Craig A. Goudy, Charles A. Cox, III, Cox & Goudy, 676A Butler Square, 100 North Sixth Street, Minneapolis, MN 55403 (for Respondent)

Carla J. Heyl, League of Minnesota Cities, 145 University Avenue, St. Paul, MN 55103-2044 (for Amicus Curiae)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

Respondent Carousel Shows, Inc. (Carousel) sponsored weekend craft shows and leased space in the appellant City of Bloomington's National Guard Armory (Armory). Carousel sued the City after the City removed a number of Carousel's signs and warned Carousel against future use of those signs. The signs, lettered "HUGE CRAFT SHOW," indicated the direction of the show with arrows. Carousel had placed the signs on public rights-of-way and private property with the owners' consent.

Following trial, the district court concluded that the City's sign ordinance was constitutional, but awarded Carousel $10,000 in damages based on its conclusion that the City had selectively enforced the ordinance against Carousel. Both parties appeal, and the League of Minnesota Cities has submitted an amicus brief. We conclude that the district court erred in deciding the constitutionality of the ordinances because (1) Carousel did not properly plead this action to challenge the constitutionality of the City's sign ordinances, and (2) the City had authority to prohibit Carousel's signs based solely on the conditions of a conditional use permit. Further, we reverse the damages award because the evidence does not support a claim of selective enforcement.

Second, the City's authority to prohibit Carousel's signs was based not on City ordinances but on a conditional use permit issued to the Armory for transient merchant sales such as those conducted by Carousel. Two permit conditions prohibited off-site signs, including posters and portable signs, and prohibited temporary on-site signs. Because the City was acting to enforce the conditions of a conditional use permit and the conditions of that permit are not being challenged here, the constitutionality of the City's sign ordinances was not properly before the district court. See St. Paul Area Chamber of Commerce v. Marzitelli, 258 N.W.2d 585, 588 (Minn. 1977) (justiciable controversy must exist, and when constitutionality of statute is challenged, litigant must show statute is, or is about to be, applied to litigant's disadvantage).

As already discussed, the City's authority to prohibit Carousel's signs derived not from City ordinances, but from the conditional use permit issued to the Armory. Carousel does not claim that the City failed to enforce the conditions of this conditional use permit against all transient merchants leasing space from the Armory. Nor does Carousel challenge the validity or legitimacy of the City's reasons for restricting transient merchants' rights to place temporary signs near the Armory, which is located in a residential area. Thus, Carousel has no basis for claiming that the City acted arbitrarily or capriciously or that the City has violated Carousel's equal protection rights. Cf. City of Hutchinson v. Otto, 306 Minn. 136, 142, 235 N.W.2d 604, 608 (1975) (city's refusal to grant building permit not unreasonable, arbitrary, or violative of equal protection when city merely applied and enforced state building code provisions regarding plans and specifications); Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 227, 125 N.W.2d 846, 851 (1964) (property owner entitled to order requiring city to issue permit to build freestanding sign when city's refusal to do so was arbitrary and capricious because no reason given to restrict that use of land).

Further, even assuming that Carousel has properly challenged the City's enforcement policy, we cannot conclude that it is entitled to recover. A party asserting that a municipality has enforced an ordinance or policy in an arbitrary or discriminatory manner must do more than show merely that the municipality has been inconsistent or lax in its enforcement efforts. See McCavic v. De Luca, 233 Minn. 372, 376, 46 N.W.2d 873, 876-77 (1951) (validity of ordinance not affected by failure to enforce it or by wrongful enforcement against others). The burden on the party alleging discriminatory enforcement is great. See State v. Larson Transfer & Storage, Inc., 310 Minn. 295, 301, 246 N.W.2d 176, 181 (1976). The evidence must establish that a municipality has intentionally, deliberately, or systematically discriminated by not enforcing an ordinance against a class of violators expressly included within its terms or that public officials have made a decision to ignore whole classes of violators. See State v. Vadnais, 295 Minn. 17, 19, 202 N.W.2d 657, 659 (1972). The City's enforcement policy, whether seeking to enforce City sign ordinances or the conditions of the Armory's conditional use permit, focused on egregious violations, on violators who have received prior warnings, and on complaints received from residents. Contrary to Carousel's claims, little or no evidence was presented to establish that the City had failed to follow its own policy or that its criteria were based on bad faith or constituted a pattern of intentional discrimination. The mere fact that the City did not enforce its sign ordinance against all violators does not demonstrate that it is guilty of selective enforcement.

In light of our decision here that the City is not liable to Carousel, we need not address whether the City is entitled to statutory immunity under Minn. Stat. § 466.03, subd. 6 (1994).

Reversed.