This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Alvin E. McQuinn, et al.,


The City of Nisswa,


Filed June 13, 2006


Collins, Judge [*]


Crow Wing County District Court

File No. C3-04-2886


Gary A. Van Cleve, Molly McKee, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN  55431 (for appellants)


Jason J. Kuboushek, Iverson Reuvers, L.L.C., 9321 Ensign Avenue South, Bloomington, MN  55438 (for respondent)


            Considered and decided by Worke, Presiding Judge; Willis, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N




Appellants Alvin and Mary McQuinn seek relief from a summary judgment, arguing that the district court erred by deciding that (1) respondent the City of Nisswa correctly interpreted an ordinance by declaring a generator on a cement slab installed on the McQuinns’ property a “structure” subject to a setback requirement; and (2) the city’s enforcement of the setback requirement does not deprive the McQuinns of equal protection.  Because the slab and generator as installed is a structure and the record does not support the equal-protection claim, we affirm. 



The McQuinns own a home and about four acres of land on Gull Lake in Nisswa.  The property is situated at the end of a private, unimproved road, near the end of power- service lines in a remote part of the city.  Winter storms have made the road impassible for days at a time, and weather conditions have occasionally caused interruption of electric service to the property.  As a means to safeguard their property from damage and avoid inconveniences caused by power outages, the McQuinns installed a ten-foot by four-foot, five-foot-tall natural-gas-powered electricity generator, placed on a poured cement slab, approximately 60 feet from their home and less than three feet within their side lot line.  The installation of the slab and generator did not require a permit.

Thereafter, the city planning and zoning administrator ordered the McQuinns to move the cement slab and generator because it was a “structure,” which, by ordinance, must be at least 15 feet from the side lot line.  The McQuinns responded by disputing the characterization of the slab and generator as a structure and requested reconsideration of the relocation order.

The matter was brought before the city planning commission, which determined that the cement slab and generator constituted a structure under the ordinance and ordered its removal or relocation to comply with setback requirements.  The McQuinns appealed to the city council, which affirmed the planning commission’s determination and order.

The McQuinns then commenced an action against the city in district court, seeking a declaratory judgment that the slab and generator was not a structure, or, alternatively, that the generator was a public utility permitted to be located where it was by virtue of an extant utility easement.  Following a hearing on the parties’ cross-motions for summary judgment, the district court granted the city’s motion and dismissed the complaint.  The McQuinns appeal.


On appeal from summary judgment, we determine whether any genuine issues of material fact exist and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Here, the parties filed cross-motions for summary judgment and there is no material fact at issue.


            The McQuinns contend that the district court erred by determining that the cement slab and generator was a structure under the zoning ordinance and that, therefore, it was subject to setback requirements.  The interpretation of an ordinance is a question of law subject to our de novo review.  Gadey v. City of Minneapolis, 517 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).  

The McQuinns first argue that the pertinent language of the ordinance is ambiguous.  We disagree.  Section 11.2 of the Nisswa Zoning and Subdivision Ordinance (the ordinance) defines a “structure” as:  

Any building, appurtenance including decks or other facility constructed, placed or erected by man except aerial or underground utility lines such as sewer, electric, telephone, telegraph, gas lines, and except walks or steps on grade not more than 4’ wide, stoops not exceeding 30 sq. ft., fences, temporary furniture, planters, and retaining walls consisting of wood or block four feet high or less.

“Fundamental to our construction of an ordinance is the rule that it ‘should be construed in accordance with the plain and ordinary meaning of its terms.’”  Save Lantern Bay v. Cass County Planning Comm’n, 683 N.W.2d 862, 865 (Minn. App. 2004) (quoting Mohler v. City of St. Louis Park, 643 N.W.2d 623, 634 (Minn. App. 2002), review denied (Minn. Jul. 16, 2002)).  Applying this canon of construction to the text, we conclude that the ordinance is not ambiguous.  If an ordinance is not ambiguous, we will not look beyond the plain language of the ordinance.  Mohler, 643 N.W.2d at 635. 

            The McQuinns next assert that the slab and generator are not a “structure” under the ordinance definition.  In light of the plain language of the ordinance, we conclude that the generator as installed falls within the definition of a “structure” because it is an appurtenance.  The term “appurtenance” includes “everything necessary to the beneficial use of the property, . . . whatever is needed to complete a structure and make it capable of performing its intended function.”  Ethen v. Reed Masonry, Inc., 313 N.W.2d 19, 20 (Minn. 1981) (quotation omitted). 

The McQuinns acknowledge that the generator is necessary for both the full enjoyment and the beneficial use of the property.  In their complaint, the McQuinns state that the generator operates to provide a backup electrical-power source to their residence in the event of interruption of power from the primary source.  They reason that the generator is necessary to prevent damage resulting from failure of the sump pump or the security system, as well as heat loss and damage due to freezing.  Despite an offer to share the generator’s power capacity with immediate neighbors, it is primarily intended to serve the McQuinns’ home, for their own peace of mind and for the use and enjoyment of their property.

            Because the ordinance is not ambiguous, and because the district court applied the plain meaning of the ordinance to the McQuinns’ generator, we conclude that the district court did not err by determining that the cement slab and generator meet the ordinance definition of a “structure.”  Accordingly, the city was entitled to order that the structure be removed or relocated to comply with the setback requirement.


Alternatively, the McQuinns contend that the city has denied their right to equal protection by treating them differently from public utilities within the city’s jurisdiction. “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).  “[T]he equal protection clauses of the Minnesota Constitution and of the Fourteenth Amendment of the United States Constitution require that ‘one applicant not be preferred over another for reasons unexpressed or unrelated to the health, welfare, or safety of the community or any other particular and permissible standards or conditions imposed by the relevant zoning ordinances.’”  Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979) (quoting Hay v. Twp. of Grow, 296 Minn. 1, 8, 206 N.W.2d 19, 24 (1973)). 

The McQuinns assert that the city treated them differently from public utilities by exempting public utilities’ equipment from the setback requirement, while enforcing the setback requirement against the McQuinns’ “private utility.”  We disagree.  The party challenging a city’s enforcement of regulations has the burden to show by a “clear preponderance of the evidence” that the city discriminatorily enforced the regulations.  Kottschade v. City of Rochester, 537 N.W.2d 301, 310 (Minn. App. 1995) (quoting State v. Larson Transfer & Storage, 310 Minn. 295, 302, 246 N.W.2d 176, 181 (1976)), review denied (Minn. Nov. 15, 1995).  Here, the McQuinns failed to make an adequate showing that the city discriminatorily enforced the ordinance regulations as to their slab and generator.

            On this issue, the McQuinns first argue that they have presented evidence showing that other utilities located in the city were not subjected to the same setback requirements.  They submitted photographs of utility-equipment placements that they believe violate the setback requirements.  Although the photographs depict telephone, sewer, and electrical-equipment installations at various locations around the city, the McQuinns offered no evidence regarding the nature of the property or the utility equipment in the photographs.  The McQuinns do not address (1) whether the site depicted is privately or publicly owned; (2) whether the site is subject to any sort of easement or variance; (3) the location of the equipment relative to setback requirements, if any; or (4) evidence of any proceeding that may have addressed the placement of the depicted utility equipment.  Instead, the McQuinns merely rely on their belief and opinion that the depicted equipment was located within setback areas.  A party resisting summary judgment must do more than rest on mere averments. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  The McQuinns have insufficiently developed the record to permit us to conclude that they are “similarly situated” to other utilities.

            The McQuinns argue that neither the ordinance nor Minnesota statutes provide support for a conclusion that “private utilities” and public utilities are not similarly situated.  But they provide no basis on which to designate their generator as a private utility with rights equivalent to those of public utilities.  The McQuinns fail to define the meaning of  “private utility.”  They have not cited any caselaw supporting their concept of a private utility.  The term “private utility” does not appear in Minnesota statutes.  Where the term is found in caselaw, it is used to describe a general class of public utilities that are privately owned.  See, e.g., S. Minn. Mun. Power Agency v. City of St. Peter, 433 N.W.2d 463, 465 (Minn. App. 1988) (describing Northern States Power as a “private utility”). 

The McQuinns do not meet the statutory requirements for a public utility, which is defined as “persons, corporations or other legal entities . . . operating, maintaining, or controlling in this state equipment or facilities for furnishing at retail natural, manufactured or mixed gas or electric service to or for the public or engaged in the production and retail sale thereof. . . .”  Minn. Stat. § 216B.02, subd. 4 (2004).  Although the McQuinns assert that they have offered to share a portion of the generator’s capacity with their few immediate neighbors, they have not held it out to the public.  Moreover, the statute denies public-utility status to a person who “produces or furnishes service to less than 25 persons.”  Id. 

Next, the McQuinns cite the specific language of Minn. Stat. § 216B.164, subd. 2, (2004) for the general proposition that the entire chapter applies to them as a “private utility.”  The McQuinns conclude that because the state of Minnesota encourages cogeneration and small power production, there is no difference between “private utilities” and public utilities.  See Minn. Stat. § 216B.164, subd. 2 (“This section as well as any rules promulgated by the commission to implement this section . . . shall apply to all Minnesota electric utilities, including cooperative electric associations and municipal electric utilities.”).  When read in context, this statute does not stand for the proposition that the public-utilities statute governs both “private utilities” and public utilities.  The McQuinns’ argument is inconsistent with the definition of public utility under section 216B.02, subdivision 4, and it is inconsistent with the expressed legislative intent of the chapter, which provides that regulation of public utilities is in the public interest:

in order to provide the retail consumers of natural gas and electric service in this state with adequate and reliable services at reasonable rates, consistent with the financial and economic requirements of public utilities and their need to construct facilities to provide such services or to otherwise obtain energy supplies, to avoid unnecessary duplication of facilities which increase the cost of service to the consumer and to minimize disputes between public utilities which may result in inconvenience or diminish efficiency in service to the consumers.

Minn. Stat. § 216B.01 (2004).  Beyond their bald assertion that chapter 216B applies, the McQuinns have provided no evidence as to how their generator serves any of the goals of public utilities.

            Finally, the McQuinns’ contention that their “private utility” is similarly situated to public utilities fails to acknowledge the complex body of statutory and regulatory provisions that governs public utilities.  Minnesota Statutes chapter 216B imposes a wide array of duties and obligations on public utilities in such areas as oversight, rate-setting, service level, energy conservation, charitable contributions, and advertising.  See generally Minn. Stat. §§ 216B.01–.81 (2004) (governing public utilities).  The McQuinns have not provided any evidence that they comply with any statute or rule imposed on public utilities.  Therefore, the McQuinns cannot persuasively claim that their “private utility” is similarly situated to highly regulated public utilities. 

            Because the McQuinns have failed to establish that they are a “private utility” similarly situated to public utilities, their argument that the city violated the right to equal protection by ordering them to relocate their generator lacks merit.  The district court, therefore, did not err by summarily dismissing the complaint.    


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