This opinion will be unpublished and

may not be cited except as provided by

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






Charles Mertensotto, et al., petitioners,


County of Crow Wing,


Filed July 27, 2004

Affirmed; motion granted

Peterson, Judge


Crow Wing County District Court

File No. C5031647


Charles E. Mertensotto, Jill J. Sholts, Rowland & Mertensotto, P.A., 1575 West Seventh Street, Suite 103, St. Paul, MN  55102 (for appellants)


Jason M. Hiveley, Paul D. Reuvers, Iverson Reuvers, LLC, 230 Townline Plaza, 8585 West 78th Street, Bloomington, MN  55438 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent County of Crow Wing issued a cease and desist (C&D) order for a construction project, and appellant-landowners Charles and Arlean Mertensotto sought mandamus in the district court to compel vacation of the order as well as a declaratory judgment and recovery of attorney fees.  On appeal from a summary judgment for the county, appellants argue that (a) the C&D order was arbitrary and unreasonable because appellants held both a variance and a permit for the construction at issue; and (b) the C&D order violates equal protection because it treats appellants’ attempt to build, for which a variance and permit were obtained, differently from other attempts to build for which variances and permits were obtained.  We affirm and grant the county’s motion to strike.


            Appellants owned a lake home on Pig Lake in Crow Wing County.  The lake home consisted of an original cabin and an addition constructed in the 1940s, which, together, were 22 feet x 30 feet, and an addition constructed in 1967, which was 14 feet x 32 feet.  The lake home was set back 47 feet from the lake’s ordinary-high-water mark (OHWM).  The lake home became a nonconforming structure under the Crow Wing County zoning ordinance when the setback requirement was increased to 75 feet from the OHWM.

            In 1990, appellants applied for a variance to construct two additions to the existing lake home, a 10 x 30-foot addition on the north side and an 18 x 32-foot addition on the east side.  The following diagram shows the existing lake home and the proposed additions. 


The board of adjustment granted the variance to construct the two additions to the lake home, but appellants did not build them.

            In August 2002, appellants requested a variance to remove and rebuild the 22 x 30-foot portion of the existing structure and construct the additions permitted by the 1990 variance.  Following an on-site inspection, the board of adjustment denied appellants’ variance request.  In October 2002, the county issued appellants a construction permit only to construct the additions allowed by the 1990 variance.

            After the county received a complaint that appellants were constructing a new home, a county enforcement officer performed an on-site inspection and saw that all that remained of the existing structure was a 14 x 8-foot wall held vertical by temporary bracing and supported by 11 courses of eight-inch cement blocks.  The county issued a C&D order prohibiting further modification of appellants’ property.  Following a hearing, the board of adjustment adopted the C&D order and the enforcement officer’s recommendations, including a recommendation that appellants must apply for a permit to construct a dwelling in a conforming location.

            Appellants commenced this action in district court challenging the board of adjustment’s decision.  The district court granted summary judgment for the county, and judgment was entered accordingly.  This appeal from the judgment followed.


            On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in applying the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  This court must view the evidence in the light most favorable to the party against whom summary judgment was granted.  Vetter v. Security Cont’l Ins. Co., 567 N.W.2d 516, 520 (Minn. 1997).


            Appellants argue that the board of adjustment’s order adopting the C&D order was unreasonable, arbitrary, and capricious.  “In a zoning action, we review directly the proceedings before the zoning authority, not the trial court’s findings.  Where the municipal proceedings are fair and complete, review is on the record before the municipal authority.”  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995) (citations omitted), review denied (Minn. Jan. 5, 1996).  Generally, “[l]and use decisions are entitled to great deference and will be disturbed on appeal only in instances where the [municipality’s] decision has no rational basis.”  Id.  The decision will be upheld unless it is unreasonable, arbitrary, or capricious.  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sep. 25, 1997).

            But the interpretation of an ordinance is a question of law subject to de novo review.  Gadey v. City of Minneapolis, 517 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).  Three general rules of construction guide a court’s interpretation: terms in zoning ordinances are given their plain and ordinary meaning; zoning ordinances should be construed strictly against a city and in favor of a landowner; and zoning ordinances must be considered in light of their underlying policy goals.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980).  General rules of statutory construction may also aid interpretation.  Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 339 n. 3 (Minn. 1984).

            Crow Wing County Zoning Ordinance § 1.3 (hereinafter Zoning Ordinance) states, “This ordinance shall be fairly read so as to give effect to the plain meaning of words and the definitions hereinafter set forth, to accomplish the objectives comprehended in its purpose, and as far as possible to be in keeping with the constitutions of this State and of the United States.”  Zoning Ordinance § 3.1(A) states:

Prior to any work on a tract of land, a property or structure use change, work performed on a development, new structure, structural change that alters the exterior dimensions of a structure, the enlargement of an existing structure, installation or alteration to sanitary facilities, the owner or occupant of the property shall make application for the necessary permit or permits at the Planning and Zoning office.  A Construction Permit or Fee is not required for inside or outside residential repair provided the exterior dimensions of the structure remain the same.


Zoning Ordinance § 7.2, which governs nonconforming structures, states:

Any structure existing on the effective date of this ordinance, including any special structure, which does not comply with the provisions of this ordinance by reason of restrictions on area, lot coverage, yards, or other characteristics of the structure or lot, and where such nonconformity was allowed under the Crow Wing County Interim Ordinance, may be continued, provided that such structure,

A.        Not be enlarged or altered in any way which increases the nonconformity;

B.        Not be rebuilt, except in conformity with the provisions of this ordinance; . . .

            E.         Have normal repairs and maintenance necessary to keep the structure in sound condition[.]


            Appellants argue that they complied with the zoning ordinance because the variance that they obtained in 1990 allowed them to build two additions to the lake home, and the construction permit that they obtained in October 2002 permitted them to construct the additions allowed by the 1990 variance.  Appellants contend that implicit in the construction permit is the authority to remodel the existing structure as necessary to provide a completed building project that is free of structural defects and stable for human habitation, and, therefore, the board of adjustment incorrectly based its decision on a determination that appellants intended to tear down the entire existing structure.  Appellants contend that they did not remove the entire structure and they did not intend to do so.

            But the record does not support appellants’ contention that they did not remove the existing structure.  Appellants removed all of the existing structure except a 14 x 8-foot wall that was supported by temporary bracing.   Under Zoning Ordinance § 153, “[a]ny building or edifice, or any constructed addition to a building or edifice which changes its external dimensions or anything not collapsible which is placed or built in or on the ground shall be considered a structure.”  Under the doctrine of ejusdem generis, “when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed.”  Roquemore v. State Farm Mut. Auto. Ins. Co., 610 N.W.2d 694, 696 (Minn. App. 2000) (citation omitted); see also Minn. Stat. § 645.08(3) (2002) (“general words are construed to be restricted in their meaning by preceding particular words”).  A 14 x 8-foot wall held up by temporary bracing is different from a building, edifice, or a constructed addition to a building or edifice.  We, therefore, conclude that as a matter of law, the remaining 14 x 8-foot wall does not fall within the zoning ordinance’s definition of structure. [1]  Although appellants did not remove the entire existing structure, the one wall that they left standing was not a structure.

Because there was no existing structure, appellants were building a new structure, not repairing an existing structure, and they were required to obtain a permit for the construction under Zoning Ordinance § 3.1(A).  The construction permit that appellants obtained permitted them only to construct “two additions to existing dwelling”; it did not permit the construction actually undertaken by appellants.     

As a matter of law, appellants’ construction went beyond normal repairs and maintenance and, therefore, violated the prohibition against rebuilding a nonconforming structure stated in Zoning Ordinance § 7.2.B.  See County of Lake v. Courtney, 451 N.W.2d 338, 342 (Minn. App. 1990) (zoning ordinance permitted only nonstructural repairs and incidental alterations for normal maintenance to nonconforming structures; this court concluded that the common and ordinary meaning of structural alteration plainly included removing and replacing three walls and the structure’s roof), review denied (Minn. Apr. 13, 1990).


Appellants argue that the C&D order violated their equal-protection rights.  Respondent argues that appellants did not raise the equal-protection issue before the district court.  But appellants raised the issue in their verified petition and incorporated the petition in their summary-judgment motion.

“Essential to a ruling that equal protection has been denied by discriminatory administration of the laws is a finding that the persons treated disparately are similarly situated.”  State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981).  Appellants argue that neighboring property owners have been allowed to rebuild nonconforming lake homes.  But appellants have presented no evidence that would support a finding that those property owners are similarly situated to appellants in terms of lot size, hardship factors, or other relevant criteria.  See Stotts v. Wright County, 478 N.W.2d 802, 806 (Minn. App. 1991) (stating property owner “cannot meet the similarly situated requirement for an equal protection claim because his variance request and his neighbor’s variance request are separated in time”), review denied (Minn. Feb. 11, 1992).  In order to show a genuine fact issue for trial, a party opposing summary judgment must present specific admissible facts giving rise to a factual question.  Continental Sales & Equip. Co. v. Town of Stuntz, 257 N.W.2d 546, 550 (Minn. 1977).  The facts asserted by appellants are insufficient to give rise to a fact issue on whether their equal-protection rights were violated.

The district court properly affirmed the C&D order and granted summary judgment for the county.  Based on our conclusion that the C&D order was properly issued, we do not reach the issues raised by appellants regarding damages and costs and disbursements.


            Respondent moved to strike page 2A from the appendix to appellant’s brief on the ground that it was not part of the record before the district court.  “The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”  Minn. R. Civ. App. P. 110.01.  Appellants have not provided a citation to the record where the photos contained on page 2A of their appendix can be located, and we did not find them in our review of the record.  We, therefore, grant respondent’s motion to strike.

            Affirmed; motion granted.

[1] Based on the fact that the footing excavation exceeded the structure’s dimensions, the district court concluded that appellants violated section 3.1(A) by altering the structure’s exterior dimensions.  We do not reach that issue.  This court will affirm a summary judgment if it can be sustained on any ground.  Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).