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video.google.com/videoplay?docid=9153527281635581274 Attorney Patrick Tierney said... Patrick T. Tierney
Attorney At Law
July 31, 2008
The Honorable Dale B. Lindman
Judge of District Court
1030 Ramsey County Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
Re: Nancy C. Lazaryan, et al. v. The City of St. Paul, et al.
Court File No.: 62-CV-07-1960
Our File No.: 13236-1
Dear Judge Lindman:
Evelyn Wallace submits this letter argument in support of her request that this Court order the City to remove the vacant building classification on this property because (1) the City’s regulation of this property as a registered vacant building is in conflict with the State Building Code and, therefore, impermissible under City of Morris v. Sax Investments, Inc.749 N.W.2d 1 (Minn.2008) and (2) the City Code provisions that allow the City to register property as a vacant building, as applied by the City in this case, resulted in an impermissible taking of property without due process.
A. Background:
During May of 2007, Evelyn Wallace purchased a single family residence at 1033 Colne Street, in the City of Saint Paul. At the time she purchased that property, she had no actual or constructive knowledge that the City had previously registered the property as a vacant building.
On June 1, 2007, Evelyn Wallace’s granddaughter, Victoria Marchetti, began living in the home. On July 10, 2007, an enforcement officer for the City of Saint Paul informed Victoria Marchetti that the house was a “Registered Vacant Building” and directed her to vacate the property.
The State Building Code provides that a building official “… may order any building or portion of a building to be vacated if continued use is dangerous to life, health, or safety of the occupants. The order shall be in writing and state the reasons for the action.” Minn. Rules, 1300.0180, Unsafe Buildings or Structures.
The State Building Code further provides that if a municipality decides that property should be vacated, it must follow the statutory procedure set forth in Minn. Stat., §§463.15 to 463.26. Minn. Stat. §463.251 allows a city to secure a vacant or unoccupied building if the building “is deemed hazardous due to the fact that the building is open to trespass and has not been secured.” Minn. Stat. §463.17 requires that the municipality provide notice to the owner, mortgage holder and that the municipality record any Order with the County Recorder.
The Saint Paul Legislative Code, Chapter 43, §43.02 provides a different definition of a vacant building. The City Code defines a vacant building as a building or portion of a building which is:
a. Unoccupied and unsecured;
b. Unoccupied and secured by other than normal means;
c. Unoccupied and a dangerous structure;
d. Unoccupied and condemned;
e. Unoccupied and has multiple housing or building code violations;
f. Condemned and illegally occupied; or
g. Unoccupied for a period of time over three hundred sixty-five (365) days and during which time the enforcement officer has issued an order to correct nuisance conditions.
In this case, this property never met the requirements for a vacant building under the State Building Code. The property was never found to be “dangerous to life, health, or safety of the occupants.” The property is currently being legally occupied by Victoria Marchetti and does not now, nor has it ever, met the definition of a vacant building under the City Code.
On July 11, 2007 Evelyn Wallace appealed the enforcement officer’s order that attempted to impose a vacant building classification on her property, and that ordered her granddaughter to vacate the property. In her Application for Appeal, she noted that the February 15, 2007 Truth-in-Housing report on this property did not identify the property as a vacant building.
On July 24, 2007 a legislative hearing was conducted pursuant to Chapter 18, §18.01 of the Code. The legislative hearing officer considered the appeal to be an appeal of the original May 2006 order of the City classifying this house as a vacant building. The officer recommended that the City Council uphold enforcement officer’s order. The City Council accepted the recommendation of the hearing officer.
Chapter 18, §18.03 of the Code provides for judicial review of the final decision of the legislative hearing officer by the filing of an action seeking review in district court.
In August of 2007 Evelyn Wallace complied with that section of the Code by serving and filing this action seeking judicial review of the order of the legislative hearing officer. On May 30, 2008 the Plaintiffs sought a restraining order against the City restraining the City from taking further action concerning this property until this Court ruled on the merits of the Appeal.
On June 26, 2008 this Court scheduled a hearing “on judicial review for determination of a final decision of a legislative officer and for temporary restraining order.” During that hearing, the Court invited arguments on the effect of the Minnesota Supreme Court’s decision in City of Morris v. Sax Investments, Inc.749 N.W.2d 1 (Minn.2008).
B. Argument:
1. The registered vacant building regulations contained in the City’s Legislative Code are unenforceable because they are different than the provisions of the State Building Code.
City of Morris v. Sax Investments, Inc.
In City of Morris v. Sax Investments, Inc. 749 N.W.2d 1 (Minn.2008), the City of Morris sought a temporary injunction to prevent the owner of a building from renting his property as housing until the owner corrected deficiencies identified during an inspection done pursuant to the city’s licensing ordinance for rental housing. The owner counterclaimed for an injunction to prevent the city from enforcing any portion of the ordinance that was in conflict with the State Building Code.
The issue considered by the Supreme Court was whether a city could enforce ordinances that were more stringent that the State Building Code. The Court recognized that “municipalities have no inherent powers and possess only such powers as are expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred.” Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 357, 143 N.W.2d 813, 820 (1966).
The Court also recognized that “[w]hen a statute contains specific language as to the extent of permissible municipal regulation, our focus is on the language of the statute.” City of Morris v. Sax Investments, Inc.749 N.W.2d 1 (Minn.2008); State v. Kuhlman, 729 N.W.2d 577, 580 (Minn.2007).
The Court found that the State Building Code contained specific language that restricted a city’s authority to regulate matters covered by the State Code. Minn. St. §16B.62 (Subd.1) expressly provides that “The State Building Code applies statewide and supersedes the building code of
any municipality.” And Minn. Rule 1300.0040 (2005) provides that the “code applies statewide … and supersedes the building code of any municipality.”
The Supreme Court held that a City’s regulation of a matter that is included in the State Building Code cannot be “different” than the State Code. (“Thus, even a provision that is merely additional and complementary to a provision in the State Building Code is prohibited”). City of Morris, supra, 749 N.W.2d @10.
State Building Code
The State Building Code provides the exclusive method for a city to manage vacant buildings. Minnesota Rules, 1300.0180, entitled Unsafe Buildings or Structures, provides:
A building or structure regulated by the code is unsafe, for purposes of this part, if it is structurally unsafe, not provided with adequate egress, a fire hazard, or otherwise dangerous to human life.
Building service equipment that is regulated by the code is unsafe, for purposes of this part, if it is a fire, electrical, or health hazard; an unsanitary condition; or otherwise dangerous to human life. Use of a building, structure, or building service equipment constituting a hazard to safety, health, or public welfare by reason of inadequate maintenance, dilapidation, obsolescence, fire hazard, disaster, damage, or abandonment is, for the purposes of this part, an unsafe use. Parapet walls, cornices, spires, towers, tanks, statuary, and other appendages or structural members that are supported by, attached to, or a part of a building and that are in deteriorated condition or otherwise unable to sustain the design loads that are specified in the code are unsafe building appendages.
The building official may order any building or portion of a building to be vacated if continued use is dangerous to life, health, or safety of the occupants. The order shall be in writing and state the reasons for the action.
All unsafe buildings, structures, or appendages are public nuisances and must be abated by repair, rehabilitation, demolition, or removal according to Minnesota Statutes, sections 463.15 to 463.26.
Under the State Building Code, there must be a finding that the continued use of the building “… is dangerous to life, health, or safety of the occupants” and there must be a written order stating the “the reasons for the action.”
The State Building Code further provides that before a municipality can order that a building be vacated, the City must follow the statutory procedure set forth in Minn. Stat. §§463.15 to 463.26. Minn. Stat. §463.17 provides:
Subdivision 1. Contents. The order shall be in writing; recite the grounds therefor; specify the necessary repairs, if any, and provide a reasonable time for compliance; and shall state that a motion for summary enforcement of the order will be made to the district court of the county in which the hazardous building or property is situated unless corrective action is taken …”
Subdivision 2. . Service. The order shall be served upon the owner of record, or the owner's agent if an agent is in charge of the building or property, and upon the occupying tenant, if there is one, and upon all lien holders of record, in the manner provided for service of a summons in a civil action. If the owner cannot be found, the order shall be served upon the owner by posting it at the main entrance to the building or, if there is no building, in a conspicuous place on the property, and by four weeks' publication in the official newspaper of the municipality if it has one, otherwise in a legal newspaper in the county.
Subdivision 3. Filing. A copy of the order with proof of service shall be filed with the court administrator of district court of the county in which the hazardous building or property is located not less than five days prior to the filing of a motion pursuant to section 463.19 to enforce the order. At the time of filing such order the municipality shall file for record with the county recorder or registrar of titles a notice of the pendency of the proceeding, describing with reasonable certainty the lands affected and the nature of the order. If the proceeding be abandoned the municipality shall within ten days thereafter file with the county recorder a notice to that effect.
Saint Paul Legislative Code
The Saint Paul Legislative Code, Chapter 43, §43.02 defines a vacant building as a building or portion of a building which is:
a. Unoccupied and unsecured;
b. Unoccupied and secured by other than normal means;
c. Unoccupied and a dangerous structure;
d. Unoccupied and condemned;
e. Unoccupied and has multiple housing or building code violations;
f. Condemned and illegally occupied; or
g. Unoccupied for a period of time over three hundred sixty-five (365) days and during which time the enforcement officer has issued an order to correct nuisance conditions.
The City Code is substantially different than the State Code. First, the definition of a vacant building under the City Code allows the City to register a property as vacant that would not be classified as vacant under the State Building Code.
Second, the City Code requires the property owner to bring the property into full compliance with all “current codes and laws”. That provision is in direct conflict with the State Building Code. (“Finally, the State Building Code regulates the post-construction use of buildings by specifically allowing the occupancy of an existing building to continue without complying with current code requirements (nonconforming use) unless a code provision is “specifically applicable to existing buildings.” City of Morris, supra, 749 N.W.2d @ 9).
Third, the State Building Code requires the municipality to follow a procedure designed to assure that the owner of the property, and any subsequent purchaser, has received due process. Specifically, the State Code requires that “… the municipality … file for record with the county recorder or registrar of titles a notice of the pendency of the proceeding, describing with reasonable certainty the lands affected and the nature of the order. If the proceeding be abandoned the municipality shall within ten days thereafter file with the county recorder a notice to that effect.” Minn. Stat. §463.17, Subd. 3.
City of Morris v. Sax Investments, Inc.749 N.W.2d 1 (Minn.2008) does not allow the City to classify property as vacant without following the State Building Code. The City Code is substantially different than the State Code and, therefore, this Court should order the City to remove the registered vacant building classification on this property.
2. The City Code, as implemented by the City, allows for an unconstitutional taking of property.
The City Code does not authorize the City to register property as vacant property. Section 43.02 (7) allows an owner to voluntarily register his property as a vacant building (“The owner shall register … “). By classifying this property as vacant, without the consent or permission of the owner, the City has acted beyond the authority of both the State Code and the City Code.
The City can only cause property to be classified as vacant by following the State Code, which requires a showing that the property is “…dangerous to life, health, or safety of the occupant” and which requires the City to follow the due process requirements mandated by Minnesota Statutes and to file the Order with the county recorder so that a subsequent purchaser has notice of the Order.
If the City followed the Statute, Evelyn Wallace would have received notice that she was purchasing a house that had been registered as vacant. But because the City did not follow the Statute, Evelyn Wallace had no actual or constructive notice that the property she was purchasing had been classified as a vacant building. That classification adversely affects her rights as an owner.
Chapter 43, §43.03 of the Code imposes obligations on owners of registered vacant property. Those obligations include the assessment of vacant building fees, the requirement that the owner submit a plan and timetable that meets the approval of the enforcement officer, the potential obligation to pay penalties, the obligation to bring the property into full compliance with all current codes and laws, and certain requirements on the resale of the property. The owner of the property is denied occupancy of the building until all conditions required by the City are met.
Because of that, the City’s action in designating this property as a vacant building substantially infringes on Evelyn Wallace’s property rights. Government conduct that substantially infringes on a citizen’s property rights is considered a “taking” and requires that the government provide the citizen with due process before the City takes the property.
In this case, the City failed to provide Evelyn Wallace with any notice that this property had been designated as vacant property at the time she purchased the property. The City was required, pursuant to the State Building Code and the City Code to provide notice to both the owner and the mortgage holder that the property was being classified as a “vacant building” and the State Building Code requires that the City records the order with the County Recorder. The City failed to notice the mortgage holder and failed to record the vacant building order with the County Recorder.
The February 2007 Truth-in-Housing report specifically states this house is not a vacant building. Without the notice required under statute, required by the State Building Code, and required by the City Code, the City cannot constitutionally treat this property as a vacant building because that conduct amounts to a “taking” without due process.
To be enforceable, a lien or charge against real property must appear as a matter of record so that the purchaser of the property can discover that the property is subject to a lien or encumbrance. That is what is required by the State Building Code. Because the City does not record vacant building registrations with the Ramsey County Recorder, and because the Truth-in-Housing report in this case did not identify this property as a vacant building, Evelyn Wallace had no actual or constructive notice of this designation at the time she purchased this property.
The only concerns the City ever raised about this property were that the electricity had been turned off, and that the roof needed repair. But under the State Building Code these conditions cannot be the basis for declaring a house a vacant building. The City cannot use these conditions to force an owner of property to vacate her home without a specific finding that these conditions make the home “…dangerous to life, health, or safety of the occupant.”
The electrical system in this house is in full compliance with the State Building Code and the City has not, and cannot, show that having the electrical system turned off is “…dangerous to life, health, or safety of the occupant.” Similarly, the City has not, and cannot, show that a roof in need of repair makes a house “…dangerous to life, health, or safety of the occupant.”
City of Morris v. Sax prohibits the City from entering a person’s home, inspecting the home, and forcing a person to vacate that home, without meeting the substantive and procedural requirements of the State Building Code.
For these reasons, Evelyn Wallace respectfully requests that this Court order that the City of Saint Paul remove the vacant building classification on this property.
Very truly yours,
Patick T.Tierney law cases said... Apparantly Tierney wins on Appeal
http://bulk.resource.org/courts.gov/c/F3/416/416.F3d.864.04-3040.html
PATRICK T TIERNEY MS 463 said... Read the Statutes yourselves, even the Judges do not take the "time"
So many laws repealed, the real Issue is Constitutionality, Authority and Jurisdiction for DSI and Moermond to do what they illegally do
https://www.revisor.leg.state.mn.us/bin/getpub.php?pubtype=STAT_CHAP&year=2007§ion=463. .
Morris v. Sax A-08-1188 said... Sites are changed, Archives of Law Library pdf format
Apparantly there may be a few Honest Lawyers, ready to take on the City?
GO GET EM NANCY
http://www.lawlibrary.state.mn.us/archive/supct/0805/OPA061188-0515.pdf
S Y L L A B U S
1. When the express language of a state statute defines the scope of permissible municipal regulations, we determine the validity of municipal regulations on the same subject by applying the plain language of the statute.
2. Under Minn. Stat. § 16B.62, subd. 1 (2006), a municipal rental licensing ordinance regulating components or systems of a residential structure covered by the State Building Code is invalid where the municipal ordinance imposes different requirements than the State Building Code.
3. Inspection standards in a municipal rental licensing ordinance regulating ground fault interrupter receptacles, bathroom ventilation, and egress window covers are invalid under Minn. Stat. § 16B.62, subd. 1, because the inspection standards are |
Update:1Jul08 Blogger: A Democracy - Post a Comment Nancy Lazaryan
**** **** *****
Rice, MN 56367
Judge Lindman
Ramsey County District Court
15 West Kellogg Blvd.
St. Paul, MN 55102
By FAX: ***-***-****
June 30, 2008
RE: 62-CV-07-1960
Dear Judge Lindman,
Pursuant to your Order from the bench on June 26, 2008, I had the dumpster removed (that same day) from the property at 1033 Colne.
I clearly heard you say that you were staying the enforcement of the registered vacant building (as to occupancy). But, the City of St. Paul is pursuing boarding up the house, and there is a public hearing on Wednesday (July 2) concerning the boarding of the house.
May I please get a copy of the transcript with your order from the bench, or if you have time, the written order to stay the enforcement of the vacant building (before the St. Paul city council meeting on July 2, 2008)? Evidently, the City does not take seriously your order from the bench. Maybe something in writing would make the City comply with your order.
I was at a hearing on June 24, 2008 before the St. Paul Legislative Hearing Officer concerning the boarding of the house. Before it was my turn, many other people appeared whose homes had been condemned by the City because these people were unable to pay their electric bills. The city officials had literally thrown these people out into the streets and seized the houses because the electricity had been cut off.
Please review our pleadings in this case. The City purports that because the owner of 1033 Colne had voluntarily suspended the utilities to the house, the house qualified as “unfit for human habitation” and thereby met the criteria as a “vacant building”. This does not comply with the state code, or with Morris v. Sax.
Also please note the names of the Plaintiffs. We are bringing this action as private attorney generals on behalf of “Other Similarly Situated Persons.” Many, many people have spoken at the St. Paul city council meetings and demanded the City comply with the restraints of Morris v. Sax. But the City refuses and they are throwing people out of their homes by condemnation that does NOT comply with the directives of the state building code.
These “Other Similarly Situated Persons” need YOUR help.
06-30-2008 Letter to Judge Lindman Page 1 of 2
The district court is the proper forum to seek the necessary relief to stop the destruction of people’s lives by the City. As you may know, I went back and forth with Chief Judge Touissant
when I attempted to appeal Judge Higgs “unappealable” order. IT IS CLEAR that the Court of Appeals wants a complete record to be made, as the appellate court is not the proper court to be the trier of facts in these local issues.
Patrick Tierney, attorney-at-bar has now been hired to represent the interests of my mother, Evelyn Wallace.
Would you allow me to speak on behalf of the “Other Similarly Situated Persons” as a private attorney general and seek equitable relief from this court in the form of a restraining order that keeps the City from kicking people out of their homes and condemning and demolishing houses based upon a city code that is in violation of Morris v. Sax?
If not, would you allow Patrick Tierney to bring said motion for equitable relief?
Thank you for you time and service to the People of the state of Minnesota.
Sincerely,
Nancy Lazaryan
cc: James Jerskey (atty. for City) by fax: ***-***-****
David McGee (atty. for Remax) by fax: ***-***-****
Rebecca Schiller (atty. for Wells Fargo) by fax: ***-***-****
Patrick Tierney (atty. for Evelyn Wallace) by fax: ***-***-****
Victoria Marchetti: by hand Nancy,Nancy,Nancy
Your in a DEN of Thieves
Now your writings are published on this Blog
"
Also please note the names of the Plaintiffs. We are bringing this action as private attorney generals on behalf of “Other Similarly Situated Persons.”
Until you get Permission and or Law License, you are bordering on the "Unauthorized Practice of Law"
Normally www.quitam.com actions are under SEAL
Qui Tam ("He who sues on behalf of the king as well as for himself") is a provision of the Federal Civil False Claims Act that allows a private citizen to file a suit in the name of the U.S. Government charging fraud by government contractors and other entities who receive or use government funds, and share in any money recovered.
40 yrs ago Earl Gray "took" my daughter and gave her to a Woman who Murdered her 10 mnth child Henry Gooselaw Jr,
Bullock v. State MN 611 F2d258(1979)President of Divorce Reform Inc.
In re Scarrella for Associate Justice 221NW2d562
Then Gray acting US Attry sued us for Practicing Law,
Been There Done That |
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