This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Town of Lakewood,



Linda Martinson,


Filed February 16, 1999


Peterson, Judge

St. Louis County District Court

File No. C996602032

John H. Bray, 222 W. Superior Street, Suite 200, Duluth, MN 55802 (for appellant)

Richard C. Hansen, 4731 E. Superior Street, Duluth, MN 55804 (for respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.



In this appeal from a judgment appellant argues that the trial court erred by failing to make findings of fact and by determining that a zoning ordinance is unconstitutional as applied to respondent. We affirm.


Neighbors of respondent Linda Martinson complained to appellant Town of Lakewood about rusting motor vehicles and other items on Martinson's property. In 1994, the town issued a criminal citation against Martinson for violating Lakewood, Minn., Zoning Ordinance art. III, § 2 (HH) (1996), which provides:

Junk or Salvage Yard - Any motor vehicle which is either inoperable or does not have current plates is classified as a junk vehicle. The presence of three (3) or more junk vehicles constitutes a junk or salvage yard. (A vehicle must be in operable condition or have current license plates in order not to be considered a junk vehicle. However, vehicles stored in enclosed buildings are not considered junk vehicles regardless of their condition or the status of their license.) In addition, any place where the salvaging or scavenging of goods, articles, or merchandise is not contained entirely within enclosed buildings constitutes a junk or salvage yard. Junk or Salvage Yards are not permitted within the Town of Lakewood.

Martinson pleaded guilty and was fined. A year later, Martinson was again cited for violating the ordinance and again pleaded guilty and was fined.

On August 19, 1996, pursuant to Minn. Stat. § 366.16 (1996), the town filed a complaint seeking to enjoin Martinson from violating the ordinance. While the civil action was pending, the town began two more criminal actions against Martinson for violating the ordinance. After pleading not guilty in both criminal actions, Martinson was tried and convicted. The trial court in the criminal actions directed the town to notify Martinson "in writing what must be removed."

On November 8, 1996, the town filed an amended complaint alleging that (1) Martinson had a junk or salvage yard on her property in violation of the zoning ordinance; (2) Martinson was warned by Lakewood to abate her violation; (3) Martinson had twice been adjudged and determined to be in criminal violation of the ordinance; and (4) that the period to abate the violation had expired. The complaint requested that the trial court (1) declare that Martinson was violating the ordinance; (2) order Martinson to cease any and all activities that violate the ordinance; and (3) award the town damages for the costs, expenses and disbursements incurred.

The trial court denied the town's request for relief in its entirety. In an attached memorandum that was incorporated into the order for judgment, the trial court concluded that (1) because Martinson has only two unlicensed vehicles on her property, the town failed to prove that she violated that portion of the ordinance; and (2) the second part of the ordinance regarding miscellaneous material on her property is unconstitutional as applied to Martinson because "[n]o notice was provided to [Martinson] as to what was necessary to abate any alleged violation of the ordinance."


When a party appeals from a judgment without having made a motion for a new trial,

"the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment."

Doan v. Medtronic, Inc., 560 N.W.2d 100, 104 Minn. App. 1997) (citations omitted), review denied (Minn. May 14, 1997).

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01.

I. Findings of Fact

The town contends that the trial court committed reversible by failing to make meaningful findings of fact or conclusions of law.

Minn. R. Civ. P. 52.01 provides:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds for its action. * * * It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court or in an accompanying memorandum.

Although the trial court did not make specific findings of fact and conclusions of law in its order, the court made findings and conclusions in paragraph form in its accompanying memorandum as permitted by Minn. R. Civ. P. 52.01.

II. Constitutionality of ordinance

The town contends that the trial court erred by applying the unconstitutional-as-applied doctrine in a civil action brought to obtain an injunction to enforce a zoning ordinance. The town argues that the justification for the unconstitutional-as-applied doctrine is to enable individuals to "avoid the imposition of criminal sanctions under circumstances in which they had neither `fair warning' nor `notice' that their conduct may involve criminality." Therefore, the town concludes, because criminal sanctions are not available in this civil action, the unconstitutional-as-applied doctrine is inapplicable, and the trial court improperly relied upon criminal cases to apply the doctrine.

The town's argument is confusing because it mixes together two separate concepts that apply when an ordinance is challenged as impermissibly vague.

The doctrine of vagueness is embodied in the due process clauses of the Fifth and Fourteenth Amendments. Due process incorporates notions of fair notice or warning. Smith v. Goguen, 415 U.S. 566, 572, 94 S. Ct. 1242, 1246, 39 L.Ed.2d 605 (1974). As the Supreme Court said in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L.Ed. 322 (1926):

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

Geiger v. City of Eagan, 618 F.2d 26, 28 (8th Cir. 1980) (alteration in original).

Under the vagueness doctrine, an ordinance may be challenged on the basis that the ordinance is facially unconstitutional or that it is unconstitutional as applied. "Facial vagueness sufficient to violate due process only results when no reasonable interpretation consistent with the purpose of the statute can be advanced." Insurers' Action Council, Inc. v. Heaton, 423 F. Supp. 921, 925 (D. Minn. 1976). In contrast, to prevail on a claim that an ordinance is unconstitutional as applied, it is only necessary to show that the ordinance is impermissibly vague as applied to the individual who challenges the ordinance. State, City of Minneapolis v. Reha, 483 N.W.2d 688, 691 (Minn. 1992).

Martinson asserted both a facial challenge and a claim that the ordinance is unconstitutional as applied to her. Given that Martinson asserted an unconstitutional-as-applied claim, it is not apparent what the town means when it argues that the unconstitutional-as-applied doctrine is inapplicable.

If the town means to argue that the vagueness doctrine is inapplicable because no criminal penalties will be imposed as a result of this civil action, we disagree. Although the cases cited by the trial court were criminal cases, as a general rule, guaranties of due process of law have been applied to civil as well as to criminal proceedings. 16D C.J.S. Constitutional Law § 1139 (1985); see also Oddsen v. Board of Fire & Police Comm'rs, 321 N.W.2d 161, 170 (Wis. 1982) (right of due process not limited to criminal matters).

The record supports the trial court's conclusion that the town failed to prove a violation of the ordinance based upon the presence of junk vehicles. While this action was pending in the trial court, Martinson obtained licenses for vehicles on her property so that she had no more than two unlicensed vehicles. Some of the licensed vehicles were inoperable and would therefore be classified as junk vehicles under the first sentence in the ordinance. But that sentence is contradicted by the first sentence in parenthesis, which states that a vehicle is not considered to be a junk vehicle if it is in operable condition or has a current license plate.

The trial court also determined that the portion of the ordinance that prohibits the salvaging or scavenging of goods, articles, or merchandise is impermissibly vague because the words "salvaging" and "scavenging" do not have a common understanding and because the ordinance does not specify any quantity of goods, articles, or merchandise that must be present to constitute a junk or salvage yard.

We disagree with the trial court's conclusion that the ordinance does not specify a quantity of items that must be present to constitute a junk or salvage yard. The ordinance states that any place where salvaging or scavenging "is not contained entirely within enclosed buildings constitutes a junk or salvage yard." This means that the ordinance is violated if any salvaging or scavenging occurs outside a building.

But we agree with the trial court that the words "salvaging" and "scavenging" do not have a common understanding and leave Martinson guessing at the meaning of the ordinance. The trial court cited Webster's Ninth New Collegiate Dictionary, which defines salvage and scavenge as follows:

salvage * * * n * * * 1 a: compensation paid for saving a ship or its cargo from the perils of the sea or for the lives and property rescued in a wreck b: the act of saving or rescuing a ship or its cargo c: the act of saving or rescuing property in danger (as from fire) 2 a: property saved from destruction in a calamity (as a wreck or fire) b: something extracted (as from rubbish) as valuable or useful

salvage vb * * * to rescue or save (as from wreckage or ruin) * * *

* * * *

scavenge * * * vb * * * 1 a (1): to remove (as dirt or refuse) from an area (2): to clean away dirt or refuse from * * * b: to feed on (carrion or refuse) 2 a: to remove (burned gases) from the cylinder of an internal-combustion engine after a working stroke b: to remove (as an undesirable constituent) from a substance or region by chemical or physical means c: to clean and purify (molten metal) by taking up foreign elements in chemical union 3: to salvage from discarded or refuse material; also: to salvage usable material from * * * to work or act as a scavenger

Webster's Ninth New Collegiate Dictionary, 1039, 1049 (1983).

The portions of these definitions that could plausibly apply to the ordinance suggest that in the ordinance, "salvaging or scavenging of goods, articles, or merchandise" means rescuing or saving usable material from discarded material or rubbish. This meaning is vague when applied to Martinson because it provides no basis for determining whether she is rescuing or saving items on her property.

It is undisputed that Martinson has a lot of stuff in her yard, which appears to be the basis for the town's enforcement effort. But the amended complaint contains only the conclusory allegation that Martinson is violating the ordinance. It does not state how the stuff in her yard violates the ordinance or which stuff constitutes a violation. To issue a meaningful compliance order, the trial court must be able to tell Martinson what she must do or what she must stop doing.

It is not apparent that Martinson is doing anything with the items in her yard. Rather than saving or rescuing some of the items, it appears more like Martinson is allowing them to deteriorate. Must she get rid of all of the stuff in her yard to comply with the ordinance, or must she get rid of only those items that she is saving or rescuing? Which items are being saved? Does simply owning an item constitute saving or rescuing? Does salvaging or scavenging mean something different than collecting? The ordinance provides no basis for the trial court to answer these questions.

The town argues that Martinson knows what the ordinance means as applied to her because she has twice pleaded guilty to violating the ordinance and has twice been convicted of violating it. We disagree. Martinson did not challenge the validity of the ordinance in any of the criminal proceedings. We do not know whether she knew what the ordinance required of her in 1994 and 1995 or whether she pleaded guilty for some other reason. Furthermore, in the orders disposing of the citations that were issued while this action was pending, the trial court specifically required the town to notify Martinson "in writing what must be removed." This indicates that the town had not informed Martinson what was expected of her.