STATE OF MINNESOTA
IN COURT OF APPEALS
City of Oronoco,
Marmas Properties, et al.,
Universal Outdoor, Inc.,
Filed February 2, 1999
Olmsted County District Court
File No. C2-97-2055
Richard I. Diamond, Amy D. Grady, Diamond, Liszt & Grady, P.A., 9855 West 78th Street, Suite 210, Eden Prairie, MN 55344 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
Appellant challenges the district court's grant of injunctive relief. Because appellant failed to provide evidence demonstrating a genuine material fact issue in support of its claim of estoppel, we affirm.
Appellant requests that this court reverse the injunction, but challenges neither the finding that the billboard violates the ordinance nor the ordinance itself. This court has explained that an injunction is "often the most efficient way for a local governmental unit to deal with continuing zoning violations." Rockville Township v. Lang, 387 N.W.2d 200, 205 (Minn. App. 1986) (citing City of Minneapolis v. F & R, Inc., 300 N.W.2d 2, 4 (Minn. 1980)). Irreparable harm is inflicted upon a governmental unit by a "continuous and knowing violation of that body's duly promulgated laws and regulations. To permit such violations is to deny the local unit's authority to govern." Id.
Nonetheless, as appellant contends, estoppel has previously been applied against units of government to provide relief for private parties. This court has held that estoppel is an equitable doctrine "addressed to the trial court's discretion, and which is not freely applied against the government." REM-Canby, Inc. v. Minnesota Dept. of Human Servs., 494 N.W.2d 71, 74 (Minn. App. 1992), review denied (Minn. Feb. 25, 1993). An estoppel claim against the government requires proof of the following five elements:
(a) the government made a misrepresentation of a material fact; (b) the government knew the representation was false; (c) the government intended that its representation be acted upon; (d) the providers did not know the facts; and (e) the providers relied upon the government's misrepresentation to their detriment.
Id. To succeed with the defense of estoppel, appellant must prove all five elements. Id. Furthermore, the party asserting estoppel must demonstrate that the government entity engaged in affirmative misconduct, "rather than simple inadvertence, mistake, or imperfect conduct." Id. (citations omitted). Appellant fails to provide any evidence of affirmative misconduct, much less raise a fact issue as to inadvertence or mistake.
The district court rejected the claim of estoppel and granted respondent's motion for summary judgment. The crux of appellant's argument is a request that this court infer from appellant's construction of a nonconforming billboard that respondent must have given approval to appellant for a nonconforming sign. However, such an inference overlooks the requirement of some form of affirmative evidence.
Minnesota Rules of Civil Procedure require that both supporting and opposing affidavits shall be made "on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Minn. R. Civ. P. 56.05. In addition, in the same opposing affidavits, a party must present specific facts showing that there is a genuine issue for trial. Id. At best, appellant demonstrates nothing more than confusion as to approval for the sign. Appellant's most persuasive evidence demonstrates only that respondent approved a blank sign that was to be larger than permitted by city ordinance.
Moreover, appellant has not presented any direct evidence of an individual with personal knowledge of facts surrounding the alleged approval of the nonconforming sign. A nonmoving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment and "must do more than simply show that there is some metaphysical doubt as to the material facts." Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (citations omitted). This court has held that an inference that is mere speculation does not create a genuine issue of material fact. Id. at 716. Appellant has explained that the employee who allegedly requested and received approval from the Planning and Zoning Commission is no longer employed by them. But they offer no other evidence to convince this court as to the existence of a genuine issue as to approval for the billboard and fail to explain their inability to find the lost employee.
Finally, appellant claims it has suffered a detriment in relying on respondent's supposed approval. Without deciding whether appellant has suffered a detriment which satisfies the last prong of estoppel, we reject this argument of appellant. First, this court has held that the administration of a zoning ordinance "is a governmental function and that a `municipality cannot be estopped from correctly enforcing the ordinance even if the property owner relied to his detriment on prior city action.'" SLS Partnership, Apple Valley v. City of Apple Valley, 511 N.W.2d 738, 743 (Minn. 1994) (quoting Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 607 (Minn. 1980)). Because appellant does not challenge the ordinance, respondent is entitled to correctly apply and enforce its ordinance notwithstanding any reliance by appellant. Furthermore, it is not clear that appellant has suffered any harm because it has separate remedies under its contract with defendant Marmas.
Next, appellant argues that the district court erred by excluding its affidavit testimony as hearsay, despite the fact that the evidence is non-affirmative, is not made on personal knowledge, and relies on speculation. Absent an abuse of discretion, this court will not reverse a trial court's evidentiary rulings. Kronebusch v. MVBA Harvestore Sys., 488 N.W.2d 490, 495 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).
First, appellant offered affidavits from Christ McCarver, vice-president of Universal, and a second affidavit from James Marmas, president of Marmas, in support of its motion for amended findings. In considering a motion for amended findings, a court "may neither go outside the record nor consider new evidence." Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974). The district court correctly rejected the affidavits because they were not offered into evidence during the initial proceedings. In addition, we agree with the district court's conclusion that the affidavits of Richard Diamond, appellant's attorney, and the first affidavit of James Marmas failed to demonstrate "personal knowledge" of approval for the billboard and therefore were inadmissible as hearsay. See Minn. R. Civ. P. 56.05 (requiring affidavits to be based on "personal knowledge").
We reject appellant's argument that the affidavits are admissible under the business records exception to hearsay. The affidavits were clearly prepared in anticipation of litigation and were not made with personal knowledge of the facts offered. See Minn. R. Evid. 803(6) (providing for the inclusion of "[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity * * * [a] memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception").
Finally, we reject appellant's challenge to the district court's refusal to take judicial notice of the sketch of the billboard. Appellant reasons that, because the smaller sign under the larger blank billboard had the words "Marine Outlet" written on it, the larger sign should have obviously been understood to be for something other than a "Marine Outlet." Judicial notice is limited to facts "`not subject to reasonable dispute'" and is "intended to expedite litigation by avoiding the time and expense of formally proving factual matters that can be established by `unquestionable sources of information.'" Fluoroware, Inc. v. Chubb Group of Ins. Cos., 545 N.W.2d 678, 684 (Minn. App. 1996) (quoting State, Dep't of Highways, v. Halvorson, 288 Minn. 424, 430, 181 N.W.2d 473, 476 (1970)). Appellant seeks to establish through judicial notice the respondent's state of understanding of the sign application. The district court correctly rejected appellant's effort to have this key disputed fact established by judicial notice.