Who woulda thunk it? High Court says city code (like Northfield’s) can’t require rentals to meet a more stringent standard. Lawsuits to follow?

In Saturday’s Northfield News: Court thwarts city’s rental code.

The city’s rental code, approved in October 2007, includes provisions that require landlords to adhere to standards including door width, window size and height of railings. Thursday’s ruling in the city of Morris vs. Sax Investments, says that no change of use occurs when an owner-occupied property becomes rental housing. And without a change in use, cities can’t require modifications to the structure, the court said. That’s a drum attorney David Hvistendahl has beaten for more than a year on behalf of client Ken Malecha.

“Hundreds of thousands of dollars have been spent that shouldn’t have been spent,” he said. Hvistendahl, who’s running for mayor, said he warned the city that it was inaccurately interpreting state law. “This just ends the stupidity on the part of the city,” he said.

In the April 14, 2007 Northfield News: State Laws Complicate Rental Rules.

According to state law, the “Building Code applies statewide and supersedes the building code of any municipality.” And given that McLellan, the Minnesota building code expert, believes a change in use doesn’t occur when a residential property changes from owner occupied to rental, such a requirement could prove unenforceable and be contested in court. McLellan wouldn’t offer an opinion on whether such an ordinance would be legal, saying he wasn’t an expert on rental housing, but did say “things could get interesting” if such a provision were enacted.

[Brian O’Connell, Community Development Director], however, has no such doubts, believing the city is well within its rights to require rentals to meet a more stringent standard.


See the Northfield Rental Code (39 page PDF) as approved by the City Council in October.

See the Locally Grown blog post and discussion thread from August: Rental ordinance on the path to approval.

See the Aug. 20 Council packet (PDF), pages 25-30, containing a summary and staff recommendations for approval of the rental ordinance from Brian P. O’Connell, Community Development Director; John Brookins, Building Official; Michelle Merxbauer, Housing manager; Maren Swanson, City Attorney.


  1. Robert Hall said:

    Where was the city’s crack legal staff? Is anyone thinking “class action” against the city of Northfield. Wait until the last city employee sacked for “not fitting in” gets a good mouth piece and goes after the city (taxpayers). I wonder how many law suits are already pending against the city and Northfield’s Public Saftey Department. Just another car added to the current train wreck of city management.

    May 19, 2008
  2. kiffi summa said:

    What is only one of the very disturbing factors about this decision by the Supreme Court, and its resulting impact, is that according to the newspaper, the city received a letter from the MN Dept/ Labor/Industry in April of 2007, that they were in violation and this ordinance would be illegal . Then they proceeded on, and passed the ordinance in October. Six or more months of additional staff, and legal hours and dollars.

    How can this be explained? I can, without further explanation, only see it as the well demonstrated arrogance of this administration.

    Remember, when the whole rental ordinance issue began, it was not with the problems on the east side; it was three Highland avenue residents that asked for some administrative fines on parking and behavior issues with the student houses on their street. Enforcement or deterrence of some sort to give them relief.

    Then the whole thing exploded into the “monster” that ordinance has become.

    During the extended 2 year process, those residents repeatedly said, we just wanted some relief on these behavior and parking issues, and then we could see where this goes.

    There has been so much money and time wasted on this in ordinance
    development, now the re-inspection of half the city’s rentals, to say nothing of the costs of “repairs” landlords have already started, thinking they will be made to comply.

    How will this ever be sorted out? Will reimbursements be made if the ordinance is sustained as illegal?

    Last night the City Attorney said that the Court decision supersedes the ordinance as it exists. So will NF take it back to court, re-write the ordinance, wait for a class action suit to eradicate it … What?

    I’d like to make a comment , though, on the City Attny’s process. She explained how her position was based on MN case law, and now this MNSupreme court decision is in conflict with the preexisting case law. The City Attny is an employee of the council. She has done what her employer has asked of her. Not everyone at City Hall fully recognizes their “employee” status. Without knowing more of the actual law, and the case law that sets precedent, I would say that Ms. Swanson has provided what her employers asked of her. This last year has to have been very difficult for her on many, many levels.

    The real question is how did a simple request for “enforcement” turn into this many headed monster?

    May 20, 2008
  3. I find myself telling myself that this one must surely be the last one, the last piece of evidence that we must stop abandoning democracy in favor of efficiency, that we have to cease treating staff with kid-gloves and apologizing for their endless bureaucratic foul-ups, that we must at last acknowledge that our local government and, by association, our community are now so saturated in embarrassment that we cannot fail to finally see senior staff for who they are, and what they are pathologically inclined towards (regulation) and also temperamentally not capable of (the enabling function), and once and for all take serious account of the parlous state of city management and draw up and take account of the lengthening list of recent disasters (College City Beverage fumble, the 600 block catastrophe, the missing $2.3 million dollars, the stillborn building code appeal board, the unpopular and unworkable outdoor dining ordinance, the unpopular, unworkable, and now illegal rental ordinance, etc, etc) and ultimately – and I mean asap – do something about it.

    Essentially this means giving up on the temptation to cut individual citizens out from the herd and labeling them troublemakers, but instead and at last identifying the individual senior staff member(s) and letting them go (based solely on their job performance I hasten to add).

    In the twelve years I have been in Northfield, I observed three administrations, three mayoral styles, three attempts at making the staff-council relationship work. Rossman tried working with the staff, Covey working for the staff, and Lansing tried and failed to make the staff work for the council.

    This particular orientation to the staff and the strategy which comes from it, will be the determinant of the next (and all future) council’s effectiveness. For me, on past evidence, I’ll take an inefficient strong mayor system over a so-called professional City manager system any time – for the latter, on the basis of experience and observation, has no redeeming features at all.

    Is it our climate, our diet ,or simply a lack of brain and backbone that persuades so many to put up with so much for so long from so few.

    May 20, 2008
  4. kiffi summa said:

    Dear Norman, Do you have any pull with the powers that be in Dear Ol’ Britannia? Do you think all my pitiful attempts at humor about your birthplace, and references to King George III’s “private hunting reserve”, and honorable rebels in Revolutionary Wars, and all that “brave New World” stuff could be excused/forgotten/pardoned … and they’d take US back… even though we are so FUBAR?

    May 20, 2008
  5. victor summa said:

    I’d quibble with Kiffi’s assertions in #2 above:

    The City Attny. is an employee of the council. She has done what her employer has asked of her. Not everyone at City Hall fully recognizes their “employee” status. Without knowing more of the actual law, and the case law that sets precedent, I would say that Ms. Swanson has provided what her employers asked of her. .

    In this particular case, I find it a stretch to think the Council instructed the City Attorney to disregard the Department of Labor and Industry’s heads up. Had that happened .. or had the letter become a part of the discussion, the public and the press would have to had been aware.

    Therefore, it seems more likely The City Attorney and the City Administrator ( her real boss) got together and (as they’ve done on the Denison residency) decide to play the: “we’re-okay-as-is” card. Do nothing! After all the months and dollars and public outcry on the long overdue Rental Code .. an about face was too unthinkable

    Get away with what you can. That we were told was the Denison IA strategy.

    Under the current climate at City Hall, if any councilor knew … surely the others would too and therefore the public would know as well. Unless there’s real collusion and misdeeds going on beyond all belief.

    So, does this fit under Mal or Nonfeasance?

    Seems to me Ms Swanson too frequently hangs her hat on case law … often with very obscure connections to the issue at hand.

    So, i’ve got a question for the legals in the audience.

    Does case law trump state statute? My thought is, it might, in any court at any given time … but if the statute also failed at upper court review … would it not be subject to immediate repeal?

    The hole’s getting bigger — wider — deeper. Let ’em dig.

    If he can, Al’s heading for safety in Norfolk NE — where “home correction” works best with upstarts. Man, does that fit his ideals or what?

    Can the center hold until filing for Council in July? For five Dollars you can get the ride of your life … better’n Valley Fair. Chances are you won’t win, so you won’t have to deliver. But you might make a wave and sweep away some of the debris!

    I could believe some insider Councilors were privately informed of the Dept of Labor and Industry letter … Roder-rooters.

    All seven? Not too likely.


    May 21, 2008
  6. Building Codes apart, did the Supreme Court ruling address the arbitrary and capricious 20% ruling? That is, no more than one in five houses in a block can be granted a rental license; in effect, only one rental house per block allowed.
    As I have said previously, I know of house owners who have had their houses repossessed because they were not permitted by the City to rent them out; cruel and unusual punishment indeed.

    May 21, 2008
  7. kiffi summa said:

    What will be the ramifications to the city of people selling houses because they could not rent them?

    What will be the ramifications to the city of repairs or alterations already done which now may not have been legal to enforce?

    What are the ramifications to the city of the wasted staff hours that have already occurred in inspection, administrative costs … to say nothing of the sixmonths (April letter from MN to NF) of staff and legal hours wasted?

    Why does no one on the council speak to these issues?

    Why did the council not know of the April letter from the State? (I’m assuming the council did not know because the Mayor said he had never seen it)

    Who is responsible for the decision, after the letter from the state in April, for proceeding without a council/legal discussion? Who takes such momentous decisions, with such huge cost implications, upon themself?

    These questions must be asked, and publicly; will the council do so?

    May 21, 2008
  8. My question in #6 above is answered by David Hvistendahl in his letter to the editor (N.News 5/21/08) “The density regulations which arbitrarily deprive certain property owners of the rent to rent are unlikely to survive a court challenge…”

    May 21, 2008
  9. kiffi summa said:

    I asked a bunch of questions back in comment #8 … to further elaborate on that theme: When the city is notified , by a dept of the state(Labor and Industry), that the rental code ordinance will not legally “hold up”, and the council doesn’t know about this, and the process continues for another 6 months and ??$, who had the authority (or Not) to make the decision to proceed?

    The council all have a fiduciary responsibility to the citizens. They can’t be blamed for what they didn’t know, but who had the absolute say in NOT bringing this up? And why, did it almost get through the council meeting without discussion? And why was the discussion so limited?

    This is one example of why I feel our council is behaving in a “rogue” manner; confronted with an issue like this which has huge monetary implications, they act like it isn’t worth the public discussion time. Where will that discussion occur?

    Do the malfeasance,and misfeasance, standards apply to staff as well as elected officials?

    This is not a matter which can be “swept under the rug”; there must be a full explanation of what happened, who knew what, who made what decisions, and what is to be done re: all the staff time and $$ wasted, all the property owners’ time and dollars wasted, etc., etc. and ETC.

    May 22, 2008

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