This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).


Robert Ward,


Itasca County Board of Adjustment,

James Humeniuk,

Itasca County,


Frito-Lay, Inc.,
Lower Court Respondent.

Filed July 9, 1996
Schultz, Judge

Itasca County District Court
File No. C0-94-1369

Bryan N. Anderson, Crassweller, Magie, Andresen, Haag & Paciotti, P.A., 1000 Alworth Building, P. O. Box 745, Duluth, MN 55801-0745 (for Appellant)

John J. Muhar, Itasca County Attorney, Michael Haig, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for Respondents Itasca County Board of Adjustment and Itasca County)

James R. Andreen, Paul D. Reuvers, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for Respondent Itasca County)

Rodney G. Otterness, Kent E. Nyberg Law Office, Ltd., 20 Northeast Fourth Street, Suite 101, Grand Rapids, MN 55774 (for Respondent Humeniuk)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Schultz, Judge.



Appellant claims that the district court should have issued a writ of mandamus to compel the board of adjustment to hear his claim that a zoning official erroneously refused to investigate an alleged permit violation. Respondent argues that appellant's claim is barred by res judicata and collateral estoppel. We reverse.


Respondent James Humeniuk received a permit to run a warehouse and then leased the warehouse to respondent Frito Lay, Inc. Appellant Robert Ward appealed issuance of the permit to respondent Itasca County Board of Adjustment (BOA). Ward also claimed that Humeniuk's use of the land violated the permit. BOA ruled that Ward's appeal was untimely and that the permit was properly issued, but did not specifically address whether Humeniuk's use of the land violated the permit. Ward then appealed BOA's ruling to district court and sought a declaratory judgment. The district court ruled that Ward lacked standing both to appeal the BOA ruling and to seek a declaratory judgment. Later, Ward asked a zoning official to investigate what Ward claimed were Humeniuk's permit violations. The zoning official refused to investigate, and Ward appealed the refusal to BOA. The county, on BOA's behalf, claimed that it did not have to "reinvestigat[e]" Humeniuk's alleged permit violations, and BOA took no action on Ward's appeal. In August 1995, Ward sought mandamus to compel BOA to address his appeal. In October 1995, the district court ruled that because enforcement of zoning ordinances is discretionary, mandamus would not issue.


1. The district court's conclusion that enforcement of zoning ordinances is discretionary seems to be based on Minn. Stat. ' 394.37, subd. 3 (1994) which states that "the board * * * may institute appropriate actions or proceedings" to enforce a zoning ordinance. "[B]oard," however, is defined as "the board of county commissioners." Minn. Stat. ' 394.22, subd. 2 (1994). Therefore, Minn. Stat. ' 394.37, subd. 3, does not give enforcement discretion to BOA.

2. In the first proceeding, a zoning official testified that Humeniuk's use of the property was consistent with the permit. Also, Ward essentially admitted that the permit was properly issued when he stated that a warehouse was "a permitted use" of the land but that Humeniuk's use of the property exceeded that allowed by the permit. The county cites the zoning official's testimony and claims that it means that BOA's ruling that the permit was properly issued is also an implicit ruling that Humeniuk's use of the property was lawful. Therefore, the county concludes, Ward is collaterally estopped from arguing that Humeniuk violated his permit.

Collateral estoppel requires, among other things, a prior judgment on an issue and a second suit involving the same issue. Ellis v. Minneapolis Comm'n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982). BOA's ruling that the permit was properly issued could have been based on the zoning official's testimony or Ward's admission. If the ruling was based on Ward's admission, the ruling would not have addressed Humeniuk's conduct and there consequently would be no implicit ruling on that issue. Because the basis for the prior ruling is unclear, collateral estoppel is inapplicable. See Parker v. MVBA Harvestore Sys., 491 N.W.2d 904, 906 (Minn. App. 1992) (collateral estoppel inapplicable when a prior ruling "might have been decided on one or more of several grounds and it does not explicitly state which one(s) it relied on"). [1]

3. The crux of the county's claim that res judicata precludes mandamus is that granting mandamus will be granting "the exact same relief" that was rejected in the first action. (Emphasis added.) Res judicata requires, among other things, a prior judgment on the merits and a second suit on the same "cause of action" between the same parties. Demers v. City of Minneapolis, 486 N.W.2d 828, 830 (Minn. App. 1992) (emphasis added). A claim for relief is not the same as a cause of action. Hofstad v. Hargest, 412 N.W.2d 5, 7-8 (Minn. App. 1987). A cause of action is a "situation or state of facts which would entitle a party to sustain action and give him right to seek a judicial remedy in his behalf." Id. at 7 (citations omitted). Here, the current action is for mandamus to compel BOA to hear Ward's appeal of the zoning official's refusal to investigate Humeniuk's alleged permit violations. The prior ruling addressed whether Ward's appeal was timely and whether the permit was properly issued. Because the right to relief from the violation of a properly issued permit is different from the right to relief from an improperly issued permit, the actions here do not involve the same cause of action.

4. This court will reverse a district court's denial of mandamus only if there is no evidence that reasonably supports the district court's findings. Haen v. Renville County Bd. of Comm'rs, 495 N.W.2d 466, 469 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993). This court need not defer to the district court's legal conclusions. Id. Here, Ward's request that the zoning official investigate Humeniuk's alleged permit violations was functionally a request that the zoning official fulfill his duty to enforce zoning restrictions. See Itasca County, Minn., Zoning Ordinance (ICZO) ' 19.13 (1993) (zoning officers to notify property owners of violations, direct correction of violations, and refer uncorrected violations to county attorney). Ward's appeal of the zoning officer's decision not to investigate the alleged permit violations was consistent with statute. See Minn. Stat. ' 394.27, subd. 5 (1994) (person "aggrieved" by zoning officer's decision may appeal to BOA). [2] Mandamus is a proper remedy to compel a hearing. See Minn. Stat. ' 394.37, subd. 4 (1994) (taxpayer may institute mandamus proceedings "to compel specific performance by the proper official or officials of any duty required by [relevant statutes or ordinances]"); ICZO ' 11.71 (BOA "shall conduct public hearings on all variance appeals and other appeals brought before it") (emphasis added).

5. Because the basis of the first ruling is unclear, it is not certain that BOA will rule against Ward in a second appeal. Therefore, the cases that the county cites to claim that futility renders mandamus improper are distinguishable. Also, on this record, Ward's claim that BOA will rule against him is not a concession that mandamus would be futile. It is Ward's attempt, consistent with case law, to proceed to district court without getting a previous ruling from BOA. See Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992) ("if it would be futile to do so, a party need not exhaust administrative remedies before bringing an action for judicial relief").



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1] Because of our ruling on this issue, it is unnecessary to address Ward's claims that collateral estoppel is otherwise inapplicable and that, in the first proceeding, he was denied a hearing on the merits of his claim. Also, because it is not clear whether the first ruling addressed Humeniuk's conduct, we reject the county's claims that it has no duty to "reinvestigate" that conduct.

[2] The district court found the term "aggrieved" to be ambiguous and ruled that under Scinocca v. St. Louis County, 281 N.W.2d 659, 661 (Minn. 1979), Ward was not entitled to relief. Regardless of how "aggrieved" is defined, when a person requests an official to do what is the official's duty and the official refuses, the person making the request is aggrieved. Also, Scinocca is distinguishable. While BOA may have discretion regarding whether to require the zoning official to investigate the alleged permit violations (and on this we express no opinion), it lacks the discretion to refuse to hear Ward's appeal of that issue. Cf. State ex rel. South St. Paul v. Hetherington, 240 Minn. 298, 301, 61 N.W.2d 737, 740 (1953) (while mandamus does not lie to interfere with exercise of discretion, "it does lie to set the exercise of that discretion into motion where the [county] board fails to act").