growing profusely or with excessive vigor. Members of the public testified at the hearing
that the property was “[u]nke[m]pt” and that Borchardt did not keep it “neat and orderly.”
And these descriptions are corroborated by the photos of the property submitted to the city
council, which show that the property contains long grass and thick shrubs. But the record
does not support a finding that the growth of vegetation on Borchardt’s property may have
harmed public health. As not ed above, no eviden ce was introduced showing that the
property posed any harm to the community. While there were some general references to
animals being spotted on Borchardt’s property, the limited evidence presented did not show
that animals had been seen around the time of the hearing or in greater number than on
surrounding properties. And while the evidence might support a finding that Borchardt’s
yard contained a rank growth at an earlier time, the record establishes that Borchardt made

section 90.111(A), nor did it introduce evidence that Borchardt’s grass exceeded a certain
height.
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significant improvements to the property in the summer of 2020 by trimming shrubs and
removing vegetation. The re cord does not show that, wh en the city council passed the
resolution, Borchardt’s property contained a “rank growth” that threatened public health.
We likewise conclude that the record does not adequately support the determination
that the rank growth of vege tation “unreasonably annoys” members of the public in
violation of section 90.095(A). While the or dinance does not define what it means for a
condition to “unreasonably annoy,” we are guided by authorities governing public
nuisances in general. Under the state nuisa nce statute, a condition is a nuisance if it
“interfere[s] with the comforta ble enjoyment of life or property.” Minn. Stat. § 561.01
(2020). “For an interference with the enjoyment of life or property to constitute a nuisance,
it must be material and substantial.” Citizens for a Safe Grant v. Lone Oak Sportsmen’s
Club, Inc., 624 N.W.2d 796, 803 (Minn. App. 2001) (citing Jedneak v. Minneapolis Gen.
Elec. Co., 4 N.W.2d 326, 329 (Minn. 1942)). And the degree of discomfort is measured
based on “the standards of ordi nary people in relation to th e area where they reside.” Id.
Relying on these general principles of nuisan ce law, we interpret the city ordinance as
requiring that, for a conditio n to “unreasonably annoy” me mbers of the public, the
condition must substantially affect other people’s ability to enjoy life or property.
The evidence presented to the city council does not meet this standard. No evidence
was introduced that the property harms public health or lim its the neighbors’ ability to
enjoy their own properties. Instead, the neighbors’ primary complaints about Borchardt’s
property were that they simply did not like looking at it. The city cites no caselaw, and we
are aware of none, providing that a person’s property may constitute a nuisance simply
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because neighbors find it unsightly. While we recognize that the nuisance ordinances allow
the city council to order the abatement of c onditions that substantially interfere with
neighbors’ property rights, we do not interpret the ordinance so broadly as to allow the city
to declare a nuisance based on little more than neighbors’ displeasure with the property’s
appearance.
The record also lacks support for the city council’s finding that a “considerable
number of members of the public” were a nnoyed by the property. Of the community
members who submitted comments to the city council or spoke at the public hearing, only
two expressed their displeasure with the prope rty. The police chief also told the city
council that if he were living next to Borchardt, he also “probably would have taken issue”
with it. The community development director testified that the city had received multiple
complaints about the property over the years, but no specific evidence was submitted about
the substance of those complaints, or the time frame when the city received the complaints.
Moreover, the director’s testim ony suggests that citizens made the complaints before the
summer of 2020, which was wh en Borchardt undisputedly be gan to make substantial
improvements to the property. 4 Aside from the two neighbo rs and the police chief who
spoke at the hearing, the reco rd is silent about neighbors’ complaints about the condition

4 The city contends that it could not presen t more information abou t citizen complaints
because it was “limited in what information that it can make public in regards to
complaints” about real property. Because certain information is confidential under Minn.
Stat. § 13.44 (2020), the city maintains that it could rely onl y on the inves tigations made
by the city. But the statute protects only “[t] he identities of individuals” who make those
complaints. Minn. Stat. § 13.44, subd. 1. The city was not prevented from presenting more
detailed information about the complaints to the city council, as long as it did not disclose
identifying information about the individuals who filed the complaints.
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of the property as it existed at the time the resolution was adopted. While we need not
define precisely what constitutes a “considerable” number, that number was not met here.
For these reasons, we conclude that the evidence presented to the city council does
not support the city council’s determination that the vegetation on Borchardt’s property
constituted a “rank growth” or that it unrea sonably annoyed a cons iderable number of
members of the public. We therefore reverse the resolution as unsupported by the record.
Reversed.