This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1405

 

State of Minnesota,

Respondent,

 

vs.

 

Douglas Howard Kramer,

Appellant.

 

Filed May 27, 2005

Affirmed

Willis, Judge

 

Otter Tail County District Court

File No. T6-03-1476

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN  56537 (for respondent)

 

Paul Engh, Suite 215 U.S. Bank Plaza, 220 South Sixth Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant Douglas Kramer appeals from a misdemeanor conviction for violation of a zoning ordinance that limits landowners to one dwelling per lakeshore lot.  Kramer argues that the multiple dwellings on his property are allowed by the ordinance’s grandfather clause and that deeding a portion of his property to his daughter should not cause him to be deemed to have violated the ordinance.  He also argues that the prosecutor committed misconduct by making a closing argument that, in addition to addressing whether Kramer violated the ordinance, included references to the purpose of the ordinance.  Because we conclude that the evidence is sufficient to support the jury’s determination that Kramer violated the ordinance and because Kramer both failed to object to the prosecutor’s closing argument and failed to show that he was unduly prejudiced by that argument, we affirm. 

FACTS

            In 1929, land on East Battle Lake in Otter Tail County was divided into 30 lots.  At that time, there was no minimum lot-size requirement, nor did a lot need to have a minimum amount of lake frontage.  In response to requirements imposed by the state in 1969, the county enacted a Shoreland Management Ordinance (SLMO), which became effective in 1971.  Under the SLMO, a lot on the lake must be at least 40,000 square feet, can only have one dwelling, and must have at least 150 feet of lake frontage.  The lots at issue in this appeal are lots 1 through 4 in the Rainbow Lodge plat, which are arranged in numeric order from north to south, are on East Battle Lake’s shoreline, and do not individually satisfy the requirements of the SLMO.  The SLMO allowed those lots to continue to exist as “grandfathered,” pre-existing substandard lots. 

            In 1977, Douglas Kramer bought lots 1 and 2.  At that time, there was a guesthouse on lot 1 and a home on lot 2.  In 1981, Kramer built a garage on lot 2.  In 1982, Kramer bought lot 3 on contract for deed.  On December 10, 1982, Kramer both applied for a building permit to put a second story on the garage on lot 2 to accommodate “recreation room + storage” and applied for a variance to allow lot 2 to have a second dwelling, which would be the second story on the garage.  Before Kramer applied for the variance, county officials told him that the SLMO imposed a limit of one dwelling per lot.  Apparently as a result, Kramer told the Board of Adjustment (BOA) that if he did not appear at the meeting at which his variance application was to be considered, the BOA should consider the application withdrawn.  Kramer did not appear at the BOA meeting, and the BOA deemed the application withdrawn. 

            In 1983, Kramer bought lot 4 on contract for deed.  By the end of 1984, Kramer had satisfied the contracts for deed on lots 3 and 4, and therefore owned lots 1 through 4 outright.  Kramer then conveyed lot 3 to his son and lot 4 to his daughter; but, by 1992, he had reacquired lot 3 from his son. 

            Also in 1992, pursuant to a state mandate, the county amended the SLMO to include a provision requiring joinder of substandard, contiguous lots under common ownership.  On February 3, 1992, two days before the amended SLMO was to become effective, Kramer consolidated lots 1 through 3 into parcels A and B.  Parcel A included what had been lot 1, with the grandfathered guesthouse, and the part of what had been lot 2 on which the home is located.  It did not meet the lot-size and lake-frontage requirements of the SLMO.  Because the guesthouse predated the SLMO, Parcel A did not violate the restriction on the number of dwellings per lot.  Parcel B included the portion of what had been lot 2 with the garage and what had been lot 3.  Parcel B also did not meet the lot-size and lake-frontage requirements of the SLMO.  Also on February 3, Kramer transferred parcel B to two third parties, so that he no longer owned contiguous, substandard lots.  On December 21, 1992, however, the third parties quit-claimed parcel B back to Kramer. 

            Because of opposition to the 1992 amendments to the SLMO, “the 1993 State Legislature approved a moratorium,” allowing “a landowner within Otter Tail County to sell or transfer one or more . . . substandard lots on or before June 30, 1994” under certain circumstances, the existence of which are not at issue here.  Also in 1993, the SLMO was amended to include certain exceptions to the joinder requirement.  The amended SLMO provided:

            A structure may be erected on a lot of less than the established minimum area and width, provided the lot existed by virtue of a recorded plat or deed before October 15, 1971, or a lot existing by virtue of a recorded plat or deed before October 15, 1971 has been increased in area by a conveyance subsequent to October 15, 1971, provided a Site Permit for the structure is obtained, all sanitary requirements are complied with and the proposed use is permitted within the district.  However, effective February 5, 1992, if in a group of two or more contiguous lots under the same ownership, any individual lot does not meet the established minimum area or width, the lot may not be considered a separate parcel of land for the purposes of conveyance or development.  The lot must be combined with one or more contiguous lots so they equal one or more parcels of land and each parcel must meet, or more closely approach, the established minimum lot size requirements of this Ordinance.  This restriction shall not apply to the following circumstances:

 

            1.         Where each contiguous substandard lot is an improved lot, as defined herein.

 

            2.         Where each contiguous substandard lot is in substantial compliance with the established lot width requirement, as evidenced by a lake frontage and building line width of at least 75% of the Ordinance minimum, and all other area requirements are met.

 

            3.         Where a lot, or a portion of a lot, is to be conveyed to the owner of a contiguous lot for the purpose of increasing lot size, and no residual lot is left unattended.  The deed must contain restrictive covenants requiring legal joinder to a contiguous parcel and a permanent prohibition against separate residential development. 

 

Otter Tail County, Minn., Shoreland Mgmt. Ordinance § IV(13)(B) (2004). 

            In 1995, Kramer applied for a permit to build a recreation-room addition to the garage on parcel B.  The county issued a permit on September 22 and inspected the footings for the addition on October 10.  At the inspection, the inspector noted that the garage “was suspicious looking” and “had the appearance of a guest house” and, based on his suspicions, labeled the garage as a “Garage/Guest House” in his inspection notes.  At Kramer’s trial, the inspector testified that the county did not act against Kramer at that time because “we had no evidence or need to think that [the garage] was actually a dwelling at that time.” 

            In 1997, the property-tax statement sent to Kramer by the county did not use separate designations for parcels A and B.  It referred to all of the land owned by Kramer as “Lot 000.”

            On October 31, 2000, Kramer deeded a portion of what had been parcel B to his daughter and her husband.  In the deed and associated plat drawings, Kramer split parcel B into parcels B-1 and B-2; the garage and its recreation-room addition were on parcel B‑1.  The deed also provides that parcel B-1 “shall be forever more attached to Lots 1 & 2” while parcel B-2 was “forevermore attached to Lot 4[.]” 

            On September 19, 2001, the county issued Kramer a septic-system permit for the garage.  The permit allowed a drain field large enough for a four-bedroom house.  Also in 2001, the county received a statement from persons claiming that Kramer was offering to rent a cabin on the property at issue here.  In April 2002, the county received a complaint from another party alleging that Kramer was operating a resort on his property. 

            On January 6, 2003, the county executed a search warrant to determine what was in Kramer’s buildings and how they were being used.  The county found that people were living in a dwelling in the garage structure.  Because the garage was on the same lot as the house and grandfathered guesthouse, the county charged Kramer with a misdemeanor violation of the SLMO for having multiple dwellings on the same lot.  A jury found Kramer guilty, and he appeals. 

D E C I S I O N

I.

            Kramer argues that the multiple dwellings on his property are allowed by the SLMO’s grandfather clause and that the fact that he deeded a portion of his property to his daughter should not result in a violation of the SLMO.  The offense of having multiple dwellings on the same lot requires that, in this case, the garage contain a dwelling, that the garage be on the same lot as the house, and that no exception to the SLMO’s one-lot-one-dwelling requirement applies.  

A.        Exception to One-Lot-One Dwelling Limitation

            Generally,

[t]he interpretation of an existing zoning ordinance is a question of law for a court to decide.  To interpret terms in the ordinance, a court looks at their plain and ordinary meaning.  Zoning ordinances should be construed strictly against the city and in favor of the property owner.  The court uses the least restrictive interpretation, protecting the rights of the property owner.

 

Odell v. City of Eagan, 348 N.W.2d 792, 797 (Minn. App. 1984) (citations and internal quotation marks omitted).  Kramer notes that the SLMO includes a provision that “[a] non-conforming use is any continuous use of land established before the effective date of a County or local Ordinance which does not conform to the use restrictions of a particular zoning district” and that under the SLMO a preexisting nonconforming use is legal.  He argues that under Day v. Wright County, 391 N.W.2d 32, 34 (Minn. App. 1986), review denied (Minn. Sept. 24, 1986), and E.T.O., Inc. v. Town of Marion, 375 N.W.2d 815, 819 (Minn. 1985), he committed no crime. 

            The disputed conduct by Kramer is his use of the garage as a dwelling.  Because Kramer both purchased the land on which the garage is located and built the garage after the SLMO’s 1971 effective date, Kramer’s garage does not predate the SLMO, and the nonconforming-use definition does not apply. 

            To the extent that Kramer argues that land uses permissible before the amendment of the SLMO should also be permissible after the effective date of the amendment, that argument also is unpersuasive.  Kramer was prosecuted for violating the one-dwelling-per-lot limit.  Here, the improper use of the land was not created until Kramer’s October 2000 conveyance.  Therefore, the land use in question did not exist when the amended SLMO became effective.  Moreover, none of the three exceptions to application of the amended SLMO is applicable here:  the first exception requires that the lot in question be an “improved lot.”  Otter Tail County, Minn., Shoreland Mgmt. Ordinance § IV(13)(B)(1).  The SLMO defines an “improved lot” as “[a] lot that contains a single-family dwelling, ready for immediate use, which is serviced by a sewage treatment system and water supply, all of which comply with all state and local regulations.”  Otter Tail County, Minn., Shoreland Mgmt. Ordinance § II(34) (2004).  Trial testimony here shows that, despite periodic observations and photographing of Kramer’s property, the county did not have sufficient evidence before 2002 to show that the garage was a dwelling.  Thus, the record does not show that, in 1994, the garage was then “a single-family dwelling, ready for immediate use, which [was] serviced by a sewage treatment system and water supply, all of which compl[ied] with all state and local regulations.”  The second exception in the amended SLMO applies if “each contiguous substandard lot is in substantial compliance with the established lot width requirement, as evidenced by a lake frontage and building line width of at least 75% of the Ordinance minimum, and all other area requirements are met.”  Otter Tail County, Minn., Shoreland Mgmt. Ordinance § IV(13)(B)(2).  Parcel B, however, had an area of 15,500 square feet and had 49.86 feet of lake frontage, amounts significantly less than the 40,000 square feet and 150 feet of lake frontage required by the SLMO. 

            The third exception to the amended SLMO applies “[w]here a lot, or a portion of a lot is to be conveyed to the owner of a contiguous lot.”  Because there is no temporal limitation on the application of the third exception, it allowed Kramer’s 2000 conveyance of parcel B-2 to the owner of a contiguous lot, here his daughter and her husband.  That application of the third exception, however, still left Kramer, after the conveyance, owning the contiguous substandard parcels A and B-1.  And the amended SLMO required that those parcels be combined.  Indeed, here, because Kramer “attached” parcels A and B-1 “forever more” by deed, the combination of those parcels would have occurred even without application of the SLMO.[1] 

            Further, the caselaw that Kramer cites to support his argument that he has not violated the SLMO is distinguishable.  In Day, because the lot at issue satisfied the requirements of the grandfather clause but not other aspects of the relevant ordinance, the question was whether the failure of the lot to satisfy those other aspects of the ordinance precluded it from being developed, despite the provision of the grandfather clause that grandfathered lots “shall be allowed as residential sites.”  Day, 391 N.W.2d at 34 (emphasis omitted).  Thus, the dispute in Day is distinguishable from the one here, which involves a lot that does not satisfy the requirements of the SLMO’s grandfather clause.  See Skelly Oil Co. v. Comm’n of Taxation, 269 Minn. 351, 371, 131 N.W.2d 632, 645 (1964) (noting that an opinion must be read in light of issues presented by the opinion). 

            In E.T.O., a statute prohibited the sale of liquor outside a “municipality” within 1,500 feet of a public school, and a tavern that was located in a township had its request to renew its liquor license denied because the tavern was incompatible with the neighborhood and because, during the effective period of the license, a school opened within 1,500 feet of the tavern.  375 N.W.2d at 816-17.  In the tavern’s resulting mandamus action to obtain a renewal of its license, (a) the district court ruled that the entire county was a “municipality” and hence that the 1,500-foot restriction did not apply; (b) this court reversed; (c) while the case was pending in the supreme court, the legislature amended the statute, substituting “city” for “municipality”; (d) the supreme court noted the amendment of the statute and that there was no school when the liquor license was initially issued and the tavern had no notice that a school would open; and (e) the supreme court reversed this court because denying renewal of the license based on the unexpected construction of the school would have been “arbitrary and capricious.”  Id. at 817-18.  Thus, E.T.O. involved circumstances beyond the tavern’s control and expectation.  Here, however, Kramer’s 1982 application for a variance to allow two dwellings on what was then lot 2 shows that the circumstances generating this proceeding were neither beyond his control nor unexpected. 

            Kramer further argues that, under Odell, because the use of the property has not changed since the 1992 amendment of the SLMO, he cannot be found to have violated the ordinance.  But here, unlike in Odell, the grandfather clause was not satisfied: when the SLMO was enacted, the garage did not exist.  Additionally, in Odell, the relevant ordinance distinguished between a nonconforming use and a nonconforming structure, and the location of the structure at issue in Odell violated the ordinance, while its use did not.  348 N.W.2d at 797.  Because the relevant portion of the SLMO does not distinguish between a structure’s location and its use, elements critical to the Odell holding are absent here. 

B.        Waiver

            Kramer argues that because the county consolidated parcels A and B for tax purposes in 1997, it waived the argument that it was improper for Kramer to have multiple dwellings on what the county treated as one lot for tax purposes.  Kramer does not explain why the county’s treatment of his land as a single lot for tax purposes creates an additional, unwritten exception to the one-lot-one-dwelling limitation of the SLMO.  Also, after the 1997 consolidation of Kramer’s lots for tax purposes, Kramer, in 2000, filed documents creating “Parcels B-1” and “B-2.”  Thus, Kramer did not consider himself bound by the 1997 tax classification of the lots to which he now attempts to bind the county.  We reject Kramer’s waiver argument.

II.

            Kramer claims that the county attorney committed prosecutorial misconduct because her opening and closing arguments addressed the purpose of the SLMO, in addition to whether Kramer violated the SLMO.  To support his contention, he cites State v. Salitros, 499 N.W.2d 815 (Minn. 1993), and its progeny.  The Salitros line of cases makes clear that a jury’s role is not to enforce the law, or to teach defendants lessons, or to make statements to the public, or to “let the word go forth”; its role is to “dispassionately” decide whether the county met its burden of proof in the case at bar.  Id. at 819.  

            Generally, an appellate court will not grant a new trial for prosecutorial misconduct if the misconduct is harmless beyond a reasonable doubt.  State v. Bradford, 618 N.W.2d 782, 798 (Minn. 2000).  Misconduct is harmless beyond a reasonable doubt if the jury’s verdict is “surely unattributable to the error.”  Id. at 800 (quotation omitted).  Where, as here, a party does not object to an argument, he generally waives the right to challenge that argument on appeal.  State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001); see State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (stating that a failure to object to an argument implies that the defendant found nothing improper in the argument).  This court reviews the arguments of counsel “as a whole, rather than just selective phrases or remarks.”  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  Additionally, when the evidence of guilt is strong, improper argument by the prosecutor can be found to be harmless error.  State v. Langley, 354 N.W.2d 389, 401-02 (Minn. 1984); State v. Thompson, 306 N.W.2d 841, 843 (Minn. 1981).  Here, the evidence of Kramer’s violation of the SLMO is strong.  Further, review of the prosecutor’s arguments shows that the bulk of those arguments addressed the elements of the offense, the definitions of the relevant terms, and a summary of the relevant evidence.  References to the purpose of the SLMO were limited.  On this record, we conclude that any misconduct by the prosecutor is harmless because the jury’s verdict is surely unattributable to it.   

            Affirmed.