                           This opinion will be unpublished and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
                                      A16-0705

                                      Steven R. Saba,
                                         Appellant,

                                             vs.

                                   City of Fridley, et al.,
                                       Respondents.

                                 Filed December 19, 2016
                                        Affirmed
                                     Peterson, Judge

                               Anoka County District Court
                                File No. 02-CV-15-1117

Karen E. Marty, Marty Law Firm, LLC, Bloomington, Minnesota (for appellant)

Pamela L. VanderWiel, Anna L. Yunker, Everett & VanderWiel, Rosemount, Minnesota
(for respondents)

         Considered and decided by Bratvold, Presiding Judge; Peterson, Judge; and Hooten,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In this appeal from summary judgment in a nuisance-abatement action, appellant-

property owner argues that the district court erred in ruling that (1) the use of the property

is not a legal nonconforming use, (2) respondent-city’s past actions and agreement did not

bar it from bringing a nuisance-abatement action, (3) Fridley City Code chapter 128 is not
unconstitutionally vague or overbroad, and (4) the city did not violate appellant’s due-

process rights in the abatement proceeding. We affirm.

                                          FACTS

        Appellant Steven Saba and his parents moved to the property in respondent City of

Fridley in 1954, and, a short time later, Saba’s father began recycling washing machines

and metal on the property. The record shows that various items, including cars, washing

machines, scrap metal, wooden crates, and other miscellaneous items were stored in the

back and side yards.     Photographs and other evidence in the record show that the

junkyard/scrapyard was in operation from shortly after May 1954 through January 2015.

The photos and letters between the Saba family and the city show that the city has been

trying to get the family to remove scrap metal and junk vehicles from the property since

1961.     Photos taken in January 2015 show that Saba was still operating a

junkyard/scrapyard on the property.

        Under Fridley’s 1949 zoning ordinance, as amended in 1953, the city was divided

into three use districts: residential, commercial, and industrial. Due to missing maps, it is

not clear how Saba’s property was zoned when his family bought it in 1954. But a

junkyard/scrapyard was only allowed in industrial districts, and a special-use permit was

required. The record contains no evidence that a special-use permit was obtained before

operation of the junkyard/scrapyard on the Saba property began or at any time during its

operation.

        In 1961, the city began efforts to end the operation of the junkyard/scrapyard. In

1984, the city issued a citation to Saba’s mother alleging that she had maintained


                                             2
unlicensed vehicles and refuse on the property. It appears that the Fridley city attorney

negotiated an agreement with Saba’s attorney to settle the criminal case against Saba’s

mother. A February 14, 1985 memorandum by the city attorney offered to continue the

case for dismissal if Saba erected a fence around all of the scrap material.             The

memorandum did not state that the city would forgo future civil proceedings to enforce its

nuisance ordinances.

       Beginning in 1986 and continuing through 2008, the city undertook repeated efforts

to enforce its nuisance ordinances against the property. In January 2009, the city attorney

filed criminal charges against Saba, and a jury found him not guilty.

       On July 1, 2011, and November 4, 2011, the city sent letters to Saba stating that the

storage of scrap material violated the city’s zoning ordinance and that the city would act to

abate the nuisance if Saba did not remove the items. Saba appealed the city’s code-

enforcement decision to the City of Fridley Appeals Commission. A hearing before the

appeals commission was postponed pending the outcome of a lawsuit that Saba filed

against the city in district court. After the lawsuit was dismissed, an evidentiary hearing

was conducted before the appeals commission on January 28, 2015.                The appeals

commission affirmed the city’s code-enforcement decision. Saba appealed to the Fridley

City Council, which affirmed the appeals commission’s decision.

       Saba then brought this action in district court against the city and two city employees

challenging the decision and alleging other claims. The district court granted summary

judgment for respondents. This appeal followed.




                                              3
                                      DECISION

                                              I.

       In order to overturn a municipality’s decision on a zoning matter, the court must

find that (1) the decision “was arbitrary and capricious,” or (2) “the reasons assigned by

the governing body do not have the slightest validity or bearing on the general welfare of

the immediate area.” VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508

(Minn. 1983) (quotation omitted). A zoning decision is reasonable if “the reasons given

by the body were legally sufficient and had a factual basis.” Id. A reviewing court does

“not give any special deference to the conclusions of the [district] court[], but rather

engage[s] in an independent examination of the record and arrive[s] at [its] own

conclusions as to the propriety of the city’s decision.” Mendota Golf, LLP v. City of

Mendota Heights, 708 N.W.2d 162, 180 (Minn. 2006).

       A nonconforming use is legal and “must be permitted to remain or be eliminated

through eminent domain” if it existed before the relevant zoning restrictions took effect.

Krummenacher v. City of Minnetonka, 783 N.W.2d 721, 726 (Minn. 2010) (quotation

omitted). Saba argues that, because “the city either never created or lost the maps identified

in the 1949 and 1953 zoning ordinances,” “it is impossible to tell whether all land in Fridley

was zoned before 1954.” The 1949 zoning ordinance, as amended in 1953, contains

descriptions of the properties governed by the ordinance, and the city provided maps

showing the areas governed by the ordinance. This evidence was sufficient to show that

Saba’s property was governed by the ordinance when his family bought it in 1954, and

Saba presented no contrary evidence.


                                              4
       Citing White v. City of Elk River, Saba argues that the city had the burden of proving

that the junkyard/scrapyard was not a legal use at any time during its existence. 840

N.W.2d 43, 49 (Minn. 2013). White is not on point. The holding in White was “that a

landowner does not surrender the right to continue a nonconforming use by obtaining a

conditional-use permit unless the landowner validly waives that right.” Id. at 50. But, even

if the city had the burden of proving that the junkyard/scrapyard was not a legal use at any

time during its existence, the evidence of the city’s efforts to enforce its nuisance

ordinances against the property during a more than 50-year period was sufficient to satisfy

that burden.

       Saba also argues that the city should be bound by the 1985 agreement for a

continuance for dismissal in the criminal case if Saba completely enclosed the junkyard

items in a fenced area. Although the record does not show that the agreement was finalized,

even if it was, the agreement did not preclude the city from pursuing future civil

enforcement of its nuisance ordinance; it only resolved the 1985 criminal case.

       The city’s decision that the junkyard/scrapyard was not a legal nonconforming use

was not arbitrary and capricious, and its reasons for seeking abatement were valid and

affected the general welfare of the immediate area.

                                             II.

       Summary judgment is appropriate when the record shows “that there is no genuine

issue as to any material fact and that either party is entitled to a judgment as a matter of

law.” Minn. R. Civ. P. 56.03. We review the district court’s grant of summary judgment

de novo, to determine whether there are genuine issues of material fact and whether the


                                             5
district court erred in applying the law. Mattson Ridge, LLC v. Clear Rock Title, LLP, 824

N.W.2d 622, 627 (Minn. 2012). “We view the evidence in the light most favorable to the

party against whom summary judgment was granted.” STAR Ctrs. v. Faegre & Benson,

L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). To withstand a summary-judgment motion,

a party must present specific facts showing the existence of a genuine issue for trial;

speculation is insufficient. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845,

848 (Minn. 1995). Summary judgment may be granted if the party opposing summary

judgment has the burden of proof on an essential element and fails to “present specific

admissible facts showing a material fact issue.” Doe v. Archdiocese of St. Paul, 817

N.W.2d 150, 163 (Minn. 2012) (quotation omitted).

       The doctrine of governmental estoppel is not to be “freely applied against the

government.”     In re Westling Mfg., Inc., 442 N.W.2d 328, 332 (Minn. App. 1989)

(quotation omitted), review denied (Minn. Aug. 25, 1989). A plaintiff seeking to estop a

government from enforcing an ordinance bears a “heavy burden of proof.” Ridgewood

Dev. Co. v. State, 294 N.W.2d 288, 291-92 (Minn. 1990).

               A local government exercising its zoning powers will be
               estopped when a property owner, (1) relying in good faith
               (2) upon some act or omission of the government, (3) has made
               such a substantial change in position or incurred such extensive
               obligations and expenses that it would be highly inequitable
               and unjust to destroy the rights which he ostensibly had
               acquired. Stated somewhat differently, before plaintiff can be
               said to have made a significant investment deserving of judicial
               protection in a land use case, he must demonstrate expenditures
               that are unique to the proposed project and would not be
               otherwise usable.

Id. at 292 (quotation omitted).


                                              6
       Before applying this balancing test, the court must first look for the government’s

wrongful conduct. Id. at 293. Wrongful conduct in this context means “affirmative

misconduct” or “malfeasance.” In re Westling, 442 N.W.2d at 332; Kmart Corp. v. County

of Stearns, 710 N.W.2d 761, 771 (Minn. 2006). Malfeasance is “evil conduct or an illegal

deed, the doing of 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). Mistakes and imperfect conduct are

insufficient. In re Westling, 442 N.W.2d at 332.

       Saba asserts that the city acted wrongfully by repudiating the 1985 agreement. But,

as already discussed, there is no evidence that the city agreed to anything more than a

continuance for dismissal in the criminal case, and the agreement did not exempt Saba from

future civil enforcement of the city’s nuisance ordinances. Because Saba failed to present

sufficient evidence to create a genuine issue of material fact on whether the city acted

wrongfully, the district court properly granted summary judgment for respondents on his

claim of governmental estoppel.

       Notwithstanding our conclusion that Saba failed to show wrongful conduct, we

address the elements of the balancing test. On the first two elements, Saba argues that he

built the fence in reliance on the city’s promise that he would never be required to bring

his property into compliance with the city’s nuisance ordinances. But there is no record

evidence that the city made such a promise. Even if there was such an agreement, the

prosecutor did not have the authority to make a zoning decision. A zoning decision can be

made only by the city council after notice and a public hearing. Minn. Stat. § 462.357


                                             7
(2014). A party dealing with a governmental entity is presumed to know the law and to

understand that he cannot rely on the conduct of a government agent who does not comply

with the law. In re Westling, 442 N.W.2d at 333.

       On the third element, “before plaintiff can be said to have made a significant

investment deserving of judicial protection in a land use case, he must demonstrate

expenditures that are unique to the proposed project and would not be otherwise usable.”

Ridgewood Dev. Co., 294 N.W.2d at 292. The investment must be of a magnitude that “it

would be highly inequitable and unjust to destroy the rights which he ostensibly had

acquired.” Id. (quotation omitted). The court also considers whether the equities advanced

by Saba outweigh the public interest frustrated by the application of estoppel. Id. The only

expenditure claimed by Saba was for construction of a wooden fence about 30 years ago.

Saba’s interest is the fence. The public interest is the abatement of nuisances that pose a

threat to public health or safety or a fire hazard. The equities advanced by Saba do not

outweigh the public interest.

       Saba also argues that collateral estoppel and res judicata should apply because he

was acquitted of a criminal charge. An acquittal of a criminal charge does not bar a later

civil enforcement proceeding by a municipality. See, e.g., In re Kaldahl, 418 N.W.2d 532,

533-35 (Minn. App. 1988) (holding that dismissal of criminal complaint had the same

effect as an acquittal and did not bar a civil action by the government, “remedial in its

nature, arising out of the same facts on which the criminal proceeding was based”

(quotation omitted)).




                                             8
                                             III.

       The city argues that Saba waived the void-for-vagueness and overbreadth issues by

failing to raise them before the appeals commission. Because constitutional claims require

judicial interpretation, an administrative proceeding is not a proper forum in which to raise

those claims. In re On-Sale Liquor License, 763 N.W.2d 359, 371 (Minn. App. 2009).

Saba raised these issues in the district court, and the district court addressed them.

       Vagueness

       “Courts should exercise extreme caution before declaring a[n] [ordinance] void for

vagueness.” Hard Times Cafe Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn.

App. 2001). The Due Process Clause of the Fourteenth Amendment prohibits vague

statutes and, thus, vague ordinances. Id. “A[n] [ordinance] is void due to vagueness if it

defines an act in a manner that encourages arbitrary and discriminatory enforcement, or the

law is so indefinite that people must guess at its meaning.” Id. (quotation omitted). Using

general language in an ordinance does not make it vague. Id. “An entity challenging the

constitutionality of a[n] [ordinance] on vagueness grounds must show the ordinance lacks

specificity as to its own behavior rather than some hypothetical situation.” Id. at 172

(quotation omitted).

       Chapter 128 of the Fridley City Code states:

                     The Council of the City of Fridley has determined that
              the health, safety, general welfare, good order and convenience
              of the public is threatened by certain exterior public nuisances
              on property within the City limits. It is declared to be the
              intention of the Council to abate such nuisances, and this
              Chapter is enacted for that purpose.



                                              9
                     This Chapter shall apply to the abatement of public
              nuisances maintained exterior to the principal structure
              involving junk vehicles (as defined in Chapter 123), large
              commercial vehicles having a gross licensed weight over
              12,000 pounds, which are in violation of the provisions of
              Chapter 506, and outside storage of materials, and equipment
              including, but not limited to, disused machinery, household
              appliances and furnishings, tires, automotive parts, scrap
              metal, lumber, and all other materials deemed to create an
              exterior public nuisance as described in 128.01.

Fridley, Minn., City Code ch. 128, § 128.01-.02 (2016).

       Saba argues that the ordinance grants the city “unbridled discretion to declare

something to be an exterior public nuisance.” “Due process . . . does not require that a rule

contain an explicit definition of every term.” In re Charges of Unprofessional Conduct

Against N.P., 361 N.W.2d 386, 394 (Minn. 1985). The illustrative list of items in the

ordinance is sufficient to limit the city’s discretion in enforcing the ordinance and to put

persons on notice of the ordinance’s meaning.

       Also, the court looks to the ordinance as applied in the case before it. Hard Times

Cafe, 625 N.W.2d at 172. The abatement letter was sent to Saba on November 4, 2011.

At the appeals commission hearing on January 28, 2015, photos of the property taken on

November 16, 2011, and on January 21, 2015, were admitted into evidence. The photos

taken in November 2011 show vehicles, including a truck that appears to be elevated on a

platform or blocks, what appears to be a horse trailer, and the detached rear portion of a

pickup truck. The photos also show tires, cinderblocks, items of machinery, and piles of

miscellaneous items. The photos taken in January 2015 show the detached rear portion of

a pickup truck, a large wooden frame, what appears to be a horse trailer, a pile of wooden



                                             10
crates, a large ladder, and piles of miscellaneous items. The appeals commission found

that Saba was operating a junkyard/scrapyard on his property and ordered abatement.

      Saba argues that, even if his conduct violated the city code, it did not constitute a

nuisance. But the ordinance defines certain types of exterior storage as public nuisances

and contains an illustrative list of items that come within the category, including many of

the items stored in Saba’s yard. Saba argues that a city cannot define items as a nuisance

absent evidence that the items are a health, safety, or fire hazard. Even if that is a

requirement, the photographs submitted by the city are sufficient to meet the requirement.

      Overbreadth

      An ordinance “is overbroad on its face if it prohibits constitutionally protected

activity, in addition to activity that may be prohibited without offending constitutional

rights.” Dunham v. Roer, 708 NW.2d 552, 565 (Minn. 2006) (quotation omitted), review

denied (Minn. March 28, 2006). The overbreadth doctrine should be applied to invalidate

a statute or ordinance “only if the degree of overbreadth is substantial. State v. Macholz,

574 N.W.2d 415, 419 (Minn. 1998). Saba has cited no authority to support the position

that a property owner has the right to maintain a public nuisance. On the contrary, no

taking occurs if a municipality uses its police power to abate a nuisance. City of

Minneapolis v. Meldahl, 607 N.W.d 168, 172 (Minn. App. 2000), overruled in part on

other grounds by Zweber v. Credit River Twp., 882 N.W.2d 605 (Minn. 2016).

      The district court did not err in concluding that the nuisance ordinance is not

unconstitutionally vague or overbroad.




                                            11
                                             IV.

       Whether an agency has violated a person’s procedural due-process rights is a

question of law that this court reviews de novo. Sawh v. City of Lino Lakes, 823 N.W.2d

627, 632 (Minn. 2012). Procedural due process requires that a party receive “adequate

notice and an opportunity to be heard before being deprived of life, liberty, or property.”

Christopher v. Windom Area Sch. Bd., 781 N.W.2d 904, 911 (Minn. App. 2010), review

denied (Minn. June 29, 2010). Appellate courts conduct a two-step analysis to determine

whether the government has violated an individual’s procedural due-process rights:

              First, [the court] must identify whether the government has
              deprived the individual of a protected life, liberty, or property
              interest.... [I]f the government’s action deprives an individual
              of a protected interest, then the second step requires [the court]
              to determine whether the procedures followed by the
              government were constitutionally sufficient.

Sawh, 823 N.W.2d at 632 (quotation and citation omitted).

       Saba did not raise the notice issue in the complaint; he raised the issue for the first

time in opposing summary judgment. “A party is bound by its pleadings unless other issues

are litigated by consent.” Great Am. Ins. Co. v. Golla, 493 N.W.2d 602, 605 (Minn. App.

1993). A party cannot assert a claim not in the complaint “by the simple expedient of

asserting it in opposing summary judgment.” Id. But, even if the notice issue is properly

before this court, the 2011 abatement notice was adequate.

       Saba also argues that he was not provided an adequate opportunity to be heard. The

argument is not persuasive. Saba participated in a hearing before the appeals commission

that went on for almost four hours; he was represented by counsel, called witnesses, and



                                             12
presented evidence. Saba then appealed to the city council, which reviewed the appeals

commission’s decision.

       Saba argues that his due-process rights were violated because the city provided old

photographs of the property to the appeals commission and because there was a question

about whether some lawn furniture was in use or was scrap material. The photos and letters

between the Saba family and the city show that the city has been trying to get the family to

remove scrap metal and junk vehicles from the property since 1961. The photos taken one

week before the hearing before the appeals commission show that Saba was still operating

a junkyard/scrapyard on the property. Given the history of the dispute between the city

and the Saba family and the items listed in the ordinance, even if there was some question

about whether lawn furniture was being used or was scrap material, Saba was provided

adequate notice of what items needed to be removed or enclosed.

       Saba argues that the city violated his rights by bringing up concerns about possible

environmental pollution. But the appeals commission’s decision does not refer to those

concerns, and there was ample other evidence to prove that Saba was operating a

junkyard/scrapyard on his property.

       Saba objects to the mayor’s comments during the city council’s deliberations. The

comments were made in the context of deciding Saba’s appeal and were not admitted into

the record as evidence.

       Substantive due process

       The doctrine of substantive due process is based on the Due Process Clause of the

Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV,


                                            13
§ 1. The doctrine “protects individuals from certain arbitrary, wrongful government

actions regardless of the fairness of the procedures used to implement them.” In re

Linehan, 594 N.W.2d 867, 872 (Minn. 1999) (quotations omitted).

       Saba supports his substantive-due-process claim by asserting that respondents’

efforts to enforce the city code violated state laws, including contract law, collateral

estoppel, and res judicata. A violation of state law, however, will not, by itself, support a

substantive-due-process claim. Northpointe Plaza v. City of Rochester, 465 N.W.2d 686,

690 (Minn. 1991).

       Saba asserts that respondent-city manager Julie Jones and respondent-community

development director Scott Hickok made false statements at the appeals commission

hearing. The issues go to the credibility of Jones’s and Hickok’s testimony and do not

support a substantive-due-process claim.

       Saba also argues that the city failed to produce documents from the 1985 criminal

prosecution. The 1985 letter by the city attorney and a 1985 memorandum by the public

works director about Saba’s agreement to completely enclose the storage area with a fence

in exchange for a continuance for a dismissal were admitted into evidence at the appeals

commission hearing. Any court documents should have been available to Saba.

       Because Saba failed to present sufficient evidence to create a genuine issue of

material fact as to whether his procedural- or substantive-due-process rights were violated,

the district court properly granted summary judgment for respondents on those claims.

       Affirmed.




                                             14
