This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-692

State of Minnesota,

Respondent,

vs.

Tammie Nelson,

Appellant.

Filed December 10, 1996

Affirmed

Willis, Judge

Ramsey County District Court

File No. T595628281

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Martin J. Costello, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for Respondent)

Tammie Nelson, 1840 East Shore Drive, Maplewood, MN 55109 (Pro Se Appellant)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Tammie Nelson appeals her misdemeanor conviction for keeping livestock in violation of the City of Maplewood zoning ordinance, arguing that because (1) "livestock" is not defined in the Maplewood zoning ordinance and (2) the animals are not a nuisance, she should not have been convicted of violating the ordinance. We affirm.

FACTS

In June 1995, Maplewood received anonymous complaints about chickens and sheep on Nelson's property. Maplewood's animal control officer visited Nelson and informed her that the animals were being kept in violation of the Maplewood zoning ordinance, which "prohibits, in residential areas, [t]he raising or handling of livestock or animals causing a nuisance." Maplewood, Minn., Mun. Code § 36-66(c)(1). Nelson did not remove the animals and was cited for violating the ordinance in August 1995 and again in November 1995.

The trial court, relying on this court's decision in State v. Nelson, 499 N.W.2d 512 (Minn. App. 1993),[1] review denied (Minn. June 22, 1993), held that the chickens are not livestock, but also determined that the sheep are livestock, within the meaning of the Maplewood zoning ordinance. Accordingly, the court found Nelson guilty of two misdemeanor violations for raising or handling livestock in an area zoned residential and fined her $150 on each count. The court suspended the fines for one year on the conditions that Nelson remove the sheep within 10 days of the entry of the order and refrain from further violations of the zoning ordinance. This appeal followed.

D E C I S I O N

The interpretation of a zoning ordinance is a question of law, which is reviewed de novo by this court. BBY Investors v. City of Maplewood, 467 N.W.2d 631, 634 (Minn. App. 1991), review denied (Minn. May 23, 1991).

The Maplewood zoning ordinance "prohibits (1) all livestock, and (2) any animal causing a nuisance." State v. Nelson, 499 N.W.2d 512, 514 (Minn. App. 1993), review denied (Minn. June 22, 1993). The trial court found that sheep are livestock and thus did not reach the question of whether the sheep cause a nuisance. Because we agree that sheep are livestock, we do not address the issue of nuisance on appeal.

Zoning ordinances must be strictly construed in favor of the property owner. Id. Additionally, ordinances that subject a person to criminal liability must be strictly construed in favor of the accused. Id. In Nelson, the court found that because poultry are sometimes described in Minnesota statutes as a category separate from livestock, a strict construction of the Maplewood zoning ordinance required the conclusion that the term "livestock" in the ordinance does not include chickens or other poultry.[2] Id.

Statutory definitions of livestock commonly include sheep. See, e.g., Minn. Stat. § 17A.03, subd. 5 (1994) ("'Livestock' means cattle, sheep, swine, horses intended for slaughter, mules, * * * and goats."); Minn. Stat. § 31.59, subd. 3 (1994) ("'Livestock' means cattle, horses, swine, sheep and goats."); see also, e.g., Colo. Rev. Stat. Ann. § 35-46-101(2) (West 1995) (defining "[l]ivestock" as "horses, cattle, mules, asses, goats, sheep, swine, buffalo, and cattalo"); Neb. Rev. Stat. § 54-101(15) (1993) (defining "livestock" as "any domestic cattle, horses, mules, donkeys, sheep, or swine"). Because there is nothing before the court to suggest that sheep, like poultry, are sometimes described as a category of animals separate from livestock, even strict construction does not require a finding that sheep are excluded from the definition of "livestock," as that term is used in the Maplewood ordinance.

Nelson further argues that because the term "livestock" is not defined in the zoning ordinance, Maplewood can decide what animals are and what are not livestock, and the city therefore may apply the ordinance discriminatorily. She claims that various definitions of livestock are broad enough to include dogs and argues that some dogs fit the definition of livestock better than her sheep do. Nelson properly suggests that the Maplewood zoning ordinance at issue could define livestock. However, the fact that Maplewood interprets the ordinance to prohibit sheep, which are generally recognized as livestock, but not to prohibit dogs, which are not generally recognized as livestock, does not make application of the ordinance discriminatory here. The trial court did not err in finding that sheep are livestock within the meaning of the Maplewood zoning ordinance.

Affirmed.

[ ]1These parties were previously before this court in a separate case involving the same ordinance.

[ ]2Respondent contends the finding in Nelson that "the term [livestock] * * * does not reach chickens or other poultry" should be reconsidered in light of Minn. Stat. § 35.01, subd. 3 (1994), which defines "[l]ivestock" and "domestic animals" to include poultry. See 499 N.W.2d at 514. We disagree. The court in Nelson recognized that some definitions of livestock include poultry, but also noted there are Minnesota statutes that refer to poultry as a separate category. The Maplewood ordinance could define livestock to include poultry. It does not.