This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
County of Dodge, et al.,
Dodge County District Court
File No. 20-CV-05-400
David W. VanDerHeyden, VanDerHeyden & Ruffalo, 302 Elton Hills Drive Northwest, Suite 300, Rochester, MN 55903; and
Thomas M. Canan, 18 Third Street Southwest, Suite 302, Rochester, MN 55902 (for appellant)
Paul D. Reuvers, Amber S. Lee, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)
Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Wright, Judge.
On appeal from summary judgment in a mandamus action challenging the denial of a conditional use permit (CUP), appellant-applicant argues that the district court erred in determining that (1) respondent-county complied with Minn. Stat. § 15.99 (2006), (2) the board of adjustment’s action was reasonable and not arbitrary or capricious, (3) appellant failed to raise a valid promissory- or equitable-estoppel claim, (4) respondent’s ordinance is not void for vagueness, and (5) appellant failed to raise a valid takings claim. We affirm.
Since 1993, respondent Dodge County (county)
has been concerned with bringing the Unger family’s salvage yard into
compliance with local ordinances and state and federal law. A number of citizen complaints, safety risks,
and environmental hazards were noted by the county during the 1990s. The county worked with the Ungers and
initiated court proceedings during this time to get them to bring the property
into compliance. In 1995, the county
adopted its zoning ordinance regulating the use of land.
Between late 1998 and early 1999, appellant Todd Unger purchased the property, took over the salvage yard, and assumed responsibility for the continuing clean-up efforts. On September 12, 2000, the county granted Unger a six-month conditional use permit (CUP) to operate the salvage yard in the agricultural district. The CUP expired in March 2001. In September 2003, Unger submitted an application for another CUP, which was returned as incomplete. On October 8, 2003, the county notified Unger that, on further consideration, it had determined that a CUP was inappropriate because the non-conforming use was discontinued for one year or more and a salvage yard is not a permitted use in the agricultural district. The county restated its position in letters to Unger dated November 14, 2003; March 23, 2004; and September 20, 2004, that rejected his repeated CUP applications.
In the September 2004 letter, the county informed Unger that he had three options: apply to rezone the property for industrial use, provide adequate evidence that business activity has been conducted on the property without a one-year lapse, or appeal the zoning administrator’s decision to reject the application. Unger appealed the decision to the board of adjustment (board). On November 17, 2004, and January 5, 2005, the board heard Unger’s appeal. At the January 5 meeting, the board denied the appeal. The board grappled with the decision and most members acknowledged that some income-producing activity was occurring on the property during the relevant one-year period, from March 2001 to March 2002. But because the activity seemed to be related to the clean-up efforts rather than new scrap-yard business, and because Unger did not reapply for a CUP during that year, the board affirmed the determination that application for a CUP was inappropriate.
In February 2005, Unger served the county with a petition for a writ of mandamus, which was filed with the district court in May 2005. In March 2006, the county moved for summary judgment. Unger also moved for summary judgment on his claim that the county failed to comply with Minn. Stat. § 15.99 (2006). Following a hearing, the district court denied Unger’s motion and granted the county’s motion for summary judgment. In doing so, the district court determined that the county complied with section 15.99; the board’s decision was reasonable and not arbitrary or capricious; Unger did not raise a valid estoppel, laches, or waiver claim; the county’s zoning ordinance was not void for vagueness; and Unger did not raise a valid takings claim. Judgment was entered September 6, 2006, and this appeal followed.
is not the function of the courts to interfere with the legislative discretion
on [zoning matters].” State ex rel. Howard v. Vill. of Roseville,
244 Minn. 343, 347, 70 N.W.2d 404, 407 (1955).
Thus, we give great deference to a city or county land-use
decision. SuperAmerica Group, Inc. v. City of Little
county’s zoning ordinance provides that use of property in existence at the
time the zoning ordinance was passed and approved in 1995 that was not in
conformity with the regulations “shall be regarded as non-conforming, but may
be continued, extended or changed, subject to the special regulations herein
provided with respect to non-conforming properties or uses.”
zoning ordinance deems it “necessary and consistent with the establishment of
zoning districts that non-conforming buildings, structures and uses not be
permitted to continue without restriction.”
conditional use is a “land use or development as defined by Ordinance that
would be inappropriate generally but may be allowed with appropriate
restrictions as provided by official controls upon [required] finding[s].”
Unger argues that, because the
county’s rejection of his application materials was arbitrary and capricious,
it should not be deemed to comply with the requirement in Minn. Stat.
§ 15.99, subd. 2(a) (2006), that an agency approve or deny within 60 days
a written request related to zoning.
Unger cites no legal authority for his theory, and his argument is
inconsistent. Unger first asserts that
he appealed the denial of his CUP
application. By referring to the
county’s letter as a denial, he invokes the 60-day rule. But the county did not deny his application. Rather, it sent a timely rejection of the
application materials as incomplete, which restarts the 60-day timetable. See
Minn. Stat. § 15.99, subd. 3(a) (2006) (providing that if agency receives
written request that does not contain all required information, 60-day limit
starts over if agency sends written notice within 15 days telling applicant what
information is missing). Furthermore,
the planning director, who rejected the application materials, does not have
the authority under the zoning ordinance to deny the application.
Unger then argues that, because the county acted arbitrarily when rejecting his application materials, based on its determination that he lost his non-conforming-use status under the ordinance, the county has not complied with section 15.99. But whether Unger lost his non-conforming-use status is the precise issue that was appealed to the board and to this court. If the board had agreed with Unger, the county would have been required to accept his application materials and make a decision within 60 days. The same is true of this appeal. If we determine that the application materials were sufficient, the county would be required to accept the application for consideration and make a timely decision. If the board’s decision were reversed on appeal and the county were ordered to accept Unger’s application, the 60-day limit would restart. See Minn. Stat. § 394.27, subds. 6, 9 (2006) (providing process for appealing administrative decision to board of adjustment and for appealing board’s decision to district court); see also Minn. Stat. § 15.99, subd. 3(d) (providing that 60-day time limit is tolled if state statute requires other process to occur before agency acts).
county complied with the plain language of section 15.99, subdivision 3(a), by
issuing written reasons for rejecting Unger’s application materials and indicating
what information was lacking. See Hans
Hagen Homes, Inc. v. City of Minnetrista, 728 N.W.2d 536, 544 (
Unger next argues that the county
and the board acted arbitrarily and capriciously in determining that he failed
to show that he had continuously engaged in “business activity.” Unger attempts to recast this as a question of
law when, in fact, it presents a question of sufficiency of the evidence. The ordinance at issue does not address
business activity. It states that, “[i]n
the event that a non-conforming use of any structure or structure and land is
discontinued for a period of one (1) year, the use of the same shall conform
thereafter to the uses permitted in the district in which it is located.”
When rejecting his CUP application, the county informed Unger that he could make this showing by supplying information of business revenue or activity. This was not a legal standard that he was required to meet or that the county and board were applying. Rather, it was one manner by which he could show that his property retained its non-conforming-use status. The county determined that the information Unger supplied was insufficient, and the board affirmed that decision. On review, we must determine whether the board’s decision was made arbitrarily, capriciously, or unreasonably, and whether the evidence reasonably supports the decision.
It is evident from the record that the board wrestled with this issue because Unger had submitted voluminous documents in an attempt to show business activity on the property. But the county’s position, as stated by the planning director who rejected the application, was that there was business activity but “[n]ot necessarily at this site, per se. I guess we’re simply asking him to provide us with some documentation that in fact he did operate from this site and we at this point in time do not feel that we have adequate documentation to draw that conclusion.” The board also questioned whether the activity was actually related to business or whether it was related to the clean-up efforts. In the end, the board affirmed the determination that the evidence did not show that Unger continued his non-conforming use of that property during the year in question and, therefore, that he had lost his non-conforming-use status.
The board’s decision is supported by the record and is not arbitrary, particularly in light of the letters and testimony from neighbors stating that Unger had not been operating a scrap-yard business on the property for years. As Unger himself summed up the situation:
[I]t’s my own . . . fault for not renewing the permit, but I didn’t look at it that way. I didn’t have the money to continue what I was doing. I had to get another job. I did. We also kept cleaning it up. Whether that’s business activity or not -- I’m a self employed guy. I subcontract to other companies. I mean, I’m working for myself. I sold -- In essence, I sold the scrap to me and I paid myself . . . .
Thus, Unger admitted that the income-generating activity that occurred after the CUP expired was related to his clean-up efforts and not from operating a scrap-yard business.
Although Unger argues that inconsistencies in the county’s requirements confused the issue of whether he was even allowed to conduct new business, there are no such inconsistencies. The clean-up agreement precluded him from bringing in new scrap or salvage but only “until a conditional use permit is issued.” Once the CUP issued, his new business plan was incorporated and compliance with the clean-up agreement was a condition of the CUP. The business plan contemplated “handl[ing] iron, tin, cars, farm machinery and non-ferrous metals such as aluminum[ ], copper, dicast, catalytic converters and brass – nothing hazardous, some appliances[,] refrigerators or freezers.” Operating hours of 8:00 a.m. until 5:30 p.m. were established. As Unger explained at the August 2, 2000 planning commission meeting, “car crushing” was his “main business”; scrap metal and an estimated “110-120 cars per month” “would come in, be crushed and shipped out.” The CUP did not preclude business activity; rather, it was issued specifically for that purpose.
The board expressed some confusion regarding what legal standard they were to apply to the facts. But despite their hesitation, a thorough review of the record demonstrates that the board understood what it was deciding, namely, whether the evidence submitted demonstrated continued use of the property as a scrap-yard business during the year in question. After giving the matter thorough and thoughtful consideration, the board determined that the evidence did not establish that Unger’s non-conforming use of the land continued for the relevant period. Thus, the decision was not made capriciously or unreasonably. See Town of Grant, 319 N.W.2d at 717 n.2 (“[T]he record illustrates that the Board’s members had a comprehension of the issues which in our view justifies the presumption that its decision was correct.”).
Because the board’s determination is supported by the record and is not arbitrary, capricious, or unreasonable, the district court did not err in granting the county’s motion for summary judgment on this issue.
a related argument, Unger contends that the zoning ordinance is void for
vagueness because it contains no definition of “business activity.” The interpretation of a local zoning
ordinance is a question of law, which we review de novo. Clear
Channel Outdoor Adver., Inc., 675 N.W.2d at 346. We construe the language of a zoning
ordinance according to its plain and ordinary meaning and in favor of the
municipal ordinance is presumed constitutional.
Unger’s argument on this point fails because, as discussed in section II, the ordinance at issue does not refer to “business activity.” Dodge County, Minn., Zoning Ordinance § 604.2. The county advised Unger that he could demonstrate that his non-conforming use had not been discontinued for a year by supplying information of business revenue or business activity. According to Unger, car crushing was his main business. Thus, Unger was required to show that his non-conforming use, operating a scrap-yard business, continued for the year in question.
An ordinance is not vague simply because in some circumstances, as is the case here, it may be difficult to determine whether a party has discontinued his non-conforming use. The ordinance is clear in that it expressly provides that property loses its non-conforming-use status if that use is discontinued for one year. If that occurs, only permitted uses shall be allowed. Therefore, the district court correctly entered summary judgment on this issue.
Unger argues that the district court
erred by granting the county’s motion for summary judgment on his promissory-
and equitable-estoppel claims because he raised genuine issues of material fact
on those claims. 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,
estoppel implies a contract in law where no contract exists in fact.” Deli v.
Univ. of Minn., 578 N.W.2d 779, 781 (Minn. App. 1998), review denied (Minn. July 16, 1998). To establish promissory estoppel, the party
seeking relief must show a clear and definite promise, intended to induce
reliance and on which the promisee relied to his or her detriment, that must be
enforced to prevent injustice. Cohen v. Cowles Media Co., 479 N.W.2d
387, 391 (
estoppel prevents a party from “taking unconscionable advantage of [its] own
wrong by asserting [its] strict legal rights.”
Brekke v. THM Biomedical, Inc.,
683 N.W.2d 771, 777 (
court is hesitant to apply estoppel in zoning matters, and will apply the
doctrine sparingly.” Dege v. City of
The district court correctly granted the county’s motion for summary judgment on Unger’s estoppel claims. First, the county cannot be estopped from correctly enforcing its ordinance; and second, the record is devoid of any facts that would support the conclusion that Unger’s reliance on the alleged promise was reasonable. The promise, if any, that Unger would be allowed to operate a salvage yard if he cooperated with the clean-up effort was honored when the county issued a CUP in 2000. Unger admits that he allowed the CUP to expire and did nothing to renew it in a timely fashion. After the CUP’s expiration, any continued reliance on the county’s promise that Unger would be authorized to operate a salvage yard in the agricultural district was unreasonable as a matter of law because to do so would be a violation of the zoning ordinance. See Dege, 416 N.W.2d at 856-57 (holding that property owner was not entitled to relief on estoppel theory when he had constructive notice when permit issued that use was illegal and public has interest in uniform zoning-regulation enforcement).
It also is unreasonable as a matter of law for Unger to allow his CUP to lapse and return to the county years later with the expectation that a new CUP application will be approved. Unger could not reasonably construe the county’s actions as authorizing him to operate the scrap-yard business in contravention of the county’s ordinances. Because Unger cannot show that his continued reliance on the alleged promise was reasonable after he failed to renew the CUP in 2001, the district court did not err in entering summary judgment on the estoppel claims.
also argues that the government action in this case constitutes a taking that entitles
him to compensation. Private property
cannot be taken for public use without just compensation.
“It is a fundamental
principle of the law of real property that uses lawfully existing at the time
of an adverse zoning change may continue to exist until they are removed or
otherwise discontinued.” Hooper v. City of
A takings analysis typically involves factual issues that make summary judgment inappropriate. Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d 281, 285 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). But because there are no material fact issues here, summary judgment is appropriate. Although the district court did not address the ripeness issue, the record establishes that Unger’s takings claim is not ripe for review. In the September 2004 letter, the county informed Unger that he had three options, including the option to appeal the county’s rejection of his application materials and the option “to apply for a zone change to rezone the property to Industrial.” The record is devoid of information regarding any attempt by Unger to request rezoning. Although Unger argues that rezoning of the property “is unlikely given the agricultural character of the land surrounding [Unger’s] property,” he does not contend that seeking rezoning would be futile. See McShane, 292 N.W.2d at 256 (stating that exhaustion of remedies is not required if futile).
at the hearing, the board members discussed the option of Unger requesting
rezoning. One member stated, “I don’t
know why the commissioners couldn’t come back because they make the ultimate
decision on re-zoning. They could look
at this and I know this is a bad deal to do, but I think this is kind of a
unique case. They could look at this
site specific and say, okay, we’re going to give a variance to our zoning
ag[ricultural] area because of this hardship case.”
It is uncontroverted that
Unger did not seek rezoning. And the
board determined only that Unger had discontinued his use of the property as a
salvage yard and, therefore, lost his non-conforming-use status. The board’s decision did not constitute a
taking. The board’s action did not deny Unger
residential or recreational uses of the property. And in light of the board’s determination
that Unger was no longer using the property as a salvage yard, that use also has
not been taken from him. If Unger seeks
to rezone the property so that he can operate a salvage yard lawfully and the
county denies the rezoning request, Unger may have a cognizable takings claim. But the narrow decision by the board that
Unger discontinued his use of the property as a salvage yard cannot be
construed as a taking. Because “we will
not reverse a correct decision simply because it is based on incorrect
reasons,” Katz v. Katz, 408 N.W.2d
835, 839 (
 In 2000, contrary to this ordinance, the county granted Unger a CUP to operate a salvage yard in the agricultural district.
 In the alternative, Unger argues that the CUP never
expired because the zoning ordinance does not authorize time limits. See
Lam v. City of St. Paul, 714 N.W.2d
740, 744-45 (Minn. App. 2006) (noting that CUP did not expire and code did not
provide for automatic expiration and thus permitted uses continued to
exist). But a time limit is an
authorized condition for a CUP under