This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1394

 

 

In the Matter of the Permit Application

No. 2001-1036 to William C. Young.

 

 

Filed June 8, 2004

Affirmed

Forsberg, Judge*

 

Department of Natural Resources

File Nos. 10-2000-14655-2 & 2001-1036

 

 

Paul J. Phelps, Sawicki & Phelps, P.A., 5758 Blackshire Path, Inver Grove Heights, MN  55076 (for relator William C. Young)

 

Mike Hatch, Attorney General, David P. Iverson, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN  55101-2127 (for respondent Minnesota Department of Natural Resources)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Forsberg, Judge.

 

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            On appeal from an order of the commissioner of the Department of Natural Resources denying relator’s motion for reconsideration of an order affirming the denial of appellant’s application for a boat-covering permit, relator argues that the commissioner erred by concluding that his proposed boat covering has a roof within the meaning of Minn. R. 6115.0210, subp. 3D (1999).  Because we conclude that the commissioner did not err, we affirm.

FACTS

            Relator William Young owns lakeshore property on Leech Lake located in Cass County.  Located on the property is a harbor that provides docking space for four recreational boats.  In June 1996, Young made a proposal to the Department of Natural Resources (DNR) for the construction of a structure over his boat slips to provide protection for his boats.  The DNR found that a permit could not be issued for Young’s proposal because it was precluded by county setback requirements but noted that a temporary structure, “such as a boat lift or poles with a canvas canopy,” would be acceptable.  Young then proceeded to construct, without a permit, the structure according to his original plans.  The structure was approximately 20 x 30 feet and was anchored to the ground by 14 vertically placed support timbers.  On the top of the support timbers were attached cross beams, upon which 15 manufactured wood roof trusses were placed and braced.  The trusses were constructed of 2 x 4 lumber and supported plywood sheathing that was shingled.

            In March 1998, the DNR directed Young to remove the structure; Young then removed the structure by crane and had it placed on his land.  In November 1998, Young applied to the DNR for a permit to install three docks and to place the structure back over his inland harbor.  Young proposed to modify the structure by using brackets to attach the structure to pilings anchored in the harbor.  Young asserted that the use of the brackets made the structure “temporary” and, thus, his structure was allowable because a representative of the DNR had previously informed him that a temporary structure “designed and constructed so that it may be removed from the lake on a seasonal basis” was allowable.  The DNR representative had also informed Young that a structure with “trusses or a solid roof” would not be considered temporary.  The DNR granted Young a limited permit to install the docks but did not authorize the placement of the “existing permanent trussed roof within the harbor regardless of whether it is covered with shingles, lightweight metal, or other materials.”  Young administratively appealed this denial; after a hearing, the administrative law judge recommended denial of Young’s application and the commissioner adopted the administrative law judge’s recommendation.  Young did not appeal this order.

In August 2000, Young again applied to the DNR for a permit to build a structure to protect his boats; Young’s application, however, did not describe the exact structure that he proposed to construct.  But after discussion with Young, the DNR determined that Young proposed to modify his existing structure.  In May 2001, the DNR denied Young’s request; in June, Young administratively appealed the denial.  After a hearing in August, an administrative law judge noted that it was found in the previous case proceeding that (1) the shelter was found to have a prohibited permanent roof because of its durability and the fact that the construction methods and materials used to build it were indistinguishable from those used in houses or garages and (2) a lightweight structure comprised of tubular metal and canvas would be permissible.  The administrative law judge then found that “the modifications proposed by [Young] to the previously constructed boat shelter included connecting the upright supports at their bases with a tubular steel frame that was designed to accept wheels” and that “[w]hile adding wheels makes the boat shelter mobile to a limited degree, that change does not alter the durability or permanence of the roof.”  The administrative law judge recommended affirming the denial of Young’s request, concluding that “[r]endering the boat shelter mobile does not change the nature of the structure for purposes of Minn. Rule 6115.0210, subp. 3.D” and that the “top portion of the proposed boat shelter is a roof within the meaning of Minn. Rule 6115.0210, subp. 3.D.”  In May 2003, the commissioner adopted the administrative law judge’s report in full, affirming the denial of Young’s application.  Young then requested reconsideration of the commissioner’s order; after a hearing in July, the commissioner affirmed his previous order.  This certiorari appeal follows.

D E C I S I O N

            In a judicial review [of a contested case hearing] the court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative finding, inferences, conclusion, or decisions are:

 


(a)       in violation of constitutional provisions;

(b)       in excess of the statutory authority or jurisdiction of the agency; or

(c)       made upon unlawful procedure; or

(d)       affected by other error of law; or

(e)       unsupported by substantial evidence in view of the entire record as submitted; or

(f)        arbitrary or capricious.

 

Minn. Stat. §  14.69 (2002).  An agency’s decision is arbitrary or capricious if it (1) relies on factors not intended by the legislature; (2) fails to consider an important aspect of the problem; (3) offers an explanation unsupported by the record; or (4) makes a decision “so implausible that it could not be explained as a difference in view or the result of the agency’s expertise.”  White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  “If an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder.”  Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn. 1984).  Considerable deference is given to an agency’s interpretation of its own rule, particularly when the relevant language is unclear or is susceptible to different interpretations.  St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn. 1989).  A court, however, is not bound by an agency’s construction of statutory language when the statute is phrased in common, rather than exceedingly technical terms.  Minn. Microwave Inc. v. Pub. Serv. Comm’n, 291 Minn. 241, 245-46, 190 N.W.2d 661, 665 (1971).

Young argues that his proposed boat covering does not have a “roof” within the meaning of Minn. R. 6115.0210, subp. 3D (1999).  When Young applied for the permit, Minn. R. 6115.0210, subp. 3, provided that “[p]lacement of structures shall not be permitted where the structure . . . D. Is designed or intended to include walls, a roof, or sewage facilities.”[1]  Young notes that the rules do not define “roof” and asserts that, under Minn. Stat. § 645.08 (2002), statutory language that is not defined is to be given its “common and approved usage.”  Young then notes that, according to common dictionary definitions, a “roof” is the “cover of a building” and a “building” is a roofed and walled structure “built for permanent use.”  He argues that, according to these definitions, his proposed structure does not have a “roof” and is an allowable canopy because it does not have walls, is easily removable on a temporary basis, and is not a building designed for permanent use.  Young further contends that because the determining factor in defining “roof” is whether the structure is a “building,” the durability of the structure and the material used is irrelevant. 

            We conclude that Young’s argument that the “determining factor in defining a ‘roof’ is whether the structure is a ‘building’ which contains walls and is built for permanent use” is misplaced because Minn. R. 6115.0210, subp. 3D prohibits the placement of structures “designed, or intended to include walls, a roof, or sewage facilities.”  The disjunctive “or” used in the rule means that, if the structure’s design includes any one of the listed items, the structure is prohibited and, thus, that the existence of walls is not a necessary feature to find that the structure has a prohibited “roof.”  See State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000) (stating that “in the absence of some ambiguity surrounding the legislature’s use of the word ‘or,’ we will read it in the disjunctive and require that only one of the possible factual situations be present in order for the statute to be satisfied”).  And viewing the term “roof” within the context of common usage, we conclude that the commissioner did not err on reconsideration by determining that Young’s structure, which is constructed of manufactured wood trusses, plywood sheathing, and shingles, has a prohibited “roof.”  See Cable Communications Bd., 356 N.W.2d at 669 (stating that “[i]f an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder”). 

            Affirmed.



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

[1] Minnesota Rule 6115.0210, subpart 3, was amended slightly in 2002.  The relevant language in subpart 3D, however, remained the same.