North Mankato nuisance 3 (copy)

Edward Borchardt in front of his Allan Avenue home in upper North Mankato last fall. 

What qualifies as “rank vegetation” and how many annoyed people constitutes a “considerable number?”

Those were central questions argued before the Minnesota Court of Appeals Thursday over the condition of a North Mankato couple’s yard.

Last December the North Mankato City Council declared Edward and Ann Borchardt’s property at 229 Allan Ave. a public nuisance. The council found the property has “rank growth of vegetation” and “unsightly vegetation” that provides a habitat for “rodents and other animals” that “causes a public health concern” and “unreasonably annoys a considerable number of members of the neighboring properties.”

The council ordered city staff to continue to work with the Borchardts to remedy the council’s findings.

The Borchardts appealed the findings, with arguments including that the city ordinances are unconstitutionally vague and the city does not have enough evidence to show the couple is in violation of city ordinances.

The case initially was filed in Nicollet County District Court but later appealed directly to the Court of Appeals, which has jurisdiction in reviewing such city decisions.

In addition to dismissing the public nuisance declaration, the Borchardts are asking the Court of Appeals to require the city to update its ordinances.

A panel of Court of Appeals judges heard arguments in a virtual hearing Thursday morning. The panel now may take up to 90 days to issue a ruling.

Karl O. Friedrichs, attorney for the Borchardts, told the appellate judges the city’s public nuisance ordinances are not clear.

“There can’t be an ordinance whose violation depends on whether or not the enforcement officer is annoyed,” Friedrichs said.

The average resident would not know what is the “rank vegetation” prohibited by city ordinance, Friedrich contended, and the city never provided a written itemization of what vegetation on the property violated ordinances.

Friedrichs also questioned another section of city code that defines a public nuisance as “a condition which unreasonably annoys, injures, or endangers the safety, health, morals, comfort or repose of any considerable number of members of the public.”

The “unreasonable” and “considerable number” parts are too vague, Friedrichs contended.

Only two neighbors spoke in opposition to the Borchardt property at the December council meeting, the attorney noted.

“There’s nothing on the Borchardt property that prevents folks from raising their families in the community,” he said. “It has vegetation that is similar to what exists at city parks. So I don’t understand where there is an issue and a public nuisance that affects a large number of members of the public.”

Assistant City Attorney Christopher Kennedy counters that “rank vegetation” is not overboard and city code uses the same language as state public nuisance law.

The city attorney told the appellate judges the city had made numerous efforts to address the concerns about the Borchardt property before declaring it a nuisance.

“What I think is really clear is the Borchardts aren’t maintaining their property in a manner that you would expect your neighbor to be maintaining their property and are, in fact, unreasonably annoying those neighbors,” Kennedy said.

The city of North Mankato already has changed its rules to allow but restrict “managed natural yards,” In February the council approved a new ordinance allowing up to 30% of yards to be pollinator gardens or native planting areas — if they are maintained without weeds and meet setback and other requirements.

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