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Monday, January 07, 2008

New Brighton's Silly Sump Pump Program - Another GO3 Debacle

This blog has sounded the alarm on several occasions in the past when the old New Brighton City Council "Gang of Three" rammed through some very unfortunate decisions that usually put the interests of the city government bureaucracy ahead of those of the citizens. Thankfully, the Gang of Three majority has been reduced to a Gang of Two minority (Mayor Steve Larson and Council Member Mary Burg), but another of their past decisions may well come back to bite the citizens of New Brighton once again.

A couple of years ago the council made the unfortunate decision to implement a sump pump inspection program that included a provision that essentially forced citizens to allow city officials to enter their homes or be subject to "assessments" or fines.

At the time Council Member Sharon Doffing wisely questioned the wisdom of enacting such a heavy-handed program on the grounds that it would actually give the pump inspectors more authority to enter a private residence than local law enforcement!

From the New Brighton Bulletin coverage at the time:
Council member Sharon Doffing questioned the legality of the inspection and penalty if property owners don’t comply; however, City Manager Matt Fulton said that the city attorney had looked over the proposed ordinance and resolution and saw no problems with it.
And from the Sun Focus:
At the Jan. 24 City Council meeting, where the inspection program was discussed, Councilmember Sharon Doffing said she did not feel the city’s Public Works staff should be given any greater authority than Public Safety officials. She noted that police cannot forcibly enter a private home to conduct a search without having reason to believe certain illegal activity.
Fast forward to today and, shazam!, there is a story in the Pioneer Press that reports that the nearby community of Vadnais Heights is revising their sump pump ordinance that is similar to that of New Brighton to avoid a legal hassle by the ACLU:
Vadnais Heights officials have agreed to revamp a sump pump inspection program, after the American Civil Liberties Union of Minnesota said it was a violation of the U.S. Constitution's Fourth Amendment against unreasonable search and seizure.

The ACLU-MN sent the city a letter late last month asking for changes in the inspection program, which is designed to stop basement sump pumps from flowing into sewage treatment lines.

It was unclear late last week how the city might respond, but city officials now say they'll comply.
Now don't get me wrong. I'm generally not a fan of the ACLU as they often distort the Constitution to further their clearly liberal agenda, but in this case I think they got it right. Apparently the legal counsel for Vadnais Heights also thinks so.

This isn't rocket science. If the police suspect they may find evidence of a crime within a private resident they must present probable cause to convince a judge to issue a search warrant. Apparently if a city wants to check if a resident may be pumping clean water into a sanitary sewer, with or without any evidence of the "crime", they feel they can intimidate home owners into letting them enter their homes through "assessments" or fines, or the threat thereof.

Will the City of New Brighton wake up and revise the ordinance? For the sake of the taxpayers I certainly hope so because, as another near-by city found out, litigation over the matter can get expensive. From the Pioneer Press article linked above:
In a similar case last year, the city of Little Canada faced a lawsuit because a resident was charged a fee after denying access to inspectors. A settlement agreement cost the city's insurer $90,000.

"We learned a tough lesson in that," Joel Hanson, city administrator for Little Canada, said.

The city changed its code to clarify "that you cannot coerce or intimidate someone to gain access to the property," he said. The city also refunded all individuals who were charged.

Vadnais Heights began the inspection program to avoid a threatened fine of $70,000 by the Metropolitan Council, which operates wastewater treatment plants servicing most of the Twin Cities.
The whole messy situation comes from governments and quasi-government groups overstepping their legitimate authority. New Brighton, with their parasitic ;) and high priced legal counsel should have known better than to enact such a heavy-handed edict. In fact, the expensive lawyers weren't even needed as Council Member Doffing pointed out the potential problems before the vote was taken. But then again, protection of private property rights was never a priority with the Gang of Three.

Perhaps the most disturbing thing about the situation is how a rinky-dink, non-elected quasi-government organization like the Metropolitan Council can intimidate the duly elected governments of cities to enact ham-handed edicts like the sump pump programs of New Brighton, Vadnais Heights, and Little Canada. Even ignoring the inherent silliness of the programs (maybe the cities should have passed an ordinance against rain while they were at it), the goal of reigning in outlaw sump pumps probably could have been accomplished through voluntary compliance if the city presented its case properly.

Hopefully the New Brighton City Council will have the sense to correct the situation and remove the potential legal exposure like that which came down on Little Canada. We taxpayers have already been hit with paying for obscene legal fees stemming from bone-headed City Council decisions. It would also be refreshing to see New Brighton set an example and stand up to organizations like the Met Council and the League of Minnesota Cities in the interests of their citizens.



Blogger Frake said...

One minor correction: the Sump Pump Program was implemented while Kim Moore-Sykes was on the council, so it was the GO4, not GO3. :-)

Personally, I was thrilled to read this article in the Pioneer Press today. I hope the smaller GO2 now sees the light. Legigation may be in there future if this isn't changed.

1/07/2008 10:47 PM  
Blogger Daria said...

I don't know if they would go as far as to ban rain, but I certainly wouldn't put it past them to tax it.

Maybe our mayor can use his influence and skills at getting funding from other governmental entities and get a grant for Dihydrogen Monoxide abatement to offset the damage done by the scofflaws.

- D

1/08/2008 9:25 AM  
Anonymous Small L Libertarian said...

Actually I think it was the Gang of Three. Gina Bauman lectured the staff not to consider using the sump pump inspectors as a way to spot violations of the building code or lack of city permits.

Gang of 3, Gang of 4, it doesn't really matter. The city definetly overstepped it's bounds and the tax payers may get stuck footing the bill once again.

Dihydrogen Monoxide abatement! LOL but I wouldn't put it past the lunkheads who run the city to try and get EPA funding. Maybe the city staff and legal people can take a look at the linked site and make a recommendation to the council.

1/08/2008 12:32 PM  
Blogger Mark said...

I've been patiently waiting for the Sump Pump Secret Police to show up at my place, but they haven't yet. Maybe I'll be spared the indignity.

Posts like this one are why Boots On is so valuable. Too many of our fellow New Brightonians are asleep. But this blog is always awake.

Mr. D

1/09/2008 8:14 PM  
Blogger Barbara said...

Thank you Sharon for your wisdom in protecting the citizens from the likes of what you have to deal with.
Why do they think no further than the end of their nose? It all boils down to the dollar and how we can get more to spend in another unwise way. Thanks again-Barb

1/09/2008 8:49 PM  
Anonymous Anonymous said...

Thanks Sharon for all your hard work to protect the rights of citizens.
Who are these gang members that they are above being a responsible elected official? It all boils down to the dollar and how they can get more to spend in ways that do not benefit anyone. Thanks and God bless your efforts

1/09/2008 8:53 PM  
Anonymous Anonymous said...

This is such a minor issue, they stoped at my home and guess what no big deal. Get a new hobby please, or better yet help. Life is short so move on.

1/12/2008 6:19 PM  
Blogger Right Hook said...

No big deal...yeah, but...

A sump pump inspection in and of itself may be no big deal, but government sticking its nose where it doesn't belong is. This program costs taxpayers real money and ties up resources that could be doing other things. More importantly, it also sets a dangerous precedent that city government can do damn near anything it wants on or to your private property.

Are you going to write the check if the city gets hit with a judgment like Little Canada did?

I'm guessing the majority of residents would comply voluntarily if a good reason were given (such as avoiding giving taxpayer money to the Met Council). If the city absolutely feels a legitimate need to inspect a given property it needs to play the game by the rules and obtain an administrative warrant. Yes, it's a hassle, but it forces the city to determine whether it truly needs to inspect a sump pump installation or if it's a case of some bureaucrat justifying his job or government throwing its weight around for no legitimate reason.

"No big deal" incrementalism is how government starts eroding our rights and liberties. Governments never seem to be able to stop once they cross the line just a teeny bit. Many excesses and abuses perpetrated by the nanny state began as "reasonable" requests that were "no big deal".

For example, it was "no big deal" to ban smoking in "public" areas, but this little drip grew into the tidal wave of the state-wide smoking ban that has driven many bars and restaurants out of business by controling the use of a legal substance on private property.

It's been said that a long journey begins with the first step. By preventing the government from taking that first step we can assure that a long, arduous journey down the road to the nanny state can never be completed.

1/12/2008 8:47 PM  
Blogger Frake said...

Anonymous, if think this is no big deal then let me give you a hypothetical situation and you tell us how you would react. Please answer honestly.

Hypothetically, a police officer shows up at your door and asks "can I inspect your house for drugs?". The officer has no warrant. The city's justification for this is that there has been a rise in drug use within the city and the council-approved solution is to try to find the users and suppliers thru a house by house search. You don’t have any drugs in your house.

So, do you let him search your house; or, do you refuse the officer entry until a warrant is handed to you?

I am not trying to be a wise-guy. I would really like to know how you view this situation.

1/13/2008 10:04 PM  
Anonymous Anonymous said...

I have no problem with that, Im not into drugs.

1/14/2008 5:37 AM  
Blogger Right Hook said...

Anonymous -

Another hypothetical:

Suppose the city wants to come into your home to look for "improvements" that were done without a permit. The inspector comes in and finds a water heater that is obviously not the original, an added basement half-bath, some minor interior remodeling, etc. and cannot square it with the city's records of permits. He then tells you that you owe the city the current cost of the appropriate permits plus fines and interest. Your argument that the work had been done by the previous owner does not fly because as the current owner you are responsible for whatever he found. And if you don't pay up the amount plus an administrative fee will be added to your next property tax assessment.

He then bids you a good day and goose-steps across your lawn to your neighbors home while calculating his bonus/commission...

1/14/2008 8:22 AM  
Blogger Frake said...


Thank you for answering honestly.

This is where we differ: I believe that government cannot search my house or myself without reasonable cause and/or without a warrant. This is spelled out in the Bill of Rights, specifically, the fourth amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.“

While you consider this “no big deal” because you are innocent, I would resist such a search on the basis of principle. It is the same reason that I don’t let people read my dairy even though there is nothing self-incriminating in it. It is personal and I have a right to privacy.

Thanks again for your honesty and I hope you can now at least understand where we are coming from on this issue.

Thanks for participating in the discussion.

1/14/2008 11:19 PM  
Anonymous Anonymous said...

The "GO3" goes on. - - Isn't it interesting that Mary Burg promised to "support the taxpayer" when running for election the first time around and indicated that she wold be supporting Sharon Doffing. Her track record demonstrates that she doesn't walk the talk! Mayor Steve, Kim Moore-Sykes and Annie Hoffman, now followed by Mary Burg have managed to put this city in financial jeoprady and who will pay for it? Us retired folks and the other taxpayers who are being gutted by these "leaders" who make judgments without justification. We all are going to be paying for their incompetent leadership in the Northwest Quadrant! The City is not (or SHOULD NOT BE) in Real Estate Development. Their lack of experience and knowledge is going to cost us all! And, for some of us, the debts they have incurred are going to drive us out of the City because we cannot pay the bills incurred by their incompetence!
Hopefully the financial experience of our newest Council Mdember Phillips will prevent further encumerances and poor decisions in the future!

1/23/2008 2:20 PM  

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