This opinion will be unpublished and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

C0-00-830

 

 

Richard J. Haefele, et al.,

Appellants,

 

vs.

 

The City of Eden Prairie,

Respondent.

 

 

Filed December 26, 2000

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 9815283

 

George C. Hoff, Scott B. Landsman, Hoff, Barry & Kuderer, P.A., Suite 260, 7901 Flying Cloud Drive, Eden Prairie, MN  55344 (for respondent City of Eden Prairie)

 

Carla J. Heyl, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN  55103 (Amicus Curiae)

 

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellants)

 

 

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellants successfully sought a district court injunction to enjoin respondent City of Eden Prairie from interfering with their nonconforming use of a duplex as a group home.  The district court granted respondent’s motion for summary judgment on appellants’ claim for damages.  Appellants now challenge that decision.  Respondent, by notice of review, appeals the injunction grant.  Because: (1) as a matter of law, vicarious official immunity protects respondent from appellants’ damages claim; and (2) the district court did not abuse its discretion by awarding appellants injunctive relief on the basis that respondent improperly deemed the nonconforming use abandoned, we affirm.

FACTS

            Appellant Richard Haefele owns a duplex in an Eden Prairie city district zoned for single family dwellings.  Haefele has historically leased the duplex as a group home -- a permitted nonconforming use.  The tenant operated the group home and paid rent until January or February of 1996, then vacated the property later that year.  Haefele: (1) attempted to sell the duplex, listing the duplex as an investment property and as a single-family home; and (2) continued to look for a group home tenant.  In July 1997, appellant Jennifer Coughlin expressed an interest in leasing the duplex for group home use.  By letter, an Eden Prairie zoning administrator advised the Minnesota Department of Human Services that a residential care facility permit could be issued based on historical use of the duplex.  Appellants began making improvements in anticipation of opening the group home.  In the meantime, Haefele rented the duplex.  

            After neighbors raised concerns about the anticipated group home, the Eden Prairie City Attorney concluded that Haefele had abandoned the duplex’s permitted nonconforming use.  Haefele appealed to the city’s Board of Adjustment and Appeals.  The Board determined that Haefele had abandoned the duplex’s nonconforming use.  Appellants sought city council review. The city council unanimously affirmed the Board’s decision.  Appellants successfully sought a district court injunction to enjoin respondent City of Eden Prairie from interfering with the group home but failed to survive summary judgment on their claim for damages.  This appeal followed.

D E C I S I O N

I.

            Appellants argue that the district court erred by granting respondent summary judgment on the basis that vicarious official immunity protects the city from appellant’s damages claim.  By notice of review, respondent argues that the district court erred by determining that statutory immunity did not protect the city’s conduct. 

A.         Standard of Review

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show there is no genuine issue of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal from a district court’s grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party and determine whether there are any 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 applicability of official immunity is a question of law that this court reviews de novo.  Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996).

B.         Vicarious Official Immunity

            An assessment of the applicability of vicarious official immunity requires an initial determination of whether official immunity applies.  S.W. & J.W. ex rel. A.M.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19, 23-24 (Minn. 1998).  Thus, we first consider whether official immunity applies to the City of Eden Prairie’s decision concerning Haefele’s property.

            The common-law doctrine of official immunity protects government officials from suit for discretionary actions taken in the course of their duties. Janklow v. Minnesota Bd. of Examiners for Nursing Home Adm’rs, 552 N.W.2d 711, 716 (Minn. 1996).  Willful and malicious conduct is not immunized.  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  The doctrine is intended to protect government officials from “the fear of personal liability that might deter independent action.”  Id. at 678.

            Only discretionary actions, as opposed to ministerial actions, are immune from suit.  Id. at 678.  “A discretionary decision is one involving more individual professional judgment that necessarily reflects the professional goal and factors of a situation.”  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (citation omitted).  A ministerial duty, on the other hand, leaves nothing to discretion; “it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”  Id. at 315-16 (quoting Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (Minn. 1937)).

            The doctrine of vicarious official immunity extends an official’s protection to his or her employer. S.W., 580 N.W.2d at 23; Watson by Hanson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 414 (Minn. 1996).  Courts extend official immunity to a government employer when the threat of liability against the employer would unduly dissuade employees from exercising independent judgment in pursuit of legitimate public policy choices.  S.L.D. v. Kranz, 498 N.W.2d 47, 51 (Minn. App. 1993).

            In this case, the district court reviewed the city council’s determination that Haefele had abandoned the duplex’s nonconforming use, and determined that vicarious official immunity protected the city from appellants’ damages claim because the city council’s decision was “quasi-judicial”, and therefore discretionary.  Appellant claims the district court improperly reviewed the city council’s determination, and argues that it is the city staff’s initial determination that is at issue.  Appellant further contends that the city staff’s act of applying the doctrine of abandonment to the facts was not discretionary.  We disagree.

            “[A] party aggrieved by a decision of a municipality’s governing body must exhaust all administrative remedies before seeking judicial review” unless doing so would be futile. Minn. Stat. § 462.361 subd. 2 (1998); Medical Servs. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992).  A district court’s review is from the final determination.  Chase v. City of Minneapolis, 401 N.W.2d 408, 411 (Minn. App. 1987).  The district court properly reviewed the city council’s determination.  

            We agree with the district court’s conclusion that the city council’s determination was discretionary, and that vicarious official immunity protected the city from appellants damages claim.  “[A] public officer whose functions are judicial or quasi-judicial is not liable to persons injured by the honest exercise of his judgment within his jurisdiction, however erroneous his judgment may be.”  Brown v. Dayton Hudson Corp., 314 N.W.2d 210, 214 (Minn. 1980) (quoting Robinette v. Price, 214 Minn. 521, 533, 8 N.W.2d 800, 807 (1943)).  Though official immunity usually protects individuals and not a board acting in its joint capacity, under the doctrine of quasi-judicial immunity, city council members are immune from civil liability for acts properly characterized as quasi-judicial and discretionary.  Riedel v. Goodwin, 574 N.W.2d 753, 758 (Minn. App. 1998), review denied (Minn. Apr. 30, 1998); De Palma v. Rosen, 294 Minn. 11, 199 N.W.2d 517, 519-20 (1972). 

            The district court correctly determined that the city council’s decision is quasi-judicial.

The term “quasi judicial” indicates acts of the city officials which are presumably the product or result of investigation, consideration, and deliberate human judgment based upon evidentiary facts of some sort commanding the exercise of their discretionary power.  It is the performance of an administrative act which depends upon and requires the existence or nonexistence of certain facts which must be ascertained, and the investigation and determination of such facts cause the administrative act to be termed quasi judicial. 

 

City of Shorewood v. Metropolitan Waste Control Comm'n, 533 N.W.2d 402, 404 (Minn. 1995) (quoting Oakman v. City of Eveleth, 163 Minn. 100, 108-09, 203 N.W. 514, 517 (1925)).  

            The city council considered evidence -- the historical use and testimony of Haefele’s property -- in light of the common-law definition of an abandoned nonconforming use.  Because this comports with the definition of “quasi-judicial,” official immunity protected the city council’s decision.  In addition, the threat of liability against the City of Eden Prairie would unduly chill the city council’s ability to independently make discretionary decisions. Consequently, the district court properly determined that the city council’s official immunity extended vicariously to the City of Eden Prairie.  We conclude that the district court did not err by determining that vicarious official immunity protects respondent from appellant’s damages claim.

C.        Statutory Immunity

            By notice of review, respondent City of Eden Prairie challenges the district court’s conclusion that the city was not entitled to statutory immunity under Minn. Stat. § 466.03, subd. 6 (1998), which provides for immunity based on “the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Id.  Respondent also argues that, as a matter of law, damages are not a form of relief available to appellant.  Amicus Curiae League of Minnesota Cities joins this argument.  Respondent further asserts that the city is immune from damages under Minn. Stat. § 466.03, subd. 5 (1998) (protecting acts of officials in the execution of a statute, charter, ordinance, resolution, or rule). 

            We decline to address these claims.  Because we have determined that the city council’s decision is immune from damages on the basis of vicarious official immunity, we need not reach the district court’s decision to deny summary judgment on the basis of Minn. Stat. § 466.03, subd. 6.  Respondent’s other defenses were not raised in the district court and it is well-settled that reviewing courts generally will not review new theories on appeal if they are not dispositive.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

 

II.

            Respondent, by notice of review, challenges the district court’s injunction order preventing the city from interfering with Haefele’s nonconforming use of the property. A party seeking a permanent injunction must show that legal remedies are inadequate and that the injunction is necessary to prevent great and irreparable harm.   Cherne Indus., Inc., v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn. 1979). This court reviews orders granting permanent injunctions according to an abuse of discretion standard.  Id. at 91.  We will not set aside a district court’s findings regarding entitlement to injunctive relief unless they are clearly erroneous.  Upper Midwest Sales Co. v. Ecolab, Inc., 577 N.W.2d 236, 240 (Minn. App. 1998).

            The Eden Prairie City Code limits the number and extent of nonconforming uses “by prohibiting their enlargement [and] their reestablishment after abandonment.”  Eden Prairie Code of Ordinances § 11.75 (1982) (emphasis added).  “Abandonment ordinarily entails two factors: (1) intent to abandon; and (2) an overt act or failure to act indicating the owner no longer claims a right to the nonconforming use.”  County of Isanti v. Peterson, 469 N.W.2d 467, 470 (Minn. App. 1991) (citation omitted), overruled on other grounds by Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54 (Minn. 1993).  Where a nonconforming use has been dormant for longer than one year, there is a presumption that the owner intended to abandon the use.  Peterson, 469 N.W.2dat 470.  That presumption exists, however, to relieve a municipality’s “severe” burden of having to affirmatively prove the owner’s intent.  Id.

            In support of its conclusion that Haefele abandoned the nonconforming use of his duplex, the Eden Prairie Board of Adjustment and Appeals found that (1) the group home use ceased in 1994; (2) Haefele listed the property as a single family dwelling; and (3) Haefele rented the duplex to a single person in August of 1997.  The city council reviewed earlier determinations and heard from interested parties, and unanimously passed a motion affirming the decision of the Board of Adjustments and Appeals. 

            The district court determined that the facts did not support the city council’s determination, and concluded that the council’s decision was arbitrary and capricious.  Respondent does not dispute the district court’s findings that (1) Haefele believed the group home operator maintained its license until about February 1996; (2) Haefele’s realtor decided to list it as a single-family dwelling to attract a group home buyer; and (3) the temporary tenant agreed to rent the property for a few months for nominal rent in exchange for caretaking duties.  The district court concluded that the prior group home tenant’s circumstances, the listing on the single-family market and the caretaker’s brief tenancy did not show that Haefele intended to abandon the nonconforming use.  To the contrary, Haefele’s actions demonstrated his intention to maintain and market the duplex as a group home. 

            The district court did not abuse its discretion. The evidence supports the: (1) 1996 termination of the group home use; (2) single family listing; (3) brief tenancy; and (4) conclusion that Haefele had not abandoned the duplex’s nonconforming use as a group home.  In addition, a review of the record shows the city council’s determination was based, at least in part, on policy factors unrelated to the legal definition of abandonment.  At least two city council members considered not only the elements of abandonment, but also the city’s goal to put nonconforming use back in conformance.  While that goal is a legitimate policy concern, it has no relevance on Haefele’s intent to abandon and does not constitute an overt act indicating Haefele no longer claims a right to the nonconforming use.

            Respondent argues that Haefele’s intention to abandon the nonconforming group home use is shown by his purchase of the property in 1985 as an investment, not as a group home, and his testimony that he would sell or rent the property for a different use for the right price.  Respondent’s arguments, however, also support appellant’s position.  Haefele’s reasons for purchasing the property in 1985 are irrelevant to the question of whether he intended to abandon group home use nearly ten years later, and that he might sell for another use does not negate his demonstrated preference for finding a group home buyer or tenant.

            We conclude that the district court acted within its discretion by granting appellants’ request for a permanent injunction, thereby enjoining respondent from interfering with appellants’ nonconforming use of the duplex as a group home.

            Affirmed.