This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Dave Berscheit, et al.,


The Town of Grey Eagle, Minnesota,

Filed July 13, 1999
Amundson, Judge

Todd County District Court
File No. C0-97-886

Gerald W. Von Korff, Rinke-Noonan, 700 Norwest Center, P.O. Box 1497, St. Cloud, MN 56302 (for appellants)

Michael T. Feichtinger, Mark R. Azman, Quinlivan & Hughes, P.A., 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN 56302 (for respondent)

Considered and decided by Amundson, Presiding Judge, Anderson, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellants Dave and Bill Berscheit challenge the district court’s summary judgment order dismissing their suit, which sought writ of mandamus directing respondent Town of Grey Eagle to grant their application for a conditional use permit to construct a hog-finishing barn. Because we conclude that the Todd County Zoning Ordinance prohibits construction of the hog-finishing barn, we affirm.


In this land-use dispute, brothers Dave and Bill Berscheit applied to the Town of Grey Eagle (the township) for a conditional use permit (CUP) to build a livestock barn/feedlot. The township denied the CUP application, resulting in this action. In their appellate brief, the Berscheits allege facts outside the record. Eschewing those facts, we decide this matter only on the record before the district court at the time of the summary judgment motion. See Minn. R. Civ. App. P. 110.01 (papers filed in trial court shall constitute record on appeal). Those facts are, in pertinent part, as follows:

(1) In January 1994, the Berscheit brothers formed the partnership Berscheit farms and began farming on their parents’ farm property;

(2) On August 4, 1997, the Berscheits applied to the Grey Eagle Township Planning and Zoning Commission (the commission) for a conditional use permit to build a hog-finishing barn that would house 1,250 hogs. The Berscheits later determined that a 1,000 hog-finishing barn would be more commercially feasible.

(3) A "finishing" hog is typically acquired when it is approximately 17 weeks old and weighs about 40 pounds. The hog remains at the feedlot until it weighs 250 pounds, when it is sold to a packing plant. For purposes of regulatory calculation, one finishing hog comprises four tenths (or .4) of an animal unit.

(4) On September 8, 1997, the commission passed a moratorium, or interim ordinance, prohibiting the construction of new animal feedlots in excess of 200 animal units (500 hogs) or the expansion of existing feedlots in excess of 350 units.

(5) On October 6, 1997, the commission passed an amendment to the interim ordinance prohibiting any new construction of feedlots or additions to existing feedlots.

The Berscheits filed suit in district court, seeking a writ of mandamus ordering the township to grant their permit application. The township brought a motion for summary judgment, arguing that the Berscheits’ feedlot construction was a prohibited commercial operation under the Todd County Zoning Ordinance (the zoning ordinance). The district court granted the motion for summary judgment. The Berscheits then sought leave of the district court to make a motion for reconsideration. Although the court allowed the Berscheits to bring the motion, the court ultimately denied their motion for reconsideration. This appeal followed.


A grant of summary judgment is reviewed de novo and this court affirms only where there is no genuine dispute of material fact and the district court did not err in its application of the law. Zip Sort, Inc. v. Commissioner of Revenue, 567 N.W.2d 34, 37 (Minn. 1997). We resolve any doubt as to the existence of a material fact in favor of finding the existence of a fact issue. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). We need not give deference to the district court’s application of the law. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

In moving for summary judgment, the township asserted that a threshold determination for the court was whether the Berscheits’ proposed hog-finishing barn was prohibited by the zoning ordinance. The township reasoned that, if the zoning ordinance prohibited the barn/feedlot, the issue of the validity of the township’s interim ordinances would be irrelevant and the entire matter should be dismissed. We agree.

Because the district court found that the zoning ordinance was applicable and based its decision on reasoning other than raised by the township, the Berscheits assert that they were prejudiced. They argued they lacked notice of the issue on which the district court was going to rule and were precluded from responding.

In its analysis, the court focused on the size and nature of the Berscheits' operation, not whether it was a traditional "family farm." But the Berscheits were on notice that the size of the operation bore meaning whether a farm operation was commercial. In fact, in their own memorandum opposing summary judgment, the Berscheits alluded to the question and argued that the family versus commercial distinction was illogical stating:

The County allows certain feedlots within 2 miles of municipalities while not allowing others. The only distinction being that the feedlot is either a commercial feedlot or not a commercial feedlot. Without a definition, based upon some objective factor such as size, this distinction is arbitrary and invalid.

(Emphasis added.) The Berscheits were on notice of this issue. The district court did not err in granting summary judgment on the basis of a "size" differential in the zoning ordinance rather than determining whether the Berscheits operated a "family farm" exempt from the ordinance.

Having found that the district court did not err in resolving the summary judgment motion on grounds akin but slightly different from those raised by the movant, we examine the merits of the district court’s summary judgment. The township moved for summary judgment on the following grounds: (1) Berscheit Farms constituted a commercial operation under the zoning ordinance and was subject to certain setback requirements that prohibited the construction of the proposed feedlot; and (2) the township properly enacted the interim ordinances.

The court granted summary judgment on the first basis. The proposed feedlot was prohibited by the county’s setback requirements embodied in its zoning ordinance. Therefore, it was not necessary to address the propriety of the township’s actions in enacting interim ordinances prohibiting the construction of the hog-finishing barn. On appeal, the township has moved to strike all issues raised by appellant addressing whether the township lawfully enacted the interim ordinance. Because these issues were not considered by the district court at the time of the township’s summary judgment motion, all issues relating to the validity of the commission’s enactment of the interim ordinance and amended interim ordinance are stricken. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (stating that we will generally not consider matters not argued and decided in the court below).

On appeal, the Berscheits do not dispute the applicability of the zoning ordinance, but rather assert that the district court erred in its interpretation of the term "commercial," as used in the ordinance. "[T]he interpretation of an existing ordinance is a question of law for the court." Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). The applicable Todd County Zoning Ordinance, entitled "Feedlot Permits," requires a permit for

any person or corporation starting commercial livestock and poultry feedlots, as a primary use subject to the following regulations:

a. It shall not be located within one thousand (1,000) feet of any residence structure or within six hundred sixty (660) feet of any business or industrial district, as defined in this Ordinance * * *. It shall not be located within two (2) miles of the exterior limits of any incorporated municipality or undeveloped incorporated area.

Todd County Zoning Ordinance § 507.5 (1992) (emphasis added). The district court found that the Berscheits were starting a commercial livestock feedlot and therefore, could not build the hog-finishing barn on their proposed site because it was located within two miles of the exterior boundaries of Grey Eagle Township.

In interpreting zoning ordinances, we look to three rules of construction for guidance:

(1) Ordinances’ terms should be construed according to their plain and ordinary meanings; (2) Zoning ordinances should be construed strictly against the city and in favor of the property owner; and (3) Zoning ordinances must be considered in light of their underlying policy goals.

Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992) (citing Frank’s Nursery, 295 N.W.2d at 608-9). Applying the rules of construction to the district court’s analysis, we conclude that the district court properly construed the ordinance to include the Berscheits as a commercial operation subject to the setback requirements.

The court first found that because the ordinance referred to "any person or corporation," the definition of commercial livestock feedlot could not depend on the "identity of the owner." Rather, the court determined that the ordinance could properly be construed as referring to the size of the feedlot and the number of livestock to be finished at any one time. The court then attempted to determine whether the Berscheits’ proposed barn, housing 1,000 hogs (400 animal units), should be considered "commercial," without determining the minimum number of animal units at which the feedlot lost its commercial nature.

The court then considered the fact that the Berscheits had revised their CUP application from a request for a 1,250 hog-finishing barn to a 1,000 hog barn because the industry standard was to purchase 1,000 hogs per cycle. The record supports the court’s conclusion that commercial packers, such as Hormel, preferred to purchase hogs in the amount of 1,000 head at a time from suppliers. On this basis, the court concluded that the Berscheits proposed 1,000 head finishing barn was intended for commercial purposes and should be subject to the setback requirements.

The Berscheits now argue that this construction is faulty because any ambiguity in the statute must be construed in favor of the property owner. Although the rules of construction do require that ordinances be construed against a municipality and in favor of a property owner, that should not be taken to mean that a zoning ordinance can never be construed against a property owner, especially where its plain and ordinary meaning and its underlying policy goals support a contrary construction.

Here, the zoning ordinances that involve feedlot requirements indicate that the valid policy concerns prompting restrictions on such feedlots include odor, pollution, and nuisance problems, especially when located in close proximity to water sources and populated areas. Todd County Zoning Ordinance § 507.5, §§ 725.2-725.4 (1992). These policy goals are valid and are promoted by the district court’s interpretation of the statute. After our separate review of the zoning ordinance, we conclude the district court did not err in construing the ordinance to prohibit the construction of the hog-finishing barn at the proposed location.

As a final matter, the Berscheits also seek review of the district court’s denial of their motion for reconsideration. Minn. R. Civ. App. P. 103.03(a) provides that an appeal may be taken "from a final judgment or a partial judgment * * *." While a subsequent order denying reconsideration may be reviewed if it involves the merits, affects the original order or review is required in the interest of justice, generally an order denying reconsideration is not appealable. Minn. R. Civ. App. P. 103.04; Ebenezer Soc. v. Dryvit Systems, Inc., 453 N.W.2d 545, 548 (Minn. App. 1990). We conclude that none of these considerations require our review of the order denying reconsideration of the summary judgment order. Further, such review would involve addressing issues that were never addressed by the zoning body, much less the district court. Therefore, we decline review over all matters pertaining to the order denying the Berscheits’ motion for reconsideration.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.