This opinion will be unpublished and

may not be cited except as provided by

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






Jack A. Elder,


La Crescent Township, et al.,
La Crescent Concrete, Inc.,
d/b/a Croell Redi-Mix,


Filed July 9, 2002

Affirmed in part, reversed in part, dismissed in part, and remanded

Stoneburner, Judge


Houston County District Court

File No. C500189


Kenneth R. Moen, Moen Law Firm, 202 Riverside Building, 400 South Broadway, Rochester, MN 55904 (for appellant)


William L. Moran, Cheryl L. Hanson, Murnane, Conlin, White & Brandt, P.A., Suite 1800, 444 Cedar Street, St. Paul, MN 55101 (for respondents La Crescent Township, et al.)


Francis M. Doherty, Michael W. Gill, Hale, Skemp, Hanson, Skemp & Sleik, Suite 300, King on Fifth Building, Box 1927, La Crosse, WI 54601 (for respondent La Crescent Concrete)


            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Forsberg, Judge.*

U N P U B L I S H E D  O P I N I O N



Appellant Jack A. Elder appeals from dismissal of his action to remove two township supervisors for alleged violations of the Minnesota Competitive Bid Law.  Respondent La Crescent Concrete, Inc. d/b/a Croell Redi-Mix (Redi-Mix), seeks review of the district court’s denial of its motion for summary judgment on Elder’s claims that the Redi-Mix site is zoned “R-1” rather than “industrial” and that Redi-Mix is in violation of the zoning code.  Respondent La Crescent Township seeks review of the district court’s order reinstating Township as a party-defendant, implicitly reversing a prior grant of summary judgment to Township on Elder’s claims that Township failed to zone the Redi-Mix site “industrial” when it adopted a zoning code in 1974 and has failed to enforce the zoning code.  We affirm dismissal of Elder’s claim to remove the town supervisors and reverse the district court’s denial of summary judgment to Redi-Mix and Township on Elder’s zoning claims.



On December 3, 1974, Township, after a public hearing, formally adopted a zoning ordinance.  Township asserts that an aerial zoning photograph/map, which hung on the wall of the township hall as early as 1972, is the map referenced in the ordinance as the town’s official zoning map and that this map designates the Redi-Mix site as “industrial.”  This map was not attached to the text of the ordinance and was not on file at the town hall.  The zoning of the Redi-Mix property is not covered in the text of the ordinance.  Only two references regarding the zoning of the Redi-Mix property in 1974 have been discovered.  The first reference is contained in the La Crescent Township Planning Report, A Comprehensive Plan, dated November 11, 1974.  This document, which the Planning Commission submitted in preparation for the public hearing on the zoning ordinance, discusses “Problem Areas Remaining” and states:

The three areas zoned Industrial in the residential section of the Township, Luce’s Auto Repair; Haef’s Concrete[1]; and Ready’s Bus Service, may conflict seriously with increased residential development.

These problems will have to be worked on in the future by the Planning Commission.


The second reference is contained in a November 14, 1974, Houston County News article about the public meeting held to discuss the zoning ordinance.  The article reports that in response to a question about industrial zoning, the planning commission chair stated that areas existing as industrial properties would be zoned industrial.    

Redi-Mix or its predecessor has operated on its present site since at least 1967.  Elder bought property adjacent to the Redi-Mix site in 1975.  In 1983, Elder built a home and has lived on his property since about 1984.  At the time Elder was building his home, Redi-Mix was expanding its operation.  Elder inquired about the expansion at that time and asserts that township officials told him that the property was zoned “industrial,” and, therefore, he did not inquire further.

In 1999, Elder sought a zoning opinion from the town board about additional property he was thinking of buying near the Redi-Mix site.  When town officials were unable to locate a zoning map and were unable tell him how the property he was interested in was zoned, Elder sought assistance from a town board member who eventually located a 1967 county zoning map showing the Redi-Mix site zoned as R-1.

Elder then sued Township and Redi-Mix, alleging that (1) Township’s treatment of the Redi-Mix site as “industrial” zoning is invalid due to procedural errors in 1974; (2) Redi-Mix’s use of the property, even if zoned industrial, violates the zoning ordinance and constitutes a nuisance, and (3) Township refuses to enforce its zoning ordinance.

Elder also named township supervisors, respondents Greg Abnet and DeWayne Severson, as defendants in this lawsuit, and in a count unrelated to the zoning issue, Elder alleges that Abnet and Severson received financial benefit from projects Township entered into while they were township supervisors in violation of Minn. Stat. § 365.37, subd. 1 (2000), and should be removed from office pursuant to Minn. Stat. § 365.37 subd. 5 (2000). 

On cross-motions for summary judgment, the district court dismissed Elder’s suit to remove the township supervisors, concluding that the district court lacks authority to remove the supervisors from office unless there has been a criminal conviction for violation of the statute.  The district court dismissed the township supervisors and Township from the lawsuit but denied Redi-Mix’s motion for summary judgment, stating that “[v]irtually every fact relating to the issues between [Elder and Redi-Mix] is disagreed upon.” 

Redi-Mix requested reconsideration under Minn. R. Gen. Pract. 115.11 and moved to restore Township as a party to the lawsuit, arguing that the zoning claims were also asserted against Township.  Elder supported the motion.  The district court concluded that it had erred by dismissing Township from the lawsuit and reinstated Township as a party-defendant.  This appeal followed.  Township and Abnet have also moved to dismiss Elder’s appeal as to Abnet as moot because Abnet is no longer a town supervisor.



I.          Removal of town supervisors from office

1.         Standard of review

On appeal from summary judgment, we ask: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Statutory interpretation is a question of law which is reviewed de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  A reviewing court first looks to see “whether the statute’s language, on its face, is clear or unambiguous.”  Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (citation omitted).  “A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.”  Id. (quotation omitted).

2.         Condition precedent to removal from office for violation of Minn. Stat.

§ 365.37


            Minn. Stat. § 365.37, subd. 1, provides in relevant part:


[A] supervisor or town board must not be a party to, or be directly or indirectly interested in, a contract made or payment voted by the town board.


The statute further provides:

A contract made or payment voted or made contrary to this section is void.  A town officer who violates this section is guilty of a misdemeanor and must leave office.


Minn. Stat. § 365.37, subd. 5.

            Township based its motion for summary judgment, in part, on the proposition that a taxpayer does not have standing to enforce the statute.  Township also argued that conviction of a misdemeanor is a condition precedent to removal from office.  Elder contends that a criminal prosecution is not a prerequisite to removing town supervisors from office and that Elder, as a taxpayer, has standing to seek removal from office for what he contends are admitted violations of the statute. 

The district court did not address standing but concluded that it was without authority to remove the township supervisors from office because there had been no conviction.  The district court apparently reasoned that because the statute states that a town officer who violates the law “is guilty of a misdemeanor and must leave office,” a criminal prosecution is a prerequisite to removal.  We disagree.  The statute unambiguously provides two independent consequences for a violation without any provision that one consequence must precede the other.  The only condition precedent to removal from office is a determination that the official has violated the statute.

3.         Standing 

            At oral argument on appeal, Township generously conceded that its real argument was not standing, but rather that conviction of a misdemeanor is a condition precedent to removal from office for a violation of Minn. Stat. § 365.37.  A party has standing to assert a claim when that party’s “legitimate interest is ‘injured in fact.’”  Byrd v. Indep. Sch. Dist. No. 194, 495 N.W.2d 226, 230-31 (Minn. App. 1993) (citation omitted), review denied (Minn. Apr. 20, 1993).  “Taxpayers have a real and definite interest in preventing an illegal expenditure of tax money.”  Id. at 231 (citation omitted)(holding that individual taxpayers have standing to challenge a school board’s contract award for violations of competitive-bidding laws).  We conclude that Elder has standing to seek removal of township supervisors from office for violations of Minn. Stat. § 365.37.

            4.         Mootness of claim against Abnet

Township and Abnet moved to dismiss the appeal as it relates to Abnet because he is no longer a town supervisor and therefore not subject to the relief Elder seeks: removal from office.  A case is moot and requires dismissal of an appeal when “the court is unable to grant effectual relief.”  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (citation omitted).  Elder asserts that his claim against Abnet is not moot because he also sought a declaration that the contract Abnet allegedly benefited from is void.  We disagree.  Elder sought a declaration that the contract violated the statute only to support removal of Abnet from office.  The complaint does not request a declaration that the contract is void.  

The court is not able to grant the relief Elder sought as to Abnet because his removal from office is no longer possible.  We dismiss Elder’s appeal as to Abnet as moot.

5.                  Merits of claim against Severson

We now address the merits of Elder’s claim against Severson, which was fully briefed at the district court level and on appeal.  Township and Severson agree with Elder that there are no issues of material fact that would preclude this court from determining, as a matter of law, whether Severson violated the competitive-bid law.  Elder argues that this court should remove Severson from office as a matter of law because Severson, in his deposition, implicitly admitted violating Minn. Stat. § 365.37, subd. 1. 

Severson testified that at the end of the “Skunk Hollow Bridge Project” he was asked by the general contractor to build a four-wire fence for the owner of the property that adjoined the project and that the general contractor for the bridge project paid Severson, for constructing the fence, about $500 plus some cement blocks left over from the project.  Severson also testified that at the beginning of the project he helped the  property owner build a temporary fence at the property owner’s request.

      Township and Severson argue that, as a matter of law, Severson did not violate Minn. Stat. § 365.37, subd. 1.  Elder has not shown any support in the record for his assertion that either the temporary or the permanent fencing provided by Severson was part of the contract entered into between the general contractor and Township.  Severson testified that he “fulfilled an agreement between the general and the landowner” and not between the general contractor and Township.  There is no evidence in the record that Severson had any interest, direct or indirect, in the contract made or payment voted on by the town board for the bridge project.  Severson was not a proposed sub-contractor when the contract was voted on and was not approached by the general contractor about the fence until their final day on the job.  

Because Elder has failed to present any evidence that Severson had a direct or indirect interest in the contract made or payment voted on by the town board, Township and Severson are entitled to summary judgment dismissing Elder’s claims for removal of Severson.  We therefore affirm, on separate grounds, the district court’s dismissal of Elder’s action to remove Severson.  Braginsky v. State Farm Mut. Auto. Ins. Co., 624 N.W.2d 789, 791 (Minn. App. 2001) (affirming a district court decision on a different ground). 

II.        Zoning

The district court implicitly rejected application of the doctrine of laches when it denied Redi-Mix’s and Township’s motions for summary judgment on Elder’s claims that the Redi-Mix site was not zoned industrial at the time the 1974 zoning ordinance was adopted.  A reviewing court will examine a district court’s laches determination for an abuse of discretion.  In re Marriage of Opp, 516 N.W. 193, 196 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).  Although the district court found that there are material fact questions precluding summary judgment on Elder’s challenge to the 1974 zoning ordinance, there are no issues of material fact that relate to application of the doctrine of laches to bar Elder’s attack on the county’s 1974 zoning decision.  Laches is an equitable doctrine and is intended

to prevent one who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.


Id. (quotations omitted).  The doctrine of laches bars assertion of a claim when a party has delayed acting on his rights for too long “because it would be inequitable to require the defendant to fight the suit.” Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999) (citation omitted).  “It is well settled that a party is barred by laches when the delay is so long and the circumstances of such a character as to establish a relinquishment or abandonment of rights.”  Ryan v. Minneapolis Police Relief Ass’n, 251 Minn. 250, 255, 88 N.W.2d 17, 21 (1958) (citation omitted).  Under the doctrine of laches, the court must consider whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief sought.  Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952).   

            Elder argues that he did not know of alleged problems with adoption of Township’s zoning ordinance until 1999 and that he has not delayed in pursuing his rights.  But the same inquiry that led Elder to question the zoning of the Redi-Mix site in 1999 could have been made at any time after Township adopted the zoning ordinance in 1974.  Elder has no explanation for merely accepting Township’s assertion that the property is zoned industrial when he first inquired in 1984, without requesting the documentation that he obtained in 1999.  Township amended the zoning ordinance in 1983 and 1994 without changing the zoning of the Redi-Mix site, and without objection.  It is undisputed that Redi-Mix and other entities in the township have expanded in reliance on the industrial zoning designations adopted in 1974. 

Elder relies on Pilgrim v. City of Winona, 256 N.W.2d 266, 270-71 (Minn. 1977), in which the supreme court rejected the asserted defense of laches and affirmed a district court’s judgment that a Winona zoning ordinance was null and void even though the suit was brought some five years after the purported enactment of the ordinance.  The challenge in that case, however, was that no public hearing was held, in violation of Minn. Stat. § 462.357, subd. 3, which provides that no zoning ordinance shall be adopted until a public hearing has been held.  Id. at 270.  In that case, the plaintiffs did not know about the purported zoning of the involved property until shortly before they brought their action.  Id.  The supreme court acknowledged cases from other jurisdictions in which delays of four to 21 years were held to prevent challenge of ordinances on procedural grounds but distinguished those cases as not involving lack of a public hearing.  Id.  The supreme court noted that lack of a public hearing is the type of defect naturally leading to delay in discovering a zoning designation.  Id. 

[E]stoppel should be applied sparingly to cases of this nature.  The legislature, in establishing the detailed procedure set out in Minn. Stat. § 462.357, intended that the rights of landowners would be protected from arbitrary or detrimental zoning by the public hearing process.  Only in those cases where it is clear that a landowner has “sat on his rights” should he be estopped from challenging a zoning ordinance passed without public hearing.


The instant case is clearly distinguishable.  Elder does not argue that Township failed to conduct a public hearing in connection with adoption of the zoning ordinance in 1974; rather he disputes Township’s claim about the validity of the map that Township asserts was used at the hearing and referenced in the ordinance.  Elder has always known that Township considered the Redi-Mix site to be zoned industrial and the existing documentation surrounding adoption of the ordinance clearly demonstrates that Township intended the site to be zoned industrial.  Elder’s challenge to the validity of the 1974 zoning designation, asserted more than 25 years after the ordinance was adopted, is precisely the type of challenge to which the doctrine of laches was designed to apply.  As a matter of law, Elder’s challenge to the zoning ordinance is barred by laches.  The district court abused its discretion by declining to grant summary judgment to Redi-Mix and Township on Elder’s challenge to the zoning of the Redi-Mix site.

III.       Alleged failure to enforce zoning ordinance

Elder asserts, in his complaint, that even if the site is zoned industrial, Redi-Mix’s use of the site violates Township’s zoning ordinance and Township “resists efforts to require it to enforce its own zoning ordinance.”  Elder does not point to any evidence in the record that supports this allegation. 

Both Township and Redi-Mix moved for summary judgment on the issue of zoning-ordinance enforcement.  Elder failed to offer any probative evidence to support the assertion that Redi-Mix is in violation of the zoning ordinance or that Township resisted efforts to enforce the zoning ordinance.  See Horton v. Township of Helen, McLeod County Minn., 624 N.W.2d 591, 594 (Minn. App. 2001) (“To defeat a motion for summary judgment, the ‘nonmoving party must offer significant probative evidence tending to support its complaint.’” (quotation omitted)), review denied (Minn. June 19, 2001).  Because Elder failed to present any evidence of a factual dispute regarding violations or enforcement of Township’s industrial zoning designation of Redi-Mix’s property, the district court erred by denying Redi-Mix’s and Township’s motion for summary judgment on those claims.  Accordingly we remand with directions that the district court grant the summary judgment motions of Redi-Mix and Township.

Affirmed in part, reversed in part, dismissed in part, and remanded.  


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


[1] It is undisputed that Haef is Redi-Mix’s predecessor.