Preview
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF ISANTI TENTH JUDICIAL DISTRICT
CASE TYPE: 14, Other Civil
City of Cambridge,
Court File No.: 30-CV-17-351
Plaintiff,
PLAINTIFF CITY OF
vs. CAMBRIDGE’S
MEMORANDUM OF LAW
Roger Cottrell, Jennifer Cottrell, and IN SUPPORT OF ITS
TKO Properties, LLP, MOTION FOR CONTEMPT
Defendants.
INTRODUCTION
Plaintiff City of Cambridge (the “City”) submits this Memorandum of Law in
support of its motion for an order holding Defendants in contempt. Defendants are
blatantly violating this Court’s April 10, 2018 order. The City requests that the Court
hold Defendants in contempt and issue appropriate sanctions.
STATEMENT OF FACTS
In its Order dated April 10, 2018, this Court permanently enjoined Defendants
from using 509 Main Street (“the Property”) as a dwelling or permitting others to use the
interior or grounds of the Property as a dwelling. The Order also enjoined Defendants
from displaying, parking, or storing vehicles in violation of the City Code. See
Cambridge, Minn. Code Section 156.090(A)(4). The April 10 Order stems from the
City’s original Complaint of June 15, 2017, which addressed several violations of the
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
City’s Land Use Code, including that Defendants were engaging in use of their
commercial property as a dwelling. The City believes that Defendants have been allowing
use of the Property as a dwelling in violation of this Court’s Order.
The City now brings this motion to find Defendants in contempt of the Court’s
April 10, 2018 Order.
As a brief recitation of the facts in this case, Defendants operate a car sales
business identified as “C.A.R.S.” at the Property. Am. Cplt. ¶ 4. The Property is located
in a district classified as “B-2, Highway Business District” under the City Zoning
Ordinance. Second Affidavit of Carri Levitski (hereinafter “Levitski Aff. 2”) ¶ 5. Under
the City Zoning Ordinance, a dwelling unit is only permitted in a B-2 District if the
dwelling unit is located above ground level. Id., see also Cambridge, Minn., Code §
156.040 (B). The building on the Property contains only one level, which is ground level.
Levitski Aff. 2 ¶ 5.
The record of this case, dating back to October 2016, is replete with Defendants’
admissions of use as of the Property as a dwelling and communication between the City
and Defendants informing them that the Property may not be used as a dwelling. (See
Levitski Aff. 1 at ¶ 7, 8, 9, 10, 12, 14; Exs. 1, 2, 3, 6). In June 2017, the City was able to
confirm Defendants had a valid residential lease at a separate location. On April 10,
2018, this Court ordered Defendants to comply with the City Code and permanently
enjoined use of the Property as a dwelling. On April 13, 2018, a copy of the Court’s
April 10, 2018 Order was given to Defendants and they were informed that the City
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
would pursue all legal remedies for failure to comply with the terms of the Order and its
Ordinances. Levitski Aff. 2 ¶ 7.
On or about March 16, 2018, Daniel Scott, a friend of the Defendants who may
assist with their auto business in some capacity, stated to City staff that he was using the
Property as a dwelling. Levitski Aff 2 ¶ 8. Mr. Scott was unable to say during this
conversation when such use would cease. Mr. Scott was aware that nobody can be staying
overnight at the property at any time and that he should not be sleeping at the property
overnight. Id. During this conversation, Mr. Scott indicated that Defendant Roger
Cottrell may still be unsure of the City’s authority to disallow the use of the Property as a
residence.
Based on Mr. Scott’s admission, an officer with the Cambridge Police Department
checked on the Property outside of business hours on April 20, 21, and 22 to see if there
were signs the Property was being used as a dwelling. Levitski Aff. 2 ¶ 9. On April 20,
2018 at approximately 3:00 a.m., there were lights on in the Property’s front office.
Levitski Aff. 2 ¶ 10. On April 21, 2018 at approximately 9:30 p.m. there were lights on
in the window on the north side of the Property. Id. On April 22, 2018 at approximately
11:00 p.m., there were lights on in the windows on both the north and west sides of the
Property. Id. Nobody answered when the Officer knocked on the door of the Property
and he indicated that he did not see any movement inside. Id.
On April 24, 2018, Ms. Levitski informed Mr. Cottrell that the City was aware of
Mr. Scott’s use of the Property as a dwelling. Levitski Aff. 2 ¶ 11. Ms. Levitski told Mr.
Cottrell that use of the Property as a dwelling needed to stop. Id. Mr. Cottrell did not
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
deny that use of the property as a dwelling was ongoing. Id. This conversation also
included discussion of other outstanding compliance issues with cars parked in the City’s
right-of-way, and Mr. Cottrell was unable to definitively say when compliance with the
City Code could be achieved. Id. On April 25, 2018, Mr. Cottrell was again asked about
the use of the Property as a dwelling and told that such use must stop immediately.
Levitski Aff. 2 ¶ 12. Mr. Cottrell did not deny that the Property was being used a
dwelling. During this conversation, Mr. Cottrell was also informed of community
housing resources. Id.
Throughout the course of several conversations with the City in March and April
2018 regarding residential use of the Property, neither Mr. Cottrell nor Mr. Scott
mentioned a need to keep watch on the Property overnight. Levitski Aff. 2 ¶ 13. Nor did
they mention that Mr. Scott was working as an employee of C.A.R.S. Mr. Cottrell has
consented to an administrative inspection of the Property to ensure compliance with
§156.040 of the City Code. Levitski Aff. 2 ¶ 17. He has asked that the inspection be
scheduled on May 9, 2018 at 2:00 p.m.
On April 26, 2018 the City hand delivered Roger Cottrell a letter outlining the
remaining compliance issues on the Property and informing him that there were still
vehicles parked in the City’s right-of-way. The letter stated the vehicles would be towed
and impounded at his expense if not removed. Levitski Aff. 2 ¶ 14; Exhibit 2. The
following Monday, April 30, 2018, there did not appear to be any cars parked in City’s
right-of-way. Levitski Aff. 2 ¶ 15. However, on Monday, May 7, there were
approximately ten vehicles overflowing from the Property and parked within the City’s
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
right-of-way. Levitski Aff. 2 ¶ 16. The City anticipated removing those vehicles on or
about May 7, 2018.
ARGUMENT
DEFENDANTS ARE IN CONSTRUCTIVE CIVIL CONTEMPT OF THE
COURT’S ORDER
The failure to obey a court order in favor of an opposing party in a civil
proceeding constitutes constructive civil contempt. Time-Share Sys., Inc. v. Schmidt, 397
N.W.2d 438, 441 (Minn. Ct. App. 1986); Minn. Stat. § 588.01, subd. 3(3). Constructive
contempt is not committed in the immediate presence of the court, and is an act of which
the Court has no personal knowledge. Newstrand v. Arend, 869 N.W.2d 681, 692 (Minn.
Ct. App. 2015). In order to impose a penalty for civil contempt for failure to comply with
a court’s order the order itself must clearly define the action a party must or must not
take. State by Johnson v. Sports & Health Club, Inc., 392 N.W.2d 329, 335 (Minn. Ct.
App. 1986). Constructive contempt is punishable and enforceable by fine or
imprisonment. Minn. Stat. § 588.02. However, it must appear that the right or remedy of a
party to an action was defeated or prejudiced before the contempt can be punished by
imprisonment or by a fine exceeding $50. Minn. Stat. § 588.02. “In exercising civil
contempt powers ..., the only objective is to secure compliance with an order presumed to
be reasonable.” Arend at 692.
The City has ample reason to believe that the Property is continuing to be used as a
dwelling. Although Defendants are not currently occupying the Property as a residence,
they are allowing others to do so in plain violation of the Court’s April 10 Order and City
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
Code Section 156.040. On March 16, 2018, Daniel Scott admitted to using the Property
as a dwelling. In conversations with the City on April 24 and 25, 2018, Roger Cottrell
did not deny that the Property was being used a dwelling. Given the observations by the
Cambridge Police on April 20, 21, and 22, the City has little reason to believe the
residential use has been permanently discontinued.
Additionally, the Cottrells continue to willfully violate Cambridge City Code
Section 156.090(A)(4), which requires that no vehicles from the Property be parked in
City right-of-way. The Cottrells have been told on at least a weekly basis since the Order
was issued on April 10 that they must comply with the City Code’s provision on parking
vehicles.
In granting the City’s summary judgment motion, this Court recognized that
continuous and knowing violations of a municipality’s duly promulgated regulations
gives rise to an apparent irreparable damage to the municipality as such violations
undermine the local unit's authority to govern. Rockville Township. v. Lang, 387 N.W.2d
200, 205 (Minn. Ct. App. 1986). Similarly here, the Defendants’ knowing defiance of the
Court’s Order undermines the City’s authority to govern and effectively guide its land
use. Defendants, and associates of Defendants, have indicated to the City that they may
not take the City’s ordinances, and the Court’s Orders, seriously. A finding of contempt
is appropriate.
Consistent with the City’s Land Use Ordinances, the City seeks an injunction
preventing Defendants from continuing to operate its business in violation of City
30-CV-17-351
Filed in Tenth Judicial District Court
5/7/2018 4:35 PM
Isanti County, MN
Ordinances enacted for the benefit of the City’s residents until compliance can be
satisfactorily achieved. See Cambridge, Minn., Code §151.999(B)(1).
CONCLUSION
For all of the foregoing reasons, Plaintiff City of Cambridge respectfully requests
that the Court grant its motion and find Defendants in contempt of the Court’s April 10
Order and impose civil and criminal penalties as it deems appropriate.
RUPP, ANDERSON, SQUIRES &
WALDSPURGER, P.A.
Dated: May 7, 2018 By: /s/ Jay T. Squires___________
Jay T. Squires, Atty. No. 204699
Elizabeth J. Vieira, Atty. No. 392521
333 South Seventh Street, Suite 2800
Minneapolis, MN 55402 (612)
436-4300
jay.squires@raswlaw.com
liz.vieira@raswlaw.com
ATTORNEYS FOR PLAINTIFF
RASW: 100928
Preview
30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN STATE OF MINNESOTA DISTRICT COURT COUNTY OF ISANTI TENTH JUDICIAL DISTRICT CASE TYPE: 14, Other Civil City of Cambridge, Court File No.: 30-CV-17-351 Plaintiff, PLAINTIFF CITY OF vs. CAMBRIDGE’S MEMORANDUM OF LAW Roger Cottrell, Jennifer Cottrell, and IN SUPPORT OF ITS TKO Properties, LLP, MOTION FOR CONTEMPT Defendants. INTRODUCTION Plaintiff City of Cambridge (the “City”) submits this Memorandum of Law in support of its motion for an order holding Defendants in contempt. Defendants are blatantly violating this Court’s April 10, 2018 order. The City requests that the Court hold Defendants in contempt and issue appropriate sanctions. STATEMENT OF FACTS In its Order dated April 10, 2018, this Court permanently enjoined Defendants from using 509 Main Street (“the Property”) as a dwelling or permitting others to use the interior or grounds of the Property as a dwelling. The Order also enjoined Defendants from displaying, parking, or storing vehicles in violation of the City Code. See Cambridge, Minn. Code Section 156.090(A)(4). The April 10 Order stems from the City’s original Complaint of June 15, 2017, which addressed several violations of the 30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN City’s Land Use Code, including that Defendants were engaging in use of their commercial property as a dwelling. The City believes that Defendants have been allowing use of the Property as a dwelling in violation of this Court’s Order. The City now brings this motion to find Defendants in contempt of the Court’s April 10, 2018 Order. As a brief recitation of the facts in this case, Defendants operate a car sales business identified as “C.A.R.S.” at the Property. Am. Cplt. ¶ 4. The Property is located in a district classified as “B-2, Highway Business District” under the City Zoning Ordinance. Second Affidavit of Carri Levitski (hereinafter “Levitski Aff. 2”) ¶ 5. Under the City Zoning Ordinance, a dwelling unit is only permitted in a B-2 District if the dwelling unit is located above ground level. Id., see also Cambridge, Minn., Code § 156.040 (B). The building on the Property contains only one level, which is ground level. Levitski Aff. 2 ¶ 5. The record of this case, dating back to October 2016, is replete with Defendants’ admissions of use as of the Property as a dwelling and communication between the City and Defendants informing them that the Property may not be used as a dwelling. (See Levitski Aff. 1 at ¶ 7, 8, 9, 10, 12, 14; Exs. 1, 2, 3, 6). In June 2017, the City was able to confirm Defendants had a valid residential lease at a separate location. On April 10, 2018, this Court ordered Defendants to comply with the City Code and permanently enjoined use of the Property as a dwelling. On April 13, 2018, a copy of the Court’s April 10, 2018 Order was given to Defendants and they were informed that the City 30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN would pursue all legal remedies for failure to comply with the terms of the Order and its Ordinances. Levitski Aff. 2 ¶ 7. On or about March 16, 2018, Daniel Scott, a friend of the Defendants who may assist with their auto business in some capacity, stated to City staff that he was using the Property as a dwelling. Levitski Aff 2 ¶ 8. Mr. Scott was unable to say during this conversation when such use would cease. Mr. Scott was aware that nobody can be staying overnight at the property at any time and that he should not be sleeping at the property overnight. Id. During this conversation, Mr. Scott indicated that Defendant Roger Cottrell may still be unsure of the City’s authority to disallow the use of the Property as a residence. Based on Mr. Scott’s admission, an officer with the Cambridge Police Department checked on the Property outside of business hours on April 20, 21, and 22 to see if there were signs the Property was being used as a dwelling. Levitski Aff. 2 ¶ 9. On April 20, 2018 at approximately 3:00 a.m., there were lights on in the Property’s front office. Levitski Aff. 2 ¶ 10. On April 21, 2018 at approximately 9:30 p.m. there were lights on in the window on the north side of the Property. Id. On April 22, 2018 at approximately 11:00 p.m., there were lights on in the windows on both the north and west sides of the Property. Id. Nobody answered when the Officer knocked on the door of the Property and he indicated that he did not see any movement inside. Id. On April 24, 2018, Ms. Levitski informed Mr. Cottrell that the City was aware of Mr. Scott’s use of the Property as a dwelling. Levitski Aff. 2 ¶ 11. Ms. Levitski told Mr. Cottrell that use of the Property as a dwelling needed to stop. Id. Mr. Cottrell did not 30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN deny that use of the property as a dwelling was ongoing. Id. This conversation also included discussion of other outstanding compliance issues with cars parked in the City’s right-of-way, and Mr. Cottrell was unable to definitively say when compliance with the City Code could be achieved. Id. On April 25, 2018, Mr. Cottrell was again asked about the use of the Property as a dwelling and told that such use must stop immediately. Levitski Aff. 2 ¶ 12. Mr. Cottrell did not deny that the Property was being used a dwelling. During this conversation, Mr. Cottrell was also informed of community housing resources. Id. Throughout the course of several conversations with the City in March and April 2018 regarding residential use of the Property, neither Mr. Cottrell nor Mr. Scott mentioned a need to keep watch on the Property overnight. Levitski Aff. 2 ¶ 13. Nor did they mention that Mr. Scott was working as an employee of C.A.R.S. Mr. Cottrell has consented to an administrative inspection of the Property to ensure compliance with §156.040 of the City Code. Levitski Aff. 2 ¶ 17. He has asked that the inspection be scheduled on May 9, 2018 at 2:00 p.m. On April 26, 2018 the City hand delivered Roger Cottrell a letter outlining the remaining compliance issues on the Property and informing him that there were still vehicles parked in the City’s right-of-way. The letter stated the vehicles would be towed and impounded at his expense if not removed. Levitski Aff. 2 ¶ 14; Exhibit 2. The following Monday, April 30, 2018, there did not appear to be any cars parked in City’s right-of-way. Levitski Aff. 2 ¶ 15. However, on Monday, May 7, there were approximately ten vehicles overflowing from the Property and parked within the City’s 30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN right-of-way. Levitski Aff. 2 ¶ 16. The City anticipated removing those vehicles on or about May 7, 2018. ARGUMENT DEFENDANTS ARE IN CONSTRUCTIVE CIVIL CONTEMPT OF THE COURT’S ORDER The failure to obey a court order in favor of an opposing party in a civil proceeding constitutes constructive civil contempt. Time-Share Sys., Inc. v. Schmidt, 397 N.W.2d 438, 441 (Minn. Ct. App. 1986); Minn. Stat. § 588.01, subd. 3(3). Constructive contempt is not committed in the immediate presence of the court, and is an act of which the Court has no personal knowledge. Newstrand v. Arend, 869 N.W.2d 681, 692 (Minn. Ct. App. 2015). In order to impose a penalty for civil contempt for failure to comply with a court’s order the order itself must clearly define the action a party must or must not take. State by Johnson v. Sports & Health Club, Inc., 392 N.W.2d 329, 335 (Minn. Ct. App. 1986). Constructive contempt is punishable and enforceable by fine or imprisonment. Minn. Stat. § 588.02. However, it must appear that the right or remedy of a party to an action was defeated or prejudiced before the contempt can be punished by imprisonment or by a fine exceeding $50. Minn. Stat. § 588.02. “In exercising civil contempt powers ..., the only objective is to secure compliance with an order presumed to be reasonable.” Arend at 692. The City has ample reason to believe that the Property is continuing to be used as a dwelling. Although Defendants are not currently occupying the Property as a residence, they are allowing others to do so in plain violation of the Court’s April 10 Order and City 30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN Code Section 156.040. On March 16, 2018, Daniel Scott admitted to using the Property as a dwelling. In conversations with the City on April 24 and 25, 2018, Roger Cottrell did not deny that the Property was being used a dwelling. Given the observations by the Cambridge Police on April 20, 21, and 22, the City has little reason to believe the residential use has been permanently discontinued. Additionally, the Cottrells continue to willfully violate Cambridge City Code Section 156.090(A)(4), which requires that no vehicles from the Property be parked in City right-of-way. The Cottrells have been told on at least a weekly basis since the Order was issued on April 10 that they must comply with the City Code’s provision on parking vehicles. In granting the City’s summary judgment motion, this Court recognized that continuous and knowing violations of a municipality’s duly promulgated regulations gives rise to an apparent irreparable damage to the municipality as such violations undermine the local unit's authority to govern. Rockville Township. v. Lang, 387 N.W.2d 200, 205 (Minn. Ct. App. 1986). Similarly here, the Defendants’ knowing defiance of the Court’s Order undermines the City’s authority to govern and effectively guide its land use. Defendants, and associates of Defendants, have indicated to the City that they may not take the City’s ordinances, and the Court’s Orders, seriously. A finding of contempt is appropriate. Consistent with the City’s Land Use Ordinances, the City seeks an injunction preventing Defendants from continuing to operate its business in violation of City 30-CV-17-351 Filed in Tenth Judicial District Court 5/7/2018 4:35 PM Isanti County, MN Ordinances enacted for the benefit of the City’s residents until compliance can be satisfactorily achieved. See Cambridge, Minn., Code §151.999(B)(1). CONCLUSION For all of the foregoing reasons, Plaintiff City of Cambridge respectfully requests that the Court grant its motion and find Defendants in contempt of the Court’s April 10 Order and impose civil and criminal penalties as it deems appropriate. RUPP, ANDERSON, SQUIRES & WALDSPURGER, P.A. Dated: May 7, 2018 By: /s/ Jay T. Squires___________ Jay T. Squires, Atty. No. 204699 Elizabeth J. Vieira, Atty. No. 392521 333 South Seventh Street, Suite 2800 Minneapolis, MN 55402 (612) 436-4300 jay.squires@raswlaw.com liz.vieira@raswlaw.com ATTORNEYS FOR PLAINTIFF RASW: 100928