This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1163
Bruce Township,
Respondent,
vs.
Kevin Schmitz,
Appellant,
Nathan A. Baum, et al.,
Defendants.
Filed March 21, 2016
Affirmed
Jesson, Judge
Todd County District Court
File No. 77-CV-14-156
Joseph A. Krueger, Brown & Krueger, P.A., Long Prairie, Minnesota; and
Jason J. Kuboushek, Nathan C. Midolo, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondent)
Gary W. Koch, Matthew C. Berger, Peter J. Hemberger, Gislason & Hunter LLP, New
Ulm, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Kirk, Judge; and Jesson,
Judge.
UNPUBLISHED OPINION
JESSON, Judge
Appellant Kevin Schmitz constructed an animal feedlot on his property in Bruce
Township, Todd County, which has enacted an ordinance requiring a conditional use
permit for new feedlots of a certain size. In this action, the township sought to declare its
feedlot ordinance valid and enforce a related conditional-use permit on Schmitz’s property.
The district court granted summary judgment in favor of the township. On appeal, Schmitz
argues that the township’s failure to comply with statutory requirements to file the
ordinance with the county recorder and furnish a copy to the county law library render the
ordinance unenforceable. Because under Minn. Stat. § 462.36 (2014), failure to record the
conditional-use-permit ordinance does not affect its validity, and because the statutory
filing requirements at issue are directory, not mandatory, we reject his argument. We also
affirm the district court’s summary judgment on Schmitz’s claim of interference with a
vested property right and equitable-estoppel defense.
FACTS
In 2002, Bruce Township adopted a feedlot ordinance, which requires a conditional-
use permit before expanding an existing feedlot or constructing a new feedlot housing more
than ten animal units. Bruce Township, Minn., Feedlot Ordinance §§ 725.11-.93, 726
(2002).1 The ordinance also contains setback requirements from existing residences.
Feedlot Ordinance §§ 725.51-.52. A Minnesota statute specifies that, when a town adopts
1
An animal unit is defined as the average weight of the animal species divided by 1,000
pounds. Bruce Township Feedlot Ordinance, § 725.29(4).
2
a zoning ordinance, the governing body “shall record” a certified copy with the county
recorder. Minn. Stat. § 394.33, subd. 1 (2014). Another statute provides that a copy of the
ordinance “must be furnished to the county law library.” Minn. Stat. § 415.021 (2014). A
third statute requires that certain ordinances, including those relating to conditional-use
permits, “shall be filed with the county recorder,” but also specifies that the failure to record
an ordinance “shall not affect its validity or enforceability.” Minn. Stat. § 462.36, subd. 1.
After its enactment, the township did not file the ordinance with the county recorder or
furnish a copy to the county law library.
In September 2012, Schmitz, who had operated feedlots in another county, entered
into a contract for deed in property located in the township in order to conduct a livestock
operation. Between September and November 2012, he incurred expenses by making
improvements to the property, including installing electric and water lines and moving
equipment from another location.
When planning the project, Schmitz had contacted the Minnesota Pollution Control
Agency (MPCA) because in Benton County, where he had previously operated a feedlot,
MPCA regulations were the only applicable regulations. Around the end of September, he
also met with Ed Uhlenkamp, a Todd County resource conservationist. The two men had
previously discussed plans for another feedlot site, which Schmitz was considering
developing at a different location. During the earlier discussion, Uhlenkamp gave Schmitz
the applicable rules for the other site, but did not mention that some townships have their
own zoning regulations.
3
In November 2012, Uhlenkamp drove by the Bruce Township site owned by
Schmitz and saw livestock there. He emailed the town clerk, stating that the site would not
be in compliance with state and county feedlot rules. The clerk responded that a
conditional-use permit from the township would also be necessary for a feedlot.
In December 2012, Schmitz and the contract-for-deed vendors applied to Bruce
Township for a conditional-use permit for a feedlot for 200-300 animal units from
October 1 to May 1, and 30-40 animal units from May 1 to October 1.2 After public
hearings focused on setback requirements, the township planning commission
recommended, and the Bruce Township Board of Supervisors approved, a conditional-use
permit that required the applicants to obtain a variance from applicable setback
requirements.
In March 2013, Schmitz withdrew the permit for 300 animal units and submitted a
new application for a 30-animal-unit feedlot. After another public hearing and a planning-
commission recommendation, the board of supervisors approved the conditional-use
permit with conditions of enforcing a 30-animal-unit limit, surveying the property, and
bringing into compliance an existing nonconforming building on the boundary line
between Schmitz’s property and an adjacent property. Schmitz did not meet these
conditions and contends that they rendered a feedlot operation on the site impracticable.
In February 2014, the township filed a complaint in district court, seeking an
injunction prohibiting Schmitz from operating a feedlot that did not meet ordinance
2
The district court entered default judgment against the contract-for-deed vendors, who
are not participating in this appeal.
4
requirements and the conditional-use-permit conditions. The complaint alleged that a
township-board member had visited the property and observed more than 65 animals on
Schmitz’s property. Schmitz filed an answer and counterclaims, seeking dismissal of the
complaint, an injunction against enforcing the ordinance, a declaration that it was
unenforceable against him, and damages. He alleged that the ordinance was not
enforceable because it had not been filed with the county recorder or placed in the county
law library, as required by statute. He also asserted a claim for interference with a vested
property right and an affirmative defense of equitable estoppel, maintaining that he
received notice of the ordinance only after incurring expenses to prepare the property for
feedlot use. He alleged additional counterclaims of an unconstitutional taking and trespass.
The township then filed the feedlot ordinance with the county recorder and placed a copy
in the county law library.
After cross-motions for partial summary judgment, the district court granted the
township’s motion and denied Schmitz’s motion. The district court held as a matter of law
that the township ordinance was not void for failure to comply with statutory filing
requirements. The district court also concluded that, under undisputed facts, Schmitz had
not acquired a vested right to use the property as a feedlot and could not prove reasonable
reliance on any wrongful conduct by the township to support an equitable-estoppel defense.
Pursuant to the parties’ later stipulation, the district court entered final judgment, ordered
Schmitz to comply with the ordinance requirements, and dismissed his trespass and
constitution-related claims with prejudice. This appeal follows.
5
DECISION
On appeal from summary judgment, this court determines whether genuine issues
of material fact exist and whether the district court correctly applied the law. Mattson
Ridge, LLC v. Clear Rock Title, LLP, 824 N.W.2d 622, 627 (Minn. 2012). We view the
evidence in the light most favorable to the party against whom summary judgment was
granted. Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 630 (Minn. 2007). But
we review de novo the district court’s application of the law. Remodeling Dimensions, Inc.
v. Integrity Mut. Ins. Co., 819 N.W.2d 602, 610 (Minn. 2012). The interpretation of an
existing statute or ordinance presents a question of law for the court. RDNT, LLC, v. City
of Bloomington, 861 N.W.2d 71, 75 (Minn. 2015).
I
In Minnesota, county governments, in all but the most populous counties, are largely
responsible for land use planning and zoning activities. Minn. Stat. § 394.21 (2014). Each
county is encouraged to prepare and implement a community-based comprehensive plan
and, based upon that plan, to adopt “official controls.” Minn. Stat. §§ 394.23, .232 (2014).
These official controls, adopted by county ordinance, require public input and may be used
for purposes as varied as wetlands preservation, sewage disposal and feedlot zoning. Minn.
Stat. §§ 394.24-.26 (2014). Counties are also authorized to issue conditional-use permits,
which may be approved on a showing that the standards and criteria stated in the relevant
ordinance are satisfied. Minn. Stat. § 394.301 (2014). The Minnesota legislature has made
clear that townships, such as Bruce Township, are also vested with authority to enact
official controls, such as zoning ordinances, as long as they are consistent with, and no less
6
restrictive than, county controls. Minn. Stat. § 394.33 (2014). We have held that this
statute did not prohibit a township from validly enacting a feedlot ordinance that is more
restrictive than county ordinances. Altenburg v. Bd. of Supervisors of Pleasant Mound
Twp., 615 N.W.2d 874, 880 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).
When a municipality, such as a township, undertakes land use planning, including
adoption of a comprehensive plan, official controls and zoning ordinances, it does so based
on the authority created by the legislature set out in Minnesota’s municipal planning act,
Minn. Stat. §§ 462.351-.365 (2014). Under that act, townships, like counties, also have
authority to issue conditional-use permits. Minn. Stat. § 462.3595.
Schmitz concedes that Bruce Township had the authority to adopt the feedlot
ordinance. He contends, however, that the township’s undisputed failure to comply with
the statutory mandate to record the ordinance renders it unenforceable against his feedlot.
Recording requirement and consequence of failure to file ordinance
Two Minnesota statutory provisions address the need to file an ordinance relating
to zoning controls with the county recorder. The statute that addresses town powers in the
context of county planning and zoning states that “[u]pon the adoption or amendment of
any official controls the governing body of the town shall record a certified copy thereof
with the county recorder or registrar of titles.” Minn. Stat. § 394.33, subd. 1. The statute
that governs municipal planning and zoning provides as follows:
A certified copy of every ordinance, resolution, map, or
regulation adopted under the provisions of sections 462.358,
462.359, and 462.3595 shall be filed with the county recorder
of the county or counties in which the municipality adopting it
is located. . . . Failure to record an ordinance, resolution, map,
7
regulation, variance, or order shall not affect its validity or
enforceability.
Minn. Stat. § 462.36, subd. 1.
Both statutory provisions require the township to record the ordinance, but the latter
also includes language stating that failure to record an ordinance “shall not affect its
validity or enforceability.” Id. Schmitz argues that the ordinance is governed only by
Minn. Stat. § 394.33, which is silent on the effect of the failure to record. Further, he
claims that Minn. Stat. § 462.36, with its exculpatory language, applies only to a limited
number of ordinances, which do not include the feedlot ordinance that is the subject of this
lawsuit. The district court concluded that Minn. Stat. § 394.33 must be read in conjunction
with Minn. Stat. § 462.36 because chapter 462 authorizes local governments to engage in
planning, and section 462.36 refers in turn to Minn. Stat. § 462.3595, which authorizes
local governing bodies to designate conditional uses and grant conditional-use permits.
This issue presents a matter of statutory interpretation, which we review de novo.
Johnson v. Cook Cty., 786 N.W.2d 291, 293 (Minn. 2010). If a statute’s language is
unambiguous, this court applies its plain meaning. Minn. Stat. § 645.08 (2014). To
determine the meaning of a particular statute, this court examines the full-act context of the
statutory provision. Glen Paul Court Neighborhood Ass’n v. Paster, 437 N.W.2d 52, 56
(Minn. 1989); Occhino v. Grover, 640 N.W.2d 357, 359 (Minn. App. 2002), review denied
(Minn. May 28, 2002).
Schmitz argues that the feedlot ordinance was adopted pursuant to Minn. Stat.
§ 394.33, which is referenced in the ordinance. See Feedlot Ordinance § 725.11. But
8
“Minn. Stat. § 394.33 is not an enabling statute which grants towns authority to enact
zoning ordinances. It merely permits them to continue to zone as provided by law.”
Scinocca v. St. Louis Cty. Bd. of Comm’rs, 281 N.W.2d 659, 661 (Minn. 1979). Rather,
the township derives its power to conduct zoning activities from the municipal planning
act. See Minn. Stat. §§ 462.357, subd. 1; .352, subds. 2, 15. Thus, the Bruce Township
Feedlot Ordinance, a township zoning control, was adopted pursuant to chapter 462.
The object of statutory interpretation is to determine and effectuate legislative
intent. Minn. Stat. § 645.16 (2014). Minn. Stat. § 462.36 provides that “[f]ailure to record
an ordinance . . . shall not affect its validity or enforceability.” Because Bruce Township’s
zoning authority derives from the municipal planning act, the language in Minn. Stat.
§ 462.36, a provision of that act, applies to the feedlot ordinance. See Milner v. Farmers
Ins. Exch., 748 N.W.2d 608, 617 (Minn. 2008) (stating that legislative intent may be
ascertained by considering, among other things, the language of other statutes that address
the same subject matter); Lenz v. Coon Creek Watershed Dist., 278 Minn. 1, 11, 153
N.W.2d 209, 217 (1967) (stating that statutes in pari materia covering the same subject
matter should be construed in light of each other).
Schmitz further argues that the exculpatory language in Minn. Stat. § 462.36 does
not apply to the feedlot ordinance because the ordinance was not adopted under one of the
three statutory sections explicitly mentioned in Minn. Stat. § 462.36: Minn. Stat. § 462.358
(relating to subdivision regulations); Minn. Stat. § 462.359 (relating to official maps); or
Minn. Stat. § 462.3595 (relating to conditional-use permits). He maintains that the feedlot
ordinance was instead adopted under a different provision, Minn. Stat. § 462.357, subd. 1g,
9
which relates specifically to feedlots. We disagree. The alternative ordinance suggested
by Schmitz contains requirements for notifying the MPCA and the commissioner of
agriculture when feedlot zoning controls are proposed. Minn. Stat. § 462.357, subd. 1g.
But that statute does not generally deal with substantive requirements for feedlot zoning
controls, which are the very subject of the Bruce Township Feedlot Ordinance. By its
terms, the feedlot ordinance requires a conditional-use permit for a new feedlot of ten or
more animal units. Feedlot Ordinance § 725.421. That permit must contain an animal
waste plan with an operational and maintenance plan, along with construction plans.
Feedlot Ordinance § 725.431.3 Thus, the feedlot ordinance is “adopted under the
provision[] of . . . section[] 462.3595,” and filing with the county recorder is required under
Minn. Stat. § 462.36.
Although recording is required Minn. Stat. § 462.36, subd. 1, also provides that
failure to file the ordinance does not render it unenforceable. Therefore, reading Minn.
Stat. § 394.33 in conjunction with Minn. Stat. § 462.36, we conclude that failure to file a
certified copy of a township ordinance relating to a conditional use permit with the county
recorder does not invalidate that ordinance. The district court did not err by declaring the
feedlot ordinance enforceable despite the township’s failure to file it with the county
recorder.
3
Schmitz argues that the feedlot ordinance has a broader scope than only conditional uses.
But even if this is true, it does not change our conclusion that the conditional-use statute,
Minn. Stat. § 452.3595, governs the issuance of conditional-use permits under the
ordinance.
10
Mandatory or directory statutory requirements
In addition, the district court’s summary judgment on the recording issue may be
affirmed based on our conclusion that the filing provisions of Minn. Stat. § 394.33 and
Minn. Stat. § 415.021, which requires furnishing a copy of the ordinance to the county law
library, are directory, rather than mandatory. A statute is generally considered mandatory
when it expresses the consequences of a failure to comply with its provisions. Sullivan v.
Credit River Twp., 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974). On the other
hand, when a statute contains a requirement but provides no consequence for
noncompliance, it is considered directory. Hans Hagen Homes, Inc. v. City of Minnetrista,
728 N.W.2d 536, 541 (Minn. 2007). Violation of a directory requirement in a statute does
not invalidate the action taken. State by Lord v. Frisby, 260 Minn. 70, 77, 108 N.W.2d
769, 773 (1961). The district court concluded that Minn. Stat. § 415.021 (furnishing a copy
to the law library) was directory, rather than mandatory, but did not address whether Minn.
Stat. § 394.33, subd. 1 (filing the ordinance with the county recorder), was also directory.
Minn. Stat. § 394.33 provides that the township board “shall record” a copy of the
ordinance with the county recorder. Although “[s]hall” is typically defined as
“mandatory,” Minn. Stat. § 645.44, subd. 16 (2014), that definition states only a rule of
construction, which does not bind the courts. Szczech v. Comm’r of Pub. Safety, 343
N.W.2d 305, 307 (Minn. App. 1984). Minn. Stat. § 394.33, subd. 1, and Minn. Stat.
§ 415.021 do not provide consequences for the failure to record an ordinance or place it in
the law library. Therefore, we conclude that those statutory requirements are directory,
and failure to follow them does not per se invalidate the feedlot ordinance. See, e.g.,
11
Johnson, 786 N.W.2d at 295 (holding that a statutory provision requiring written reasons
for the denial of a zoning application was directory when it did not provide a consequence
for failure to comply).
Schmitz argues that, because he is an affected property owner, failure to record the
feedlot ordinance renders the feedlot ordinance unenforceable with respect to his property,
citing Paster, 437 N.W.2d at 57. In Paster, the Minnesota Supreme Court held that failure
to notify affected property owners of a proposed zoning amendment by mail, as required
by statute, invalidated the amendment proceedings. Id. But unlike the property owner in
Paster, Schmitz has not alleged that he lacked notice of proceedings to adopt or amend a
zoning ordinance that would affect his existing property. When he obtained his interest in
the property, the feedlot ordinance was already in place, and he is subject to its terms. “A
property owner is charged with knowledge of whether a local zoning ordinance permits
construction undertaken on the property.” Stotts v. Wright County, 478 N.W.2d 802, 805
(Minn. App. 1991), review denied (Minn. Feb. 11, 1992).
“If a statutory rule is directory, generally prejudice must be shown before the failure
to comply with that rule potentially warrants relief.” Riehm v. Comm’r of Pub. Safety, 745
N.W.2d 869, 876 (Minn. App. 2008), review denied (Minn. May 20, 2008). In addition, if
no bad faith is shown in the violation of a directory statute, a court may decline to invalidate
that statute. See, e.g., Lindahl v. Indep Sch. Dist. No. 306, 270 Minn. 164, 169-70, 133
N.W.2d 23, 27 (1965) (stating that even when statutory provisions “clearly and expressly”
impose certain requirements on school bonding elections, a court need not “impose the
drastic consequence of invalidity” if the court concludes “there was no fraud, bad faith, or
12
misleading of the voters” (quotation omitted)). Schmitz, who has not asserted that he
checked with the county recorder or law library before beginning feedlot construction, has
failed to produce evidence that he was prejudiced by the township’s failure to file the
ordinance in those locations. He has not alleged that the township acted fraudulently or in
bad faith. Because he has shown no prejudice or bad faith related to violations of Minn.
Stat. §§ 394.33 or 415.021, the township’s failure to comply with those directory provisions
does not render the feedlot ordinance unenforceable.4
II
Schmitz argues that, because he was a property owner and completed substantial
improvements before he received notice of the feedlot ordinance, he had a vested right to
use the property as a feedlot. Whether the doctrine of vested rights applies to a case
presents a question of law, which this court reviews de novo. Halla Nursery, Inc. v. City
of Chanhassen, 781 N.W.2d 880, 885 (Minn. 2010).
If a landowner has substantially completed a project in reliance on a permitted use,
but a change in the law later prohibits that use, he may be able to continue the project under
the equitable doctrine of vested rights. Id. But because we have concluded that the feedlot
ordinance was valid and enforceable when Schmitz made his feedlot improvements, the
doctrine of vested rights does not apply here. In addition, a right becomes vested for the
4
We note that, even if a statute does not provide a consequence for noncompliance, if it
requires a governmental body to perform a certain act, that act may be compelled by
mandamus. Hans Hagen Homes, Inc., 728 N.W.2d at 541. But Schmitz never sought that
remedy to enforce either Minn. Stat. § 394.33 or Minn. Stat. § 415.021, and in any event,
such an action would have been moot following the filing and recording of the ordinance
in 2014.
13
purpose of this doctrine when it arises under a contract or a transaction of a contractual
nature, and the “contract” in zoning cases refers to the issuance of a valid permit. Stotts,
478 N.W.2d at 805; see also Halla Nursery, Inc., 781 N.W.2d at 887 (holding that a
property owner did not acquire a vested right to complete a project when a permit was
erroneously issued). When Schmitz made feedlot-related improvements to his property,
he had not yet acquired a conditional-use permit, which was required by existing ordinance.
Therefore, the district court did not err by concluding that Schmitz did not acquire a vested
right to improve the property as a feedlot and by granting summary judgment to the
township on that claim.
III
Schmitz argues that the district court erred by rejecting his defense that the township
was equitably estopped from enforcing the feedlot ordinance against his property. A party
who seeks to establish equitable estoppel against a government entity must establish that:
(1) an authorized government agent has engaged in wrongful conduct; (2) the party seeking
equitable relief has reasonably relied on that conduct; (3) that party has incurred a unique
expenditure in reliance on the conduct; and (4) the balance of the equities weighs in favor
of estoppel. City of N. Oaks v. Sarpal, 797 N.W.2d 18, 25 (Minn. 2011). The party seeking
equitable estoppel against a governmental agency has a “heavy burden of proof.” Id.
(quotation omitted). When the facts permit only one conclusion, the application of
equitable estoppel presents a legal question. State v. Ramirez, 597 N.W.2d 575, 577 (Minn.
App. 1999).
14
The district court concluded, as a threshold matter, that the township committed
wrongful conduct by failing to comply with the statutory requirements of recording the
ordinance and furnishing a copy to the county law library. We agree. Wrongful conduct
by a government entity does not include “simple inadvertence, mistake, or imperfect
conduct,” Sarpal, 797 N.W.2d at 25 (quotation omitted). But when a statute requires a
governmental body to perform a certain act, it is reasonable to assume that it will do so.
Hans Hagen Homes, Inc., 728 N.W.2d at 541. We conclude that the township’s failure to
comply with the statutory filing directives, which were subject to enforcement by
mandamus, constituted wrongful conduct.
Nonetheless, to resist summary judgment on the issue of equitable estoppel, Schmitz
was also required to present evidence tending to show that he relied on the township’s
wrongful conduct. See Mesaba Aviation Div. v. Cty. of Itasca, 258 N.W.2d 877, 880 (Minn.
1977). Schmitz acknowledged in his deposition that he did not investigate whether any
township feedlot restrictions applied to his property, but “talked to the county,” which was
“all the further [he] thought [he] had to go.” He produced no evidence to show that he had
checked with the county recorder or the county law library about any township feedlot
restrictions.
Schmitz argues that he indirectly relied to his detriment on his communications with
Uhlenkamp, which were equivalent to an affirmative misrepresentation that he could use
the property for a feedlot. But Uhlenkamp was a county employee, not a township
employee. The county is not a party to this action, and any representation Uhlenkamp
made with respect to county regulations cannot bind the township in this lawsuit. In
15
addition, a private party seeking to apply equitable estoppel against a government agency
must show that the government’s wrongful conduct actually induced the private party’s
detrimental reliance. Nw. Airlines, Inc. v. Cty. of Hennepin, 632 N.W.2d 216, 221 (Minn.
2001). Here, the wrongful conduct alleged is the township’s failure to file the feedlot
ordinance with the county recorder or to place a copy in the law library. Schmitz has not
produced evidence that the township’s failure to perform these acts actually induced him
to undertake his feedlot improvements.
We conclude that the final two factors, the property owner’s undertaking unique
expenditures and the weighing of the equities, are not dispositive in this case. Sarpal, 797
N.W.2d at 25. Although both parties argue persuasively that the equities weigh in their
favor, because we conclude that Schmitz cannot demonstrate that he reasonably relied on
wrongful government conduct, the district court did not err by granting summary judgment
on Schmitz’s equitable estoppel defense.
Affirmed.
16