Brad Vier, Appellant, vs. City of Woodbury, Respondent.
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2010).
STATE OF MINNESOTA
IN COURT OF APPEALS
City of Woodbury,
Filed May 14, 2012
Washington County District Court
File No. 82-CV-10-7417
Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)
Paul A. Merwin, League of Minnesota Cities, St. Paul, Minnesota (for respondent)
Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and
In this declaratory judgment action involving appellant Brad Vier’s outdoor woodfired boiler (OWB), appellant challenges the district court’s grant of summary judgment
to respondent City of Woodbury. Appellant argues that the district court erred because
(1) factual issues exist as to whether the city’s ordinance specifically identifying OWBs
as nuisances was validly enacted, and (2) the factual dispute over whether appellant
installed his OWB in reliance on the city’s assurances that the OWB complied with city
ordinances is material to whether the city can be equitably estopped from enforcing its
ordinance. We conclude that the district court did not err by granting summary judgment
for the city because (1) appellant’s OWB caused a nuisance under the nuisance ordinance
in effect when appellant installed the OWB, and the subsequently amended ordinance
naming OWBs as nuisances was validly enacted, and (2) appellant did not establish the
elements of equitable estoppel. We affirm.
The district court “shall” grant summary judgment if the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that either party is entitled
to judgment as a matter of law.” Minn. R. Civ. P. 56.03. We review the district court’s
decision to grant summary judgment to determine whether there are any genuine issues of
material fact and whether the district court erred in its application of the law. STAR Ctrs.,
Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002). In doing so, we view
the evidence in the light most favorable to the party against whom summary judgment
was granted. J.E.B. v. Danks, 785 N.W.2d 741, 746 (Minn. 2010).
Appellant installed and began using an OWB on his Woodbury property in the fall
of 2008. In December 2008, several adjoining property owners complained to the city
that a significant amount of smoke from appellant’s OWB was intruding into their homes.
In January 2009, city inspectors observed “significant clouds of smoke” in the area
around appellant’s home and a neighboring home “filled with smoke” from appellant’s
OWB. The city advised appellant that his OWB created a nuisance, a violation of
Woodbury, Minn. City Ordinance (WCO) § 15-2(b)(30) (2008), which provided that
“[o]dors, gases, steam, vapor, hot air, grease, smoke, or other gaseous or particulate
wastes shall not be discharged upon abutting, adjacent, or surrounding properties.”
The city amended its nuisance ordinance in October 2009 to provide:
The following are nuisances affecting health, safety,
comfort or repose: . . .
(31) Installing or operating of an outdoor wood
boiler. “Outdoor wood boiler” means a fuel
burning device that is designed for outdoor
installation or installation in structures not
normally occupied by humans to heat building
space and/or water via the distribution, typically
through pipes, of a fluid heated in the device,
typically water or a water/antifreeze mixture.
WCO § 15-2(b)(31) (2009). The district court subsequently granted summary judgment
for the city in appellant’s declaratory judgment action to continue operation of his OWB.
Appellant argues that he should be permitted to continue operating his OWB
because the city’s 2009 amendment specifically naming OWBs as nuisances is
unconstitutional. We disagree. Regardless of the constitutionality of the city’s 2009
nuisance amendment, appellant’s OWB violates the 2008 nuisance ordinance, which was
in effect when he installed and began to use his OWB in fall 2008, and which controls his
use of the OWB.
The record establishes that appellant’s OWB emitted significant
amounts of smoke that infiltrated neighboring homes.
This violates the nuisance
ordinance’s prohibition against discharging smoke onto “abutting, adjacent, or
surrounding properties.” WCO § 15-2(b)(30). Thus, appellant’s OWB caused a nuisance
when it was erected and continues to violate the nuisance ordinance, regardless of the
validity of a subsequent amendment naming OWBs as nuisances.
Moreover, we find no merit to appellant’s contention that the 2009 amendment is a
constitutionally impermissible exercise of legislative authority.
constitutional so long as it serves to promote a public purpose; is not unreasonable,
arbitrary, or capricious interference with a private interest; and the means chosen bear a
rational relation to the public purpose sought to be served.” Arcadia Dev. Corp. v. City of
Bloomington, 552 N.W.2d 281, 288 (Minn. App. 1996), review denied (Minn. Oct. 29,
1996). Legislation that is not based on a suspect class and does not infringe on a
fundamental right “need only be rationally related to a legitimate governmental purpose
in order to withstand” constitutional challenges. Id. A municipal ordinance is presumed
to be constitutional, and the party challenging the ordinance bears the burden of
establishing that the ordinance is unreasonable or that the requisite public interest is not
involved. City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955).
“[E]xcept in those rare cases in which the city’s decision has no rational basis, it is the
duty of the judiciary to exercise restraint and accord appropriate deference to civil
authorities in the performance of their duties.” Swanson v. City of Bloomington, 421
N.W.2d 307, 313 (Minn. 1988) (quotation omitted).
The city council amended the nuisance ordinance to expressly prohibit OWBs,
pursuant to its authority under Minn. Stat. § 412.221, subd. 23 (2008), “to define
nuisances and provide for their prevention or abatement.”
The city developed a
substantial record and articulated clear reasons for its decision to prohibit OWBs as
nuisances. To show that the nuisance ordinance was rationally related to the legitimate
public purpose of protecting the air quality and public health in Woodbury, the city
submitted to the district court three lengthy reports with supporting documentation
finding that OWBs emit significant smoke and particulate matter in the normal course of
their operation, OWB emissions pose a significant public health concern, OWB use is
increasing, and OWBs are not widely regulated. This record establishes that the city
categorized OWBs as nuisances based on evidence that OWBs can pose a risk to public
health and air quality.
The purpose of protecting air quality and public health falls squarely within
municipal authority over the health, safety, and general welfare of its citizens. See State
v. Crabtree Co., 218 Minn. 36, 40, 15 N.W.2d 98, 100 (1944) (observing that
municipalities have wide discretion to use legislative police power to abate public
Because prohibiting OWBs as nuisances is directly relevant to the
governmental objective of protecting air quality and public health, the city’s ordinance is
constitutional. See Arcadia Dev. Corp, 552 N.W.2d at 288 (stating that legislation fails
rational-basis review only when it rests on grounds that are irrelevant to the achievement
of a plausible governmental objective).
Appellant argues that the manner and timing of the city’s ordinance raises a fact
question as to whether the ordinance furthers a legitimate public purpose, arguing that the
city council specifically targeted him by its passage of this ordinance. Appellant relies on
a statement in an April 2009 report to the city council: “One OWB was installed in the
City in November 2008 without a building permit by an unlicensed contractor. Removal
was required through the City’s nuisance ordinance, but the installation shows local
interest in these units.”
But this statement does not undermine the legitimate
governmental purpose underlying the ordinance. The record reflects that the ordinance
was passed as part of a comprehensive plan initiated by the city council in late 2008 to
regulate alternative energy sources, including OWBs. The development of the city’s
comprehensive plan lasted for more than a year and preceded the city’s January 2009
identification of appellant’s OWB as a nuisance. The evidence is insufficient to establish
that appellant was targeted and that the ordinance was not enacted in good faith.
The district court also properly determined that appellant may not continue the
nonconforming use. “A vested interest cannot be asserted against [the police power]
because of conditions once obtaining. To so hold would preclude development and fix a
city forever in its primitive conditions.” Hadachenk v. Sebastian, 239 U.S. 394, 410, 36
S. Ct. 143, 145 (1915). Appellant may not continue a use that does not conform to an
ordinance that is validly enacted pursuant to a municipality’s police power. See id.
(holding that brickmaker whose business predated city ordinance prohibiting
brickmaking in designated areas could not continue operations in a designated area).
Because the ordinance identifying OWBs as prohibited nuisances was a valid exercise of
statutory authority, and because appellant’s OWB violated the nuisance ordinance even
before the ordinance specified OWBs as nuisances, the district court did not err by
concluding that the ordinance prohibits appellant’s continuing use of an OWB.
Appellant also contends that the district court erred by concluding that any factual
dispute over whether city employees advised appellant that his OWB would comply with
city ordinances is immaterial to resolution of the case. Appellant maintains that the
factual dispute is material to the question of whether the city should be estopped from
prohibiting him from using his OWB because he acted in reliance on the city’s advice
when he installed his OWB.
Equitable estoppel is “intended to prevent a party from taking unconscionable
advantage of his own wrong by asserting his strict legal rights.” Brown v. Minn. Dep’t of
Pub. Welfare, 368 N.W.2d 906, 910 (Minn. 1985) (quotation omitted). A party seeking
to establish equitable estoppel against a governmental entity must establish all four of the
following elements: (1) “wrongful conduct” by an authorized government agent, (2) the
party seeking equitable relief reasonably relied on the wrongful conduct, (3) the party
incurred a unique expenditure in reliance on the wrongful conduct, and (4) the balance of
equities weighs in favor of estoppel. City of North Oaks v. Sarpal, 797 N.W.2d 18, 25
“Wrongful conduct” requires some degree of malfeasance or affirmative
misconduct. Id.; AAA Striping Servs. Co. v. Minn. Dep’t of Transp., 681 N.W.2d 706,
720 (Minn. App. 2004). Malfeasance by a government official refers to “evil conduct or
an illegal deed, the doing of that which one ought not to do, the performance of an act by
an officer in his official capacity that is wholly illegal and wrongful.” Jacobsen v. Nagel,
255 Minn. 300, 304, 96 N.W.2d 569, 573 (1959) (quotation omitted).
inadvertence, mistake, or imperfect conduct” does not establish “wrongful conduct” and
“an erroneous government action is not necessarily ‘wrongful.’” Sarpal, 797 N.W.2d at
25 (quotation omitted); see, e.g., Mesaba Aviation Div. of Halvorson of Duluth, Inc. v.
Cnty. of Itasca, 258 N.W.2d 877, 880 (Minn. 1977) (holding erroneous tax advice made
in good faith insufficient to establish equitable estoppel against government). Rather,
“wrongful conduct” requires “some degree of malfeasance.” Id.
In support of his claim, appellant submitted an affidavit in which he states that city
staff informed him “that it was in fact legal for [him] to install a wood burning stove on
[his] property and [he] would not need a permit prior to installing the stove.” Appellant
claimed that, after receiving this advice, he “felt confident that [he] was legally allowed
to put a wood stove on [his] property and that [he] did not need to obtain a permit so [he]
proceeded to purchase the stove and had it installed.” Respondent disputes this, claiming
that city employees have no recollection or record of advising appellant that he could
construct the OWB.
Viewing the evidence in the light most favorable to appellant, and assuming that
the city so advised appellant before he installed the OWB, such advice does not rise to
the level of malfeasance or illegal conduct. The record contains no evidence that the city
intended to deceive appellant or induce him to install the OWB in violation of city
ordinances. In the absence of evidence that would support the conclusion that the city
acted culpably, any erroneous information provided by city employees before appellant
installed his OWB constitutes only a “simple mistake.” Accordingly, there is insufficient
evidence to create a material fact question as to whether the city exhibited wrongful
Moreover, city ordinances regulating permitting and nuisances were publicly
available. Had appellant consulted the city code before installing his OWB, he could
have identified contradictions between the code and the information city employees
allegedly provided. Therefore, we question whether appellant’s reliance on the alleged
advice of city employees was reasonable.
Because the record lacks evidence to support the first element necessary to
establish equitable estoppel, the district court did not err by concluding that estoppel was
not an available means of relief as a matter of law.1 Because estoppel is was not
available relief and the city’s validly enacted ordinance prohibits appellant’s continuing
use of his OWB, the district court did not err by granting summary judgment for the city.
Appellant also argues that public policy favors allowing city residents to pursue the use
of alternative sources of energy. But appellant identifies no error of the district court for
this court to review, and the record reflects that appellant did not present this argument to
the district court. Accordingly, we decline to consider appellant’s public policy
argument. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that an
appellant court generally will not consider matters not argued to and considered by the
district court); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that the
court of appeals is an error-correcting court).