A05-2085

Headwaters Rural Utility Association, Inc., et al.,

Relators,

vs.

City of Corcoran City Council,

Respondent.

Filed June 27, 2006

Affirmed

Worke, Judge

City of Corcoran

Jon Erik Kingstad, 260 Lake Elmo Bank Building, 600 Inwood Avenue North, Oakdale, MN 55128 (for relators)

John M. Baker, Pamela L. VanderWiel, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN 55402 (for respondent)

Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

In this certiorari appeal, relators argue that respondent city council’s decision that certain septic systems were “failing” must be reversed because (1) a city ordinance conflicts with Minn. Stat. § 115.55, subd. 5a(g) (2004); (2) respondent failed to accept relators’ expert reports, and (3) respondent’s findings of fact and conclusions of law are an unconstitutional bill of attainder. Relators also argue that Minn. Stat. §115.55 (2004) is unconstitutional. We affirm.

FACTS

In 1997, relator Georgia A. Wigen’s (Wigen) septic system was identified as failing and constituting an imminent public-health threat. The City of Corcoran (City) notified Wigen that the system needed to be replaced within ten months. In 2001, relator Steven J. Schmid’s (Schmid) septic system was identified as failing and in need of replacement. Relator Headwaters Rural Utility Association, Inc. (HRUA), a water-quality cooperative, was to replace the systems. Relators did not submit designs for the work to be performed or obtain required permits. However, the City allowed relators to submit after-the-fact permit applications. All licensed/certified individuals who attended an inspection of the systems agreed that the systems did not meet requirements for a standard system, and the permits were denied. In April 2003, relators were ordered to submit designs, obtain permits and replace or repair their systems by August 1, 2003.

In August 2003, relators filed a complaint against the City. The City then filed a complaint against relators seeking compliance. The district courts granted summary judgment in favor of the City in both matters. Relators appealed and this court affirmed. See City of Corcoran v. Headwaters Rural Util. Ass’n,No. A05-695 (Minn. App. Feb. 7, 2005), review denied (Minn. Apr. 18, 2006).

In February 2005, the City allowed relators to submit after-the-fact permit applications. The permits were approved, conditioned on system monitoring. Relators appealed, arguing that they should not be subjected to additional regulation and expense. After conditional approval, a city council member challenged the accuracy and the appropriateness of a report relators submitted with their applications. The city council member indicated that relators misused the report and that it should be disregarded. In August 2005, certificates of noncompliance were issued. Respondent city council adopted findings of fact and conclusions of law determining that relators’ systems were failing and that they needed to be upgraded, replaced, or repaired within three years. This certiorari appeal follows.

D E C I S I O N

Review by certiorari is limited to an inspection of the record of the inferior tribunal in which the court is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992).

Findings of Fact and Conclusions of Law

Erroneous Theory of Law

Relators argue that respondent’s findings of fact and conclusions of law must be reversed because a local ordinance conflicts with Minn. Stat. § 115.55, subd. 5a(g) (2004). Corcoran, Minn., Mun. Code, Title V, § 50.03 (2005), adopts Minnesota Rules Chapter 7080. Minn. R. 7080.0060 requires sewage-treatment systems to have “a three-foot vertical separation as measured outside the area of system influence in an area of similar soil[.]” Minn. R. 7080.0060, subp. 3B(1) (2005).

Relators’ systems were identified as failing because they did not have at least three feet of vertical separation between the bottom of the systems and the seasonally saturated soil level. Relators argue that this determination conflicts with Minn. Stat. § 115.55, subd. 5a(g), which provides that “[i]f the system fails to provide sufficient groundwater protection, then the local unit of government or its agent shall order that the system be upgraded, replaced, or its use discontinued[.]” Relators contend that the statute conflicts with the ordinance because the statute provides that local governments can order a system to be upgraded, replaced, or discontinued only when the system provides insufficient protection to the groundwater. There is not a conflict because Minn. Stat. § 115.55, subd. 5a(g), mandates when a local unit of government must order a system upgraded, replaced, or discontinued; the statute does not state that local government cannot otherwise exercise discretion to make systems compliant with a city ordinance. “[A]n ordinance must not be repugnant to, but in harmony with, the laws enacted by the Legislature for the government of the state.” Mangold Midwest Co. v. Vill. of Richfield, 274 Minn. 347, 350-51, 143 N.W.2d 813, 816 (1966). The ordinance is in accord with Minn. Stat. § 115.55 because it does not permit what the statute forbids, nor does it forbid what the statute expressly permits. See St. Paul Citizens for Human Rights v. City Council of St. Paul, 289 N.W.2d 402, 406 (Minn. 1979) (stating that “no conflict exists where the ordinance, though different, is merely additional and complimentary to or in aid and furtherance of the statute”).

Insufficient Evidence

Relators argue that the evidence is insufficient to support respondent’s findings of fact and conclusions of law because respondent rejected relators’ compliance-inspection reports. This court recognizes that “[t]he functions of factfinding, resolving conflicts in the testimony, and determining the weight to be given to it and the inferences to be drawn therefrom rest with the administrative board.” Quinn Distrib. Co. v. Quast Transfer, Inc.,288 Minn. 442, 448, 181 N.W.2d 696, 700 (1970) (quotation omitted). Additionally, we give “substantial judicial deference” to an administrative board’s fact-finding process. Info. Tel. Commc’ns, L.L.C. v. Minn. Pub. Utils. Comm’n,592 N.W.2d 880, 884 (Minn. App. 1999), review denied (Minn. July 28, 1999). Relators seem to suggest that this court should reweigh the evidence and to conclude that their experts are more credible, but that is not this court’s function.

Relators contend that respondent arbitrarily rejected their experts’ report regarding misidentified “redoximorphic features” observed at relators’ properties. But respondent did not arbitrarily reject the report. The record includes a letter from the Minnesota On-site Sewage Treatment Contractors Association to the authors of the report requesting that they contact HRUA and ask them to retract information because the “information in [the report] . . . ha[d] been seriously misconstrued by [HRUA] and [was] being used to mislead interested parties.” The record includes a letter from a soil scientist who attended an inspection of the properties and determined that conditions at the sites require the use of an above-ground system. There is also an unsigned letter from one author of the report stating that he did not intend to perform “an investigation for an Individual Sewage Treatment System (ISTS).” And that if he “had been asked to do so, [he] would have declined [because he] is not certified for ISTS investigations and [does] not perform such services.”

The record supports respondent’s determination; thus, respondent’s decision was not unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law. See Hannan v. City of Minneapolis,623 N.W.2d 281, 284 (Minn. App. 2001).

Unconstitutional Bill of Attainder

Relators argue that respondent’s findings of fact and conclusions of law are an unconstitutional bill of attainder. A bill of attainder is defined as a “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Reserve Mining Co. v. State,310 N.W.2d 487, 490 (Minn. 1981). A statute is a bill of attainder when it (1) specifically singles out an identifiable individual or group, (2) inflicts punishment, and (3) does so by means other than through judicial authority. Id.

Relators suggest that they were singled out, punished by forfeiting their investment, and did not receive a judicial trial. First, respondent’s findings of fact and conclusions of law are not law and there was not a legislativedetermination because respondent was acting in a quasi-judicial capacity. Relators also fail to show that they have been singled out for punishment. It is not unlawful per se to single out a group for a legislative purpose. Selective Serv. Sys. v. Minn. Pub. Interest Research Group,468 U.S. 841, 847, 104 S. Ct. 3348, 3352 (1984). And if an individual or group can escape the regulation by altering their conduct, the proscription is not a bill of attainder because it addresses future, not past, conduct. WMX Techs., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1202 (8th Cir. 1997). Relators can obtain permits and upgrade, replace, or repair their systems and escape the compliance requirement that they claim is singling them out.

In Reserve Mining Company, the company argued that a taxing statute was a bill of attainder because it was the only mining company affected by the statute. Reserve Mining Co., 310 N.W.2d at 489. The mining company argued that the statute sought to punish it for depositing tailings in Lake Superior and to recoup litigation costs and expenses for filtration of the lake. Id.at 490. The supreme court determined that the fact that the mining company was the only company affected did not make the statute a bill of attainder because the statute would apply to other companies not in compliance with the statute. Id. at 491. Likewise, other individuals with failing systems will need to upgrade, replace, or repair their systems. Thus, relators were not singled out, and their argument fails.

Constitutionality of Minn. Stat. § 115.55 (2004)

Relators argue that Minn. Stat. § 115.55 (2004) is unconstitutional. Constitutional challenges to statutes are questions of law, which we review de novo because they involve statutory interpretation. In re Blilie,494 N.W.2d 877, 881 (Minn. 1993). “Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary.” In re Haggerty,448 N.W.2d 363, 364 (Minn. 1989). The challenging party bears the burden of establishing beyond a reasonable doubt that the statute violates a constitutional right. ILHC of Eagan, L.L.C. v. County of Dakota,693 N.W.2d 412, 421 (Minn. 2005).

Equal Protection

Relators argue that Minn. Stat. § 115.55, subd. 7, violates the equal protection clause, Article 1, Section 2 of the Minnesota Constitution, by arbitrarily classifying individual sewage-treatment systems. Relators contend that the classifications do not have a rational relationship to the protection of Minnesota groundwater.

First, relators lack standing to raise this constitutional challenge. Standing requires “a direct and personal harm resulting from the alleged denial of constitutional rights.” Davis v. Comm’r of Pub. Safety,509 N.W.2d 380, 391 (Minn. App. 1993), aff’d on other grounds, 517 N.W.2d 901 (Minn. 1994). Relators “must be able to show not only that the statute is invalid but that [they] sustained or [are] in immediate danger of sustaining some direct injury resulting from its enforcement[.]” Paulson v. Lapa, Inc., 450 N.W.2d 374, 380 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990). Relators have not shown a causal link between their alleged personal harm and the alleged denial of constitutional rights, i.e., arbitrary classifications. Thus, relators lack standing, but their challenge also fails on the merits.

“Equal protection requires that persons similarly situated be treated similarly.” Lidberg v. Steffen,514 N.W.2d 779, 784 (Minn. 1994). But similarly situated persons may be treated differently when a distinction in treatment “bears a rational relation to a legitimate government objective.” Bannum, Inc. v. City of St. Charles, Mo., 2 F.3d 267, 271 (8th Cir. 1993). The rational-basis test requires that:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is, there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

Council of Indep. Tobacco Mfrs. of Am. v. State, 685 N.W.2d 467, 473 (Minn. App. 2004), aff’d, 713 N.W.2d 300 (Minn. 2006). Relators have not been denied equal protection. Classifications in Minn. Stat. § 115.55 are related to a legitimate governmental act—protecting Minnesota groundwater.

Relators also argue that Minn. Stat. § 115.55 is unconstitutional as special legislation creating arbitrary classifications. The Minnesota Constitution provides:

In all cases when a general law can be made applicable, a special law shall not be enacted except as provided in section 2. Whether a general law could have been made applicable in any case shall be judicially determined without regard to any legislative assertion on that subject.

Minn. Const. art. XII, § 1. A law is general when it is uniform in operation even though it creates classes and applies different rules to different classes. Visina v. Freeman, 252 Minn. 177, 196, 89 N.W.2d 635, 651 (1958). Relators argue that Minn. Stat. § 115.55 is not general because it permits counties to adopt less-restrictive requirements but denies that right to cities and towns. But the statute treats all counties the same and all cities and towns the same; thus, it is not special legislation.

Special Local Legislation

Relators next argue that Minn. Stat. § 115.55 is unconstitutional special legislation aimed at regulating local government. Relators contend that the statute can only be effective as it relates to local government after approval by affected local voters or the local governing body. But relators present no statute or caselaw that suggests that a city should be allowed to vote on whether to abide by a state statute. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (stating that assignment of error based on mere assertion but unsupported by argument or authority is waived unless error is obvious on mere inspection).

Due Process

Finally, relators argue that Minn. Stat. § 115.55 imposes a lien on homesteads, forcing homeowners to contract with licensed ISTS designers and installers to avoid forfeiting their home. Relators contend that an imposition without notice and opportunity for a hearing violates due process of law. The requirements of due process are measured according to the nature of the government function involved and whether private interests are directly affected. Barton Contracting Co. v. City of Afton,268 N.W.2d 712, 715 (Minn. 1978). Relators attempted to bypass a permit-application process. The parties have been through two application procedures, hearings before the City’s Wastewater Commission, two district-court proceedings, and two appeals with this court. Relators have not been denied due process of law.

Affirmed.