Filed March 16, 1999.
Appeal from the District Court, Hennepin County, File No. 9706491.
Jay M. Quam, Robin L. Preble, (for appellant)
George C. Hoff, Paula A. Callies, (for respondents)
Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
Appellant William Howard Hawks challenges adverse summary judgment, claiming that the district court erred in concluding that he must conform to an ordinance enacted by respondent Lake Minnetonka Conservation District ("LMCD"). We affirm.
Hawks is the owner of a home on Lake Minnetonka in the City of Minnetrista, one of the member cities of the LMCD. Both the LMCD and the City of Minnetrista prohibit boathouses. Hawks owns the only storage boat on Lake Minnetonka, which he built to store and preserve a 1929 wooden speedboat. When constructed, the storage boat complied with all then-existing LMCD regulations. Hawks licensed the watercraft with the state as a nonmotorized houseboat.
On August 14, 1996, LMCD adopted an ordinance prohibiting the use of storage boats on Lake Minnetonka. LMCD issued a misdemeanor complaint against Hawks for an alleged violation of its newly enacted ordinance on or about October 21, 1996. On stipulated facts, the district court found Hawks guilty of maintaining a storage boat on Lake Minnetonka.
Before resolution of the criminal complaint, Hawks brought a cause of action challenging the validity of the LMCD ordinance. LMCD filed a counterclaim, seeking an order permanently enjoining Hawks from maintaining the storage boat.
The district court granted LMCD's motion for summary judgment, ordering, pursuant to the LMCD ordinance, Hawks either remove his storage boat from Lake Minnetonka or convert it into a houseboat. This appeal followed.
On appeal from summary judgment, this court asks "(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) (citation omitted). In addition, we must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo , 504 N.W.2d 758, 761 (Minn. 1993). When reviewing purely legal questions, this court need not defer to the determination of the district court. Waste Recovery Coop. v. County of Hennepin , 475 N.W.2d 892, 894 (Minn.App. 1991), review denied (Minn. Dec. 9, 1991).
I. Validity of Ordinance
Hawks claims that the district court erred in upholding the validity of the LMCD ordinance. LMCD "may adopt rules and regulations to effectuate the purpose of its establishment and the powers granted to [it]." Minn. Stat. § 103B.641, subd. 1(a) (1998). One such power is "to regulate the types of boats permitted to use the lake." Minn. Stat. § 103B.611, subd. 3(1) (1998). LMCD may enforce its ordinances through injunctions and misdemeanor criminal penalties. Minn. Stat. § 103B.641, subds. 1(c), 3 (1998).
An ordinance is presumed constitutional, and the burden of proving an ordinance unconstitutional rests on the party attacking its validity. City of St. Paul v. Dalsin , 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955). To prove that an ordinance is invalid, one must show that it is "unreasonable or that the requisite public interest is not involved." Holt v. City of Sauk Rapids , 559 N.W.2d 444, 445 (Minn.App. 1997) (citing Dalsin , 245 Minn. at 329, 71 N.W.2d at 858), review denied (Minn. Apr. 24, 1997); see also Wedemeyer v. City of Minneapolis , 540 N.W.2d 539, 543 (Minn.App. 1995) (noting that ordinances enacted pursuant to police power are generally valid). An ordinance is unreasonable when it "has no substantial relationship to the public health, safety, morals or general welfare." Holt , 559 N.W.2d at 445 (citation omitted).
LMCD has recognized the following goals and policies in its Code of Ordinances:
a) Preserve and promote Lake Minnetonka as a recreational and natural resource for all citizens of the state;
* * * *
d) Promote and regulate the orderly utilization of the Lake and its shorelands by all users of the Lake and those placing structures within it;
e) Achieve a balance between the interests of public use and the conservation of the Lake as a natural resource; [and]
f) Provide for the health, safety, order, convenience and general welfare by ordinances not inconsistent with the laws of the state.
The state has articulated a similar interest in regulating the waters and shorelines of the state, including the following:
(1) provide guidance for the wise development of shorelands of public waters and thus preserve and enhance the quality of surface waters;
(2) preserve the economic and natural environmental values of shorelands; and
(3) provide for the wise use of water and related land resources of the state.
Minn. Stat. § 103F.201 (1998) (noting relationship to public health, safety, and welfare).
In accordance with these stated goals and policies, LMCD asserts that the ordinance helps to promote the public welfare. Thus, before a court may declare this ordinance invalid, Hawks must prove that there is no substantial relationship to this aspect of the police power. Furthermore, even "[i]f the reasonableness of [the] ordinance is debatable, the courts will not interfere with the legislative discretion." Holt , 559 N.W.2d at 445 (citation omitted). On this minimum standard, there is a substantial relationship between the ordinance and the public welfare.
Both LMCD and the City of Minnetrista prohibit boathouses, which the LMCD defines as a permanent, year-round boat shelter. LMCD has stated that the prohibition allows for more open waters and maintains the natural beauty of the lake. In 1995, Hawks requested a variance from the City of Minnetrista to construct a boathouse. The city denied his request. Hawks responded by constructing the storage boat in question, essentially a boathouse on pontoons. Therefore, the ordinance also prevents the circumvention of the prohibition against boathouses by addressing an ambiguity in the law.
Hawks claims that, at a minimum, the LMCD must have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion. By failing to do so, [a municipal body] runs the risk of not having its decision sustained.
Honn v. City of Coon Rapids , 313 N.W.2d 409, 416 (Minn. 1981). But Honn and the related cases relied on by Hawks deal with the issue of zoning or the denial of a conditional use permit. See, e.g., id. at 412 (involving refusal to rezone); Zylka v. City of Crystal , 283 Minn. 192, 193, 167 N.W.2d 45, 47 (1969) (involving denial of conditional use permit).
Distinguishing a zoning decision from the adoption and enforcement of an ordinance, this court has stated that "[l]egislative bodies generally are not required to articulate reasons for enacting a statute or ordinance." Arcadia Dev. Corp. v. City of Bloomington , 552 N.W.2d 281, 289 (Minn.App. 1996), review denied (Minn. Oct. 29, 1996); cf. Holt , 559 N.W.2d at 445 (stating that lack of relationship to police power, not lack of empirical evidence, causes ordinances to fail). Zoning involves "restrictions on the use of the land itself." Orme v. Atlas Gas Oil Co. , 217 Minn. 27, 32-33, 13 N.W.2d 757, 761 (1944). Rather than restricting the use of the land, LMCD has prohibited the use of a certain type of watercraft on Lake Minnetonka.
LMCD has the authority to regulate the types of boats that may use the lake. Minn. Stat. § 103B.611, subd. 3(1). Pursuant to this authority, it passed an ordinance prohibiting the use of storage boats. The ordinance, consistent with both LMCD and state goals, purports to advance the public welfare by preserving and promoting the use of the lake and its shorelands for all. In addition, the ordinance prevents the circumvention of the prohibition against boathouses, allowing for more open waters and maintaining the natural beauty of the lake. Thus, the ordinance is substantially related to promoting the public welfare.
Because Hawks has failed to show that the ordinance bears no substantial relationship to public health, safety, or welfare, it is not unreasonable. Thus, the district court did not err in upholding the validity of the ordinance.
II. Nonconforming Use
Hawks also claims that the district court erred in concluding that his watercraft is not a nonconforming use. He asserts that his storage boat was a preexisting nonconforming use which may not be eliminated without the exercise of eminent domain. See SLS Partnership v. City of Apple Valley , 511 N.W.2d 738, 742 (Minn. 1994) (stating that city may achieve nonconforming use's immediate compliance with zoning ordinance only through eminent domain); County of Freeborn v. Claussen , 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972) (stating that nonconforming uses must be permitted to remain or be eliminated through eminent domain).
A riparian owner has title to the low-water mark. State by Head v. Slotness , 289 Minn. 485, 486, 185 N.W.2d 530, 532 (1971). Beyond this point, ownership belongs to the state. Id. The state holds this interest in the navigable waters in trust for public use. Id. Consequently, "the mere exercise by the state of those public rights does not constitute a taking of riparian property." Id. at 487, 185 N.W.2d at 533.
Here, the LMCD, exercising authority granted to it by the state, passed an ordinance prohibiting the use of a certain type of watercraft on Lake Minnetonka. See Minn. Stat. § 103B.611, subd. 3(1) (granting LMCD power to regulate boats permitted on lake). Because Hawks has lost no rights with respect to his property, the analogy to zoning law is inapplicable. As a result, the district court did not err in concluding that Hawks's watercraft is not a nonconforming use.
III. Taking Without Just Compensation
Next, Hawks claims that the district court erred in concluding that the LMCD ordinance did not effect a taking of his property without just compensation. See Minn. Const. art. I, § 13 ("Private property shall not be taken, destroyed or damaged for public use without just compensation * * * ."). "Whether a taking has occurred is a question of law which this court may review de novo." Thompson v. City of Red Wing , 455 N.W.2d 512, 516 (Minn.App. 1990), review denied (Minn. June 26, 1990).
Regulation "`does not constitute a compensable taking unless it deprives the property of all reasonable use.'" Hubbard Broad., Inc. v. City of Afton , 323 N.W.2d 757, 766 (Minn. 1982) (quoting McShane v. City of Faribault , 292 N.W.2d 253, 257 (Minn. 1980)); see also Thompson , 455 N.W.2d at 517 (stating that, "[w]here `secondary uses' remain, no taking has been established") (citation omitted)). Here, Hawks could remove his storage boat from Lake Minnetonka and use it elsewhere. Alternatively, Hawks could convert it into a houseboat.
While Hawks may not use the storage boat as he intended, the ordinance has not deprived the property of all reasonable use. The district court therefore did not err in concluding that the ordinance did not effect a taking of Hawks's property without just compensation.
IV. Ex Post Facto
Finally, Hawks claims that the district court erred in concluding that he waived his claim that the LMCD ordinance is invalid as an ex post facto law. "The question of waiver may be decided as a matter of law where the facts are not in dispute." In re Estate of Sangren , 504 N.W.2d 786, 790 (Minn.App. 1993), review denied (Minn. Oct. 28, 1993).
The district court concluded that, because Hawks did not appeal his criminal conviction, he waived this claim. See Minn.R.Crim.P. 28.02, subd. 4(3) (stating that appeal shall be taken within 10 days after final judgment or entry of order appealed from in misdemeanor cases); see also Heck v. Humphrey , 512 U.S. 477, 484, 114 S.Ct. 2364, 2371 (1994) (stating principle that civil tort action not proper vehicle for challenging validity of criminal conviction). The district court, concerned with the possibilities of inconsistent judgments resulting from a collateral attack of the criminal conviction, dismissed the claim.
But Heck involved a claim against the police and prosecutors pursuant to 42 U.S.C. § 1983. Id. at 479, 114 S.Ct. at 2368 (alleging violations that directly challenged legality of conviction). By contrast, Hawks has challenged the validity of the ordinance under which he was convicted. Nothing in Heck purports to preclude a subsequent challenge to the validity of a law supporting an underlying conviction.
In his criminal prosecution, Hawks stipulated to certain facts. But the stipulation also contained an express provision preserving appellant's "right to raise and litigate constitutional or other matters in the civil action." Thus, Hawks did not waive his right to challenge the validity of the ordinance as an ex post facto law.
An ex post facto law is one which "applies to events occurring before its enactment and disadvantages the offender affected by it." In re Welfare of B.C.G. , 537 N.W.2d 489, 492 (Minn.App. 1995) (citation omitted). The Minnesota Constitution prohibits such laws. Minn. Const. art. I, § 11. But the prohibition applies only to laws of a criminal nature. See Starkweather v. Blair , 245 Minn. 371, 386-89, 71 N.W.2d 869, 879-81 (1955) (stating that application of ex post facto clause is limited to laws involving punishment for crimes).
LMCD may enforce its ordinances through misdemeanor penalties. Minn. Stat. § 103B.641, subd. 3. Nevertheless, this ordinance is not an ex post facto law. See State v. Howard , 360 N.W.2d 637, 640 (Minn.App. 1985) (stating that imposition of penalty for ongoing violation not ex post facto law); see also United States v. Paton , 110 F.3d 562, 565 (8th Cir. 1997) (noting that ex post facto clause not violated by application of law to conduct beginning prior to, but continuing after, effective date).
Like the conduct at issue in Howard , appellant began a course of conduct, by maintaining the storage boat, before the ordinance rendered the conduct illegal. See 360 N.W.2d at 640 (involving ordinance prohibiting the keeping of wild animals). But Hawks was not prosecuted for his past conduct. Instead, the punishment arose from Hawks's continuing violation of the ordinance prohibiting the maintenance of a storage boat on Lake Minnetonka. Thus, the application of the ordinance to Hawks does not result in an ex post facto law.
Although Hawks did not waive his claim that the LMCD ordinance is invalid as an ex post facto law, the substance of this claim nevertheless fails. Because the LMCD ordinance is not an ex post facto law, the district court did not err in dismissing the claim.
Because there are no genuine issues of material fact and the district court correctly applied the law, we conclude that the district court did not err in granting summary judgment.