This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Bemidji Township, and Bemidji Township,
Ralph Schneider, d/b/a Schneider's Greenhouse and Landscaping,
Filed June 13, 2000
Thomas L. D'Albani, Cann, Haskell, D'Albani & Schueppert, P.A., 205 Seventh Street Northwest, Bemidji, MN 56601 (for appellant)
U N P U B L I S H E D O P I N I O N
Respondents Planning and Zoning Commission of Bemidji Township and Bemidji Township (the township) sued appellant Ralph Schneider, d/b/a Schneider's Greenhouse and Landscaping, alleging he was in violation of township ordinances and conditions in the conditional use permit authorizing him to conduct his greenhouse business. The district court granted summary judgment to the township. We affirm.
Schneider was a member of the Bemidji Town Board from 1990 to March 1997. In 1996 Schneider applied for a conditional use permit to operate greenhouse, landscaping, and storage businesses on property he leased across the street from his then-existing greenhouse operation. The township granted the conditional use permit to allow Schneider "to operate Schneider's Greenhouse & Landscaping and a storage business out of the two existing buildings." Later that year, Schneider applied for and received a permit to relocate a sign advertising the business. In his permit application Schneider represented that the sign was 16 square feet when in fact it was 24 square feet. The township's ordinance regulates the relocation of signs and prohibits signs of more than 16 square feet in Schneider's district.
In 1998 Schneider built two "hoop" greenhouses on the business premises. He neither requested nor received a building permit before doing so. In late fall 1998, he removed the plastic covering from the hoop greenhouses but left the remainder of the structures in place.
The township sued Schneider, alleging that the hoop greenhouses violated not only the terms of his conditional use permit, but also a minimum-setback ordinance and the ordinance requiring building permits. In addition, the township alleged that Schneider had violated the township's sign ordinance and violated the terms of the conditional use permit by not providing enough parking. On the township's motion for summary judgment, the district court concluded that Schneider had not violated the conditional use permit with regard to parking but had violated it with regard to the hoop greenhouses. The district court also found that the hoop greenhouses violated the setback ordinance and the building permit ordinance. Finally, the district court found that Schneider had also violated the sign ordinance. Schneider appeals.
On an appeal from summary judgment, we ask whether there are any genuine issues of material fact in dispute and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We review de novo the district court's interpretation of the law. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990). We view the evidence in the light most favorable to the party against whom summary judgment was granted and accept as true that party’s factual allegations. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). We will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).
1. The district court found that the hoop greenhouses violated the township's setback ordinance. Schneider does not challenge this finding on appeal; his brief does not mention the issue. As a result, Schneider has waived his right to contest the district court's ruling on the setback issue. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). Because we will affirm a grant of summary judgment if it can be sustained on any ground, Winkler, 539 N.W.2d at 828, Schneider's waiver on this issue is sufficient to affirm the district court's grant of summary judgment concerning the hoop greenhouses. We therefore do not address Schneider's other arguments concerning the hoop greenhouses.
2. The district court also found that Schneider violated the township's sign ordinance. The ordinance provides:
No signs, except for normal repair/maintenance and those exempt under Section II, shall be painted, constructed, erected, remodeled, words changed, relocated or expanded until a sign permit for such a sign has been obtained.
The section of the ordinance governing the type of district in which Schneider lives and works, a "Rural Residential 2 District," states that "permitted signs * * * shall not exceed sixteen (16) square feet in gross surface area."
There is no dispute that Schneider's sign is 24 square feet nor that he applied for a permit to relocate the sign stating that the sign was 16 square feet. A permit issued based on a material misrepresentation is not lawfully granted. See Bentrovato v. Crinnion, 133 N.Y.S.2d 120, 123 (N.Y Sup. Ct. 1954) (excavation permit granted based on material misrepresentation may be revoked). Schneider thus relocated a sign without receiving the proper approval, supporting the district court's finding that he has violated the sign ordinance.
Schneider appears to argue that because in 1995 he applied for and received a five-year permit for the sign—accurately describing it as four square feet by six square feet—that the 1995 permit somehow immunizes his 1996 relocation of the sign. But in order to move the sign in 1996, he needed a permit. Because the permit he received was based on his misrepresentation, it is not valid. As a result, the district court was correct to conclude that Schneider has violated the sign ordinance. We therefore affirm the court's grant of summary judgment.
3. Schneider alleges that the township has violated his right to equal protection of the laws by selectively enforcing the sign ordinance against him. In an affidavit, Schneider presents more than 100 photographs of signs he says "violate the express provisions of the sign ordinance." Schneider alleges in his counterclaim that "the only alleged violation currently being enforced by the plaintiffs/counter-defendants" is his.
The 14th Amendment's equal protection clause forbids the intentional, discriminatory enforcement of municipal ordinances. State v. Vadnais, 295 Minn. 17, 19, 202 N.W.2d 657, 659 (1972). To prove discriminatory enforcement,
a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right. The defendant must prove discriminatory enforcement by a clear preponderance of the evidence.
State v. Hyland, 431 N.W.2d 868, 872-73 (Minn. App. 1988) (quoting State v. Russell, 343 N.W.2d 36, 37 (Minn. 1984)).
Schneider has failed to meet this heavy burden. His own affidavit includes the township's interrogatory answers demonstrating that the township has pursued enforcement proceedings for sign ordinance violations against 14 persons (including Schneider) since 1991, and against four persons other than Schneider in 1998 and 1999. Despite his photographs, Schneider has presented no useful evidence of how many sign violations there may actually be. Because the ordinance requires a permit only if a sign is "painted, constructed, erected, remodeled, words changed, relocated or expanded," signs that existed before the ordinance was adopted in 1991 and have not been changed since that time would not require a permit. As a result, Schneider has offered no persuasive evidence that the sign ordinance is being selectively enforced.
Furthermore, even if the sign ordinance were being selectively enforced against him, Schneider has offered no evidence that such selective enforcement is "based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of a constitutional right." Hyland, 431 N.W.2d at 873.
As a result, the district court was correct to reject Schneider's defense and counterclaim that the township violated his right to equal protection of the laws.