This opinion will be unpublished and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

C2-01-208

 

 

Donald Davies, et al.,

Appellants,

 

vs.

 

Ravenna Township,

Respondent.

 

 

Filed September 11, 2001

Affirmed

Schumacher, Judge

 

Dakota County District Court

File No. CX007969

 

 

R. Gordon Nesvig, Post Office Box 255, Cottage Grove, MN 55016 (for appellants)

 

Peter B. Tiede, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

 

 

Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Parker, Judge.*


U N P U B L I S H E D O P I N I O N

SCHUMACHER, ROBERT H., Judge

Appellants Donald Davies and Rumpca Excavating, Inc. sued respondent Ravenna Township, challenging the township's refusal to recognize or transfer a mining permit. The district court concluded that Davies and Rumpca had failed to raise any genuine issue of material fact so as to survive summary judgment. We affirm.

FACTS

Davies, who owns the subject property, is an employee of Barton Sand and Gravel, also known as Bryan Rock Products. Through his association with his employer, Davies has kept a mining permit in place on the subject property ever since mining permits were required. Davies began mining the subject property in 1972 and he subsequently purchased the property.

The township first enacted an ordinance governing extraction of minerals by surface mining in 1976 and enacted an amended mining extraction ordinance in 1992. Both ordinances provide that (1) permits shall be issued for two calendar years; (2) extraction shall begin within 90 days of the issuance of the permit unless a different commencement date is set forth in the permit; and (3) the operator shall notify the town clerk at least one week prior to the commencement of the extraction. In practice, the township apparently collected a permit fee annually and, with one exception in 1992, never physically issued a written mining permit.

On February 11, 1999, Davies, through Bryan Rock Products, applied for another mining permit. On March 11, 1999, the town board approved the permit application. The township subsequently amended its zoning ordinances effective June 10, 1999. Under the amended ordinance the only mining permitted in the relevant zoning district is that which was "under permit prior to the ordinance adoption date of June 10, 1999."

In December 1999, Davies entered into a purchase agreement to sell the property to Rumpca contingent upon transfer of the mining permit from Davies to Joe Rumpca. At a January 13, 2000 regular meeting of the town board, Joe Rumpca indicated he was purchasing the subject property, would like to re-activate operation, and that the permit fees had been paid by Barton Sand and Gravel. Joe Rumpca next appeared at a February 3, 2000 joint meeting of the planning commission and town board, at which the planning commission voted to recommend denying the permit request.

At a February 10, 2000 town board meeting, the planning commission's recommendation to disallow Rumpca's request was opened for discussion. The applicants presented a letter dated February 9, 2000, from Richard Ginther, which referred to his company's hauling loads of rock from the site in May and September of 1999. The town board delayed making a decision to allow additional time for the applicant to present actual proof of past activities and the intensity of those activities.

On May 11, 2000, the town board revisited the Rumpca mining application. The board chair explained that research indicated that the site is not considered active and is no longer covered under the permit because of inactivity. The town board passed a resolution denying Rumpca's permit application.

Davies and Rumpca filed this suit, alleging the township wrongfully denied the mining permit. The township moved for summary judgment. The day before the summary judgment hearing, Davies and Rumpca filed papers in opposition to summary judgment. The district court granted the township's motion for summary judgment, concluding that even if the court were permitted to consider Davies and Rumpca's untimely submissions, they fail to raise a genuine issue of material fact.

D E C I S I O N

A district court reviewing a zoning matter may grant summary judgment based on its review of the record consisting of the municipal body's findings, memoranda submitted by the parties, and verbatim transcripts of all hearings. Swanson v. City of Bloomington, 421 N.W.2d 307, 311 (Minn. 1988). On appeal from summary judgment, this court determines 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); see Minn. R. Civ. P. 56.03 (setting forth standard for summary judgment). This court must view the evidence "in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

The district court concluded that Davies and Rumpca failed to present a genuine issue of material fact as to whether there was a valid mining permit on June 10, 1999. Under the district court's analysis, the March 11, 1999 mining permit was void on June 10, 1999, because of the permit holder's failure to notify and commence extraction within 90 days of issuance. Under the mining ordinances, the "extraction authorized by the permit shall begin within 90 days of the issuance of the permit unless a different date for the commencement is set forth in the permit." Accordingly, if no authorized extraction had begun as of June 10, 1999, the March 11, 1999 mining permit would be void.

The ordinance requires that the mining operator notify the town clerk at least one week prior to commencement of extraction under the permit. It is undisputed that no such notice was ever provided under the March 11, 1999 permit. Davies and Rumpca contend that the township had waived the notice requirement by its past practice of not enforcing the requirement. But a municipality is not estopped from enforcing an ordinance even if a property owner detrimentally relied on the prior practice of non-enforcement. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 607 (Minn. 1980). Accordingly, as the district court concluded, on June 10, 1999, the mining permit was void for failure of the permit holder to notify the township of commencement of mining activity within 90 days of issuance of the permit as required under the ordinance.

Davies and Rumpca claim that, despite the lack of notice, mining activity took place in May 1999. The sole supporting evidence is the assertion that Ginther hauled material from the site in May 1999. His February 9, 2000 letter states in full:

I Rich Ginther owner of Ginther Excavating, Inc. hauled 10 loads of rock in May & 8 loads in Sept. of 1999 from Butch Davies pit located S. of 200th St on 316. In the past several years I have hauled rock and sand from this location also.

 

This letter does not present sufficient evidence of extraction to survive summary judgment. See DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997) (no genuine issue of material fact for trial when nonmoving party presents evidence that merely creates metaphysical doubt as to factual issue but is not sufficiently probative of essential element of case). The mining ordinance governs extraction of minerals by surface mining that disrupts the surface of the earth, such as blasting to dislodge material. Hauling is simply not extraction. Davies and Rumpca have not raised a genuine issue of material fact that the March 11, 1999 permit was valid on June 10, 1999.

The parties also argue whether there is evidence of mining activity in the six months subsequent to June 10, 1999. If mining is a conditional use, then six months of inactivity would terminate the permit under the June 10, 1999 ordinance. But because Davies and Rumpca have not raised a genuine issue of material fact that suggests the March 11, 1999 permit was in fact valid on June 10, 1999, we need not consider the issue of mining activity subsequent to June 10, 1999.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.