may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed March 18, 1997
Cass County District Court
File No. T3-94-1589
Earl E. Maus, Cass County Attorney, Jon P. Eclov, Assistant County Attorney, P.O. Box 3000, Walker, MN 56484 (for Respondent)
John E. Valen, Fifth and Michigan, P.O. Box 1105, Walker, MN 56484 (for Appellant)
Considered and decided by Amundson, Presiding Judge, Short, Judge, and Klaphake, Judge.
Appellant challenges his criminal conviction for zoning violations, arguing that prosecution was barred by the statute of limitations and that the alleged violation should be waived, allowing prior nonconforming use to continue. We affirm.
In 1994, after hiring an enforcement officer for zoning offenses, the county brought a criminal complaint against Loomis for misdemeanor violations of the ordinances. Loomis was found guilty. This appeal followed.
The statute of limitations was developed out of concern for prejudice to the defendant from having to defend himself against stale claims. State v. Danielski, 348 N.W.2d 352, 356 (Minn. App. 1984), review denied (Minn. July 26, 1984). Continuing offenses are subject to the statute of limitations, but the limitation applies to the period between the time the offending conduct ends and the time of the complaint. Unless the criminal statute explicitly defines the offense as continuing, or unless the legislature clearly intended the offense to be a continuing offense, the offense will not be construed as a continuing offense. State v. Lawrence, 312 N.W.2d 251, 255 (Minn. 1981).
Loomis was found guilty of offenses under the County-Wide Ordinance for the Management of Recreational Vehicle-Tent Camping Areas, Mobile Home Parks for Cass County, Mn. (1988) (RV ordinance), and Ordinance 92-2, Intent to Enact Shoreland Ordinance Amendments (1992) (shoreland ordinance). Section 8.4 of the RV ordinance provides:
Any person, firm or corporation who shall violate any of the provisions thereof or who shall fail to comply with any of the provisions submitted under the provisions hereof shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of Five Hundred Dollars ($500.00) or by imprisonment of not to exceed ninety (90) days or both. Each day that the violation continues shall constitute a separate offense.
Although we are concerned by the ordinance's poor statutory organization, the shoreland ordinance does appear to adopt the RV ordinance by reference. In any case, the legislative intent was to classify these offenses as continuing offenses. In this type of zoning ordinance, we must conclude that noncompliance is a continuing violation. The statute of limitations does not apply to Loomis's violations.
All legally established nonconformities as of the date of this ordinance may continue, but they will be managed according to applicable state statutes and other regulations of the county for the subject of alterations and additions, repair after damage, discontinuance of use, and intensification of use * * *
Loomis asserts that there had always been camping at the location of the five campsites, and that the construction of decks, hook-ups, and sewer lines does not change the nature of the location. That assertion is not valid. Loomis's conversion of the area in question from an undeveloped area where a tent could be pitched to five campsites that have electrical, water, and sewer connections, and often sundecks and gardens, qualifies as an alteration or addition.
Loomis argues that because the shoreland ordinance uses the term "nonconformities," as opposed to "nonconforming use" or "nonconforming structure," the clause must be read in his favor. In support of this argument, Loomis cites a case in which a garage was held to be a nonconforming structure, rather than a nonconforming use, and therefore retained its protected status conferred by a grandfather clause. See Odell v. City of Eagan, 348 N.W.2d 792, 797 (Minn. App. 1984). This argument, however, is irrelevant because the grandfather clause in question does not apply in this case, due to Loomis's alterations and additions to the area.
Finally, Loomis himself applied for a conditional use permit in 1981 for "additional five independent and ten independent campsites." His application underscores his understanding that he was creating new sites, or at least altering existing ones to the extent he calls them additional. That permit was issued on the clear condition that Loomis satisfy that the 75-foot setback requirement, which he ignored.
The district court's finding of Loomis's guilt is not disputed. The county's eagerness to criminally prosecute one of its residents for a zoning violation is curious. Given the turbid nature of the county's zoning ordinances, and considering the importance of notice in any criminal ordinance, aren't such matters more appropriately handled in a civil forum? Affirmed.