This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1483

 

DeLite Outdoor Advertising, Inc.,
Respondent,

vs.

City of Rochester,
Appellant.

 

Filed March 27, 2001

Affirmed
Klaphake, Judge

 

Olmsted County District Court

File No. C7982627

 

Kenneth R. Moen, Dunlap & Seeger, P.A., 505 Marquette Bank Building, 206 South Broadway, Post Office Box 549, Rochester, MN  55903-0549 (for respondent)

 

James G. Golembeck, Stephen F. Buterin, Jardine, Logan & O’Brien, P.L.L.P., 2100 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN  55101 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            After appellant City of Rochester (the city) denied its permit application to replace an outdoor advertising sign, respondent DeLite Outdoor Advertising Company (DeLite) brought this suit, alleging that the city’s decision was arbitrary and capricious.  The district court granted summary judgment to DeLite, based on its determination that a third party, another sign company, lacked standing to challenge an initial decision by the city’s zoning board of appeals that granted the permit.  On appeal, this court reversed and remanded for findings on the exact location of the relevant properties and for a determination of which residential setback applied to DeLite’s permit application.  DeLite Outdoor Advertising, Inc. v. City of Rochester, No. C6-99-985 (Minn. App. Jan. 11, 2000).

On remand, the district court determined that (1) the third party had standing to challenge issuance of DeLite’s permit; (2) the city erred in its interpretation of the ordinance; and (3) DeLite’s permit application satisfied all the requirements imposed on a replacement sign under city ordinances.  The city again appeals, arguing that it did not err in interpreting Rochester, Minn. City Ordinance 60.509(4) (1998) to require DeLite’s sign to satisfy a 250-foot residential setback.  DeLite argues that the ordinance creates an exception to this requirement and that its permit application therefore meets all of the necessary requirements.

Because the ordinance is reasonably susceptible to two inconsistent interpretations and because the proceedings before the city council when it enacted the ordinance are silent on whether the 250-foot residential setback applies to this particular permit application, the ordinance should be construed strictly against the city and in favor of the permit application that the parties assumed the ordinance was drafted to allow.  We therefore affirm the district court’s grant of summary judgment to DeLite.

D E C I S I O N

            On review of a grant of summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law.  Minn. R. Civ. P. 56.03.  Interpretation of statutes or ordinances presents a question of law, which this court reviews de novo.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  Zoning ordinances must be construed according to their plain and ordinary meaning.  Frank’s Nursery Sales v. City of Roseville, 295 N.W.2d 605, 608 (Minn. 1980).

            In 1998, the city amended its zoning ordinances to increase distance and setback requirements for outdoor advertising signs: the residential setback requirement was increased from 100 feet to 250 feet, while the spacing requirement between signs on the same side of a street was increased from 500 to 1,000 feet.  See Rochester, Minn. City Ordinance 63.224(5)(a), (e) (1998).  The city also enacted an ordinance setting out a procedure to allow property owners to remove and replace existing signs, Rochester, Minn. City Ordinance 60.509.  In pertinent part, that ordinance states:

4)  Notwithstanding any provision of this section to the contrary, the owner of the property upon which an existing advertising sign is located may arrange for the erection of a new advertising sign by a licensed sign contractor at the same location within 90 days of the removal of the existing advertising sign so long as the new advertising sign complies with all city ordinances, state laws and federal laws, except that advertising signs, or advertising signs or advertising sign locations which were the subject of an administrative appeal at the time the 1997 moratorium was placed into effect, that have a minimum distance of 500 feet to another advertising sign on the same side of the street may be replaced, relocated or rebuilt upon the same zoning lot in a zoning district that allows like signs as a permitted use.  Any replacement sign must contain the same number or fewer faces, the same or less square footage, lighting that contains no more lights and no more illumination, and be of the same height or shorter than the previous sign.

 

Id. (emphasis added).  It is undisputed that DeLite’s proposed sign was the subject of an administrative appeal at the time of the 1997 moratorium and that it satisfies the 500-foot spacing requirement between signs; it does not, however, meet the current 250-foot residential setback requirement because it is only 130 feet from a zoned residential area.

            DeLite argues that the language of Ordinance 60.509(4) is unambiguous and allows its sign to be rebuilt or replaced, so long as it meets the 500-foot spacing requirement and the other limitations involving size, lettering, and lighting, which are included in the last sentence of the ordinance.  The city argues that the ordinance allows an existing sign to be replaced, so long as it complies with all city ordinances, including the 250-foot residential setback requirement, and also meets a minimum 500-foot spacing requirement.  Because the language of the ordinance is reasonably susceptible to either interpretation, it is ambiguous.  See Hamline-Midway Neighborhood Stability Coalition v. City of St. Paul, 547 N.W.2d 396, 399 (Minn. App. 1996) (statute ambiguous only if susceptible to more than one reasonable interpretation), review denied (Minn.  Sept. 20, 1996).

            If an ordinance is ambiguous, the intent of the city council must be ascertained. Cf. Cummings, 568 N.W.2d at 422 (object of statutory interpretation is to ascertain and effectuate intention of legislature).  That intent is ascertained by considering the following criteria: (1) the occasion and necessity for the ordinance; (2) the circumstances under which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5) the former law; and (6) the consequences of a particular interpretation.  See Minn. Stat. § 645.16(1)-(8) (2000).

            In 1997, prior to adopting Ordinance 60.509(4), the city placed a moratorium on issuance of permits for outdoor advertising signs so that it could review its ordinances regarding these types of signs.  During this review process, the city solicited input from interested parties.  DeLite had an appeal pending on this particular permit application so that it could replace an existing sign.  DeLite provided written responses to the city’s proposed ordinance amendments and sought to include language in the ordinances to allow for replacement of existing signs.

            On January 14, 1998, the city attorney met with DeLite’s attorney.  DeLite proposed the following exception language to Ordinance 60.509(4):

except that off-premise advertising signs, or advertising sign site locations which were the subject of administrative appeal at the time of the 1997 moratorium was placed into effect, that have a minimum distance of 500 feet to another advertising sign on the same side of the street may be replaced, relocated, or rebuilt upon the same zoning lot in a zoning district that allows like signs as a permitted use, and all of the spacing requirements of this Ordinance shall not apply.

 

The parties decided to delete the phrase, “all of the spacing requirements of this Ordinance shall not apply.”[1]

            At the January 21, 1998 proceedings in which the city council adopted Ordinance 60.509(4), the city attorney advised the council that DeLite’s proposed amendment would allow existing signs and sign locations subject to administrative appeals at the time of the 1997 moratorium to be exempted from the 1,000-foot spacing requirement.  A reading of the transcript of the discussion before the council on the exception contained in Ordinance 60.509(4) demonstrates its intent to allow property owners to replace an existing sign with a new sign, “despite the fact that it is only 500 feet away” from another sign, “as opposed to 1,000 feet that everybody else must comply with.”  There were no specific discussions by council members regarding the 250-foot residential setback.  Rather, everyone appeared to assume that DeLite’s pending permit application would satisfy Ordinance 60.509(4), because the sign would be at least 500 feet from another sign and because an appeal on the permit application was pending when the moratorium went into place.

            Ordinances must be strictly construed against the city and in favor of property owners.  Frank’s Nursery, 295 N.W.2d at 608.  Moreover, the intent of this particular exception was to allow DeLite to replace its sign at this particular location.  See Minn. Stat. § 645.16.  Thus, we conclude that the ordinance must be interpreted to allow DeLite’s permit application to proceed.  We therefore affirm the district court’s grant of summary judgment to DeLite.

            Affirmed.

 



[1]  The city claims that this phrase was deleted because DeLite was receiving the exception it was seeking; DeLite claims that this phrase was deleted because city staff believed it was redundant.  Either reason for deletion of this proposed language, however, tends to support DeLite’s position that the parties assumed that this exception would allow DeLite’s permit application to proceed.