STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
Plaintiffs RESPONSE to “CITY DEFENDANTS” and
“REMAX DEFENDANTS”
MOTIONS TO DISMISS
Nancy C. Lazaryan, et al
Plaintiffs,
v.
The City of St. Paul, et al
Defendants Case type: Civil
Court file # 62-CV-07-1960
Judge David Higgs presiding
______________________________________________________________________________
Plaintiffs Nancy Lazaryan, Victoria Marchetti and Evelyn Wallace herein respond to “City Defendants” and “ReMax Defendants” Motions to Dismiss as follows:
Response to “City Defendants” Motion to Dismiss
FACTS
There are many disputed facts.
Defendants assert that:
1. Plaintiffs are claiming Defendant Mike Kalis assaulted Plaintiff Victoria Marchetti. (Memo. of Law in Support of City Defendants’ Motion, pg. 2, line 18)
2. The determination of Mike Kalis that the “roof needs some work” is a housing or building violation. (Memo. of Law in Support of City Defendants’ Motion, pg. 4, lines 10-12)
3. The voluntary suspension of electrical service is a housing or building violation. (Memo. of Law in Support of City Defendants’ Motion, pg. 4, lines 11-12)
4. On May 26, 2006 Arthur D. Jones (deceased) was the listed property owner as recorded with the Ramsey County Department of Property Taxation. (Memo. of Law in Support of City Defendants’ Motion, pg. 4, lines 19-22)
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5. Victoria Marchetti removed the “vacant building” placard from the house. (Memo. of Law in Support of City Defendants’ Motion, pg. 5, lines 12-14)
6. On July 24, 2007, Lazaryan appeared before Defendant Moermond and asked what was the basis, under the ordinance for the “Registered Vacant Building” status. Defendant Moermond stated, “It is right there, in your hand.” The “Inspection Request” form, dated May 23, 2006, was in Lazaryan’s hand. Moermond denied Lazaryan’s appeal. (Memo. of Law in Support of City Defendants’ Motion, pg. 6, lines 13-17)
Plaintiffs dispute these so stated facts as follows:
1. Plaintiff Victoria Marchetti was unlawfully removed, in effect evicted, by Mike Kalis, under the color of law.
2. Plaintiffs assert that the determination by Mike Kalis that a “roof needs some work” is not a housing or building violation.
The St. Paul Code Sec. 34.09. (e) states:
“The roof shall be tight and kept in a professional state of maintenance and repair, impervious to water and have no defects which admit water or dampness to the interior of the building. No building roof shall be used for storage of any materials or objects unless approved by the enforcement officer.”
At the time Defendant Kalis inspected the house, he made no determination that the roof had defects that admitted water or dampness to the interior of the building. The phrase “roof needs some work” is ambiguous, and could mean anything, such as a shingle is missing or flashing appears defective.
The roof at the house was secure and impervious to water at the time the house was purchased. As this court is fully aware, Plaintiff Lazaryan sought an emergency restraining order from the court, to secure a building permit for replacement of the roof. Subsequent to the
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purchase of the house, the roof sustained damage from the severe storm that occurred in the Como Park area. Repairs to the roof were made (instead of replacement) and the roof is, again, keeping the house impervious to water and moisture. (See affidavits of Lazaryan and Marchetti.)
3. Defendants state that the electrical service being suspended is a housing or building violation. Defendants fail to cite any authority of law that an owner of a building is required to purchase electricity.
Many people occupy their homes in Minnesota during the warmer months, and then “go south”. And, many of these people “winterize” their Minnesota homes and voluntarily suspend the electric and/or gas service. When Plaintiffs called the utility companies to “restore” services, Plaintiffs were told that the owner, Wells Fargo had voluntarily suspended these services. If the court holds the assertion by the Defendants as fact, the court would be violating the constitutionally secured rights of hundreds, if not thousands of Citizens. (See affidavit of Lazaryan.)
4. Wells Fargo was the owner of record at Ramsey County in May of 2006. (See Ramsey County Record attached to affidavit of Lazaryan.
5. Victoria Marchetti removed from the house a torn piece of paper, not a complete placard. It is unknown exactly what was on this torn piece of paper. (See affidavit of Marchetti.)
6. Defendants fail to state the “entire record” of Lazaryan’s appearance before Defendant Moermond. In response to Moermond stating, “It is right there, in your hand.” Lazaryan raised the document and showed it to Moermond, stating, “Where on this document does it say anything about multiple building or code violations?” Defendant refused to answer and summarily denied Lazaryan’s appeal.
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It is important for this court to take note of fact that Defendant Moermond was unable and/or unwilling to identify any building or code violations on the “Inspection Request” form.
If there were code violations, law would have bound the inspector,, to state specifically what codes were violated by the property.
There are NO specific code violations stated on said form.
ARGUMENT
1. There are numerous disputed facts.
As proven above, there are numerous disputed facts in this case. The “facts” asserted by City Defendants are in contradiction to the record and affidavits of the Plaintiffs. These disputed facts are substantive in determining both the standing of the Plaintiffs and the applicable law. Accordingly, the City Defendants have not met the standard necessary for this court to grant their Motion to Dismiss.
2. The City Defendants have made a regulatory taking of the property.
From the City Defendants’ own argument: “A regulatory takings claim must establish that the government regulation has gone “too far” and that any proffered compensation is unjust. Macdonald v. County of Yolo, 477 U.S. 340, 348 (1986) and “A regulation goes “too far” for purposes of the Fifth Amendment when it denies all economically beneficial or productive use of the land” Green brier v. United States, 193 F.3d. 1348, 1357 (Fed. Cir. 1999).
The City of St. Paul is restricting the “productive use” of the property, because the house can not be occupied absent a code compliance inspection and the house be “brought up to code”. Pursuant to the St. Paul Legislative Code, the house cannot be occupied during the time the “repairs” are made to the house. According to the Minnesota State Building Code, occupants can perform repairs to plumbing, structure and electrical. Because the City will not allow
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occupancy, the City requires that licensed contractors, at the rate of $50 to $100 per hour perform this work.
The City has “taken” the house, because it cannot be occupied, which is the “productive use” of the property. The City has offered NO compensation for this “taking”.
Ownership is defined as the owner being able to use something for which it is intended. This is a house, and the purpose of a house is for the owner (or her granddaughter) to occupy the house. Because the City has restricted the ability of the owner to use the house for the purpose it was intended, the City has “taken” the house, and evicted the Plaintiffs from occupancy of the house.
3. The Plaintiffs have standing to appear before this court.
In the case of Terrill, Director St. Paul Department of Human Rights v. The Court Apartments, Ramsey County Human Rights Commission, OAH No. 8-2111-12468-3, the City of St. Paul argued that an eviction is clearly an actual (as opposed to theoretical) injury. And, that it is settled in Minnesota law that possession of a leasehold by a family member of the lessee will be construed to be the possession of the lessee. (citing Bagley v. Sternber, 26 N.W. 602 (Minn. 1886) and Mercantile State Bank v. Vogt, 226 N.W. 847 (Minn. 1929.) The rule stated in Bagley v. Sternberg, 34 Minn. 470, 472, 26 N.W. 602, 603, is that
“the occupation or possession of the family, servants, or agents of the tenant will, of course, be construed to be the possession of the tenant."
The court in Terrill ruled in favor of the City of St. Paul. A family member has standing in a cause of action in response to an eviction.
The actions of Defendant Kalis were an eviction from occupancy of the house. Kalis’ eviction of Marchetti was based upon his previous unlawful act of designating the house as a “registered vacant building”.
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On July 24, 2007 Lazaryan appeared before Defendant Moermond, the St. Paul Legislative Hearing Officer. The City did not object at this time to Lazaryan’s standing.
Sec. 18.02 of the St. Paul Legislative Code is clear,
“Any person aggrieved by the final decision of the legislative hearing officer may obtain judicial review by timely filing of an action seeking review of such decision as provided by law in district court.”
Apparently, the City Defendants are attempting a “shell game” with the court. Said Defendants “allowed” Lazaryan standing to appear before the Legislative Hearing Officer and the St. Paul City Council. Yet, said Defendants are now arguing that Lazaryan has no standing to bring this appeal. Since Lazaryan had standing to invoke the jurisdiction of the Legislative Hearing Officer and the City Council, Lazaryan now, as a matter of law, has jurisdiction to invoke the power of this district court under Sec. 18.02 of the St. Paul Legislative Code.
4. The City Defendants violated the Minnesota and United States Constitutions.
In this, arguably the most interesting controversy in this case; the City Defendants assert that the due process rights of the Plaintiffs were not violated, purportedly, because said Defendants noticed the deceased owner of the property.
It is well settled that dead people possess no rights, and notice or service to a dead person is ineffective. On May 23, 2006 the City was fully informed that Arthur Jones was deceased. Yet, said on May 26, 2006 Defendants sent notice of the “vacant building status” to a dead person, to the address of a purported “vacant building”. And, sent a subsequent notice which in effect stated, “Hey, dead guy, you didn’t pay the vacant building fee.”
The Ramsey County Record shows that the “dead guy” was NOT the owner of the property in May of 2006. (See Affidavit of Lazaryan) The City Defendants never noticed the actual owner of the property, and Wallace purchased the property, unaware of the “vacant
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building status” placed upon the property by the City Defendants. Minnesota statutes and the St. Paul Legislative Code define any mortgage holder on a property is as an “owner”.
It appears that the City Defendants are asserting that the Plaintiffs have no cause of action against them, but rather, only Wells Fargo, the actual owner of the property (at the time of the “vacant building status”) has standing to assert that their due process rights were violated.
This is a perplexing question of law now placed before this court. Do violations of due process perpetrated upon Wells Fargo and the ReMax Defendants now constitute a violation of the rights of the Plaintiffs?
The actions of Defendant Mike Kalis, in “evicting” Plaintiff Marchetti (under the color of law), and the City of St. Paul denying Plaintiffs a building permit for replacement of the roof bring the previous actions of the City Defendants into current and direct violations of the Plaintiffs rights. The City Defendants unlawfully created the “registered vacant building status” of the property, and their subsequent actions against the Plaintiffs were done by abuse of power and absent any authority of law.
The City Defendants had no authority of law to designate the house as a “vacant building”. First and foremost, there is NO authority for the City to “place a building on the vacant building list”. Plaintiffs direct the court to the plain language of Chap. 43 of the St. Paul Code, which states,
St. Paul Legislative Code Sec. 43.03. Vacant building registration.
(a)
The owner shall register with the enforcement officer not later than thirty (30) days after any building in the city becomes a vacant building, as defined in section 43.02(7). (emphasis added)
There is NO LANGUAGE within the St. Paul Legislative Code that authorizes the City of St. Paul to designate a building as vacant. According to the St. Paul Legislative Code, only an
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owner may designate the building as vacant. There is no language establishing a penalty for the owner failing to register the building as vacant.
In the recent case of In the Matter of the Disposition of Molly, a German Shorthaired Pointer Owned by William Frederick Klumpp, Jr. Minnesota Court of Appeals, A05-1130 (May 2, 2006) the Court held:
“A city lacks authority to bring an action to enforce a non-self-executing statutory provision if the city has not adopted a procedure for the provision’s implementation.”
Disposition of Molly is instructive concerning the facts surrounding the case before this court, having made the following ruling:
See Davis v. Burke, 179 U.S. 399, 403, 21 S. Ct. 210, 212 (1900) (observing that self-executing provisions supply “a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced” and that provisions that “merely indicate[] principles, without laying down rules by means of which those principles may be given the force of law,” are not self-executing (quotation omitted)).
By application of Disposition of Molly and Davis v. Burke it is clear that the City Defendants acted, absent any authority of law, in designating the house on 1033 Colne (as well as nearly 2000 other homes) as a “registered vacant building”. The is no provision within the St. Paul Legislative Code for anyone, other than the owner of the property, to register the building as vacant. Thereby, the City Defendants were acting without authority of law when they designated 1033 Colne (and hundreds of other buildings) as “registered vacant buildings”.
The St. Paul Legislative Code also states:
St. Paul Legislative Code
Sec. 43.08. Alternative procedures.
Nothing in this chapter shall be deemed to abolish or impair existing remedies of the city authorized under Chapters 33, 34, 45 of the Saint Paul Legislative Code or Minnesota Statutes Section 463.15 through 463.26. Any conflicts between this chapter and Chapters 33 and 45 will be superseded by the provisions of Chapters 33 and 45.
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Sec. 34.07. Definitions.
Owner. Owner or owners of the freehold of the premises or lesser estate therein, holder of an unrecorded contract for deed, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, other person, firm or corporation in control of the premises. (emphasis added)
Sec. 34.21. Notice to correct violations.
(1) Notification of violation. Whenever an enforcement officer determines that there has been a violation of this chapter, notice may be provided to the owner or occupant to take the appropriate steps to correct the violations. The notice shall:
(a) Be in writing; and
(b) Include a description of the real estate sufficient for identification;
(c) Specify the violation which exists and the remedial action required; and
(d) Include a statement that the order may be appealed to the legislative hearing officer in accordance with the procedures set forth in section 34.23.
Sec. 34.23. Structures unfit for occupancy.
(1) Action authorized to condemn structures or units as unfit for occupancy. Whenever an enforcement officer finds that any dwelling unit, structure or portion thereof constitutes a hazard to the health, safety or welfare of the occupants or to the public for any of the reasons enumerated in this chapter, including those violations defined herein as constituting material endangerment, but which structure does not constitute a dangerous structure, the officer may take action to condemn the unit or structure as being unfit for occupancy.
The City of St. Paul did NOT condemn the house as being unfit for occupancy. The record is absent a showing of any condemnation proceedings. The City did NOT notice the mortgagee, Wells Fargo.
The City cannot argue that its actions complied with Minnesota law. See as follows:
M.S. Sec. 463.251 SECURING VACANT BUILDINGS.
Subd. 2. Order; notice. If in any city a building becomes vacant or unoccupied and is deemed hazardous due to the fact that the building is open to trespass and has not been secured and the building could be made safe by securing the building, the governing body may order the building secured and shall cause notice of the order to be served upon the owner of record of the premises or the owner's agent, the taxpayer identified in the property tax records for that parcel, the holder of the mortgage or sheriff's certificate, and any neighborhood association for the neighborhood in which the building is located that has requested notice, by delivering or mailing a copy to the owner or agent, the identified taxpayer, the holder of the mortgage or sheriff's certificate, and the neighborhood association, at the last known address. Service by mail is complete upon mailing. (emphasis added).
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The house was secure. Additionally, if the house was not secure, the City was required, under the law, to notice the holder of the mortgage, Wells Fargo. The City did not notice Wells Fargo, as required by the statute.
The City Defendants acted without authority of law in their actions against the property rights of the owner of 1033 Colne, and every other property owner that the City has designated as a “registered vacant building”.
The City’s actions against the property at 1033 Colne, unauthorized by law, subsequently violated the secured rights of the Plaintiffs to their liberty and enjoyment of the property.
5. The owner of 1033 Colne was under no obligation to register the house as vacant since the building did not meet the criteria as a vacant building under Chap. 43 of the St. Paul Code.
Even if the City had implemented a method for the City to register a building a vacant when the owner fails to register the vacant building, the house did not meet the criteria as a vacant building under the St. Paul Legislative Code.
The house was secure. Defendant Kalis made an ambiguous comment that the “roof needs some work”, yet did not specify that the roof was a hazard and water was entering the house due to a faulty roof. Thereby, the roof cannot, by law, be determined a “code violation”.
Defendants argue that the “electricity being off” is a code violation. In fact, the owner (Wells Fargo) had voluntarily suspended the electrical service.
It is the right of any Citizen to choose whether they will purchase a product or service. The City Defendants cannot force someone to purchase a product or service that they do not use. This is not a matter of requiring a dog license or restricting parking during snow emergencies. The City is arguing that Citizens must purchase a product from a third-party (Xcel Energy) or risk loosing use of their property due to a “registered vacant building status”.
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The City of St. Paul has incorporated Chap. 34 of the St. Paul Legislative Code within Chap. 43 (the Vacant Building Code). Said Chap 34 states in part:
Sec. 34.23. Structures unfit for occupancy.
(1) Action authorized to condemn structures or units as unfit for occupancy. Whenever an enforcement officer finds that any dwelling unit, structure or portion thereof constitutes a hazard to the health, safety or welfare of the occupants or to the public for any of the reasons enumerated in this chapter, including those violations defined herein as constituting material endangerment, but which structure does not constitute a dangerous structure, the officer may take action to condemn the unit or structure as being unfit for occupancy.
(7) Material endangerment violations. The following violations may constitute material endangerment if in combination or alone the conditions are substantial and expose the occupants or the public to danger or peril:
(e) Lack of basic facilities. Whenever the dwelling unit, structure or any portion thereof lacks water, hot water, approved electrical, heating or sewage disposal systems, or where the existing systems are unsafe for continued operation.
The City Defendants failed to prove by evidence that the house at 1033 Colne “lacked basic facilities”. In fact, the plumbing, hot water, heating and electricity are all functioning. The fact that Wells Fargo “winterized” the house and merely suspended the purchase of utilities does not meet the definition of “lacking basic facilities”. The “winterizing” of the house is actually a benefit to the public, as suspension of the utilities deters vagrants from breaking into the property and living in it during the winter months.
When Defendant Mike Kalis inspected the house at 1033 Colne, on May 23, 2006 said property had no housing or building violations, as defined by law. The Defendants fail to prove by evidence that the house was unoccupied for 365 days and had multiple nuisance violations during the course of these 365 days. The house did not meet the criteria necessary for the owner, Wells Fargo, to register the building as vacant with the City.
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6. Defendant Moermond is not a judge.
Defendant Moermond, as the Legislative Hearing Officer, is a city employee that serves at the pleasure of the city council president. Sec. 18.01 of the St. Paul Legislative Code.
The City Defendants offer no authority of law that a city employee is afforded the same immunities as that of a judge, who is a duly elected constitutional officer. As a city employee, Moermond acts as an agent of the City, and her actions against the secured rights of the Plaintiffs are not protected by any immunity. Plaintiffs have fully argued the case law supporting their claims against the City Defendants on page 17 of their Complaint.
The evidence is compelling that Defendant Moermond and the City Defendants have no concept of administrative law or of the rights of Citizens secured by the Minnesota and United States constitutions. Plaintiffs direct the court to the Affidavit of James Jerskey in support of the City Defendants Motion to Dismiss, Exhibit B, page 6 (last line) and page 7 lines 1-2, in which Magner states in front of Moermond:
“This as an unoccupied structure with one or more violations in this case and all violations as noted by the vacant building registration form would be detailed once a full code compliance inspection has been obtained.”
Magner made this above comment in the appeal to the Legislative Hearing officer, after Lazaryan questioned what specific code violations where on the house at 1033 Colne on May 23, 2006.
No specific code violations are cited in the “Inspection Request” form. The City is asserting that the actual code violations that are the basis for the “vacant building status” would be detailed once the City searches the house during a “full code compliance inspection.”
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The City is demanding a full code compliance inspection (search) to establish evidence that the house has code violations, code violations that are necessary to create the “registered vacant building status”, a status that requires the code compliance inspection.
This position by the City is no different from the police coming to a judge and asking for a search warrant, so that the police can establish evidence needed for the search warrant.
If Defendant Moermond was actually qualified to “act as a judge” she would have easily determined that Magner’s (and thereby the City’s) position was a violation of the constitutionally secured right against illegal searches.
Response to “ReMax Defendants” Motion to Dismiss
FACTS
1. The ReMax Defendants are asserting that they were unaware of the “registered vacant building status” of the property. Lazaryan had a phone conversation with Defendant Tom Sawyer subsequent to Marchetti being evicted by Defendant Mike Kalis. (See Affidavit of Lazaryan)
In said conversation, Lazaryan asked if Sawyer took the photo of the house on Colne, which was used in the Multiple Listing Service (MLS) as advertisement for the sale of the property. Sawyer admitted having taken the picture. Lazaryan, who does not reside in St. Paul, and is unfamiliar with “blue placard postings”, asked Sawyer what was the meaning of the (tiny) blue color on the front door of the MLS photo. Sawyer replied, “Oh, I guess it actually was posted as a vacant building.” Lazaryan asked if Sawyer had removed the blue placard, because when Lazaryan and her real estate agent inspected the property, the placard was not on the front door. Sawyer denied removing the placard.
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ARGUMENT
ReMax Defendants argue that they were never noticed of the “registered vacant building status” of the house at 1033 Colne. It is a disputed fact as to whether these Defendants were aware of the vacant building restriction placed upon the property by the City. If said Defendants had actual notice of the vacant building status, then said Defendants perpetrated a fraud upon Wallace.
ReMax Defendants argue that Lazaryan lacks standing to pursue a claim against them and to represent the interests of Wallace. Lazaryan has fully argued her rights under the power of attorney granted to her by Wallace in her response to Wells Fargo’s motion to dismiss, and Lazaryan’s standing in this court in the response to the City Defendants motion to dismiss.
Because there is a disputed fact, as to whether the ReMax Defendants were noticed of the “registered vacant building status” the motion to dismiss should be denied.
CONCLUSION
There are numerous disputed facts in this case, and Defendants Motions to Dismiss should be denied.
And, the law is clear. The City Defendants have no authority of law to designate any building in St. Paul as a “registered vacant building”. It is ONLY the owner of the building that is the allowed, by law, to register a building as vacant, additionally there is no penalty authorized by law for the owner failing to register the building as vacant.
The building at 1033 Colne never met the criteria necessary for the owner of the building to register said property as vacant with the City of St. Paul. The City cannot force a code compliance inspection on the current owner, to justify its actions taken in May of 2006.
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All of the actions of all the City Defendants were without authority of law, and as such, there is no immunity granted to them. Defendant Moermond does not hold the constitutional office of a judge, but rather, she is a city employee. Plaintiffs fully noticed the City Defendants that their actions violated the secured rights of the Plaintiffs. Said Defendants refused to comply with the restraints of the St. Paul City Code, the Minnesota Statutes and the Minnesota and United States constitutions.
The Plaintiffs have standing to bring their claims to this district court, under Sec. 18.02 of the St. Paul Legislative Code, and more importantly standing afforded by their right of redress secured by the Minnesota and United States constitutions.
Accordingly, Defendants’ motions to dismiss should be denied, and this matter set on the calendar for trial.
Date:__________________
Plaintiffs rest
_____________________
Nancy C. Lazaryan, proceeding in propria person, in sumo jure
**** **** **** Road
****, MN 56367
_____________________
Victoria C. Marchetti, proceeding in propria person, in sumo jure
1033 Colne St.
Saint Paul, MN 55103
_______________________
Nancy C. Lazaryan, attorney-in-fact for Evelyn C. Wallace,
proceeding in propria person, in sumo jure
**** ******** Court
*** ****, AZ 85248
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
Plaintiffs RESPONSE to “CITY DEFENDANTS” and
“REMAX DEFENDANTS”
MOTIONS TO DISMISS
Nancy C. Lazaryan, et al
Plaintiffs,
v.
The City of St. Paul, et al
Defendants Case type: Civil
Court file # 62-CV-07-1960
Judge David Higgs presiding
______________________________________________________________________________
Plaintiffs Nancy Lazaryan, Victoria Marchetti and Evelyn Wallace herein respond to “City Defendants” and “ReMax Defendants” Motions to Dismiss as follows:
Response to “City Defendants” Motion to Dismiss
FACTS
There are many disputed facts.
Defendants assert that:
1. Plaintiffs are claiming Defendant Mike Kalis assaulted Plaintiff Victoria Marchetti. (Memo. of Law in Support of City Defendants’ Motion, pg. 2, line 18)
2. The determination of Mike Kalis that the “roof needs some work” is a housing or building violation. (Memo. of Law in Support of City Defendants’ Motion, pg. 4, lines 10-12)
3. The voluntary suspension of electrical service is a housing or building violation. (Memo. of Law in Support of City Defendants’ Motion, pg. 4, lines 11-12)
4. On May 26, 2006 Arthur D. Jones (deceased) was the listed property owner as recorded with the Ramsey County Department of Property Taxation. (Memo. of Law in Support of City Defendants’ Motion, pg. 4, lines 19-22)
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5. Victoria Marchetti removed the “vacant building” placard from the house. (Memo. of Law in Support of City Defendants’ Motion, pg. 5, lines 12-14)
6. On July 24, 2007, Lazaryan appeared before Defendant Moermond and asked what was the basis, under the ordinance for the “Registered Vacant Building” status. Defendant Moermond stated, “It is right there, in your hand.” The “Inspection Request” form, dated May 23, 2006, was in Lazaryan’s hand. Moermond denied Lazaryan’s appeal. (Memo. of Law in Support of City Defendants’ Motion, pg. 6, lines 13-17)
Plaintiffs dispute these so stated facts as follows:
1. Plaintiff Victoria Marchetti was unlawfully removed, in effect evicted, by Mike Kalis, under the color of law.
2. Plaintiffs assert that the determination by Mike Kalis that a “roof needs some work” is not a housing or building violation.
The St. Paul Code Sec. 34.09. (e) states:
“The roof shall be tight and kept in a professional state of maintenance and repair, impervious to water and have no defects which admit water or dampness to the interior of the building. No building roof shall be used for storage of any materials or objects unless approved by the enforcement officer.”
At the time Defendant Kalis inspected the house, he made no determination that the roof had defects that admitted water or dampness to the interior of the building. The phrase “roof needs some work” is ambiguous, and could mean anything, such as a shingle is missing or flashing appears defective.
The roof at the house was secure and impervious to water at the time the house was purchased. As this court is fully aware, Plaintiff Lazaryan sought an emergency restraining order from the court, to secure a building permit for replacement of the roof. Subsequent to the
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purchase of the house, the roof sustained damage from the severe storm that occurred in the Como Park area. Repairs to the roof were made (instead of replacement) and the roof is, again, keeping the house impervious to water and moisture. (See affidavits of Lazaryan and Marchetti.)
3. Defendants state that the electrical service being suspended is a housing or building violation. Defendants fail to cite any authority of law that an owner of a building is required to purchase electricity.
Many people occupy their homes in Minnesota during the warmer months, and then “go south”. And, many of these people “winterize” their Minnesota homes and voluntarily suspend the electric and/or gas service. When Plaintiffs called the utility companies to “restore” services, Plaintiffs were told that the owner, Wells Fargo had voluntarily suspended these services. If the court holds the assertion by the Defendants as fact, the court would be violating the constitutionally secured rights of hundreds, if not thousands of Citizens. (See affidavit of Lazaryan.)
4. Wells Fargo was the owner of record at Ramsey County in May of 2006. (See Ramsey County Record attached to affidavit of Lazaryan.
5. Victoria Marchetti removed from the house a torn piece of paper, not a complete placard. It is unknown exactly what was on this torn piece of paper. (See affidavit of Marchetti.)
6. Defendants fail to state the “entire record” of Lazaryan’s appearance before Defendant Moermond. In response to Moermond stating, “It is right there, in your hand.” Lazaryan raised the document and showed it to Moermond, stating, “Where on this document does it say anything about multiple building or code violations?” Defendant refused to answer and summarily denied Lazaryan’s appeal.
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It is important for this court to take note of fact that Defendant Moermond was unable and/or unwilling to identify any building or code violations on the “Inspection Request” form.
If there were code violations, law would have bound the inspector,, to state specifically what codes were violated by the property.
There are NO specific code violations stated on said form.
ARGUMENT
1. There are numerous disputed facts.
As proven above, there are numerous disputed facts in this case. The “facts” asserted by City Defendants are in contradiction to the record and affidavits of the Plaintiffs. These disputed facts are substantive in determining both the standing of the Plaintiffs and the applicable law. Accordingly, the City Defendants have not met the standard necessary for this court to grant their Motion to Dismiss.
2. The City Defendants have made a regulatory taking of the property.
From the City Defendants’ own argument: “A regulatory takings claim must establish that the government regulation has gone “too far” and that any proffered compensation is unjust. Macdonald v. County of Yolo, 477 U.S. 340, 348 (1986) and “A regulation goes “too far” for purposes of the Fifth Amendment when it denies all economically beneficial or productive use of the land” Green brier v. United States, 193 F.3d. 1348, 1357 (Fed. Cir. 1999).
The City of St. Paul is restricting the “productive use” of the property, because the house can not be occupied absent a code compliance inspection and the house be “brought up to code”. Pursuant to the St. Paul Legislative Code, the house cannot be occupied during the time the “repairs” are made to the house. According to the Minnesota State Building Code, occupants can perform repairs to plumbing, structure and electrical. Because the City will not allow
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occupancy, the City requires that licensed contractors, at the rate of $50 to $100 per hour perform this work.
The City has “taken” the house, because it cannot be occupied, which is the “productive use” of the property. The City has offered NO compensation for this “taking”.
Ownership is defined as the owner being able to use something for which it is intended. This is a house, and the purpose of a house is for the owner (or her granddaughter) to occupy the house. Because the City has restricted the ability of the owner to use the house for the purpose it was intended, the City has “taken” the house, and evicted the Plaintiffs from occupancy of the house.
3. The Plaintiffs have standing to appear before this court.
In the case of Terrill, Director St. Paul Department of Human Rights v. The Court Apartments, Ramsey County Human Rights Commission, OAH No. 8-2111-12468-3, the City of St. Paul argued that an eviction is clearly an actual (as opposed to theoretical) injury. And, that it is settled in Minnesota law that possession of a leasehold by a family member of the lessee will be construed to be the possession of the lessee. (citing Bagley v. Sternber, 26 N.W. 602 (Minn. 1886) and Mercantile State Bank v. Vogt, 226 N.W. 847 (Minn. 1929.) The rule stated in Bagley v. Sternberg, 34 Minn. 470, 472, 26 N.W. 602, 603, is that
“the occupation or possession of the family, servants, or agents of the tenant will, of course, be construed to be the possession of the tenant."
The court in Terrill ruled in favor of the City of St. Paul. A family member has standing in a cause of action in response to an eviction.
The actions of Defendant Kalis were an eviction from occupancy of the house. Kalis’ eviction of Marchetti was based upon his previous unlawful act of designating the house as a “registered vacant building”.
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On July 24, 2007 Lazaryan appeared before Defendant Moermond, the St. Paul Legislative Hearing Officer. The City did not object at this time to Lazaryan’s standing.
Sec. 18.02 of the St. Paul Legislative Code is clear,
“Any person aggrieved by the final decision of the legislative hearing officer may obtain judicial review by timely filing of an action seeking review of such decision as provided by law in district court.”
Apparently, the City Defendants are attempting a “shell game” with the court. Said Defendants “allowed” Lazaryan standing to appear before the Legislative Hearing Officer and the St. Paul City Council. Yet, said Defendants are now arguing that Lazaryan has no standing to bring this appeal. Since Lazaryan had standing to invoke the jurisdiction of the Legislative Hearing Officer and the City Council, Lazaryan now, as a matter of law, has jurisdiction to invoke the power of this district court under Sec. 18.02 of the St. Paul Legislative Code.
4. The City Defendants violated the Minnesota and United States Constitutions.
In this, arguably the most interesting controversy in this case; the City Defendants assert that the due process rights of the Plaintiffs were not violated, purportedly, because said Defendants noticed the deceased owner of the property.
It is well settled that dead people possess no rights, and notice or service to a dead person is ineffective. On May 23, 2006 the City was fully informed that Arthur Jones was deceased. Yet, said on May 26, 2006 Defendants sent notice of the “vacant building status” to a dead person, to the address of a purported “vacant building”. And, sent a subsequent notice which in effect stated, “Hey, dead guy, you didn’t pay the vacant building fee.”
The Ramsey County Record shows that the “dead guy” was NOT the owner of the property in May of 2006. (See Affidavit of Lazaryan) The City Defendants never noticed the actual owner of the property, and Wallace purchased the property, unaware of the “vacant
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building status” placed upon the property by the City Defendants. Minnesota statutes and the St. Paul Legislative Code define any mortgage holder on a property is as an “owner”.
It appears that the City Defendants are asserting that the Plaintiffs have no cause of action against them, but rather, only Wells Fargo, the actual owner of the property (at the time of the “vacant building status”) has standing to assert that their due process rights were violated.
This is a perplexing question of law now placed before this court. Do violations of due process perpetrated upon Wells Fargo and the ReMax Defendants now constitute a violation of the rights of the Plaintiffs?
The actions of Defendant Mike Kalis, in “evicting” Plaintiff Marchetti (under the color of law), and the City of St. Paul denying Plaintiffs a building permit for replacement of the roof bring the previous actions of the City Defendants into current and direct violations of the Plaintiffs rights. The City Defendants unlawfully created the “registered vacant building status” of the property, and their subsequent actions against the Plaintiffs were done by abuse of power and absent any authority of law.
The City Defendants had no authority of law to designate the house as a “vacant building”. First and foremost, there is NO authority for the City to “place a building on the vacant building list”. Plaintiffs direct the court to the plain language of Chap. 43 of the St. Paul Code, which states,
St. Paul Legislative Code Sec. 43.03. Vacant building registration.
(a)
The owner shall register with the enforcement officer not later than thirty (30) days after any building in the city becomes a vacant building, as defined in section 43.02(7). (emphasis added)
There is NO LANGUAGE within the St. Paul Legislative Code that authorizes the City of St. Paul to designate a building as vacant. According to the St. Paul Legislative Code, only an
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owner may designate the building as vacant. There is no language establishing a penalty for the owner failing to register the building as vacant.
In the recent case of In the Matter of the Disposition of Molly, a German Shorthaired Pointer Owned by William Frederick Klumpp, Jr. Minnesota Court of Appeals, A05-1130 (May 2, 2006) the Court held:
“A city lacks authority to bring an action to enforce a non-self-executing statutory provision if the city has not adopted a procedure for the provision’s implementation.”
Disposition of Molly is instructive concerning the facts surrounding the case before this court, having made the following ruling:
See Davis v. Burke, 179 U.S. 399, 403, 21 S. Ct. 210, 212 (1900) (observing that self-executing provisions supply “a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced” and that provisions that “merely indicate[] principles, without laying down rules by means of which those principles may be given the force of law,” are not self-executing (quotation omitted)).
By application of Disposition of Molly and Davis v. Burke it is clear that the City Defendants acted, absent any authority of law, in designating the house on 1033 Colne (as well as nearly 2000 other homes) as a “registered vacant building”. The is no provision within the St. Paul Legislative Code for anyone, other than the owner of the property, to register the building as vacant. Thereby, the City Defendants were acting without authority of law when they designated 1033 Colne (and hundreds of other buildings) as “registered vacant buildings”.
The St. Paul Legislative Code also states:
St. Paul Legislative Code
Sec. 43.08. Alternative procedures.
Nothing in this chapter shall be deemed to abolish or impair existing remedies of the city authorized under Chapters 33, 34, 45 of the Saint Paul Legislative Code or Minnesota Statutes Section 463.15 through 463.26. Any conflicts between this chapter and Chapters 33 and 45 will be superseded by the provisions of Chapters 33 and 45.
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Sec. 34.07. Definitions.
Owner. Owner or owners of the freehold of the premises or lesser estate therein, holder of an unrecorded contract for deed, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, other person, firm or corporation in control of the premises. (emphasis added)
Sec. 34.21. Notice to correct violations.
(1) Notification of violation. Whenever an enforcement officer determines that there has been a violation of this chapter, notice may be provided to the owner or occupant to take the appropriate steps to correct the violations. The notice shall:
(a) Be in writing; and
(b) Include a description of the real estate sufficient for identification;
(c) Specify the violation which exists and the remedial action required; and
(d) Include a statement that the order may be appealed to the legislative hearing officer in accordance with the procedures set forth in section 34.23.
Sec. 34.23. Structures unfit for occupancy.
(1) Action authorized to condemn structures or units as unfit for occupancy. Whenever an enforcement officer finds that any dwelling unit, structure or portion thereof constitutes a hazard to the health, safety or welfare of the occupants or to the public for any of the reasons enumerated in this chapter, including those violations defined herein as constituting material endangerment, but which structure does not constitute a dangerous structure, the officer may take action to condemn the unit or structure as being unfit for occupancy.
The City of St. Paul did NOT condemn the house as being unfit for occupancy. The record is absent a showing of any condemnation proceedings. The City did NOT notice the mortgagee, Wells Fargo.
The City cannot argue that its actions complied with Minnesota law. See as follows:
M.S. Sec. 463.251 SECURING VACANT BUILDINGS.
Subd. 2. Order; notice. If in any city a building becomes vacant or unoccupied and is deemed hazardous due to the fact that the building is open to trespass and has not been secured and the building could be made safe by securing the building, the governing body may order the building secured and shall cause notice of the order to be served upon the owner of record of the premises or the owner's agent, the taxpayer identified in the property tax records for that parcel, the holder of the mortgage or sheriff's certificate, and any neighborhood association for the neighborhood in which the building is located that has requested notice, by delivering or mailing a copy to the owner or agent, the identified taxpayer, the holder of the mortgage or sheriff's certificate, and the neighborhood association, at the last known address. Service by mail is complete upon mailing. (emphasis added).
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The house was secure. Additionally, if the house was not secure, the City was required, under the law, to notice the holder of the mortgage, Wells Fargo. The City did not notice Wells Fargo, as required by the statute.
The City Defendants acted without authority of law in their actions against the property rights of the owner of 1033 Colne, and every other property owner that the City has designated as a “registered vacant building”.
The City’s actions against the property at 1033 Colne, unauthorized by law, subsequently violated the secured rights of the Plaintiffs to their liberty and enjoyment of the property.
5. The owner of 1033 Colne was under no obligation to register the house as vacant since the building did not meet the criteria as a vacant building under Chap. 43 of the St. Paul Code.
Even if the City had implemented a method for the City to register a building a vacant when the owner fails to register the vacant building, the house did not meet the criteria as a vacant building under the St. Paul Legislative Code.
The house was secure. Defendant Kalis made an ambiguous comment that the “roof needs some work”, yet did not specify that the roof was a hazard and water was entering the house due to a faulty roof. Thereby, the roof cannot, by law, be determined a “code violation”.
Defendants argue that the “electricity being off” is a code violation. In fact, the owner (Wells Fargo) had voluntarily suspended the electrical service.
It is the right of any Citizen to choose whether they will purchase a product or service. The City Defendants cannot force someone to purchase a product or service that they do not use. This is not a matter of requiring a dog license or restricting parking during snow emergencies. The City is arguing that Citizens must purchase a product from a third-party (Xcel Energy) or risk loosing use of their property due to a “registered vacant building status”.
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The City of St. Paul has incorporated Chap. 34 of the St. Paul Legislative Code within Chap. 43 (the Vacant Building Code). Said Chap 34 states in part:
Sec. 34.23. Structures unfit for occupancy.
(1) Action authorized to condemn structures or units as unfit for occupancy. Whenever an enforcement officer finds that any dwelling unit, structure or portion thereof constitutes a hazard to the health, safety or welfare of the occupants or to the public for any of the reasons enumerated in this chapter, including those violations defined herein as constituting material endangerment, but which structure does not constitute a dangerous structure, the officer may take action to condemn the unit or structure as being unfit for occupancy.
(7) Material endangerment violations. The following violations may constitute material endangerment if in combination or alone the conditions are substantial and expose the occupants or the public to danger or peril:
(e) Lack of basic facilities. Whenever the dwelling unit, structure or any portion thereof lacks water, hot water, approved electrical, heating or sewage disposal systems, or where the existing systems are unsafe for continued operation.
The City Defendants failed to prove by evidence that the house at 1033 Colne “lacked basic facilities”. In fact, the plumbing, hot water, heating and electricity are all functioning. The fact that Wells Fargo “winterized” the house and merely suspended the purchase of utilities does not meet the definition of “lacking basic facilities”. The “winterizing” of the house is actually a benefit to the public, as suspension of the utilities deters vagrants from breaking into the property and living in it during the winter months.
When Defendant Mike Kalis inspected the house at 1033 Colne, on May 23, 2006 said property had no housing or building violations, as defined by law. The Defendants fail to prove by evidence that the house was unoccupied for 365 days and had multiple nuisance violations during the course of these 365 days. The house did not meet the criteria necessary for the owner, Wells Fargo, to register the building as vacant with the City.
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6. Defendant Moermond is not a judge.
Defendant Moermond, as the Legislative Hearing Officer, is a city employee that serves at the pleasure of the city council president. Sec. 18.01 of the St. Paul Legislative Code.
The City Defendants offer no authority of law that a city employee is afforded the same immunities as that of a judge, who is a duly elected constitutional officer. As a city employee, Moermond acts as an agent of the City, and her actions against the secured rights of the Plaintiffs are not protected by any immunity. Plaintiffs have fully argued the case law supporting their claims against the City Defendants on page 17 of their Complaint.
The evidence is compelling that Defendant Moermond and the City Defendants have no concept of administrative law or of the rights of Citizens secured by the Minnesota and United States constitutions. Plaintiffs direct the court to the Affidavit of James Jerskey in support of the City Defendants Motion to Dismiss, Exhibit B, page 6 (last line) and page 7 lines 1-2, in which Magner states in front of Moermond:
“This as an unoccupied structure with one or more violations in this case and all violations as noted by the vacant building registration form would be detailed once a full code compliance inspection has been obtained.”
Magner made this above comment in the appeal to the Legislative Hearing officer, after Lazaryan questioned what specific code violations where on the house at 1033 Colne on May 23, 2006.
No specific code violations are cited in the “Inspection Request” form. The City is asserting that the actual code violations that are the basis for the “vacant building status” would be detailed once the City searches the house during a “full code compliance inspection.”
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The City is demanding a full code compliance inspection (search) to establish evidence that the house has code violations, code violations that are necessary to create the “registered vacant building status”, a status that requires the code compliance inspection.
This position by the City is no different from the police coming to a judge and asking for a search warrant, so that the police can establish evidence needed for the search warrant.
If Defendant Moermond was actually qualified to “act as a judge” she would have easily determined that Magner’s (and thereby the City’s) position was a violation of the constitutionally secured right against illegal searches.
Response to “ReMax Defendants” Motion to Dismiss
FACTS
1. The ReMax Defendants are asserting that they were unaware of the “registered vacant building status” of the property. Lazaryan had a phone conversation with Defendant Tom Sawyer subsequent to Marchetti being evicted by Defendant Mike Kalis. (See Affidavit of Lazaryan)
In said conversation, Lazaryan asked if Sawyer took the photo of the house on Colne, which was used in the Multiple Listing Service (MLS) as advertisement for the sale of the property. Sawyer admitted having taken the picture. Lazaryan, who does not reside in St. Paul, and is unfamiliar with “blue placard postings”, asked Sawyer what was the meaning of the (tiny) blue color on the front door of the MLS photo. Sawyer replied, “Oh, I guess it actually was posted as a vacant building.” Lazaryan asked if Sawyer had removed the blue placard, because when Lazaryan and her real estate agent inspected the property, the placard was not on the front door. Sawyer denied removing the placard.
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ARGUMENT
ReMax Defendants argue that they were never noticed of the “registered vacant building status” of the house at 1033 Colne. It is a disputed fact as to whether these Defendants were aware of the vacant building restriction placed upon the property by the City. If said Defendants had actual notice of the vacant building status, then said Defendants perpetrated a fraud upon Wallace.
ReMax Defendants argue that Lazaryan lacks standing to pursue a claim against them and to represent the interests of Wallace. Lazaryan has fully argued her rights under the power of attorney granted to her by Wallace in her response to Wells Fargo’s motion to dismiss, and Lazaryan’s standing in this court in the response to the City Defendants motion to dismiss.
Because there is a disputed fact, as to whether the ReMax Defendants were noticed of the “registered vacant building status” the motion to dismiss should be denied.
CONCLUSION
There are numerous disputed facts in this case, and Defendants Motions to Dismiss should be denied.
And, the law is clear. The City Defendants have no authority of law to designate any building in St. Paul as a “registered vacant building”. It is ONLY the owner of the building that is the allowed, by law, to register a building as vacant, additionally there is no penalty authorized by law for the owner failing to register the building as vacant.
The building at 1033 Colne never met the criteria necessary for the owner of the building to register said property as vacant with the City of St. Paul. The City cannot force a code compliance inspection on the current owner, to justify its actions taken in May of 2006.
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All of the actions of all the City Defendants were without authority of law, and as such, there is no immunity granted to them. Defendant Moermond does not hold the constitutional office of a judge, but rather, she is a city employee. Plaintiffs fully noticed the City Defendants that their actions violated the secured rights of the Plaintiffs. Said Defendants refused to comply with the restraints of the St. Paul City Code, the Minnesota Statutes and the Minnesota and United States constitutions.
The Plaintiffs have standing to bring their claims to this district court, under Sec. 18.02 of the St. Paul Legislative Code, and more importantly standing afforded by their right of redress secured by the Minnesota and United States constitutions.
Accordingly, Defendants’ motions to dismiss should be denied, and this matter set on the calendar for trial.
Date:__________________
Plaintiffs rest
_____________________
Nancy C. Lazaryan, proceeding in propria person, in sumo jure
**** **** **** Road
****, MN 56367
_____________________
Victoria C. Marchetti, proceeding in propria person, in sumo jure
1033 Colne St.
Saint Paul, MN 55103
_______________________
Nancy C. Lazaryan, attorney-in-fact for Evelyn C. Wallace,
proceeding in propria person, in sumo jure
**** ******** Court
*** ****, AZ 85248
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