City of Orono v. Jay T. Nygard ( 2015 )

This opinion will be unpublished and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
A14-1062
City of Orono,
Respondent,
vs.
Jay T. Nygard, et al.,
Appellants.
Filed June 1, 2015
Affirmed
Hooten, Judge
Hennepin County District Court
File Nos. 27-CV-11-5626, 27-CV-11-7765
Soren M. Mattick, Shana N. Conklin, Campbell Knutson, P.A., Eagan, Minnesota (for
respondent)
Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellants)
Considered and decided by Hooten, Presiding Judge; Schellhas, Judge; and
Stauber, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellants Jay and Kendall Nygard constructed a wind turbine in their backyard in
violation of the City of Orono’s zoning code. The district court found them in
constructive civil contempt of court for repeatedly refusing to comply with its order to
remove the turbine after their legal challenges to Orono’s zoning code failed. The
Nygards now appeal the district court’s denial of their motion to stay the contempt
proceedings. We affirm.
FACTS
Appellants Jay and Kendall Nygard live in a residential zoning district in the city
of Orono. They applied for a permit to construct a wind turbine in their backyard. Orono
denied their application, but the Nygards nonetheless constructed the turbine. The
Nygards subsequently challenged Orono’s denial of their permit application in district
court, but the district court affirmed Orono’s decision.
The Nygards appealed, and we reversed and remanded. City of Orono v. Nygard,
No. A12-0711, 2012 WL 5188078, at *5 (Minn. App. Oct. 22, 2012). Orono had argued
that its decision to deny the permit could be supported by the fact that the Orono zoning
code did not specifically mention that wind turbines were a lawful accessory use. Id. at
*3. We determined that the Orono ordinance describing lawful accessory uses was not
exhaustive, and therefore the city could not support its decision to deny the Nygards’
permit based solely on this interpretation of a single provision of the Orono zoning code.
Id. at *3–4. But, because we did not state that the wind turbine was permitted, only that
Orono’s argument that wind turbines were prohibited under this specific provision of the
code was not persuasive, we remanded the case “to the city for further consideration of
the Nygards’ permit application.” Id. at *4. In conjunction with the remand, we did not
render an opinion as to whether or not the Nygards’ construction of the turbine should be
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approved, nor did we render an opinion as to whether Orono’s zoning code permitted
turbines. Id.
Upon remand, Orono sent a letter to the Nygards stating that it had “been directed
by the Minnesota Court of Appeals to review and further consider your permit
application.” In the letter, Orono asked the Nygards to provide answers to a series of
questions about the turbine in order to determine whether the turbine complied with the
zoning code. Orono asked for the Nygards’ answers by November 16.
On November 2, the Nygards’ counsel sent a letter to Orono stating that Orono’s
request for additional information served “no purpose other than to notify my clients that
the City of Orono does not intend to cooperate with my clients or the Minnesota
Appellate Court Ruling.” According to the letter, the “correct interpretation and
implementation” of this court’s October 2012 opinion was that “no building permit is or
was required.” The letter further advised that the Nygards would sue Orono in district
court if Orono took any further action on the Nygards’ permit application.
Two weeks after Orono’s November 16 deadline for the Nygards’ answers passed,
Orono denied the Nygards’ permit application. Orono informed the Nygards that it
denied their permit because it determined that their wind turbine did not comply with its
zoning code. Orono found that the turbine was not an acceptable accessory use or
structure because wind turbines are not “customarily incidental to the principal use or
structure” as the zoning ordinance requires. Orono also contended that the turbine
violated four other provisions of the city’s zoning code because (1) it was not located at
least 10 feet from a side lot line, (2) it was not at least 10 feet from the principal structure,
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(3) it exceeded the 25% hardcover allowance, and (4) the turbine was located beyond the
existing “average lakeshore setback line.”
The Nygards did not administratively appeal this decision to the Orono zoning
board of appeals. Instead, they bypassed the board and filed an informational statement
in the ongoing district court action. The Nygards stated that they were challenging
Orono’s authority to prevent them from installing a turbine. Orono argued that it was
justified in denying the permit because the wind turbine did not comply with its zoning
code, and Orono moved for summary judgment.
In May 2013, the district court granted summary judgment for Orono. The
district court determined that Orono’s stated rationales for denying the permit were
consistent with this court’s previous decision to remand the case to Orono for “further
consideration” of the permit. The district court granted Orono summary judgment on
each one of its stated rationales for denying the permit. The district court also noted that
following the remand from this court, the Nygards told Orono that they did not need a
permit, even though this court told Orono to further consider the permit. The district
court entered judgment and ordered the Nygards to remove the turbine, the pole
supporting the turbine, and the concrete pad supporting the pole within 30 days.
The Nygards attempted to appeal the district court’s judgment, but we dismissed
their appeal as it was untimely. See City of Orono v. Nygard, No. A13-1459 (Minn. App.
Nov. 5, 2013) (order). After the Nygards refused to remove the turbine, Orono alerted
the district court to the Nygards’ refusal to comply with the district court’s now-final
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order. The district court, noting that their appeal had failed, ordered the Nygards to show
cause for their failure to timely comply with its order.
The record does not indicate that the Nygards responded to the district court’s
order to show cause. Instead, the Nygards contacted Orono directly, and in a letter
received by Orono on February 10, 2014, the Nygards informed Orono that they did not
need a permit, and they threatened to litigate the dispute in district court if Orono did not
“[c]ease and desist” its “arbitrary harassment of the Nygard property.” In a second letter
received by Orono on February 11, 2014, the Nygards indicated that they would not
respond to Orono’s October 31, 2012 request for information about their turbine, and the
Nygards denied even having a wind “tower” in violation of the zoning code on their
property.
After hearing nothing from the Nygards, the district court found the Nygards in
constructive civil contempt of court for refusing to remove the turbine. The district court
then ordered the Nygards to remove the turbine and support pole within 20 days, while
providing 60 days to remove the concrete pad. The district court also ordered the
Nygards to contact the city by March 21, 2014 to allow Orono to inspect their property to
confirm that the turbine and its support parts had been removed. As part of its civil
contempt order, the district court indicated that if the Nygards did not comply with its
order to remove the turbines, it would fine them and confine them in jail.
The Nygards did not comply with the district court’s order. Instead, two months
after the district court’s deadline for removing the turbine passed, they requested that the
district court stay the contempt proceedings. The Nygards asserted that the district court
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should stay the contempt proceedings because they filed a declaratory judgment action in
district court challenging Orono’s zoning ordinance. Orono opposed the stay, arguing
that “[t]his case should be closed” because the district court’s May 2013 order granting
Orono summary judgment established that the wind turbine did not comply with Orono’s
zoning code, and the Nygards’ declaratory judgment action had nothing to do with the
current dispute: the Nygards’ failure to comply with the district court’s order requiring
the Nygards to take down the turbine. In their response, the Nygards argued for the first
time that the district court lacked subject matter jurisdiction over the contempt
proceedings.
The district court determined that it had subject matter jurisdiction to hear the
contempt proceedings, and it denied the Nygards’ request for a stay of that proceeding.
The district court again ordered the Nygards to remove the turbine, but that order was
stayed pending this appeal, which we are now asked to decide.
DECISION
I.
The Nygards argue that the district court lacked subject matter jurisdiction to
conduct the contempt proceedings. Their argument is cumulative: they believe that the
district court lacked subject matter jurisdiction to find them in contempt because the
contempt proceedings arose from their failure to comply with the district court’s order in
their permit dispute, and the district court lacked subject matter jurisdiction over that
permit dispute. The Nygards’ argument is entirely meritless.
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Subject matter jurisdiction refers to a court’s authority to adjudicate a particular
class of actions and the questions presented in those actions. Anderson v. Cnty. of Lyon,
784 N.W.2d 77, 80 (Minn. App. 2010), review denied (Minn. Aug. 24, 2010). A party
may challenge the validity of a judgment on the grounds that the court issuing the
judgment lacked subject matter jurisdiction. Bode v. Minn. Dep’t of Natural Res., 612
N.W.2d 862, 866 (Minn. 2000). These challenges may be either “direct” or “collateral.”
Id. A challenge is direct when a party challenges the subject matter jurisdiction of the
court in the same proceeding in which the judgment is entered. Id. A challenge is
collateral when, in a proceeding other than the one in which the judgment is entered, the
party attacks the judgment by asserting that the court which entered the judgment lacked
the subject matter jurisdiction to do so. Id.Under the traditional rule, a party could, at any time, collaterally challenge the
validity of a judgment on the theory that the court entering that judgment lacked subject
matter jurisdiction. Id. at 866–67. Minnesota courts no longer follow the traditional rule.
Id. at 868. Instead, a party collaterally attacking the subject matter jurisdiction of a final
judgment entered in a separate proceeding must do more than prove that the court lacked
subject matter jurisdiction; it must also demonstrate either that:
(1) The subject matter of the action was so plainly
beyond the court’s jurisdiction that its entertaining the action
was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially
infringe the authority of another tribunal or agency of
government; or
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(3) The judgment was rendered by a court lacking
capability to make an adequately informed determination of a
question concerning its own jurisdiction and as a matter of
procedural fairness the party seeking to avoid the judgment
should have opportunity belatedly to attack the court’s subject
matter jurisdiction.
Id. at 867 (quotation omitted).
The Nygards contend that they properly “initiated a special proceeding” to
collaterally challenge the district court’s subject matter jurisdiction over the city’s second
denial of their permit. To succeed, they must demonstrate both that the district court
lacked subject matter jurisdiction and that at least one of the three factors explained in
Bode is present in this case. See id.
The Nygards never presented the district court with any evidence or argument to
support the existence of any of the three Bode factors. Instead, they simply clung to the
traditional rule that a party could challenge the validity of a judgment for lack of subject
matter jurisdiction “at any time” without making an additional showing under Bode.
Because the Nygards did not present the district court with at least one of the three
necessary Bode factors, their argument before the district court was, as a matter of law,
insufficient to allow the district court to vacate the judgment based on a purported lack of
subject matter jurisdiction. And while the Nygards’ argument to this court did briefly
mention Bode, we will not consider their Bode argument for the first time on appeal. See
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (declining to review argument raised
for first time on appeal).
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Even if we excused the Nygards’ failure to raise the proper argument before the
district court, we would still reject their Bode argument on appeal. On appeal, the
Nygards simply asserted that they met the first Bode factor because they brought their
challenge to the district court’s subject matter jurisdiction sooner than the unsuccessful
plaintiffs in Bode. The Nygards do not explain how the length of delay in bringing a
challenge to subject matter jurisdiction is relevant to the first Bode factor, and we do not
find any support in Bode for the assertion that it is relevant. See Bode, 612 N.W.2d at
867. Without any evidence or argument as to how the district court manifestly abused its
authority to adjudicate the permit dispute, the Nygards failed to articulate their argument
in a way that would allow us to review it. See Schoepke v. Alexander Smith & Sons
Carpet Co., 290 Minn. 518, 519–20, 187 N.W.2d 133, 135 (1971) (“An assignment of
error based on mere assertion and not supported by any argument or authorities in
appellant’s brief is waived and will not be considered on appeal unless prejudicial error is
obvious on mere inspection.”).
Finally, even if we excused the Nygards’ failure to raise the proper arguments
before the district court, and we were persuaded instead somehow by their unsupported
assertion under the first Bode factor, we would still reject their argument on appeal. The
Nygards failed to meet their other burden under Bode to show that the district court did in
fact lack subject matter jurisdiction over the permit dispute. The Nygards’ argument
purporting to demonstrate that the district court lacked subject matter jurisdiction over
those proceedings is entirely unpersuasive for at least five reasons.
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First, the Nygards rely on an Orono ordinance to assert that the district court
lacked subject matter jurisdiction to review Orono’s denial of their permit. Their
argument looks to the wrong authority to determine the extent of the district court’s
subject matter jurisdiction. The Orono ordinance states that “[t]he applicant . . . may
appeal by filing a written notice stating the action appealed from and stating the specific
grounds upon which the appeal is made.” Orono, Minn., Code of Ordinances § 78-99
(2003). This ordinance governs the procedure for an administrative appeal within the
city’s administrative structure. It does not address, much less determine, the subject
matter jurisdiction of the district court.
The relevant authority to determine whether the district court had subject matter
jurisdiction over the Nygards’ challenge of Orono’s denial of their permit application is
chapter 462 of the Minnesota statutes, which states:
Any person aggrieved by an ordinance, rule, regulation,
decision or order of a governing body or board of adjustments
and appeals acting pursuant to sections 462.351 to 462.364
may have such ordinance, rule, regulation, decision or order,
reviewed by an appropriate remedy in the district court,
subject to the provisions of this section.
Minn. Stat. § 462.361, subd. 1 (2014). This statute unambiguously provides that the
district court had subject matter jurisdiction. Orono acted pursuant to its zoning authority
under section 462.357 to deny the Nygards’ permit application. See Minn. Stat.
§ 462.357, subds. 1, 6 (2014). Orono’s decision to deny the Nygards’ permit means that
the Nygards were “aggrieved by an ordinance, rule, regulation, decision or order of a
governing body or board of adjustments and appeals acting pursuant to sections 462.351
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to 462.364.” Minn. Stat. § 462.361, subd. 1. Therefore, they were entitled to have the
denial “reviewed by an appropriate remedy in the district court.” Id. When the Nygards
followed through on their threat to “litigate the issue in [district] court,” they properly
sought judicial review of Orono’s actions in district court, thereby invoking the district
court’s subject matter jurisdiction over the dispute. See id. Just because the Nygards
failed to persuade the district court on the merits of their argument does not mean that the
district court lacked subject matter jurisdiction to adjudicate the dispute that the Nygards
brought to that court.
The Nygards’ second unpersuasive argument is that the district court lacked
subject matter jurisdiction because the Nygards did not exhaust their administrative
remedies by filing an administrative appeal. This argument fails because the Nygards
read the relevant statute backward. Subdivision 2 of section 462.361 states that “[i]n
actions brought under this section, a municipality may raise as a defense the fact that the
complaining party has not attempted to remedy the grievance by use of procedures
available for that purpose under ordinance or charter.” Id., subd. 2 (2014) (emphasis
added). The statute provides that only the municipality may use the exhaustion-of-
administrative-remedies defense; the applicant may not raise the defense. See id. And
the municipality is not required to raise the defense; the municipality may do so. See id.Since Orono did not raise this defense, the Nygards’ unpersuasive argument is not even
relevant on this record. And we note that this defense was not provided to applicants, as
the Nygards mistakenly assert, for good reason. The Nygards’ faulty interpretation
would wreak havoc on the straightforward process of judicial review that the statute
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clearly provides. The Nygards’ mistaken reading would turn the municipality’s decision
not to raise its own affirmative defense into a weapon that applicants could use to
strategically, but improperly, challenge the district court’s decision after-the-fact when
the applicants themselves voluntarily failed to administratively appeal, as was the case
here. This is simply not how the affirmative defense was intended to work; the district
court has subject matter jurisdiction over disputes appealed under section 462.361 even if
the applicant does not exhaust its administrative remedies when the municipality does
not raise the exhaustion-of-remedies defense when further administrative review would
be futile. See Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App.
1992). There is no merit to the Nygards’ second argument.
The third unpersuasive argument that the Nygards advanced on appeal is that they
actually did administratively appeal, but Orono either ignored or precluded their
administrative appeal before the Nygards brought the dispute back to district court. The
record is wholly devoid of any support for the Nygards’ claim that they attempted an
administrative appeal. The Nygards claim that two letters that Orono received in
February 2014 show that they attempted to administratively appeal. But in both of these
letters, the Nygards explicitly told the city that they believed that they did not need a
permit to construct the turbine. The first letter ominously warned Orono that if the city
took any further action, the Nygards would litigate the dispute in district court. In the
second letter, the Nygards denied that they had a “tower” in their backyard in violation of
the zoning code, and for “proof” they provided Orono with a definition of the term
“tower” and included a picture of the Eiffel Tower, apparently to indicate that they were
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in compliance with Orono’s zoning code because they had not constructed a 1,000-foot-
tall iron-latticed structure in their backyard.
Looking backward now, the letters accurately captured how this dispute played
out: the Nygards felt that they did not need a permit, and, if Orono thought otherwise, the
Nygards would take the dispute to district court. This is exactly what had already
happened. Now, more than a year later, they attempt to recast these documents as
administrative appeals, and characterize Orono’s legal arguments to the Nygards’
challenge in district court as thwarting that appeal. There is no support in the record for
these claims.
The fourth problem with their argument on appeal is that even if the Nygards
somehow intended these letters to be an appeal, the Nygards failed to perfect their
“appeal.” The Orono code requires that any appeal to the zoning board must state the
specific action the applicant is appealing from, and the grounds on which the appeal is
based. See Orono, Minn., Code of Ordinances § 78–99 (2003) (providing for conditions
necessary to perfect zoning appeals). In the letters, the Nygards did not identify the
action that they were challenging. The letters explicitly stated that they did not need a
permit. And neither letter even used the word “appeal” or any synonym of that word.
Even if the Nygards intended these letters to be an appeal, their “appeal” was deficient
under the zoning code, and we cannot fault Orono for not treating these threatening
letters as appeals. It is hardly surprising that Orono informed the Nygards that it did “not
know the intent” of these letters.
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The final problem with the Nygards’ argument is that even if Orono could have
construed these letters as an appeal, Orono would have had no ability to adjudicate the
Nygards’ administrative “appeal.” What the Nygards portray as an appeal occurred in
February 2014. The Nygards’ purported “appeal” to the zoning appeals board came four
months after the district court’s judgment affirming Orono’s denial of their second permit
became a final judgment entered on the merits.1 Therefore, even if the Nygards tried to
administratively appeal the decision in February 2014, they would have been barred from
reopening the district court’s judgment affirming Orono’s denial of their second permit
application because Orono and the Nygards already litigated the permit denial in district
court which resulted in a final judgment on the merits. See Wilson v. Comm’r of
Revenue, 619 N.W.2d 194, 198 (Minn. 2000) (precluding subsequent litigation of
previous claim decided on the merits by the same parties). Courts do not allow parties to
reopen closed cases for the practical reason of relieving prevailing parties “of the burden
of relitigating issues already determined.” Id. (quotation omitted). This principal reflects
our supreme court’s “disfavor” of multiple challenges involving the “same cause of
action” because it leads to “wasteful litigation.” Id. These concerns are well-founded
here.
The Nygards needed to advance a very specific argument under Bode to
collaterally challenge the district court’s subject matter jurisdiction over the contempt
1
The district court granted summary judgment in May 2013 and entered judgment in July
2013. That judgment became final in November 2013 following this court’s dismissal of
their appeal as untimely. City of Orono v. Nygard, No. A13-1459 (Minn. App. Nov. 5,
2013) (order).
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proceedings. They failed to raise this claim before the district court, and they did not
provide any argument on appeal as to how they satisfied Bode. Had they properly
preserved these arguments for appeal, we still would have rejected their arguments
because those arguments have no basis in the record and rely entirely on an erroneous
view of the relevant caselaw and statutes. We affirm the district court’s concise and well-
reasoned determination that it has subject matter jurisdiction over the contempt
proceedings.
II.
The Nygards also challenge the district court’s decision to deny them a stay in the
contempt proceedings. In their principal brief, they merely requested that we grant a stay
without offering a single argument as to why we should grant that relief. We do not
consider requests for relief when parties fail to provide any legal authority or argument
supporting their position. See Schoepke, 290 Minn. at 519–20, 187 N.W.2d at 135. In
their reply brief, the Nygards attempted to provide a reason as to why the district court
abused its discretion by denying their motion for a stay. We do not allow parties to
revive a waived argument in their reply brief when the respondent does not address the
waived argument, as was the case here. See Wood v. Diamonds Sports Bar & Grill, Inc.,
654 N.W.2d 704, 707 (Minn. App. 2002), review denied (Minn. Feb. 26, 2003).
Accordingly, the Nygards waived their right to argue for a stay from this court.
And, in any event, the Nygards failed to articulate any persuasive reason for a
stay. Their theory before the district court, and in their reply brief, was that they should
receive a stay because they filed a declaratory judgment action challenging an Orono
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ordinance as preempted by state law. That action has absolutely no relation to the
contempt proceeding. The Nygards’ argument purporting to draw a link between that
case and this one is premised on the false belief that there is still an open question about
whether their turbine complied with the Orono zoning requirements in 2010, or whether
the district court erred in 2013 in ruling for Orono. There is no unanswered question.
The district court settled this dispute two years ago, and its decision became final when
the Nygards’ appeal of that decision failed. See Wilson, 619 N.W.2d at 198 (precluding
parties from reopening litigation after court enters final judgment on the merits).
These contempt proceedings have nothing to do with the 2010 version of the
Orono zoning code or how the district court analyzed this dispute in 2013. The contempt
proceedings are about one issue only: the Nygards’ flagrant and repeated refusal to
recognize the legitimacy and finality of the district court’s adjudication resolving their
dispute once their appeal failed. No subsequent developments in the Orono zoning code
could retroactively change the 2010 zoning code or affect how the district court analyzed
the zoning code in 2013. Any change to the zoning code since the Nygards built their
turbine is not relevant to the contempt proceedings. As to this turbine, the matter is
settled: the Nygards’ decision to construct the turbine without receiving the necessary
permit from Orono means that the wind turbine must be removed from their property.
We note that the district court indicated that it would fine the Nygards and confine
them in jail if they refused to comply with its order. We think that these sanctions are
well within the district court’s discretion to “compel future compliance” with its order.
Mower Cnty. Human Servs. ex. rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222 (Minn.
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1996) (quotation omitted). If the Nygards still continue to refuse to remove the turbine,
we note that the district court has “inherently broad discretion to hold an individual in
contempt” when the individual acts “out of disrespect for the judicial process.” See
Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (quotation omitted). The
district court should not feel constrained in its efforts to ensure that the Nygards comply
with its now-final judgment ordering them to remove the turbine, nor should the district
court consider any subsequent changes or challenges to the Orono zoning code as even
remotely relevant to the contempt proceedings. The only issue relevant to the contempt
proceedings is the Nygards’ intentional and inexcusable refusal to comply with the
district court’s order requiring them to remove the turbine, pole, and concrete support pad
from their property.
Affirmed.
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