This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Kermit Beseke,





County of Goodhue, et al.,




Filed September 19, 2000


Halbrooks, Judge


Goodhue County District Court

File No. C9-99-467



Todd A. Wind, Mark W. Vyvyan, Fredrickson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for respondent)


Kenneth H. Bayliss, Heidi N. Wolf, Quinlivan & Hughes, P.A., 600 Norwest Center, 400 South 1st Street, St. Cloud, MN 56302 (for appellants)




            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Respondent Kermit Beseke commenced the present action seeking a declaration of his right to building permits for two parcels of property.  The district court ruled that Beseke was entitled to building permits and ordered the county to issue permits for both parcels.  On appeal, Goodhue County challenges the district court’s (1) interpretation of a county ordinance, and (2) authority to order the issuance of permits for both parcels when Beseke had applied for a permit for only one.  Because the district court did not err in its construction of the ordinance and the relief ordered was within the court’s discretion, we affirm.


            In October 1996, respondent purchased two adjacent 80-acre parcels of real property (parcels A and B) from Eugene and Judith Fritzinger.  The property is located in Welch Township in Goodhue County.  At the time of the sale, neither parcel abutted any road, private or public.  Beseke then talked with county representatives about obtaining a permit to construct a single-family home on the property.  The assistant zoning administrator for the county told Beseke that neither parcel qualified for a building permit because neither had 100 feet of frontage on an existing road right-of-way line.

            Beseke commenced a lawsuit seeking rescission or damages from the Fritzingers, alleging that they had represented that he would be permitted to build on the property.  As a term of settlement, the Fritzingers agreed to convey two strips of property that, when added to parcels A and B, would provide 100 feet of frontage on 140th Avenue Way.  Beseke paid an additional sum of $7,000 for the conveyance.  Before the settlement was finalized, the district court asked the assistant zoning commissioner for her opinion as to whether the additional conveyance would satisfy the county ordinance so as to enable Beseke to obtain a building permit.  She advised the court and the parties that it would.

            After Beseke and the Fritzingers settled their lawsuit and the property providing frontage to 140th Avenue Way was conveyed, Beseke applied for a township permit to build a home on parcel B.  The township approved the application.  But when Beseke applied for a permit from the county, his application was rejected because the property had 100 feet of frontage on a private but not a public road.  Beseke requested a variance from the county, but his request was denied.

            On April 21, 1999, Beseke filed a complaint seeking a declaration of his right to building permits for parcels A and B.  Beseke alleged that his property complied with the county ordinances or, alternatively, that the county was estopped from asserting that the property was not in compliance.  Beseke also challenged the propriety of the denial of his request for a variance.

            The parties filed cross-motions for summary judgment.  On January 26, 2000, the district court granted Beseke’s motion.  The court interpreted the ordinance as requiring 100 feet of frontage on either a public or private road.  Accordingly, the court ordered the county to issue building permits for both parcels.



            In reviewing summary judgment, this court determines whether there are genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The interpretation of an ordinance is a question of law, which this court reviews de novo.  Gadey v. City of Minneapolis, 517 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).

            The county argues that the ordinance in question requires that property have 100 feet of frontage on a public road.  The disputed ordinance contains, in pertinent part, the following language:

Every permitted, conditionally permitted or accessory building shall meet the following yard requirements:


1.         Front Yard.

a.         There shall be a minimum setback of sixty (60) feet from the right-of-way line of any public road or highway.


                        * * * *


5.         Lot Width

a.         Each lot shall have a minimum of one hundred (100) feet at the building setback line and said width shall extend to an existing road right-of-way line.

Goodhue County, Minn., Zoning Ordinance art. 11, § 5, subd. 3 (1997).

            “Right-of-way” is defined by the ordinance as:

A strip of land acquired by reservation, dedication, forced dedication, prescription or condemnation and intended to be occupied or occupied by a road, crosswalk, railroad, electric transmission lines, oil or gas pipeline, and other similar uses.


Goodhue County, Minn., Zoning Ordinance art. 2, § 2, subd. 87 (1997).  “Right-of-way lines” are defined as “[t]he lines that form the boundaries of a right-of-way.”  Id., subd. 88 (1997).  As is readily apparent, the two subdivisions contain different terms, one explicitly referencing a public road and the other not.

            Where the meaning of an ordinance or statute is free from ambiguity, there is no room for construction.  Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56 (Minn. 1989).  If an ordinance is ambiguous, this court must attempt to ascertain the legislative intent behind the ordinance and construe it so as to effectuate that intent.  In re Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn. App. 1998).  An ordinance is ambiguous if it is susceptible to two or more meanings.  Hamline-Midway Neighborhood Stability Coalition v. City of St. Paul, 547 N.W.2d 396, 399 (Minn. App. 1996).  Here, “road,” the critical word in the statute, can be interpreted two ways.  It could mean a public road only, or it could be read to refer to a public or private road. 

            In construing a zoning ordinance, our appellate courts have generally focused on three rules of construction:  (1) the ordinance should be construed in accordance with the plain and ordinary meaning of its terms; (2) the ordinance should be construed strictly against the governmental entity and in favor of the property owner; and (3) the ordinance must be considered in light of its underlying policy.  SLS Partnership v. City of Apple Valley, 511 N.W.2d 738, 741 (Minn. 1994); Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980).  This court may also rely on general rules of statutory construction in interpreting an ordinance.  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996).

            There is a significant distinction between the terms “public road” and “road.”  See Black’s Law Dictionary 1328-29 (6th ed. 1990) (providing separate definitions for “road” and “public road”).  Under its ordinary meaning, the term “road” would normally encompass both public and private roads.  By using the term “public road” in a subsection of the ordinance, the county has demonstrated that it understands the distinction between the two terms.  Its failure to use “public” in the disputed part of the ordinance suggests an intent that “public road” is not to be used interchangeably with “road.”

            Because the interpretation issue here is rather close, the key consideration is that the ordinance must be construed against the county and in favor of the property owner.  See Frank’s Nursery, 295 N.W.2d at 608.  In order to effectively place a restriction on land use, the restriction must be expressed clearly.  Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992).  If the county intended to limit building permits to those properties with frontage on public roads, it did not express that intention clearly.  Because the county was obviously cognizant of the term “public road,” it could have easily used the term, as it did in another subsection.

            The county argues that the district court’s interpretation leads to absurd results.  First, the county argues that no setback would be required from a private road.  The county, however, does not explain how this result would be absurd.  Only two purposes of a setback requirement for residences immediately come to mind:  (1) general aesthetics; and (2) placing distance between structures and a road for safety purposes.  Because a private road ostensibly would be less-traveled, it is not unreasonable that a distinction between public and private roads could be made for purposes of a setback.

            On a related note, the county claims that the interpretation removes the requirement of a front yard that is found in subsection 1 of the same ordinance.  Part of an ordinance should not be construed so as to render another part meaningless.  See Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn. 1985).  A careful examination of the ordinance, however, reveals no express requirement of a front yard.  The ordinance simply establishes a setback from public roads and highways.


            The county argues that because Beseke did not apply for a building permit for parcel A, the district court did not have jurisdiction to order the county to issue a permit for that parcel.

            The present action was filed as a declaratory judgment action.  The Declaratory Judgments Act provides:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.


Minn. Stat. § 555.02 (1998).  The only jurisdictional prerequisite to an action under section 555.02 is the existence of a “justiciable controversy.”  Rice Lake Contracting Corp. v. Rust Env’t & Infrastructure, Inc., 549 N.W.2d 96, 99 (Minn. App. 1996) (citations omitted), review denied (Minn. Aug. 20, 1996).  A justiciable controversy requires:  (1) a present controversy; (2) adverse parties; and (3) a controversy capable of specific, not advisory, relief.  Rupp v. Mayasich, 561 N.W.2d 555, 557 (Minn. App. 1997).

            Beseke has established the existence of a justiciable controversy with respect to both parcels.  By denying a permit for one property (parcel B), the county has sufficiently demonstrated that a building permit would not be allowed for parcel A.

            In addition to a declaration of the parties’ rights and obligations, the district court in a declaratory judgment action may order further relief that is “necessary or proper.”  Minn. Stat. § 555.08 (1998); Casey v. State Farm Mut. Auto. Ins. Co., 464 N.W.2d 736, 739 (Minn. App. 1991), review denied (Minn. Apr. 5, 1991).  The purpose of the Declaratory Judgment Act is to terminate controversies and, accordingly, the district court is afforded discretion to grant or deny relief.  Ditzler v. Spee, 288 Minn. 314, 317-18, 180 N.W.2d 178, 180 (1970).

            While under normal circumstances, a county would not issue a building permit absent an application, in the present case, such relief was necessary to effectuate the declaratory judgment.  The county has amended its zoning ordinance to expressly require frontage on a “public” road.  If the district court had issued only its declaratory judgment with respect to parcel B and compelled Beseke to submit a permit for parcel A, the county conceivably could have denied the permit on the basis of the amended ordinance.  In order to give effect to its declaration that Beseke is entitled to a building permit on parcel A and to terminate the controversy, ordering issuance of a permit for that parcel was necessary, proper, and within the district court’s discretion.