Agenda - Council - 03/13/2012 - Special

Home

City of Ramsey v. Kiefer - WestlawNext Kiefer requested a hearing. The notice of hearing stated that Kiefer, on December 17, 2007 and thereafter parked a motor vehicle in the front yard of the Premises on a site which is not the driveway of the Premises? The notice cited Ramsey City Code § 9.11, permitting motor vehicles to be parked in the front yard only if on a driveway or in the side or rear yard provided that they are parked on a bituminous pavement or concrete surface. The notice also cited Ramsey City Code § 5.08, defining as a public nuisance "[a]ny violation of City Code, Section 9.11.08, relating to off - street parking regulations." At the contested -case hearing, the city clarified that the van is parked in the side yard, contrary to allegations in the notice of violation and notice of hearing. Kiefer argued that the van is legally parked in the side yard because it is parked on a historically existing driveway that, under the city code, is not required to be a bituminous or concrete surface. The hearing examiner did not allow Kiefer to introduce evidence of the previous zoning of the property or a 1973 aerial photograph showing a driveway from the street to a garage at the back of the property. But the record contains substantial testimony and evidence that the van is parked on a dirt traffic lane or "drive lane" in Kiefer's side yard and the hearing examiner's findings of fact recite testimony about this fact. Emphasizing the provision in Ramsey City Code § 9.11 that requires vehicles parked in a side or rear yard to be "parked on a residential parking surface that consists of either bituminous pavement or concrete," the hearing examiner concluded that the city proved by a preponderance of the evidence that Kiefer violated section 9.11 specifically because the van is parked on a "dirt surface." The city council considered the hearing examiner's recommendation that Kiefer be found in violation of the city code. Minutes of that meeting reflect that Kiefer argued to the city council that the van is parked on a driveway. The city attorney stated that the van is parked in the side yard and is clearly not parked on the driveway or a bituminous or concrete surface. The city council adopted verbatim the findings of fact, conclusions, and recommendations of the hearing examiner, determining that the van was parked in violation of the city code and ordered abatement of the nuisance created by the violation. This certiorari appeal followed. DECISION "2 The city's notice of hearing to Keifer stated that the hearing would be conducted under the Minnesota Administrative Procedure Act (MAPA) and the Rules of the Office of Administrative Hearings, Minnesota Rules, Section 1400.5100 - .8400. Therefore our standard of review is govemed by MAPA. Hard Times Cafe v. City of Minneapolis, 625 N.W.2d 165, 173 (Minn.App.2001) (applying MAPA standard of review to municipal decision based on case law and the city's election to conduct contested case hearings in accord with MAPA). Under MAPA, in relevant part: [This] court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are ... affected by [an] error of law; or ... unsupported by substantial evidence in view of the entire record as submitted.... Minn.Stat. § 14.69 (2008). "Review is limited to the record before the city council at the time it made its decision." Hard Times, 625 N.W.2d at 173 (quotation omitted). In his appellate brief, Kiefer argues denial of due process by exclusion of his proffered evidence and denial of his opportunity to present a defense to the nuisance claim. He also argues that the city's provisions governing off -street parking and driveways are too vague to support a decision that a vehicle parked on a driveway in the side yard violates the code. The city argues in its brief on appeal that (1) the evidence and law support the decision that Kiefer violated the city's off -street parking requirements because the van is not parked on Kiefer's driveway; (2) Kiefer's due - process rights were not violated; and (3) Kiefer could not raise the issue of vagueness on appeal because it was not raised below. Page 2 of 4 https: / /a. next. westlaw .com /Document/17ffc800b91 a111 dea82ab9f4ee295 c21/View/FullTe... 2/20/2012