Resolution Ordering Abatement on the Property Located at 10100 Lake Drive, Circle Pines, Minnesota.

This opinion is nonprecedential except as provided by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
A22-1230

Resolution Ordering Abatement on the Property Located at
10100 Lake Drive, Circle Pines, Minnesota.

Filed March 6, 2023
Reversed
Bjorkman, Judge

City of Circle Pines
Resolution No. 2022-11

Daniel P. Deveny, Howard A. Roston, Fredrikson & Byron, P.A., Minneapolis, Minnesota
(for relators Thomas E. Pawlik and Timothy J. Pawlik)

Shelley M. Ryan, Hoff Barry, P.A., Eden Prairie, Minnesota (for respondent City of Circle
Pines)

Considered and decided by Bjorkman, Presiding Judge; Jesson, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Relators challenge respondent-city’s resolution to abate a nuisance on their
property, arguing that (1) the city denied them due process, (2) the city’s decision is not
supported by substantial evidence, and (3) the city’s decision is arbitrary and capricious.
Because the city’s decision lacks substantial evidentiary support, we reverse.

2
FACTS
Relators Thomas and Timothy Pawlik, who are brothers, own property at 10100
Lake Drive in Circle Pines. The property is the site of a former bar, and the Pawliks sought
to redevelop the property with a new bar. They approached respondent City of Circle Pines
regarding redevelopment in 201 1. After demolishing the existing building in 2018, t hey
covered the remaining basement with plywood and erected snow fencing around the
property. It remained that way for several years.
On June 15, 2022, the city sent a letter to Thomas Pawlik regarding “Nuisance
Abatement” on the property. 1 The letter directed him to “obtain a demolition permit and
ensure the property is cleared of all remnants of the structure that previously was located
on the premises,” including “demolition of the basement, removal of all concrete, rebar,
wood, brick, block, steel, beams, and any other structural elements along with the snow
fencing.” The letter included 14 photographs of the property. The letter also stated that
the site “must be fully restored with vegetation and maintained in a manner to ensure it is
kept free from debris and weeds until you move forward with plans for redevelopment of
the property.” It explained that Pawlik had until July 16 to “correct this violation,” after
which the city council would “consider abatement of the nuisance” at its July 26 public
meeting. The city sent the letter by U.S. Mail and posted a copy on the property. A week
later it sent a copy of the letter to the Pawliks’ attorney.

1 The city sent this letter only to Thomas Pawlik because apparently he is listed as the sole
owner on the “Anoka County property data system.”
3
On July 22, the city sent a second letter directed to both Pawliks, enclosing the June
15 letter. The second letter said that they had not complied with the earlier letter’s directive
or communicated with the city. And it explained that, unless they secured a demolition
permit and made “a good faith effort to commence work,” the city would hold a hearing
on August 10 to determine whether to order abatement of the nuisance. The city sent the
letter by certified mail and U.S. Mail and posted a copy on the property.
During the July 26 meeting, t he city council considered whether to declare the
property a public nuisance. The Pawliks did not attend. After discussing the property’s
history, the two letters sent to the Pawliks, and the Pawliks’ lack of response, the city
council passed a resolution declaring the property a public nuisance.
On August 10, the city council conducted a public hearing at which it addressed
whether to order abatement of the nuisance at the property. Timothy Pawlik attended the
hearing with counsel for the Pawliks. The Pawliks asserted that they received insufficient
notice of the nuisance and abatement proceedings because the first letter was not sent by
certified mail as required by city ordinance. See Circle Pines, Minn., Code of Ordinances
(CPCO) § 700.06. But they acknowledged that they both receiv ed the letters by July 25.
They presented testimony from a mason who inspected the basement the day of the hearing
and concluded it was in good condition. And the Pawliks provided photographs showing
two- to three-foot high concrete barriers that they had installed around part of the basement
in response to the city’s abatement request.

4
The city council also received input from the city building inspector and members
of the public, who all expressed concern that the property is unsafe, particularly the
unsecured plywood over the basement and incomplete barriers around the basement. After
emphasizing the unanimous view that a nuisance condition existed at the property, the city
council discussed options for abatement and “direct[ed] staff and [the] city attorney to draft
a res olution to authorize the abatement of this nuisance and bring it back” at the next
council meeting on August 23.
The day of the meeting, the Pawliks submitted a letter to the city stating they had
undertaken further corrective action at the property: “fully encircl[ing]” the basement with
concrete barriers, erecting additional chain -link fencing on top of the barriers, and
replacing and bolting down the plywood covering the basement openings. They also
submitted photographs depicting these changes. The city council acknowledged receipt of
the information. But the city attorney opined, and the council accepted, that the
information was not “materially different” from what the Pawliks presented on August 10.
The city council voted to order abatement, directing its staff to “take all actions necessary
to enter onto the Property for purposes of abating the public nuisance” and “assess all costs
for abatement against the Property.” The Pawliks appeal by writ of certiorari.
DECISION
A city’s quasi-judicial decision to abate a nuisance is subject to limited judicial
review by certiorari. See Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 483 (Minn.
App. 2002). Our review is “deferential,” Big Lake Ass’n v. St. Louis Cnty. Plan. Comm’n,
761 N.W.2d 487, 491 (Minn. 2009), and the city’s decision is “presumed to be correct,”
5
Rostamkhani, 645 N.W.2d at 483. But we will reverse if the city’s decision “lacked
substantial evidence in view of the entire record submitted.” In re Khan, 804 N.W.2d 132,
136 (Minn. App. 2011). Substantial evidence is: “(1) such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla
of evidence; (3) more than some evidence; (4) more than any evidence; and (5) evidence
considered in its entirety.” Staeheli v. City of St. Paul, 732 N.W.2d 298, 310 (Minn. App.
2007) (quotation omitted).
The Pawliks contend that the August 23 abatement order cannot survive even this
deferential review because the record lacks substantial evidence to support the city’s
findings that they “took no action in response to [the city’s letters]” and that “[t]he
conditions on the Property continue to constitute a public nuisance in violation of [CPCO]
§§ 700.01 and 700.04.” We agree in both respects.
First, the record reflects that the Pawliks did take action once they received the city’s
letters. The three sets of photographs in the record—those sent to the Pawliks with the
nuisance letters, those the Pawliks submitted on August 10, and those the Pawliks
submitted on August 23—reflect that they took two rounds of corrective action. The city
council recognized and discussed the sufficiency of the first round at the August 10 hearing.
Second, and more important, the record as submitted on August 23 belies the
operative finding that a nuisance continued as of that date. The city defines as a nuisance
“[m]aintain[ing] or permit[ting] a condition which unreasonably annoys, injures or
endangers the safety, health, morals, comfort or reposes of any considerable number of
members of the public.” CPCO § 700.01. The city also specifically identifies various types
6
of “nuisances affecting public peace and safety,” including uncovered holes and “other
conditions or things, which are likely to cause injury to the person or property of anyone.”
CPCO § 700.04. By grounding its nuisance decision in these two sections, the city found
that the property poses a risk to public safety . Indeed, the city now acknowledges that,
despite occasional references to concerns that the property is unsightly, the nuisance
determination in the abatement order rests on safety concerns.
Those concerns may have been well founded when the city sent the nuisance-
abatement letters, since the attached pictures show dilapidated plywood over the basement
openings and nothing more than partial, flimsy snow fencing and a “No Trespassing” sign
to keep passersby from wandering over it. Safety concerns may have reasonably continued
on August 10, since the Pawliks had merely replaced the snow fencing with short concrete
barriers that only partially surrounded the basement. But the record does not support the
finding that such a risk continued as of August 23.
The photographs the Pawliks submitted that day confirm what they represented to
the city council : They had restored and bolted down the plywood coverings over the
basement openings and surrounded the entire basement—the only part of the property
identified as a safety concern—with concrete barriers topped by chain-link fencing. A
covered and completely enclosed basement would not pose a risk to any member of the
public unless they disregarded the “No Trespassing” sign, climbed over the fence, and
removed the plywood. Such a risk is unlikely and beyond the scope of what the nuisance
ordinance proscribes. Because the record demonstrates that the Pawliks corrected the only
7
identified safety concerns, substantial evidence does not support the finding of a continued
nuisance.2
Reversed.

2 Because we reverse the abatement order based on the lack of substantial evidentiary
support, we need not address the Pawliks’ other arguments for reversal.