Some residents cry foul over Burnsville's proactive code enforcement

Nick Kowarsch was handcuffed and hauled off to jail twice this summer.

His crime? Having a pool set up in his yard at Sunny Acres mobile home park in Burnsville, a violation of city code. When he had a chance to argue the violation in court, he didn't show up.

Burnsville switched from complaint-driven code enforcement to a proactive approach in 2013, a change the City Council deemed necessary to clean up aging, increasingly rundown neighborhoods. The number of code enforcement cases jumped from 3,400 in 2012 to 5,414 in 2014. And unlike many cities, including Minneapolis, that use an administrative process for resolving code violations, Burnsville turns to the court system.

Most infractions are resolved without court dates or jail time, but some people are objecting to what they see as an overzealous and indiscriminate approach. Nearly two dozen residents of Rambush Estates mobile home park have signed on to a lawsuit contesting the city codes, which their attorney Valerie Sims argues are "unconstitutionally vague" and carry fees that lack an avenue for appeal.

"They're going extremely overboard," said Gail McCulrey, a Sunny Acres resident who said she had to pay $200 to have a fence built around her garbage cans. "They're turning it from a civil process to a criminal process and arresting people."

Council Member Mary Sherry, who proposed the switch to proactive code enforcement, stands by the policy.

"People have changed over the years. It used to be in this part of the country there was a great sense of community, a great sense of let's keep the community standards high," Sherry said. "Quality of life depends on how your neighborhood looks. That's deteriorated over time."

In the four years before the proactive enforcement, Burnsville inspectors handled between 3,131 and 3,430 cases each year. With the switch to proactive enforcement in 2013, the number jumped to 5,089. In 2014 there were 5,414 cases across the city, which has 25,759 households.

Neighboring Eagan, with about 500 more households, still uses a complaint-driven process. In 2014, there were 997 violations there, and there have been 1,350 so far this year, city spokesman Tom Garrison said.

Burnsville's goal was to inspect every neighborhood within three years. Chris Forslund, the city's code enforcement manager, said he hopes to meet the goal by January 2016.

Attorney Scott Lundquist, who lives on Kaymar Lane, is among those who have been caught up in the sweep. He was cited in 2013 for not having his yard waste container "screened with opaque screening or inside" and for storing a ladder alongside his garage.

When the case went to court, Lundquist said the prosecutor threatened him with a $4,000 fine and 90 days in jail. After nine months and five hearings, Dakota County District Judge Arlene Perkkio dismissed the charges. Her order said the ordinance "is so indefinite as to encourage arbitrary and discriminatory enforcement."

"Hauling them into court is not an option," said Mike Rumppe, deputy director of housing inspection services for Minneapolis.

The administrative process saves time and money without adding more cases to an already overburdened court system, he said.

Eighty-seven percent of Burnsville's code violation cases are resolved after the first notice. Only about 3 percent end up in court, city spokesman Marty Doll said, acknowledging that taking cases to court is "not the most effective approach."

Doll said Burnsville plans to switch to an administrative process similar to Minneapolis' approach. "But it could take some time to set up," he said.

Kowarsch was cited for a pile of leftover lattice in his yard, trash cans in view and the pool. It eventually escalated to a court hearing and $260 in fees.

He was arrested the first time for missing his court date. He missed the next date because of car trouble. That led to a night in jail.

Holly Marchio, also a Sunny Acres resident, corrected several violations, but said she couldn't afford to fireproof an outdoor shed. A warrant was issued for her arrest after she missed a court date because the notice had been sent to the wrong address.

Both Kowarsch and Marchio appeared in court without an attorney, pleaded guilty and received a year's probation. Then Sims got involved in their cases. A judge allowed the defendants to withdraw their pleas and charges were dismissed.

Assistant Burnsville City Attorney Shana Conklin did not return a phone call seeking comment.

Now Sims is working with the residents at Rambush Estates. Twenty-two of them have carports and the city says they must produce documents proving the structures meet code — or tear them down. They're seeking class action status and a temporary restraining order.