County of Freeborn, Respondent, vs. Dennis A. Brue, et al., Appellants.

County of Freeborn, Respondent, vs. Dennis A. Brue, et al., Appellants. A07-263, Court of Appeals Unpublished Decision, November 6, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-0263

 

County of Freeborn,
Respondent,
 
vs.
 
Dennis A. Brue, et al.,
Appellants.

 

Filed November 6, 2007

Affirmed

Harten, Judge*

 

Freeborn County District Court

File No. 24-CV-06-284

 

Craig S. Nelson, Freeborn County Attorney, 411 South Broadway, Albert Lea, MN 56007 (for respondent)

 

Matthew L. Benda, Stephanie A. Haedt, Peterson, Savelkoul & Benda, Ltd., 211 South Newton, Albert Lea, MN 56007 (for appellants)

 

            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge 

 

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellants, property owners, challenge the judgments ordering them to allow respondent Freeborn County to remove items from their property to bring it into conformity with respondent's ordinances.

FACTS

            In 2001, citizens of respondent County of Freeborn (the County) complained about the condition of two parcels of property owned jointly by appellants Dennis Brue and Burnell Brue.  Unlicensed, inoperable vehicles, including trailers, piles of junk, scrap metal, iron, aluminum, toppers, farm machinery, military vehicles, automotive parts, and tires were among the items stored on the property.  Over the next five years, the County tried unsuccessfully to have the property voluntarily cleaned up; its efforts included phone calls, letters, on-site visits, and providing a list of businesses that help with cleanup.

            In June 2006, the County served appellants with a summons and complaint alleging violation of its zoning and waste management ordinances. The complaint included the complete legal description of the property:

The Northwest Quarter of the Southwest Quarter, and the Southwest Quarter of the Northwest Quarter of Section 9, Township 103 North, Range 19 West of the 5th P.M.

 

 Dennis Brue did not respond; the County moved for and was awarded a default judgment against him.  Burnell Brue served an answer; the County moved for and was awarded summary judgment against him.

            The judgments directed appellants to allow the County's designee to enter their property within 30 days to remove the items prohibited by the ordinance, convert the items to cash, and use the cash to pay the County's expenses.  On both judgments, however, the descriptive words, "of the Northwest Quarter," were inadvertently omitted from the legal description of the property.  The County later notified the court of the omission, and the court ordered corrected judgments. 

            Appellants did nothing to comply with the judgments.  During the first part of November, the County removed the items and brought the property into compliance with the ordinances.   In December, the Brues retained an attorney.  They challenged the removal of items from their property by noticing motions for amended findings or new trials, alleging 16 errors by the district court in regard to the removal of the items from the property.  The district court denied their motions as untimely because the time to challenge the original judgments had expired and the corrected judgments did not extend that time period; the district court did not address the merits of the appellants' motions.

            Appellants then brought this appeal.  A preliminary order of this court held that, although the original judgments were not appealable, the appeals from the corrected judgments were valid.  Appellants argue that the district court erred by (1) taking their property without an eminent domain proceeding; (2) not making the findings required for injunctive relief; and (3) violating appellants' due process rights.

           

D E C I S I O N

1.         Eminent Domain

            Appellants argue that requiring them to allow the County to remove items from their property was an unconstitutional taking of those items.  This court reviews de novo whether a governmental action is an unconstitutional taking.  Concept Properties LLP v. City of Minnetrista, 694 N.W.2d 804, 822 (Minn. App. 2005).    Appellants assert that Minn. Stat. § 117.025, subd. 11 (2006) and Minn. Stat. § 609.74 (2006),[1] provide that an eminent domain proceeding must be instituted when property is taken to remove a public nuisance.  This assertion is without merit.  Minn. Stat. § 117.025, subd. 11, provides that the terms "public use" and "public purpose" include mitigation of a blighted area and removal of a public nuisance, and Minn. Stat. § 609.74 provides that whoever maintains a condition which unreasonably annoys, injures, or endangers the health of any considerable number of members of the public is guilty of misdemeanor public nuisance.   Although Minn. Stat. § 117.025, subd. 11, defines both public use and public purpose, that statute does not require a county to bring an eminent domain proceeding to clean up a public nuisance.  Nor does Minn. Stat. § 609.74.

            Moreover, a county has statutory authority to make and enforce ordinances relating to land use.  Minn. Stat. § 400.16 (2006), provides that "The county may by ordinance establish and revise rules, regulations, and standards for solid waste and sewage sludge management . . . [t]he ordinance may be enforced by injunction, action to compel performance, other appropriate action in the district court, or administrative penalty order . . . .".  Minn. Stat. § 394.21, subd. 3 (2006) provides:

 Subdivision 1a [prohibiting amortization] does not prohibit a county from enforcing an ordinance providing for the prevention or abatement of nuisances, as defined in section 561.01, or eliminating a use determined to be a public nuisance, as defined in section 617.81, subdivision 2, paragraph (a), clauses (1) to (9), without payment of compensation;

 

Minn. Stat. § 394.37 (2006) provides that a county board has a duty to enforce ordinances.  Thus, none of the statutes pertaining to a county's duty to make and enforce land-use ordinances mentions eminent domain.

            Nor do the county ordinances themselves mention eminent domain.  For example, both Ordinance 15, (the zoning ordinance) and Ordinance 17 (the waste management ordinance) provide at article 3, section 7:

Subd. 1 Investigation of a violation of any provisions of this Ordinance may be performed by the Department or the Freeborn County Sheriff Department.

 

Subd. 2 In the event of a violation or a threat of a violation of this Ordinance, the County may take appropriate action to enforce this Ordinance, including application for injunctive relief, action to compel performance, or other appropriate action in court, if necessary, to prevent, restrain, correct, or abate such violations or threatened violations.

 

2.         Injunctive Relief

            Appellants argue that the district court erred by awarding injunctive relief without making the findings required by Dahlberg Bros., Inc., v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965).  But the Dahlberg factors pertain to temporary, not permanent, injunctions: one factor is the likelihood that the party seeking the injunction will prevail on the merits when the matter comes to trial.  Id. at 321.  The County is seeking permanent, not temporary, relief, and judgment has already been entered.  Whereas it is true that a district court must also make certain findings before issuing permanent injunctive relief, see Jackel v. Brower, 668 N.W.2d 685, 690 (Minn. App. 2003), the reality here is that the County had options as to how to proceed with the cleanup, and it chose to proceed by enforcing its ordinances to accomplish that.  The state statutes and county ordinances provided a legal remedy for the County after it had attempted to have the property brought into compliance for five years. 

3.         Due Process of Law

            Appellants also argue that they were denied due process of law by the County's removal of items from their property.[2]  The record refutes this argument.  Dennis Brue was served with a complaint telling him that the County was asking the court for an order requiring him, within 30 days, to allow the County's designee to enter the property and remove the items that violated the ordinance; he was also served with a summons telling him that, if he failed to respond within 20 days, a default judgment "for the relief demanded in the Complaint" would be entered against him.  He did not respond, and the relief the County told him it would seek was granted.  He was not denied due process; he chose not to avail himself of it.           

            Burnell Brue was also served with the summons and complaint.  He submitted a handwritten answer to the court.  The County then moved for summary judgment.  Following a hearing at which Burnell Brue was present, the County was awarded summary judgment.  Appellants do not argue either that a genuine issue of material fact precluded summary judgment or that the County was not entitled to summary judgment as a matter of law.  Appellants' due process challenge is without merit.

            The district court did not err by entering judgment without an eminent domain proceeding and without making the findings required for injunctive relief; appellants were not deprived of due process of law.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellants cite Minn. Stat. § 609.74, subd. 9, repeatedly, but no such statute exists.

[2] Appellants do not argue that they were denied due process by anything that happened after the removal of the items from their property.