Cities have power to put people in jail for zoning violations

Two days before his date with the workhouse, James Barth made one final bid for freedom.

He told a Hennepin County district judge that he had cleaned up the scrap wood, ladders and other odds and ends on his property. The city of Orono agreed: Barth's yard passed inspection.

The judge wouldn't relent. On July 19, Barth reported to the Hennepin Adult Corrections Facility for a five-day stay, the ultimate punishment for violating Orono's rules on "exterior storage."

Minnesota cities have the power to put people in jail for zoning violations. It doesn't happen often, and for good reason: Imprisoning property owners makes it more than a little hard for them to mow their weeds, paint the garage or take stuff to the dump.

Barth calls the city's enforcement a "witch hunt." Given the zeal of Orono inspectors, it's easy to see why.

Orono is best known to outsiders for sumptuous homes whose green lawns slope down to docks on Lake Minnetonka. That's not Barth's world. He's an over-the-road trucker who lives with his brother John at 3725 Togo Road, an old house on a leafy lot that's a little more than half an acre. He's actually one of triplets: James, John and Jeff are 49 years old. They're speaking with one voice about what they see as a city going overboard in punishing a property owner.

"He shouldn't be going to jail for ladders and firewood," Jeff Barth said. "It's just outrageous."

Soren Mattick, the city attorney for Orono, said the workhouse sentence was the decision of a judge, after a missed court date, a bench warrant and a recent inspection that revealed continuing code violations.

"I don't think it just comes down to what's on the lawn," Mattick said. As far as the city prosecuting someone for the upkeep of their property, "those standards are meant to be community standards. … This is how we would like to see the community to look."

The trouble began with a city inspection in May 2010, which revealed that Barth was keeping "lumber, scrap metals, ladders, tires, rims, metal shelving, garbage bags, 5-gallon buckets, tarps, furniture, utility trailers, miscellaneous construction debris, junk and a Ford L800 Diesel vehicle with expired registration."

After a third inspection in August 2010 determined that more junk — "a wooden gate, an appliance, a battery and a carpet remnant" — had accumulated, the city decided to prosecute.

The city said Barth violated Orono ordinance 78-1577, which governs exterior storage in residential zones. An ordinance violation can be treated as a misdemeanor.

In 2011, Barth pleaded guilty to one count of violating a city ordinance and received probation. He got rid of the old truck and much of the other stuff. But his problems weren't over.

On June 18 of this year, the inspector went back to Togo Road.

Without the permission of property owners, inspectors are supposed to stay off private property. Mattick said he would consider it acceptable for an inspector to document violations while knocking on the door to seek that permission.

Barth said neither he nor his brother gave permission to the inspector, Lyle Oman. Yet in court the next day, the city offered 10 photos showing piles of wood, a rusting drum, some ladders and debris, none of which would be visible from the road or the front door. I could not reach Oman last week, but Mattick said Oman testified that he was on a neighbor's property when he took the photos. Looking at the angle of some of the photos, I don't see how that's possible.

With this evidence, Judge Ivy Bernhardson ordered Barth to serve time in the workhouse and clean up his property.

Barth got a Bobcat and buried the rotting wood and got rid of the other stuff. Then, after losing his final attempt to purge the contempt ruling, he served his five days of active time.

Last week, Barth was back in his truck driving up to Toronto. And Togo Road is safe from the menace of scrap lumber and exposed ladders.

Contact James Eli Shiffer at james.shiffer@startribune.com or 612-673-4116. Read his blog at startribune.com/fulldisclosure.