IN COURT OF APPEALS
Sheila Ann Reinke,
Filed August 23, 2005
Chippewa County District Court
File No. T0-04-685
John E. Mack, Mack & Daby, P.A., 26 Main Street, New London, MN 56273 (for appellant)
Mike Hatch, Attorney General, 1800
Dwayne N. Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 514, Montevideo, MN 56265 (for respondent)
Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Dietzen, Judge.
S Y L L A B U S
A use of land that is unlawful at its inception, but which exists when a township enacts a regulatory change, is not exempt from the change as a preexisting nonconforming use.
O P I N I O N
Appellant received a citation for violating a township ordinance prohibiting three or more dogs on the premises owned by any individual residing in the township’s high density population area. Appellant challenged both the constitutionality of the ordinance and her misdemeanor conviction under it, arguing that the ordinance was unenforceable as applied to her because her dog-breeding business was exempted under the preexisting nonconforming use exception. Because appellant was not lawfully operating her dog-breeding business before the ordinance was enacted, we affirm.
December 2003, Chippewa County Sheriff Stacy Tufto began receiving complaints
about dogs on appellant Sheila Reinke’s property in
(B) Kennel as a nuisance. Because the keeping of three or more dogs on the same premises is subject to great abuse, causing discomfort to persons in the area by way of smell, noise, hazard, and general aesthetic depreciation, the keeping of three or more dogs on the premises is hereby declared to be a nuisance and no person shall keep or maintain a kennel within the a [sic] high density population area.
Appellant moved to challenge the constitutionality of the ordinance. A hearing was held, and the district court issued an order denying appellant’s motion. Appellant then pleaded not guilty to the petty misdemeanor charge, again asserting that the ordinance was unconstitutional. At trial, appellant testified that she raised the dogs for sale and had always kept three or more dogs on the property. She further testified that she had checked before purchasing the property to make sure there was no ordinance limiting the number of dogs per residence. She also testified that she had earned approximately $6,000 through the business in 2003. Sheriff Tufto testified that appellant had told her previously that she did not have a dog-breeding business and was taking care of the dogs for a friend. The parties stipulated that appellant’s residence is within a high density population area under the township’s definitions.
In its order, the district court concluded that appellant was operating a dog-breeding business on her property and found her guilty of violating the ordinance. Appellant was sentenced to pay a $300 fine and $70 in surcharges. Appellant challenges her conviction.
I. Is the ordinance unconstitutional?
II. Does appellant’s conviction violate the prohibition against ex post facto laws?
III. Should appellant be allowed to operate her business as a nonconforming use because it was in existence before the township enacted the ordinance?
appeal, a district court’s factual findings are given great deference and will
not be set aside unless clearly erroneous.
argued to the district court that
The district court ruled that the township’s dog ordinance is constitutional because “[i]t is at least debatable that limiting the number of dogs a person can keep on her premises serves the public interest of providing for the health and general welfare of the citizens by helping to eliminate bothersome smells, noises, hazards, and aesthetic depreciation of property caused by an overabundance of dogs.” The parties stipulated that appellant’s home is located in a high density population area under the ordinance’s definitions.
We conclude that appellant has failed to meet her burden of proving it is not even debatable that regulating the number of dogs per residence has a substantial relationship to controlling the problems of dog noise, temperament, and odor as they affect the public health, safety, and welfare. It is at least debatable that the limitation of two dogs per residential premises in a high density population area protects public health. See Hyland, 431 N.W.2d at 872 (stating that courts should not interfere with legislative discretion if reasonableness of ordinance is debatable). Appellant has not overcome the township ordinance’s presumption of constitutionality.
Ex Post Facto Laws
argues that her conviction for operating her existing dog-breeding business
violates the prohibition against ex post facto laws. Both the
Appellant also argues that even if the dog ordinance is constitutional, it is not enforceable as applied to her property due to the exception for a preexisting nonconforming use.
“It is a
fundamental principle of the law of real property that uses lawfully existing
at the time of an adverse zoning change may continue to exist until they are
removed or otherwise discontinued.” Hooper v. City of
nonconforming use exception, the use of real property must be “lawfully
existing” at the time of the zoning change.
See Hooper, 353 N.W.2d at 140. Although the statutory provision relating to
nonconforming uses for townships does not address the lawful-existence
issue of concurrent jurisdiction, township regulations are effective to the
extent that they are not inconsistent with county regulations. West
Circle Props., L.L.C. v. Hall, 634 N.W.2d 238, 243 (
D E C I S I O N
Because appellant’s dog-breeding business, which is located in a high density population area, was not in lawful use at the time of the enactment of the ordinance limiting the number of dogs per residential premises, we conclude that the exception for preexisting nonconforming uses does not permit appellant’s continued violation of the ordinance. We affirm both the ordinance’s constitutionality and appellant’s conviction under the ordinance.
contrast to our holding, the district court declined to apply the nonconforming
use exception because it concluded that the “nonconforming use exception does
not apply to this ordinance because it is a regulatory ordinance and not a
zoning ordinance.” The district court
relied primarily on State v. Schuler,
No. C9-96-1047 (Minn. App. Feb. 25, 1997), review
denied (Minn. May 20, 1997), for its ruling, but “[u]npublished opinions of
the [c]ourt of [a]ppeals are not precedential.”