This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Douglas Howard Kramer,
Filed May 27, 2005
Otter Tail County District Court
File No. T6-03-1476
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)
Paul Engh, Suite 215 U.S. Bank
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Douglas Kramer appeals from a misdemeanor conviction for violation of a zoning ordinance that limits landowners to one dwelling per lakeshore lot. Kramer argues that the multiple dwellings on his property are allowed by the ordinance’s grandfather clause and that deeding a portion of his property to his daughter should not cause him to be deemed to have violated the ordinance. He also argues that the prosecutor committed misconduct by making a closing argument that, in addition to addressing whether Kramer violated the ordinance, included references to the purpose of the ordinance. Because we conclude that the evidence is sufficient to support the jury’s determination that Kramer violated the ordinance and because Kramer both failed to object to the prosecutor’s closing argument and failed to show that he was unduly prejudiced by that argument, we affirm.
In 1929, land on
In 1977, Douglas Kramer bought lots 1 and 2. At that time, there was a guesthouse on lot 1 and a home on lot 2. In 1981, Kramer built a garage on lot 2. In 1982, Kramer bought lot 3 on contract for deed. On December 10, 1982, Kramer both applied for a building permit to put a second story on the garage on lot 2 to accommodate “recreation room + storage” and applied for a variance to allow lot 2 to have a second dwelling, which would be the second story on the garage. Before Kramer applied for the variance, county officials told him that the SLMO imposed a limit of one dwelling per lot. Apparently as a result, Kramer told the Board of Adjustment (BOA) that if he did not appear at the meeting at which his variance application was to be considered, the BOA should consider the application withdrawn. Kramer did not appear at the BOA meeting, and the BOA deemed the application withdrawn.
In 1983, Kramer bought lot 4 on contract for deed. By the end of 1984, Kramer had satisfied the contracts for deed on lots 3 and 4, and therefore owned lots 1 through 4 outright. Kramer then conveyed lot 3 to his son and lot 4 to his daughter; but, by 1992, he had reacquired lot 3 from his son.
Also in 1992, pursuant to a state mandate, the county amended the SLMO to include a provision requiring joinder of substandard, contiguous lots under common ownership. On February 3, 1992, two days before the amended SLMO was to become effective, Kramer consolidated lots 1 through 3 into parcels A and B. Parcel A included what had been lot 1, with the grandfathered guesthouse, and the part of what had been lot 2 on which the home is located. It did not meet the lot-size and lake-frontage requirements of the SLMO. Because the guesthouse predated the SLMO, Parcel A did not violate the restriction on the number of dwellings per lot. Parcel B included the portion of what had been lot 2 with the garage and what had been lot 3. Parcel B also did not meet the lot-size and lake-frontage requirements of the SLMO. Also on February 3, Kramer transferred parcel B to two third parties, so that he no longer owned contiguous, substandard lots. On December 21, 1992, however, the third parties quit-claimed parcel B back to Kramer.
Because of opposition to the 1992
amendments to the SLMO, “the 1993 State Legislature approved a moratorium,”
allowing “a landowner within
A structure may be erected on a lot of less than the established minimum area and width, provided the lot existed by virtue of a recorded plat or deed before October 15, 1971, or a lot existing by virtue of a recorded plat or deed before October 15, 1971 has been increased in area by a conveyance subsequent to October 15, 1971, provided a Site Permit for the structure is obtained, all sanitary requirements are complied with and the proposed use is permitted within the district. However, effective February 5, 1992, if in a group of two or more contiguous lots under the same ownership, any individual lot does not meet the established minimum area or width, the lot may not be considered a separate parcel of land for the purposes of conveyance or development. The lot must be combined with one or more contiguous lots so they equal one or more parcels of land and each parcel must meet, or more closely approach, the established minimum lot size requirements of this Ordinance. This restriction shall not apply to the following circumstances:
1. Where each contiguous substandard lot is an improved lot, as defined herein.
2. Where each contiguous substandard lot is in substantial compliance with the established lot width requirement, as evidenced by a lake frontage and building line width of at least 75% of the Ordinance minimum, and all other area requirements are met.
3. Where a lot, or a portion of a lot, is to be conveyed to the owner of a contiguous lot for the purpose of increasing lot size, and no residual lot is left unattended. The deed must contain restrictive covenants requiring legal joinder to a contiguous parcel and a permanent prohibition against separate residential development.
In 1995, Kramer applied for a permit to build a recreation-room addition to the garage on parcel B. The county issued a permit on September 22 and inspected the footings for the addition on October 10. At the inspection, the inspector noted that the garage “was suspicious looking” and “had the appearance of a guest house” and, based on his suspicions, labeled the garage as a “Garage/Guest House” in his inspection notes. At Kramer’s trial, the inspector testified that the county did not act against Kramer at that time because “we had no evidence or need to think that [the garage] was actually a dwelling at that time.”
In 1997, the property-tax statement
sent to Kramer by the county did not use separate designations for parcels A
and B. It referred to all of the land
owned by Kramer as “
On October 31, 2000, Kramer deeded a
portion of what had been parcel B to his daughter and her husband. In the deed and associated plat drawings,
Kramer split parcel B into parcels B-1 and B-2; the garage and its recreation-room
addition were on parcel B‑1. The
deed also provides that parcel B-1 “shall be forever more attached to Lots 1
& 2” while parcel B-2 was “forevermore attached to
On September 19, 2001, the county issued Kramer a septic-system permit for the garage. The permit allowed a drain field large enough for a four-bedroom house. Also in 2001, the county received a statement from persons claiming that Kramer was offering to rent a cabin on the property at issue here. In April 2002, the county received a complaint from another party alleging that Kramer was operating a resort on his property.
On January 6, 2003, the county executed a search warrant to determine what was in Kramer’s buildings and how they were being used. The county found that people were living in a dwelling in the garage structure. Because the garage was on the same lot as the house and grandfathered guesthouse, the county charged Kramer with a misdemeanor violation of the SLMO for having multiple dwellings on the same lot. A jury found Kramer guilty, and he appeals.
Kramer argues that the multiple dwellings on his property are allowed by the SLMO’s grandfather clause and that the fact that he deeded a portion of his property to his daughter should not result in a violation of the SLMO. The offense of having multiple dwellings on the same lot requires that, in this case, the garage contain a dwelling, that the garage be on the same lot as the house, and that no exception to the SLMO’s one-lot-one-dwelling requirement applies.
A. Exception to One-Lot-One Dwelling Limitation
[t]he interpretation of an existing zoning ordinance is a question of law for a court to decide. To interpret terms in the ordinance, a court looks at their plain and ordinary meaning. Zoning ordinances should be construed strictly against the city and in favor of the property owner. The court uses the least restrictive interpretation, protecting the rights of the property owner.
Odell v. City
The disputed conduct by Kramer is his use of the garage as a dwelling. Because Kramer both purchased the land on which the garage is located and built the garage after the SLMO’s 1971 effective date, Kramer’s garage does not predate the SLMO, and the nonconforming-use definition does not apply.
To the extent that Kramer argues
that land uses permissible before the amendment of the SLMO should also be
permissible after the effective date of the amendment, that argument also is
unpersuasive. Kramer was prosecuted for
violating the one-dwelling-per-lot limit.
Here, the improper use of the land was not created until Kramer’s
October 2000 conveyance. Therefore, the
land use in question did not exist when the amended SLMO became effective. Moreover, none of the three exceptions to
application of the amended SLMO is applicable here: the first exception requires that the lot in
question be an “improved lot.”
The third exception to the amended SLMO applies “[w]here a lot, or a portion of a lot is to be conveyed to the owner of a contiguous lot.” Because there is no temporal limitation on the application of the third exception, it allowed Kramer’s 2000 conveyance of parcel B-2 to the owner of a contiguous lot, here his daughter and her husband. That application of the third exception, however, still left Kramer, after the conveyance, owning the contiguous substandard parcels A and B-1. And the amended SLMO required that those parcels be combined. Indeed, here, because Kramer “attached” parcels A and B-1 “forever more” by deed, the combination of those parcels would have occurred even without application of the SLMO.
Further, the caselaw that Kramer
cites to support his argument that he has not violated the SLMO is distinguishable.
In Day, because the lot at issue
satisfied the requirements of the grandfather clause but not other aspects of
the relevant ordinance, the question was whether the failure of the lot to satisfy
those other aspects of the ordinance precluded it from being developed, despite
the provision of the grandfather clause that grandfathered lots “shall be
allowed as residential sites.” Day, 391 N.W.2d at 34 (emphasis omitted).
Thus, the dispute in Day is distinguishable from the one
here, which involves a lot that does not satisfy the requirements of the SLMO’s
grandfather clause. See Skelly Oil Co. v. Comm’n
of Taxation, 269
In E.T.O., a statute prohibited the sale of liquor outside a “municipality”
within 1,500 feet of a public school, and a tavern that was located in a
township had its request to renew its liquor license denied because the tavern was
incompatible with the neighborhood and because, during the effective period of
the license, a school opened within 1,500 feet of the tavern. 375 N.W.2d at 816-17. In the tavern’s resulting mandamus action to
obtain a renewal of its license, (a) the district court ruled that the entire
county was a “municipality” and hence that the 1,500-foot restriction did not
apply; (b) this court reversed; (c) while the case was pending in the supreme court,
the legislature amended the statute, substituting “city” for “municipality”;
(d) the supreme court noted the amendment of the statute and that there was no
school when the liquor license was initially issued and the tavern had no
notice that a school would open; and (e) the supreme court reversed this
court because denying renewal of the license based on the unexpected construction
of the school would have been “arbitrary and capricious.”
Kramer further argues that, under Odell, because the use of the property has not changed since the 1992 amendment of the SLMO, he cannot be found to have violated the ordinance. But here, unlike in Odell, the grandfather clause was not satisfied: when the SLMO was enacted, the garage did not exist. Additionally, in Odell, the relevant ordinance distinguished between a nonconforming use and a nonconforming structure, and the location of the structure at issue in Odell violated the ordinance, while its use did not. 348 N.W.2d at 797. Because the relevant portion of the SLMO does not distinguish between a structure’s location and its use, elements critical to the Odell holding are absent here.
Kramer argues that because the county consolidated parcels A and B for tax purposes in 1997, it waived the argument that it was improper for Kramer to have multiple dwellings on what the county treated as one lot for tax purposes. Kramer does not explain why the county’s treatment of his land as a single lot for tax purposes creates an additional, unwritten exception to the one-lot-one-dwelling limitation of the SLMO. Also, after the 1997 consolidation of Kramer’s lots for tax purposes, Kramer, in 2000, filed documents creating “Parcels B-1” and “B-2.” Thus, Kramer did not consider himself bound by the 1997 tax classification of the lots to which he now attempts to bind the county. We reject Kramer’s waiver argument.
Kramer claims that the county
attorney committed prosecutorial misconduct because her opening and closing
arguments addressed the purpose of the SLMO, in addition to whether Kramer
violated the SLMO. To support his contention,
he cites State v. Salitros, 499 N.W.2d 815 (
Generally, an appellate court will
not grant a new trial for prosecutorial misconduct if the misconduct is
harmless beyond a reasonable doubt. State v. Bradford, 618 N.W.2d 782, 798 (
 A similar analysis addresses Kramer’s argument that his 2000 conveyance of parcel B-2 to his daughter and her husband should not have resulted in a combination of parcels B-1 and A so as to cause a violation of the SLMO’s limit on the number of dwellings per lot.