City of Stillwater, Respondent, vs. Marcia Kilbourne, Appellant.

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City of Stillwater, Respondent, vs. Marcia Kilbourne, Appellant. A06-1815, Court of Appeals Unpublished, September 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).






City of Stillwater,
Marcia Kilbourne,


Filed September 4, 2007


Stoneburner, Judge


Washington County District Court

File No. C4046764


David T. Magnuson, Margaret M. Murphy, Magnuson Law Firm, Suite 202, 333 North Main Street, Stillwater, MN 55082; and


Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan & O'Brien, P.L.L.P., Suite 100, 8519 Eagle Pointe Boulevard, Lake Elmo, MN 55042 (for respondent)


Marcia Kilbourne, 23130 Everton Avenue North, Forest Lake, MN 55025 (pro se appellant)


            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellants challenge the district court's grant of summary judgment on respondent city's declaratory-judgment action, declaring that appellants are in violation of respondent's zoning code and granting injunctive relief directing appellants to return their property to the use permitted under the city's zoning code.  Appellants also challenge the dismissal of their counterclaim that asserts an unlawful taking.  We affirm.



            Pro se appellants Marcia and Christina Kilbourne (Kilbourne) have an ownership interest in property located at 216 West Wilkins Street in respondent City of Stillwater (the city).[1]  The property is zoned RB-2, under which a dwelling occupied by not more than two families is permitted, and accessory buildings cannot be designed or used for human habitation.[2]

            After an inspection revealed three separate dwelling units[3] in the house on the property and a fourth dwelling unit above the garage, the city brought a declaratory-judgment action for a declaration that the property is not in conformance with the zoning code and for injunctive relief to compel Kilbourne to restore the property to its permitted use.  Kilbourne answered, alleging that her use of the property has been permitted by the city, and counterclaimed, alleging that (1) storm-sewer pipes located on her property have made a portion of the property unbuildable and unusable, as evidenced by the city's refusal to issue building permits to build in the location of the pipes, constituting an unconstitutional taking and (2) the city's denial of permits necessary to accommodate Marcia Kilbourne's disability[4] is a violation of the Minnesota Human Rights Act (MHRA).  Kilbourne voluntarily withdrew the MHRA claim during the discovery period.[5] 

            The city moved for summary judgment, which was granted.[6]  Kilbourne moved for a "new trial" or amended findings of fact.[7]  At the hearing on Kilbourne's motion, the district court declined to accept additional exhibits offered by Kilbourne because they were untimely.  The motion was denied, and this appeal followed.



            "On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law."  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  "A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted."  Id.  No genuine issue of material fact exists when the nonmoving party presents evidence that merely creates a metaphysical doubt as to a factual issue and that is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

I.          Evidentiary issues

            a.         Tape recordings of city employees

            Kilbourne first argues that the district court did not act appropriately because it failed to review various tape recordings that she had made of city employees that she asserts prove her allegations that city employees treated her unfairly, made contradictory statements, and manipulated the permit process to her detriment.  Kilbourne asserted all of these allegations in her deposition testimony and in numerous other documents filed with the district court.  Viewing the evidence in the light most favorable to Kilbourne required the district court to assume that the tape recordings supported her allegations; therefore, the district court was not required to listen to the tapes for purposes of summary judgment.  Fabio, 504 N.W.2d at 761.  The district court did not err or abuse its discretion by failing to review the tapes.


b.         Failure to admit evidence submitted after discovery deadline

            Kilbourne next asserts that the district court erred in declining to accept evidence that she submitted to the district court after the close of discovery.  Absent an erroneous interpretation of the law, the question of whether to admit evidence is within the district court's broad discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Because the submission was untimely, the district court did not abuse its discretion by failing to accept the evidence. 

II.        Alleged factual errors and omissions in district court's memorandum

            Kilbourne argues that the district court's memorandum attached to the summary-judgment order contains many factual errors and omissions.  Kilbourne has asserted many grievances against the city that are unrelated to the only issues that were before the district court on summary judgment: (1) whether her property currently has four separate dwelling units and (2) whether the city has committed a taking.  We decline to address any alleged errors or omissions that are not relevant to these issues because even if such errors and omissions exist, they would not require reversal of summary judgment. 

            Many of the alleged errors relate to Kilbourne's asserted estoppel defense, which is based on Kilbourne's allegation that city employees, orally or by silence after being notified of her intentions, approved the basement kitchen, removal of the stairway between unit A and the basement, and improvements above the garage.  If Kilbourne had a viable estoppel defense, these errors could be material.  The record, however, contains undisputed evidence that Kilbourne, on several occasions, assured the city that she was not creating separate living units in the basement or above the garage, undermining any argument that she reasonably relied on oral representations or acquiescence of city employees to create those units.  And more importantly, "[t]he law in Minnesota is clear that administration of zoning ordinances is a governmental not a proprietary function, and the municipality cannot be estopped from correctly enforcing the ordinance even if the property owner relied to [the owner's] detriment on prior city action."  Frank's Nursery Sales Inc. v. City of Roseville, 295 N.W.2d 604, 607 (Minn. 1980). 

            In Frank's, the supreme court stated that even if the city council incorrectly led a property owner to believe that it would come within a certain zoning classification, the city was not estopped from prohibiting the owner from building a nonconforming business on the property.  Id. And in Stillwater Twp. v. Rivard, we held that a municipality's prior knowledge of a violation does not diminish the municipality's ability to later enforce a zoning ordinance.  547 N.W.2d 906, 911 (Minn. App. 1996).  Because estoppel is not a valid defense to the city's enforcement action, any factual errors related to Kilbourne's estoppel claims are not grounds for reversing the district court's grant of summary judgment on the city's enforcement action.  

            Kilbourne does raise a genuinely disputed factual issue about whether the basement living area is connected to unit B by a door, making the district court's statement that there is no access from the basement to any other part of the house erroneous.  But Kilbourne does not cite any evidence that was in the record at the time summary judgment was ordered that establishes that the basement was ever or currently is part of the living space of unit B and not a separate dwelling unit.  The evidence in the record is undisputed that, (1) prior to removal of a staircase, the basement was connected to unit A; (2) Kilbourne represented to the city that the basement would be used as living space for unit A; (3) after removal of the staircase, the basement cannot be accessed from unit A; and (4) the facilities in the basement currently meet the definition of a separate dwelling unit as that term is used in the building code.  There is also undisputed evidence in the record that separate families lived in each of the three units in the dwelling.  We conclude, therefore, that even if there is access from unit B to the basement, the district court did not err in concluding that no genuine issues of material fact exist on the issue of there being three separate dwelling units in the dwelling on the property in violation of the zoning code. 

III.       Takings claim

            Kilbourne's takings claim is based on the city's denial of five applications for a permit to expand the size of the dwelling in an area where some pipes are buried.  These pipes were damaged by a contractor working for Kilbourne in 1998.  The city told Kilbourne that it was her responsibility to repair the pipes.  Kilbourne asserts that she was promised by an employee of the water department that if she repaired and reburied the pipes: the pipes could be excavated after the city made improvements to storm sewers; she could recover landscaping rock used in burying the pipes; and she could build an addition to the dwelling in the area where the pipes are located.  The city asserts that Kilbourne's subsequent applications for a permit to remodel in the area where the pipes are buried were denied only because Kilbourne sought to expand the footprint of the dwelling, which, under current lot-size requirements is a grandfathered, nonconforming use that the city is unwilling to permit to be expanded.

            The district court dismissed Kilbourne's takings claim based on its conclusions that (1) Kilbourne failed to exhaust administrative remedies for the denied permits; (2) the city had a rational basis for denying the applications; and (3) there is no evidence beyond Kilbourne's mere assertion that the existence of the pipes caused the denials.  We agree. 

            Additionally, Kilbourne failed to show that the city's denial of the applications for a permit to build in the area where the pipes are located has deprived the property of all reasonable use, a required element of a takings action.  See Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 766 (Minn. 1982) (stating that "[r]egulation through zoning ordinances does not constitute a compensable taking unless it deprives the property of all reasonable use" (quotation omitted)).  The evidence is undisputed that denial of the applications did not deprive Kilbourne of residential or rental use of the property, or prevent other remodeling of the dwelling that did not increase the size of the footprint.  Kilbourne cannot, therefore, as a matter of law, establish that denial of the applications constituted an unconstitutional taking.  See id. (stating that "[o]nly under rare circumstances can [the supreme court] conceive of a special-use permit denial resulting in an unconstitutional taking").  The district court did not err in granting summary judgment to the city on Kilbourne's takings claim.

IV.       Due process and MHRA claim

            On appeal, Kilbourne asserts that she was denied due process because she was not represented by counsel and was not assisted by the district court despite a claimed disability.  Kilbourne, who early in the litigation was represented by counsel, asserts on appeal that had she had an attorney throughout the proceedings, she would not have given up her claim under the Minnesota Human Rights Act.  But the district court did not discharge Kilbourne's attorney and did nothing to discourage Kilbourne from being represented.  And the record clearly establishes that Kilbourne voluntarily dismissed the MHRA claim.  Kilbourne does not state what assistance she expected from the district court, and other than a request to accept untimely evidence, the record does not demonstrate that Kilbourne ever requested assistance from the district court.  Because this is a civil matter, Kilbourne was not entitled to court-appointed counsel.  Furthermore, Kilbourne cites no evidence or authority to support her argument on the issues of representation or assistance.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that an assignment of error in brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).  

V.        Additional constitutional claims

            On appeal, Kilbourne asserts several other constitutional claims unsupported by cogent argument or any authority.  We also decline to address those issues.  See State Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach a constitutional issue in the absence of adequate briefing).


[1] The city initially sued only Marcia Kilbourne but later learned that she had deeded the property to Christina Kilbourne, and the city amended the complaint to add her as a defendant.  Thereafter, Christina Kilbourne, who lives in Colorado, deeded the property to herself and Marcia Kilbourne jointly for the duration of the litigation.

[2] Stillwater, Minn., City Code Ch. 31, § 31-1, subd. 12(1)(b), (d), (3)(d) (2007).  Multifamily homes are permitted in an RB-2 Zoning District with special-use permits, id., subd. 12(2)(b), but it is undisputed that no such permit has been issued to Kilbourne for this property.

[3] "Dwelling unit" is defined in the zoning code as "one or more rooms providing complete living facilities for one family, including equipment or provisions for cooking and including rooms used for living, sleeping and eating."  Id., subd. 4.

[4] The Kilbourne counterclaim alleges that Marcia Kilbourne suffers from multiple sclerosis.

[5] The district court dismissed the MHRA claim without prejudice in an order dated December 30, 2005.

[6] Kilbourne claimed that she was not properly served with this motion, but the district court rejected this claim, finding that she had been served at the addresses that she had provided.  The record supports this finding.

[7] The district court treated the motion as a motion under Minn. R. Civ. P. 60.02.